David Brandt v Commissioner of Police

• Jurisdiction: Montserrat
• Court: Court of Appeal (Montserrat)
• Judge: Carrington JA,Michel JA,Webster JA
• Judgment Date: 14 February 2020
• Neutral Citation: MS 2020 CA 1,[2020] ECSC J0214-2
• Docket Number: MNIHCVAP2019/0009
• Date: 14 February 2020

Between:

David Brandt

Appellant

and

[1] Commissioner of Police

[2] Attorney General

[3] Director of Public Prosecutions

Respondents

Before:

The Hon. Mr. Mario Michel Justice of Appeal

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

The Hon. Mr. John Carrington Justice of Appeal [Ag.]

MNIHCVAP2019/0009

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Civil appeal – Constitutional proceedings — Search and seizure — Search warrant issued by magistrate to police to search appellant's premises and seize articles relevant to inquiry into criminal offences — Whether search warrant permitted police to search cell phones seized from appellant's premises — Constitutional right to privacy — Section 9 of the Constitution of Montserrat — Whether search of cell phones breached appellant's constitutional right to privacy — Limitation on right to privacy — Whether search of cell phones without prior authorisation unlawful — Abuse of process — Whether appellant's claim for constitutional relief constitutes an abuse of process

In September 2015, the appellant, Mr. David Brandt (“Mr. Brandt”) was arrested and charged with various offences under the Penal Code of Montserrat. He has not yet been tried. The police obtained warrants from a magistrate to search premises occupied by Mr. Brandt. The warrants authorised named police officers to search the premises for articles essential to the inquiry into the said offences. The police conducted the search and seized, among other things, cell phones which were subsequently searched. Following the search of Mr. Brandt's cell phones, certain WhatsApp messages were recovered which he does not deny are his. The prosecution indicated that they intend to rely on those communications at Mr. Brandt's trial.

Before the trial, the learned judge issued case management directions for Mr. Brandt to file written submissions on the issue of admissibility of this evidence. Mr. Brandt did not comply with these directions. Instead, he filed a fixed date claim seeking inter alia declarations that: (i) his right to privacy under section 9 of the Constitution of Montserrat [the “Constitution”] was contravened; (ii) the search of his cell phones without prior authorisation was unlawful and unconstitutional; and (iii) the evidence obtained from the search of his cell phones is inadmissible as evidence against him. The learned judge dismissed the claim, found that the use of the court's jurisdiction to grant relief under the Constitution in the circumstances was wholly inappropriate and constituted an abuse of process, and ordered Mr. Brandt to pay the respondents' costs.

Mr. Brandt appealed. The thrust of his appeal was that the learned judge erred in dismissing his claim as the search of his cell phones was in violation of his constitutional right to privacy and unlawful. Mr. Brandt also challenged the learned judge's decision to make a costs order against him.

Held: allowing the appeal in part; affirming the order as to costs made in the court below; and awarding costs of the appeal to the respondents at the rate of one-half of the amount assessed in the court below, that:

• 1. The recourse to the Constitution for a declaration that the search of the cell phones was unconstitutional was an abuse of process as effective alternative means of redress were available to the appellant in the circumstances to challenge the use of the evidence gathered from such search.

• 2. (per Michel JA and Webster JA [Ag.]) The search of the appellant's cell phones was unlawful but did not breach his constitutional right to privacy.

• 3. The finding by the court below that the claim was an abuse of process satisfied the requirement under rule 56.13 of the Civil Procedure Rules 2000 that the appellant had acted unreasonably in making the application and the exercise of discretion by the judge below should not be disturbed.

• 4. The matter is remitted to the High Court for assessing the costs of the proceedings in the High Court and costs of the appeal are awarded to the respondents in the amount of one-half of the amount assessed as costs in the court below.

Per Michel JA (Webster JA [Ag.] concurring):

• a. A cell phone is an article which is itself a place to be searched for messages and images stored there, and the data obtained from it can be extracted or copied and transported or transmitted from place to place. A warrant to search for and seize a cell phone is, therefore, not a warrant to search a cell phone. Inasmuch as it may seem obvious that a warrant to search for and seize cell phones in the investigation of offences relating to the sexual exploitation of minors must be for the purpose of obtaining data from the cell phones to connect their owner(s) to the offences, and that the search of the cell phones must therefore be authorised by the warrant to search for the cell phones, this is not the direction in which the case law is heading. Where the police intend to access and use data from cell phones found in a lawful search, they should include in the warrant, which they apply for and obtain, the authorisation to search the cell phones. The search of Mr. Brandt's cell phones was therefore unlawful, since it was not authorised by a warrant to search the cell phones.

  R v Vu [2014] 3 LRC 515 considered; Myland v Director of Public Prosecutions GDAHCV2012/0045 considered.

• b. Notwithstanding that the search of Mr. Brandt's cell phones was unlawful, his constitutional right to privacy guaranteed by section 9 of the Constitution of Montserrat was not breached. The issue of a search warrant under the Criminal Procedure Code to search Mr. Brandt's premises and seize certain items connected to the suspected offences is clearly reasonably justifiable in a democratic society for the prevention or detection of offences against the criminal law. The fact that the police went outside the scope of the warrant did not make their actions unconstitutional.

  Harrikissoon v Attorney General (1979) 31 WIR 348 applied.

Per Webster JA [Ag.]:

• c. The court should guard against the use of constitutional motions to delay criminal and civil proceedings in the High Court, particularly where there are other avenues for redress. Mr. Brandt had the right, and still does, to object at his trial to the admission of the evidence taken from his cell phone. However, he filed a fixed date claim form alleging that his constitutional right to privacy had been breached. This attempt, by Mr. Brandt, to not only tread upon the criminal jurisdiction of the High Court but to also derail the criminal proceedings against him, constitutes an abuse of process. It is sufficient on this ground alone to dismiss the appeal.

  David Brandt v Director of Public Prosecutions MNIHCVAP2018/0003 (delivered 29th November 2018, unreported) applied.

Per Carrington JA [Ag.]:

• d. Constitutional relief should not be granted unless the circumstances include some feature which makes it appropriate. In the instant case, the criminal proceedings and the exercise by the learned judge of his case management powers to hold a hearing on the admissibility of the cell phone evidence provided an effective means by which Mr. Brandt could seek relief in respect of evidence which he claims to be inadmissible. There is also no evidence that there was arbitrary conduct on the part of the police or that a ruling by the learned judge in the criminal trial would not otherwise be adequate redress. Accordingly, there is no reason for a separate constitutional challenge to be made on the issue of the searches which led to the evidence which presumably will now be challenged only at the trial. Mr. Brandt's claim for constitutional relief is therefore an abuse of process.

  Attorney General v Ramanoop (2005) 66 WIR 334 applied; Harrikissoon v Attorney General (1979) 31 WIR 348 applied; Sharma v Brown-Antoine and Others (2006) 69 WIR 379 applied.

• e. The declaration that the search was unlawful should be refused for a number of reasons. Firstly, there is no evidence that the learned judge erred in refusing to grant a declaration of unlawfulness. Secondly, the allegation that the search was unlawful arises from the same factual matrix as the allegation of unconstitutionality. It follows then that, if it is appropriate for the learned judge presiding at a criminal trial to determine constitutionality, it is appropriate for him to consider unlawfulness. Thirdly, though R v Vu represents the correct approach to the interpretation of the rights of privacy, the court must examine the factual matrix against which these principles are to apply; the judge presiding over the criminal trial is well-positioned to do so. Fourthly, there is no utility in making such a declaration where there is strong authority that a criminal court may not exclude evidence merely because it has been unlawfully obtained.

  R v Vu [2014] 3 LRC 515 considered; R v Sang [1980] AC 402 considered.

• f. Rule 56.13(6) of the Civil Procedure Rules 2000 provides that a costs order should not be made against an applicant for an administrative order (this includes an application for constitutional relief) unless the court considers the applicant acted unreasonably in making the application. There is no doubt that the learned judge's finding of abuse of process satisfies this requirement and provides a proper basis for the exercise of discretion to award costs to the respondents.

  Rule 56.13(6) of the Civil Procedure Rules 2000 applied.

Appearances:

Dr. David Dorsett for the Appellant

Ms. Anesta Weekes, QC for the Respondents

Michel JA

1 I have read in draft the judgment written by my brother Carrington JA [Ag.], and I concur with his conclusion that the filing and prosecution of the case, here and in the court below, was an abuse of the process of the court, and I agree with his proposed disposition of the appeal. I note, however, that both here and in the court...