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.