Judge to rule in January on Express House raid

A HIGH COURT judge will rule in January on the constitutionality of a police raid on a media house in March.

At the end of submissions at the virtual trial on Friday, Justice Frank Seepersad set January 13 for his ruling on the constitutional claim filed by One Caribbean Media Group Ltd, the Trinidad Express Newspapers and editor-in-chief Omatie Lyder against the Attorney General, the Commissioner of Police and Supt Wendell Lucas, who led the raid on March 11.

The media house has contended that the warrants issued by a justice of the peace to search the premises were unconstitutional, unlawful, arbitrary, unnecessary, and disproportionate. It also says it contravened its right to freedom of the press guaranteed in the Constitution.

The raid came after the publication of an investigative piece on ACP Irwin Hackshaw's being flagged by local banks. The police seized several devices from Lyder’s office at Independence Square, Port of Spain.

Senior Counsel Sophia Chote, who leads the legal team for the media house, urged the court to scrutinise the conduct of the police in obtaining and executing the warrants “very carefully.”

She said it was becoming “too common” for police to obtain search warrants without following proper procedure, despite courts, in various legal challenges, explaining the process.

“But the police’s practice is not advancing with case law and the directions of the courts.”

Chote said Lucas and the police had to prove the reasonableness of seeking a warrant to search a media house when the freedom of the press was enshrined in the Constitution.

She asked why Lucas, head of the police Financial Investigations Branch, did not target the officer from his department who allegedly leaked the files on the Hackshaw investigation, “not who wrote the article.”

She said there were parameters for the police when obtaining a warrant to breach a constitutional right.

“I do not know why it is an investigation was not done within his own office to ascertain who leaked the information to the press. Surely that would have been the starting point.

“This is important because neither the Trinidad Express nor Omatie Lyder were suspects.

“I do not think the police have no right to investigate once the media is involved, but where the police wish to investigate matters which may result in a search of a media house, they must make it clear to any court they acted reasonably, and this means showing some respect or regard to the rights provided for in the Constitution,” she argued.

Chote also questioned whether the media were debarred from reporting on any ongoing investigation, saying that would be “bizarre,” since, sometimes, when the media reports on wrongdoings, it becomes a live matter for investigations, as she pointed to several including Clico, Piarco Airport, and Calder Hart, among others.

She said police officers, as subjects of an investigation, did not fall into any special category, nor did the press have “constitutional broad-brush immunity,” but maintained that protection of freedom of the press and of journalists was important because of the deep public-interest consideration in the contribution of the media in democracy.

In defence of the police, Senior Counsel Fyard Hosein argued the warrant was obtained for the police to determine who was “tipping off” the media. He said the logical place to get the information was to go where the information ended up.

He said the media house did not challenge the justice of the peace who signed off on the warrant, nor that there was malice on the part of the officers in executing the warrant, despite suggestions of this when it was reported that Hackshaw himself, in an interview with the Express’s reporter Denyse Renne, said “there would be repercussions” if a story was published.

Hosein said the warrants were valid, as they identified section 51 of the Proceeds of Crime Act, which criminalises the act of tipping off someone over financial investigations in the complaint.

Hosein said it would be a sad day for the court to condone the behaviour of wanted people as “immunised from prosecution.”

He said Lucas identified the steps he took before going for the warrant and had consulted the Director of Public Prosecutions twice.

He said the Express was part of the
actus reus (criminal act) in this case, as it involved a situation where a person who leaked the information provided it to the newspaper. Hosein also pointed out that the media house has not challenged section 51 as being ultra vires, but was taking the position it was “sacrosanct” and ought to not be subjected to a search warrant.

“Should the press be above the normal citizen who had had the police enter their homes with a search warrant?” he asked, as he argued that section 51 did have the intent to reduce and dilute the constitutional rights of press freedom.

“Everything that has been said on freedom of the press, source protection and protection of information – section 51 has been passed and now puts a new gloss…, a reduced gloss on freedom of the press.

“It doesn’t give police carte-blanche power to do what it wants, but it also does not give press the right to say ‘I want source protection’,” he added.

He said Lucas was under no obligation to give the Express notice of the raid, and had even asked for its co-operation. Of the search, he said the execution of the warrant was done “exquisitely.”

Hosein said neither the Express nor Lyder were suspects but, “You were the recipient of information. You refused to co-operate. We don’t have to give you notice. The purpose of a search warrant has an element of surprise.

“Tell us, help us. Of course they won’t co-operate. Co-operate with the police if you are serious about freedom of the press,” he said.

Hosein also said there was no public-interest element in publishing the information.

“Woe for us where information is allowed to be released and where innocent persons are written about,” he said, adding that he had nothing against the Express, but the newspaper had to play by the rules.

“The person who received and published information is complicit in breaching section 51,” he maintained.

In response to the section 51 argument, Chote said that because the legislation was passed with a constitutional majority did not mean it could not be challenged in court. She said it was open to the court to provide guidance on its constitutionality and to interpret it as shutting down investigative reporters.

“Are we saying they (the press) can no longer report on financial impropriety?” she asked.

Attorney Ria Davidson, who represented the Media Association, which was also allowed to make submissions as an interested party, said source protection was a constituent element of press freedom, and not a mere privilege, but a cornerstone.

She said as the public watchdog, anything that compromised, created a disruption or interfered with the constitution protection of press freedom must be approached carefully and it was important for guidance to be given on how to execute a warrant on a media house. Davidson also pointed out that all the newspaper did was report on the fact that an investigation had started and there was no suggestion it thwarted any investigation.

Also appearing for the media house and its representatives was attorney Peter Carter. Rishi Dass appeared with Hosein for the police and Michael Rooplal with Davidson for MATT.