The claimant was charged with various sexual offences which it was alleged he committed in Montserrat between 2010 and 2015. Part of the evidence which the prosecution sought to admit at his trial comprised WhatsApp messages, images, and other data which were obtained by the police as a result of a search of his cell phones. The claimant contended that the search of his cell phones was unlawful and in breach of his constitutional right of privacy. He commenced proceedings in the High Court against the Commissioner of Police, the Attorney General and the Director of Public Prosecutions by way of an application for an administrative order, seeking a declaration that the WhatsApp data was inadmissible in the criminal proceedings. The judge dismissed that claim, holding that the search of the cell phones was not unlawful and that the application for an administrative order was an abuse of process, since the claimant had an adequate legal remedy in the criminal proceedings and the administrative proceedings were commenced for the improper purpose of delaying or derailing the criminal trial. The Eastern Caribbean Court of Appeal unanimously dismissed the claimant’s appeal in relation to abuse of process but, by a majority, held that the search of his cell phones was unlawful, though not unconstitutional, and granted a declaration to that effect.
On the claimant’s appeal—
Held, appeal dismissed. The boundaries of what might constitute an abuse of the process of the court were not fixed. However, there were clear examples which were relevant to the present appeal. First, to seek constitutional relief where there was a parallel legal remedy would be an abuse of the court’s process in the absence of some feature which, at least arguably, indicated that the means of legal redress otherwise available would not be adequate. Second, using the process of the court for an improper motive or purpose could be an abuse of process. Commencing proceedings, not with the genuine object of obtaining the relief specified, but for some collateral purpose such as to delay or derail other proceedings, would amount to using the process of the court for an improper motive or purpose. A case might fall within both of those categories and there might be an overlap between them, since the question as to whether the administrative proceedings were not commenced with the genuine object of obtaining the relief specified was informed by a number of matters, including whether all the relief could have been obtained in the criminal proceedings. Generally, in the exercise of discretion, proceedings which were held to be an abuse of the court’s process should be dismissed. Giving any advice or guidance or granting any declaration was contingent on the existence of valid proceedings and, if the proceedings were an abuse of the process of the court, then they did not satisfy that contingency. On the facts, the judge had been entitled to find that the administrative proceedings were an abuse of process based on the availability of an adequate legal remedy in the criminal proceedings and on the basis that they were commenced for the improper purpose of delaying or derailing the criminal trial. However, all questions relating to the admissibility of the disputed evidence should then have been left to the criminal trial. It followed that none of the analysis on admissibility in the administrative proceedings was authoritative or capable of supporting a declaration. Accordingly, the declaration had to be set aside (paras 34–37, 39, 40–46, 48–49, 51–53).
Per curiam. There may be exceptions to the general principle that proceedings which are held to be an abuse of the court’s process should be dismissed. For instance, the party bringing the proceedings may be given the opportunity to withdraw them or the court may permit the proceedings to be amended. Another instance might arise in circumstances where in proceedings which are parallel to administrative proceedings there was no power to award damages. In such circumstances, where there is a genuine subsisting claim for damages, the court, might, in the exercise of discretion, adjourn that part of the administrative proceedings pending the outcome of the parallel proceedings. Those adjourned administrative proceedings would be confined to enabling an award of damages dependent on the outcome of the parallel proceedings and could not be used to challenge the outcome in the parallel proceedings (para 39).
David Dorsett and Jarid Hewlett (instructed by Axiom Stone) for the claimant.
Anesta Weekes QC (instructed by Office of the Director of Public Prosecutions) for the respondents.