Zarah Harper’s arrest ruled unlawful
Police unlawfully arrested and searched the home of radio station owner Zarah Harper during their investigation into a party she organised during the Covid-19 pandemic, the Chief Justice ruled on Friday.
The daughter of former Cabinet minister Zane DeSilva won a civil lawsuit against the Commissioner of Police in the Supreme Court, paving the way for her to seek compensation for unlawful arrest, false imprisonment and violation of privacy.
Officers entered Ms Harper’s family home early on October 12, 2020 and seized her phone, two laptops and paperwork. They arrested her and took her to Hamilton Police Station, where she was put in a cell.
Chief Justice Narinder Hargun said it was common ground that Ms Harper’s three small children and husband were present when the six-strong police team entered her home.
He added: “There is a dispute between the parties as to whether she was arrested and searched in the presence of her children.”
Ms Harper, 39, described the “dawn raid” as totally unnecessary and an abuse of power by police.
Mr Justice Hargun said: “No, or no credible, explanation has been given by the respondent as to why a 6.45am dawn arrest by six police officers at her home address, where her children and husband resided, was necessary or appropriate.”
He found that “for reasons known only to them”, the BPS chose not to apply for a warrant for the businesswoman’s home address during their investigation into an event held at Blu restaurant in Warwick, but also obtained one to search the neighbouring premises of her radio station, Vibe 103.
The judge described Ms Harper as a “businesswoman of good character, with no previous convictions” and detailed how she was treated differently to others linked to the case, including Mr DeSilva, who was arrested at his home by pre-arrangement on October 2, 2020 and who attended a pre-arranged interview with police on the same day as the raid on Ms Harper’s home.
Father and daughter were both charged with providing information to a government official that they did not believe to be true in relation to the July 3, 2020 event at Blu, but the pair were cleared of the offences by a Supreme Court jury last October.
A third defendant, Angela Caldwell, from Warwick, was earlier found not guilty of giving false information to a public officer in relation to the party.
Ms Harper then sought a judicial review of the decision to arrest her, asking the court to declare her arrest and the search of her home unlawful.
A hearing was held in July when her lawyer, Jerome Lynch KC, argued that detectives had other options available to them and could have simply asked Ms Harper to attend a police station to help with their inquiry.
He said that in obtaining permission from a magistrate for the search of Vibe 103, police failed to disclose facts relevant to the issue of whether giving notice of their intentions could “seriously prejudice the investigation”.
Those facts included that they had already interviewed Ms Caldwell, arrested Progressive Labour Party MP Mr DeSilva ten days before Ms Harper’s arrest, and served his company, Island Construction, with a search warrant.
The Chief Justice said in his ruling: “The court accepts that these facts were relevant and should have been disclosed to the magistrate, since they demonstrated that the applicant had ample opportunity to destroy the material in question had she wished to do so.
“Failure to disclose these facts, in view of the court, was a breach of the respondent’s duty of candour owed to the court and would have also justified the setting aside of the search warrant dated October 9, 2020 issued by the magistrate.”
Mr Justice Hargun said “no attempt” was made by the BPS to arrange to speak to Ms Harper voluntarily or to invite her to attend the police station or another venue for interview, and she was never asked to hand over material relevant to the investigation.
He quashed the decision to summarily arrest her and declared her arrest and the search of her home as unlawful, as well as quashing the warrant for the search of Vibe 103.
“The applicant is at liberty to apply for a further hearing in order to determine whether and, if so, the amount the respondent should pay the applicant by way of compensation for unlawful arrest, false imprisonment and violation of her privacy.” wrote the Chief Justice.
Construction company owner Mr DeSilva, an MP since 2007, was forced to quit the Cabinet along with fellow minister Wayne Caines after attending the Blu party because it breached regulations put in place to prevent the spread of Covid-19.
Commissioner of Police Darrin Simons said yesterday that the BPS acknowledged the court’s decision and a procedural review was under way.
The case law cited by Zarah Harper’s lawyer, Jerome Lynch KC, included the 2017 Supreme Court victory of Mahesh Reddy, medical director at Bermuda Healthcare Services in Paget, whose home was raided by police in May 2016.
The search and Dr Reddy’s arrest was part of a long-running police investigation into Ewart Brown, a doctor and former PLP premier with two medical practices offering diagnostic imaging scans.
Dr Reddy successfully sued for unlawful arrest and the judicial review ruling in his favour was later upheld by the Court of Appeal.
Chief Justice Narinder Hargun said that Mr Lynch, citing those judgements, had correctly argued that a search could not be used as a justification for an arrest and that the lawfulness of the arrest must be determined on its own merits.
The judge wrote that those decisions made “clear that the discretion to utilise the summary arrest power has to be exercised in the legally requisite sense”.
“The police officers are required to evaluate the appropriateness of exercising the power of arrest in the way it was exercised, as against the less intrusive options. This exercise requires the police officers to have regard to all materially relevant considerations in the given case.”
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