THE JAMAICAN Bar Association (JBA) has been given the green light by the Supreme Court to apply to the Judicial Review Court for an order to quash the search warrants which were issued to search and remove files from the offices of two attorneys-at-law last month.
Several declarations are also being sought by the JBA, one of which is that the search and removal of files from the two lawyers' offices prejudiced the right of citizens to legal professional privilege and is a breach of the Constitution.
The offices of attorneys-at-law Ernest Smith and Hugh Thompson were searched on January 27 and 28 and files removed from the offices. The search was carried out to assist the Canadian government in its investigation into drug-related and money laundering offences against 53-year-old Canadian national Robert Bidwell. The lawyers complained that some of the files did not belong to Bidwell.
Last week Bidwell who was being represented by Mr. Smith and Mr. Thompson, waived his rights to an extradition hearing. He has opted to return to Canada to face trial.
Kent Pantry, Q.C., Director of Public Prosecutions will be going back to the Supreme Court on Friday to get an order for a judge to examine the files taken from the lawyers to ascertain if any legal professional privileges were breached.
The matter came before the court on Monday but was put off after the lawyers representing Mr. Smith and Mr. Thompson complained that the documents were served only last week Friday for court on Monday. They described the documents as being "short-served" saying that 14 clear days were required for a response to the documents.
Mr. Pantry will also be asking the court to certify the relevant documents, if any, which must be sent to Canada to assist in the investigations against Bidwell.
The Attorney-General and the Director of Public Prosecutions are named as the respondents in the motion which the JBA has filed.
Mr. Justice Horace Marsh after hearing submissions yesterday from the lawyers representing the JBA and reading affidavits of Hilary Phillips, Q.C., president of the JBA, attorneys-at-law Ernest Smith, Denise Kitson Nesta-Claire Smith and Marsha Smith, granted the JBA leave to apply to the Judicial Review Court.
Attorneys-at-law Ian Wilkinson and Ransford Braham instructed by Livingston, Alexander and Levy are representing the JBA.
The JBA which is the claimant is seeking several declarations: that the warrants issued by Resident Magistrate, Martin Gayle, on January 24, contravened the provisions of the Constitution, in particular, sections 19 and 20; the issue of the warrants prejudiced the right of citizens to legal professional privilege, a matter of public interest and essential to the administration of justice, contrary to the common law and sections 19 and 21 of the Mutual Assistance (Criminal Matters) Act and was therefore null and void; the warrants were wrong in law in that they failed to disclose on their faces the names of the respondents and lacked specificity as to the documents and /or articles required.
The JBA is also seeking a declaration that the designation of the Director of Public Prosecutions as the Central Authority pursuant to the Mutual Assistance (Criminal Matters) is in breach of the Constitution of Jamaica, in that the role of the Central Authority is in conflict with duties and functions of the DPP as prescribed under the Constitution of Jamaica.
The JBA is asking for a declaration that the actions of the police officers in purporting to execute the warrants prejudiced an essential public right and interest of citizens in Jamaica, namely the right of legal professional privilege contrary to the common law and, the Jamaica Constitution and sections 19 and 21 of the Mutual Assistance (Criminal Matters) Act.
