Drs Express wins another battle in fight for justice

(CNS): The Office of the Director of Public Prosecutions has been ordered to hand over documents that supposedly support its decision not to prosecute any of the public officials involved in an unlawful raid at Doctors Express almost five years ago. In a long-running legal battle, the health facility continues to seek justice over the ‘drug bust’, in which customs officers conducted a raid of the clinic and seized the legal medical cannabis oil it was prescribing to patients.

Since winning a judicial review in February 2021, the private clinic has been pursuing financial damages and the prosecution of those involved, which is still going through the legal process.

In February 2021, Justice Robin McMillan identified a catalogue of wrongdoing by various public officials and found they had colluded to prevent the medical facility from dispensing legal cannabis to their patients. Shortly after the ruling was delivered, Doctors Express contacted the ODPP about prosecuting a number of individuals found to have acted maliciously, according to the judge’s ruling.

The DPP told the clinic it would not be prosecuting anyone as the office had taken advice and there was not enough evidence to charge those involved. However, given the amount of evidence that was presented during the original case, the medical centre’s legal team applied for a judicial review of that decision, which is now going through the courts.

As part of this latest case, the lawyers for Doctors Express have requested the documents and details relating to the advice not to prosecute the key officials that the ODPP claims it received. These individuals include then Chief Medical Officer Dr John Lee, Customs Director Charles Clifford and the officer who secured the search warrant, who were all found by the court to have acted inappropriately, unlawfully and knowingly so throughout the entire process, from the collusion over the raid in the first place and then during a cover-up once the case went to court.

The ODPP has refused to hand over the document outlining the advice not to prosecute, even though it was the fundamental basis for the decision not to bring anyone before the courts for what happened to the clinic.

Following a hearing last month, Justice Jalil Asif ruled on Friday that the ODPP must hand over the relevant document as it is fundamental to the judicial review that the clinic has filed and has been given leave to pursue. In his ruling, the judge said the advice and the instructions are undoubtedly relevant because they provide the background and context for the decision that was made by the prosecutors.

“The instructions to counsel will assist with the determination of the Applicants’ complaint that the decision-maker failed to consider relevant documents and information,” the judge wrote, referring to arguments by Doctors Express that the ODPP could not have taken everything into account when it made the decision that no one should be charged.

“The advice and the instructions are the only contemporaneous materials apparently available that are likely to cast any light on the decision-making that occurred. It appears, on the material before me at present, that it will be difficult, if not impossible, to determine the judicial review claim without reference to and consideration of both the advice of, and instructions to, leading counsel,” Justice Asif added.

See the full ruling in the CNS Library.