Derek Achong

High Court judge Frank Seep­er­sad has ruled that two re­cent raids on the Trinidad Ex­press news­pa­per, over the pub­li­ca­tion of re­ports on a fi­nan­cial in­ves­ti­ga­tion in­to a for­mer high rank­ing po­lice of­fi­cer, were un­con­sti­tu­tion­al and un­law­ful.

De­liv­er­ing a writ­ten judge­ment yes­ter­day morn­ing, Seep­er­sad up­held a law­suit brought by One Caribbean Me­dia (OCM) which pub­lish­es the news­pa­per.

While Seep­er­sad not­ed that free­dom of the press is an en­shrined con­sti­tu­tion­al right, he ac­cept­ed that search war­rants could be ob­tained against me­dia com­pa­nies and prac­ti­tion­ers in cer­tain cir­cum­stances as it is not ab­solute.

How­ev­er, he stat­ed that in the case, of­fi­cers of the Fi­nan­cial In­ves­ti­ga­tions Branch (FIB) did not pro­vide per­ti­nent in­for­ma­tion on their in­ves­ti­ga­tion, which could have been in­de­pen­dent­ly as­sessed by the Jus­tice of the Peace be­fore she is­sued the search war­rants.

“There were er­rors in both war­rants as to the na­ture of the of­fence, crit­i­cal in­for­ma­tion as to the pos­si­bil­i­ty that rel­e­vant in­for­ma­tion could have been ob­tained by the Fi­nan­cial In­tel­li­gence Unit (FIU) or the FIB were not dis­closed and there was ob­vi­ous un­cer­tain­ty as to the statu­to­ry pro­vi­sion up­on which the pro­posed in­ves­ti­ga­tion was premised,” Seep­er­sad said.

He al­so not­ed that the process em­ployed was flawed and dis­pro­por­tion­ate.

Seep­er­sad sug­gest­ed a Par­lia­men­tary re­view of the leg­is­la­tion gov­ern­ing the grant of search war­rants, es­pe­cial­ly for the me­dia, whose work he not­ed is fun­da­men­tal to the de­mo­c­ra­t­ic process.

He said that legal­ly trained per­sons such as mag­is­trates and High Court Judges should be ap­proached for such war­rants as op­posed to a Jus­tices of the Peace as they would be bet­ter suit­ed to con­sid­er le­gal and con­sti­tu­tion­al im­pli­ca­tions.

“The nec­es­sary bal­anc­ing ex­er­cise re­quired an in­formed and mea­sured de­ter­mi­na­tion as to whether the pub­lic in­ter­est in iden­ti­fy­ing and pros­e­cut­ing the jour­nal­ist’s source was of greater im­por­tance than the pub­lic’s right to know that a se­ri­ous in­ves­ti­ga­tion was loom­ing over the head of a very se­nior po­lice of­fi­cer es­pe­cial­ly when one con­sid­ers the fact that an in­ves­ti­ga­tion had to be un­der­tak­en by ju­nior po­lice of­fi­cers,” Seep­er­sad said.

He al­so ques­tioned whether the “tip­ping off” of­fence un­der the Pro­ceeds of Crime Act, un­der which the in­ves­ti­ga­tion was launched, was ever in­tend­ed for the me­dia as not­ed that the po­lice nev­er con­sid­ered the com­pa­ny and its jour­nal­ists as sus­pects.

“In this so­ci­ety, where the pub­lic’s trust and con­fi­dence in pub­lic in­sti­tu­tions in­clud­ing the po­lice ser­vice, is low, pub­lic no­ti­fi­ca­tion as to the fact of an in­ves­ti­ga­tion or po­ten­tial in­ves­ti­ga­tion, has the po­ten­tial to “pres­sure” the rel­e­vant au­thor­i­ties in­to tak­ing de­ci­sive ac­tion there­by en­sur­ing that sen­si­tive in­ves­ti­ga­tions es­pe­cial­ly those which may in­volve se­nior of­fi­cials are ac­tive­ly and thor­ough­ly pur­sued,” Seep­er­sad said.

In his judge­ment, Seep­er­sad ex­pressed dis­qui­et over the fact the war­rants were ob­tained and ex­e­cut­ed when Po­lice Com­mis­sion­er Gary Grif­fith was out of the coun­try and for­mer act­ing Deputy Po­lice Com­mis­sion­er (DCP) Ir­win Hack­shaw, who was the sub­ject of the re­ports, was act­ing in his (Grif­fith) role.

“Ul­ti­mate­ly, there should al­ways be a com­mit­ment to en­sure that per­son­al agen­das do not dic­tate pub­lic process, nor should pub­lic of­fice be used as a weapon to ef­fect reper­cus­sions up­on those whom swords may have been crossed,” Seep­er­sad said.

While Seep­er­sad or­dered that the com­pa­ny should re­ceive com­pen­sa­tion for the breach­es of its rights, he did not per­form the as­sess­ment and re­ferred the task to a High Court Mas­ter to do at a lat­er date.

Seep­er­sad al­so or­dered the T&T Po­lice Ser­vice (TTPS) to cov­er the com­pa­ny’s le­gal costs for pur­su­ing the law­suit.

The com­pa­nies were rep­re­sent­ed by Sophia Chote, SC, Pe­ter Carter, Vah­ni Se­u­nath and Dana-Marie Smith, while Fyard Ho­sein, SC, Rishi Dass, Kendra Mark-Gor­don and Ka­dine Matthew rep­re­sent­ed the State. The Me­dia As­so­ci­a­tion of T&T (MATT), which was al­lowed to en­ter the case, was rep­re­sent­ed by Ria Mo­hammed-David­son and Michael Rooplal.