The police search of Express House in March 2020 was illegal and unconstitutional, Justice Frank Seepersad ruled yesterday.
Officers of the Financial Investigations Branch (FIB) of the Police Service had executed two search warrants at Express House in Port of Spain following publication of an investigative story into the questionable bank accounts of Assistant Commissioner of Police Irwin Hackshaw, who at the time of the raid was acting police commissioner.
The judge yesterday ordered that the State pay compensatory damages to the media house as well as its legal costs. The quantum of damages to be paid is to be determined by a Master of the Supreme Court on a date to be set.
Seepersad presided over the claim brought by One Caribbean Media (OCM), parent company of the Express and CCN TV6, against the Offices of the Attorney General, the Commissioner of Police and Supt Wendell Lucas, head of the FIB.
In his 34-page judgment, Justice Seepersad said on the face of the two warrants, there were “evident errors” that were not identified by the Justice of the Peace who granted them.
Justices of the Peace, he said, were not required to undergo any legal training and, for this reason, he believes there should be amendments to the relevant laws to allow magistrates and judges to be involved in the granting of such warrants.
The Express has since been informed the State intends to appeal the ruling.
The warrants were executed on March 11, as investigators sought to uncover details as to who exactly provided sensitive information to investigative journalist Denyse Renne in an ongoing investigation into Assistant Commissioner of Police Irwin Hackshaw’s suspicious bank transactions between 2014 and 2017.
Following the publication of the article, Lucas led a team of officers into Express House, seeking the source of the information. During that process, they searched the office of Express Editor-in-Chief Omatie Lyder and seized four flash drives.
Justice Seepersad also found the seizure of the items to be unconstitutional, and ordered they be returned.
Exceptional intrusive power
While the judge said media houses and members of the profession were not exempt from being investigated by police or prosecuted by the State, in such an instance as before the court, officers needed to be extra careful in executing unnecessary warrants on such establishments.
In fact, he said the State presented no evidence that either the newspaper or Renne was under suspicion of committing any illegal act.
“In a sovereign democratic state, the effecting of a search warrant upon a media house should be viewed from the perspective of increased and heightened significance, as the implication and reach of such action cannot be equated to a situation where a search warrant is executed upon a private citizen given that any unjustified interference with press freedom can have a retrograde, reverberating and recessive impact upon the society as a whole,” stated the judge.
He said in a democracy, the power to search the private space of a citizen is an exceptional intrusive power, a power which should be exercised only when the necessitating conditions were clear, certain and connected to an ascertainable offence.
In addition to that, Justice Seepersad said in the affidavit of Supt Lucas, the officer identified two possible sources from where the information may have been leaked. But instead of investigating members of those branches of the TTPS, Lucas decided to leapfrog the investigation into Express House.
“Supt Lucas expressed the view at paragraph 14 of his supplemental affidavit that the ‘leak’ of the information referenced in the articles, likely emanated from two possible sources, the Financial Intelligence Unit and or the Financial Intelligence Bureau. The persons within these groups who had access to the disclosed information were ascertainable and finite.
“Accordingly, investigations into the offence of ‘tipping off’ could have first focused upon these two groups as opposed to the media so as to identify the source(s) for the disclosed information,” said the judge.
Seepersad went on to add that while freedom of speech and expression were not absolute, and members of the media sometimes had the tendencies to focus more “on personalities as opposed to the issues”, the media was also the watchdog to bring to light issues that may have otherwise been swept under the carpet.
“This type of information can, in fact, catalyse much-needed change by exposing wrongdoing which may have, for far too long, flourished in dark. Whistle-blowers and persons who have valuable information therefore play an integral role and such sources assume significant personal risk when they share information with journalists. The relationships are undoubtedly predicated upon trust and as a consequence the issue of source protection cannot be marginalised,” he said.
Justice Seepersad went on to say the current mantra of the TTPS, of if you “see something, say something”, has been chanted with increased regularity, and citizens were being encouraged to speak up about wrongdoing.
“Such conversations are necessary if the society is to ensure that important issues are not sacrificed at the altar of self-preservation or in furtherance of the clandestine pursuit of myopic and insular concerns,” said the judge.
Senior Counsel Sophia Chote and attorney Peter Carter appeared on behalf of OCM, while Fyard Hosein SC and Rishi Dass appeared on behalf of the State.
Attorneys Ria Davidson and Michael Rooplal appeared on behalf of the MATT as an interested party.
Following the ruling, president of the Media Association of Trinidad and Tobago (MATT) Dr Sheila Rampersad described the judgment as a victory for freedom of the press in Trinidad and Tobago.
“Justice Seepersad’s ruling is ultimately a win for every citizen of T&T. It is a win for the public interest, a win for every journalist in the country and every media house, a win for whistle-blowers and a big win for democracy.
“In these uncertain times, the judgment is anchored in certainty about protecting the institution of a free press and protecting citizens of T&T. The judge’s ruling is informed by current global thinking.
“It offers tangible guidance to the police and the legislature on reforming processes to protect individual citizens and the flow of information in the society.
“MATT feels confident that the constitutional right to a free press is safe in the bosom of our court,” she told the Express.