Former Chief Justice knocks email probe
By ANDRE BAGOO Tuesday, September 3 2013
FORMER Chief Justice, Michael de la Bastide, yesterday knocked the Integrity Commission’s start of an investigation into purported email materials while they are still being investigated by the police, warning simultaneous probes pose the risk of two different authorities acting at cross-purposes.
At the same time, however, the former Caribbean Court of Justice (CCJ) President also knocked the police for not yet completing its own near five-month probe, stating the entire situation was now “farcical”.
In a press release issued last week, the Integrity Commission announced it was conducting, “an investigation to determine the authenticity of alleged electronic mails as provided to the Commission by the former President Professor George Maxwell-Richards.” It also stated it had already approached and received communications with “an international electronic mail service provider, and is moving ahead with its investigation.”
The Commission did not name the service provider or state how this service provider was related to the facts under its probe.
However, de la Bastide yesterday noted simultaneous probes pose risks and the situation is now “messy” and “inefficient”.
“It is undesirable to have the two investigations as they may be crossing each other’s paths,” he said. “It’s messy to say the least. I can see some difficulties. Before we even ask whether the Commission should give way to the police I think we should ask ‘should the Commission have started their investigation in the first place?’ It is inefficient to have two investigations at the same time, and they are likely to get in the way of each other.” He said there was no law barring simultaneous probes, but queried whether it was all a matter of “too little; too late” given the length of time that has elapsed since the allegations and since the purported dates on which a conspiracy by email took place.
“I think the commission is likely to be under severe handicap because of a lapse of time, and I don’t know whether they would have the authority to produce the response they hoped for, from the internet service providers,” de la Bastide said. “Based on all that has been said, I am very skeptical whether the required information is going to be available a year later. The whole situation is unfortunate to say the least.”
The Police Service has interviewed several persons in relation to its ongoing probe into documents furnished by Opposition Leader Dr Keith Rowley in Parliament in May. The documents purport to be printouts of emails alleging a conspiracy to kill a journalist; to bribe the Chief Justice, and spy on the Office of the Director of Public Prosecutions. The police have stated they have written several email providers, but are awaiting a response. They have also asked for devices to be handed over to them, to no avail in some instance.
De la Bastide questioned why the police, having not received a response from Google Inc — one email provider involved — did not seek to escalate their efforts to get a response, for example by taking legal action.
“They are just saying they are still awaiting a reply from Google. But when they first wrote and did not get a response, why did they then not take more active action thereafter?” de la Bastide said. “If at this stage they have not gotten it, then they are not gonna get it. The whole thing is really farcical.”
De la Bastide said he disagreed with the referral of the matter to the police in the first place, since the primary issue that should have been resolved, should have been whether the emails were authentic. He said this should have been investigated by a specially-appointed panel, acting with the backing of the Central Authority and, if need be, the police.
Former Head of the Public Service and constitutional lawyer Kenneth Lalla SC said the Integrity Commission can, at most, refer a matter it has investigated to the Police Service, the very Police Service which is already probing the matter.
Lalla stated the Commission may well have jurisdiction to probe the materials, but the question depends on what offence is being investigated, and whether possible criminal offences may arise. He said the scope of the Commission’s investigation could overlap with the Police Service’s.
“It is now a complex situation,” Lalla said. “There may now be apparent overlap. There is a possibility that they may be overriding each other. The conflict may lie is it a criminal or civil offence?” Of the Commission’s ultimate powers, Lalla said, “once it arrives at a conclusion that this involves a criminal act outside of the jurisdiction of the civil law, it will refer that to the DPP, or police. It has no power to institute criminal proceedings.”