Courts in The Bahamas have no authority to block police from taking action if they deem anyone is carrying out an illegal activity, Court of Appeal President Anita Allen said yesterday.
Allen made the statement before the appellate court rejected a bid by two prominent attorneys to stay a recent ruling of Chief Justice Sir Michael Barnett as it relates to web shops.
Sir Michael lifted a conservatory order last week that prevented web shops from being subjected to police interference.
Attorneys Alfred Sears and Wayne Munroe were attempting to secure the stay pending the determination of a substantial application before the Court of Appeal to overturn Sir Michael’s ruling.
Sears, who represents Paradise Games, said his client fears police will interfere with his business, which could result in bankruptcy if the stay or another conservatory order is not granted.
Attorney Wayne Munroe, who represents Percy Web Cafe, Island Luck, FML Group of Companies, Asue Draw, Whatfall and Chances, said his clients fear that politicians will put pressure on the commissioner of police to act.
However, Allen said the conservatory order granted to web shop owners by Senior Justice Jon Isaacs in January was “superfluous”.
She said the order can not prevent police from carrying out investigations into whether the web shops or any business is conducting illegal activities, and it can not prevent police from making arrests.
The lawyers secured the conservatory order on January 30, two days after a gambling referendum failed.
The failed referendum was followed by a directive from Prime Minister Perry Christie that all web shop gaming cease.
Both attorneys contended yesterday that their clients are carrying on legal businesses, although Sears said he has never set foot in his client’s establishment.
Sears told the court that his client operates an Internet cafe which entitles members unrestricted access to Internet sites.
He also pointed out that according to the law, anyone found on the premises where a lottery is taking place can be arrested.
“This is a matter of extreme concern to my clients and their patrons,” he said. Sears said his client does not determine what sites members access or how long they use the Internet.
He said the cafes are used by a wide range of people, including students who may go in to conduct research.
He added that the danger is if you are on the premises when a police raid takes place and someone is using the Internet for gaming purposes then everyone would get arrested.
When asked by Justice Allen if that was a legitimate fear, Sears said it is, as it happened several years ago.
But Justice Allen said the attorneys were dancing around the issue and not addressing “the elephant in the room”, which is the alleged gaming aspect of the web shop operations.
She said the attorneys did not establish their right to injunctive relief.
But Sears said the conservatory order gave his client some level of comfort.
Justice Allen replied that the Court of Appeal is not in the business of providing comfort.
Sears said the conservatory order also gave the public the confidence needed to patronize his client’s business.
Without it, he said, patrons may fear that they may get caught up in a raid.
But Justice Stanley John said if patrons are carrying out legal business they should have no fear.
He added that if the police act irresponsibly, then the victim has a right to take action.
Justice Neville Adderley said it seems as if Sears is seeking to protect the rights of the wider public rather than those of his client.
Following the judgment, Munroe told reporters that based on statements in court, he did not consider the ruling a setback.
“There is no substantial grounds to fear, bearing in mind the commissioner of police said quite sensible statements that he will act responsibly,” Munroe said.
“…The executive is not seeking to usurp the judicial function, and you would have heard me say that my clients’ fear is driven by some politicians’ irresponsible statements.
“I think the commissioner of police described them as such as well and described them as mischief.” He added: “If there was some reason to think that the commissioner would run amuck then the results may have been different.”
Sears offered similar comments.
“I’m sure that the commissioner will not allow anyone to push him to take any precipitous action,” he said.
“I’m happy that the court has heard us and has set an early date for the appeal that will provide us with the opportunity to test the ruling of the chief justice and we will take it from there.”
Asked why they did not address the “elephant in the room”, Sears said more information will be set out in the statement of claim, which will be filed in court before May 3.
The substantive case is expected to take place on May 24. Both attorneys contend that Sir Michael made errors in his judgment. Loren Klein is representing the crown.
By Krystel Rolle
Guardian Staff Reporter
