Crown argues judge was wrong to stay Bush case

(CNS): Charles Miskin KC said the judge who stayed the indecent assault case against McKeeva Bush last year was wrong to do so and his ruling should be quashed. When the UK lawyer representing the director of public prosecutions appeared in the Cayman Islands Court of Appeal on Tuesday, he argued that Justice Stanley John had accused the crown of an abuse of process in the way the case was brought, but did not explain what he based that finding on.

Bush, a former premier who has since lost his WBW seat, was accused of indecently assaulting two female civil servants at an official function at the Ritz hotel in September 2022. However, halfway through the trial in February 2024, Bush’s defence team made a successful argument in front of the judge to have the case against him thrown out.

This was largely as a result of the very slow disclosure process, in which important information was not given to the defence team until the trial started. That disclosure revealed two main issues. One was that people other than the RCIPS had pushed for a criminal investigation into what had happened before either of the two women had filed complaints with the police.

The second was that one of the women had made it very clear she didn’t support a criminal prosecution over what she called Bush’s inappropriate, even “creepy and weird” behaviour towards her that evening, as she did not feel it amounted to indecent assault. The crown had nevertheless pursued the case. Prosecutors implied that the woman had no choice but to support the case and summoned her to court.

Justice John found that the “prosecutorial system was being misused by person/s with their own agenda” and that “the manner in which the prosecution was conducted… caused the Court a great deal of disquiet”, which led to his findings of an abuse of process.

However, in his full formal ruling released some weeks later, he said that he had been wrong to stay the entire case. He rescinded his discharge of that part of the indictment, saying that the crown could still have pressed the case against one of the women.

This meant that the crown was at liberty to pursue the case against the first woman, but this appeal is in an effort to continue to prosecute the charges in relation to the second woman as well, regardless of her own desire not to support it.

Miskin argued that the crown can try such cases without the support of the alleged victims. He said that throughout the trial, the evidence given by the second woman in both her interviews with the police and in court, detailing what happened, was never challenged, and the video interview remains as evidence.

He said the judge had not detailed his reasons, or properly explained where the abuse of process was, or what evidence there was that other people’s agendas were being pursued. He argued there was no evidence of abuse and hidden agendas that the judge could base his conclusions on, as he asked for the appeal court to overturn the ruling.

Jerome Lynch KC, who represented Bush during the appeal, stressed how the judge who presided over the case had observed the piecemeal way in which disclosure was made during the trial and had heard first-hand what the witnesses had said.

And while he had corrected his decision in a second ruling, the experienced judge’s first instinct had been that there was an abuse and that the manner in which the case was conducted had given him cause for concern, Lynch said, adding that given Justice John’s role in the proceedings, he was the person best placed to come to that conclusion.

While Lynch accepted that the crown does not need the consent of the victim to pursue a criminal case and that the victim may not have had the legal standing to decide whether or not what Bush did amounted to a crime, he argued that her position should have been taken into consideration.

He also said that there was, indeed, evidence of other agendas. The woman who had been reluctant to pursue the case had said that people had been pushing her into making a complaint, and she felt they were pursuing agendas. He argued that there was evidence of others wanting to see the two women file complaints against Bush, indicating there were other agendas. The judge, he said, believed that.

Lynch accepted that the judge could have phrased his ruling better and perhaps added more detail, but he said there was evidence throughout the trial to support the findings in the ruling. He said that the judge knew instinctively that the case had been handled badly, hence his decision to stay.

He pointed out that they could all criticise the way the judge set out his reasoning, but that did not mean that his finding to stay the case was wrong, given the roughshod way that the second woman’s case was handled.

As the day-long hearing drew to a close, the appeal court judges said they would deliver their judgment in due course.