The Tribune

EDITOR, The Tribune.

Kindly allow me the space in your column to make some comments on the seizure of the computers and smart phone belonging to Mr Cash which came to our notice under the headline “Police Seize Cash’s Laptops from Home” on May 2.

In the Guardian article, “Cash: No Concern over BoB Probe” is contained a most troubling revelation, namely, Cash made the comment after the Guardian told him the newspaper understood “the seizure was related to the BoB matter”.

This, by any construction, indicates that Mr Cash was not advised of the reasons his property was being seized. This was confirmed when counsel to Mr Cash told the newspaper that the laptops and smart phone “were grabbed from Mr (Cash’s) hands and taken by the police who refused to deliver or leave a copy of the search warrant with Mr Cash”.

This said action, FNM Deputy Chairman, Dr Duane Sands, described as an example of Gestapo-like tactics ... “ and Dr Minnis likened it to “democracy under siege ...”

Editor, this is a most alarming, frightening, unwelcomed and unnecessary development in our democracy and society, an assault on the constitutionally protected right of citizens and a vehicle for the transport of the most negative behaviour of our police to the world at large and for the formation of view that we are governed by a dictatorship. This development must bring pause to every law-abiding citizen. Each must ask and determine what he wants the local and international image of our country to be. Certainly it cannot be the dictatorial and Gestapo-like image which our police sent to the world last week. The analogy to Gestapo-like action is given credence when we recall the statement that “God made the Prime Minister, Prime Minister” – an invocation of the Divine Rights of Kings and the claim that the results of a duly constituted referendum is only an “opinion poll”.

This writer is appalled at the use of the police and its administration in a manner reminiscent of totalitarian states of our recent past. One hastens to point out that, no court in this country has the power to issue a search warrant to enter a man’s house on a fishing expedition so as to see if there are papers or documents and, in this instant matter, computers and smart phones, which are of an incriminating nature.

No police officer or bailiff can knock on a man’s door and demand entry so as to inspect and/or seize that man’s computer and smart phone. This is settled law established in Entick v Carrington (1765) 2 Wils, 275.

Further, in taking actions as those against Mr Cash, namely, investigating some offence at BoB, an institution at which Mr Cash does not work, without arresting Mr Cash and without informing him of the specific grounds on which his property is being seized, flies in the face of everything we hold sacred and inviolate in a democracy. It must be seen as an usurpation of the constitutional right of Mr Cash and, by extension, the usurpation of the constitutional right of all Bahamians. One is left to assume that the items seized were seized as a fishing expedition because if it were not then, there would be no hesitance and/or reluctance to tell Mr Cash at the material time the grounds on which the items were being seized and to leave a copy of the said warrant, if it really existed and as a fishing expedition all the police or those who directed the seizure hoped they will find something of evidential value.

The questions which arise thereto are these,

a) Is this sufficient justification in the law?

b) What is the principle underlying these instances?

We have to consider on the one hand, the freedom of the individual. His privacy and his possessions are not to be invaded except for the most compelling reasons.

By not advising Mr Cash of the reason or reasons his computers and smart phone were sized abrogates this first principle as well as his constitutionally protected rights. On the other hand, we have to consider the interest of society at large in finding out wrongdoers and repressing crime. The problem here is that there is no evidence that Mr Cash committed or was guilty of any crime.

In a society governed by democratic principles and precepts, in balancing these interests, one would have anticipated that, in order to justify the taking of an article when no man has been arrested or charged, the following prerequisites must be satisfied, namely,

a) The police must have reasonable grounds for believing that a serious offence has been committed and that it is so serious the offender should be caught and brought to justice.

b) The police officer must have reasonable grounds for believing that the items in question – the computers and smart phone – are either the fruits of a crime or the instrument by which the crime was committed or material evidence of the commission of a crime.

Here, the very fact that Mr Cash was not advised of the reason or grounds of the seizure of his computers and smart phone negatives this requisite which is primacy in these situations.

c) The police must have reasonable grounds that Mr Cash has himself committed the crime or is implicated in it. Here again, the refusal of the police to disclose the grounds of the seizure at the material time can only be construed on one level as uncertainty on the part of the police of Mr Cash’s involvement in a purported leak at BoB, a place where he does not work, and on the other, as purely as a fishing expedition.

d) Finally, the lawfulness of the conduct of the police must be judged at the material time and not by what happens afterwards. This position is supported by the general rule that an act which is unlawful at the time it is committed is not to be rendered lawful by the doctrine of relation back. For clearly, if the reported actions and behaviour of the police are as they are reported, then the actions of the police, at the time of the seizure of Mr Cash’s property, are clearly irregular if not illegal. The non-disclosure of the reasons or grounds for the seizures for all intents and purposes negatived the lawfulness of the warrant and deprived Mr Cash of the right to take steps to protect his property from unlawful seizure.

Further to enter a man’s house by virtue of a nameless warrant (it was not disclosed) in order to procure evidence is worse than acts of the Spanish Inquisition, but alas this kind of activity is highly consistent with the claim of the Divine Rights of Kings and with the system of “justice” which supports it. In the premise, in pursuance of our traditional role to protect the liberty of the individual, it was the duty of the police to advise Mr Cash of the particulars of the grounds for seizure of his property. The police were derelict in this regard.

Finally, a good end does not justify a bad means. The means must not be such that as to offend against personal freedom, the privacy of the individual and the fundamental rights of property.

Every man is presumed innocent until he is found guilty and, as such, if his property is to be seized on suspicions of an offence it must be done by due process of the law. If the police are unaware, uncertain or unfamiliar with the process and procedures of seizure when no arrest is effected, effort must be made to familiarise them with the same.

JOSEPH A WALKER

Nassau,

May 5, 2014.