By Alric Lindsay
On October 18, 2024, Cayman Islands Urgent Care (trading as “Doctors Express”) argued that the Director of Public Prosecutions (DPP) breached an order from Justice Asif KC. This order required the DPP to provide a copy of the legal advice that DPP used to determine to not prosecute Dr John Lee and Customs Officer Holly Schneider for alleged perjury, attempting to pervert the course of justice, misfeasance in public office or other alleged offences. The order also included an obligation by the DPP to provide a copy of instructions it gave to its lead counsel that led to the foregoing advice.
To date, Doctors Express only received a copy of the legal advice relied upon by the DPP but not the instructions that led to the advice. In the circumstances, Doctors Express contended that the DPP breached Justice Asif KC’s order.
The Honourable Justice Asif KC disagreed, saying on October 18, 2024, that, subject to the receipt of a further affidavit from the DPP stating that instructions contained in emails and other documents are not material, no breach of his order occurred.
Details of the Doctors Express challenge
Based on submissions from Jude Bunting KC, acting for Doctors Express, there were two questions for Justice Asif KC to consider:
- The purpose of Justice Asif’s order and whether a breach occurred.
- If there is a breach, whether there would be consequences?
Purpose
Regarding the purpose of the order, Justice Asif KC stated the following in a judgment dated August 5, 2024:
Accordingly, the Applicants [Doctors Express] argue[s] that the instructions to leading counsel are likely to identify the documents and information that were, or were not, provided to leading counsel, and they are therefore important to determining what material was considered by leading counsel in preparing her advice, and by the Acting DPP in making the relevant decision at issue.
The August 5, 2024 judgment added:
The advice of leading counsel and the instructions to leading counsel which are sought patently exist — there is explicit reference to them in the Respondent’s [DPP’s] own correspondence and submissions.
The advice and the instructions are undoubtedly relevant in that the advice provides the background and context for the decision made, and the instructions to counsel will assist with the determination of the Applicants’ [Doctors Express’s] complaint that the decision-maker failed to consider relevant documents and information.
The August 5, 2024 judgment continued:
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.
To clarify what “instructions” meant, Bunting KC referred Justice Asif KC to the Duncan Edwards case.
According to Bunting KC, this case contained an Collins English Dictionary definition of “instructions.”
Bunting KC added that the case of Lucas & Barking Hospitals NHS Trust contained further authority for the definition of instructions.
Bunting KC suggested that one of these definitions reflected Justice Asif KC’s purpose in making his previous order for the DPP to provide a copy of its legal advice and instructions leading to that advice.
However, Bunting KC acknowledged that these days, instructions can be provided by telephone, email and other correspondence.
Mr Perry, acting for the DPP, elucidated that the instructions in question were given to its King’s Counsel verbally by telephone and were not written instructions.
Mr Perry added that, any other information contained in additional emails or other documents were not material to the legal advice that DPP received from its King’s Counsel and that DPP relied upon to make the decision to not prosecute Dr Lee.
Mr Perry indicated further that it was a serious accusation to suggest that the DPP was not providing a full and frank disclosure as ordered by the Court.
Justice Asif KC’s decision
After hearing the arguments on behalf of Doctors Express and the DPP, Justice Asif KC considered whether there is any additional document that the DPP should have disclosed to Doctors Express to comply with the order noted in the August 5, 2024 judgment.
He concluded that, subject to confirmation by the DPP in a further affidavit that there was no “substantive information” contained in any additional documents (covering letters or emails), the order for the DPP to provide a copy of the legal advice and instructions that led to that advice was not breached.
Note to readers:
Mr Jude Bunting KC (via video link) and Mr James Austin-Smith (in person) appeared on behalf of Doctors Express.
Ms Toyin Salako and Mr Perry appeared (in person) on behalf the Director of Public Prosecutions.
N.B. It is understood that following the ruling on October 18, 2024, the DPP may consider its decision afresh whether to prosecute Dr John Lee. Of course, this does not mean that the DPP will change its position.
