Brandt v Commissioner of Police and others (Montserrat)

Constitutional relief should not be pursued where a parallel legal remedy provides adequate redress, unless a special feature at least arguably demonstrates that the alternative remedy is inadequate. Proceedings brought for the collateral purpose of delaying or derailing parallel criminal proceedings may also constitute an abuse of process. The relevant question is adequacy, not whether constitutional proceedings are the best-suited forum. Where proceedings are abusive, the court should ordinarily dismiss them and should not determine the merits or grant consequential declarations. The lawfulness, constitutionality and admissibility of evidence obtained during a search should generally be determined in the criminal trial.

The appellant faced criminal charges arising from alleged sexual offences in Montserrat. Police warrants authorised the search and seizure of his premises and electronic devices, after which the police searched his mobile phones and obtained WhatsApp data.

Instead of challenging admissibility in the criminal proceedings, he commenced proceedings under sections 2, 9 and 20 of the Montserrat Constitution, seeking declarations that the searches were unlawful and unconstitutional and that the evidence was inadmissible. The High Court dismissed the application as an abuse of process. The Court of Appeal upheld that conclusion but, by a majority, declared the search unlawful though not unconstitutional. The appeal concerned abuse of process, the legality and constitutionality of the search, the admissibility of the evidence and the continuing validity of Kuruma v The Queen. The central issue was whether the constitutional proceedings were abusive when the criminal proceedings provided an adequate means of redress.

Disposition. The Board dismissed the appeal, set aside the declaration made by the Court of Appeal and ordered that the administrative proceedings be dismissed as an abuse of process.

1. Abuse of process. The categories of abuse are not closed. The court has an inherent power to prevent misuse of its procedure where litigation would be manifestly unfair or bring the administration of justice into disrepute. The principles stated in Ashmore v British Coal Corporation [1990] 2 QB 338 at 348 and Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536 supported that approach.
2. Parallel remedies. Following the approach in Attorney General of Trinidad and Tobago v Ramanoop [2006] 1 AC 328, constitutional relief should not be sought where another legal remedy exists unless some feature at least arguably indicates that the alternative redress is inadequate. The availability of an arguable human-rights violation does not itself avoid abuse. The relevant question is adequacy, rather than whether constitutional proceedings are the best-suited means of resolving the issue.
3. Application. The criminal proceedings provided an adequate and appropriate forum to determine the admissibility of the WhatsApp data, including the lawfulness or constitutionality of the search. The appellant’s status as an accused person, the possibility that admissibility might only be challenged on appeal after conviction, and the inability to obtain damages in the criminal proceedings did not make that remedy inadequate, particularly after the damages claim had been abandoned. Any argument that Kuruma v The Queen [1955] AC 197 was no longer good law could be made at trial.
4. Improper purpose. Commencing proceedings for the collateral purpose of delaying or derailing a criminal trial is a separate form of abuse, which may overlap with the parallel-remedy category. The inference was supported by the lengthy unexplained delay, the timing of the application, previous applications, the available opportunities to challenge admissibility in the criminal proceedings and the appellant’s failure to use them. The Board also rejected the suggestion that the absence of a finding that the proceedings were frivolous or vexatious was inconsistent with an abuse-of-process finding.
5. Declarations and merits. Advice, guidance or a declaration concerning the merits is contingent on valid proceedings. Once the administrative proceedings were found abusive, the lower courts should not have analysed the lawfulness or constitutionality of the search. That analysis was obiter and non-authoritative, and the issues remained for the criminal trial. The Board therefore declined to express any view on the merits.
6. Further guidance. Proceedings held abusive should generally be dismissed, although withdrawal or amendment may sometimes be permitted. Where parallel proceedings cannot award damages, a genuine damages claim may in an appropriate case be adjourned and confined to damages dependent on the outcome of those proceedings; it cannot be used to mount a collateral challenge to that outcome.

1. Privy Council: In [2021] UKPC 12, the appeal was dismissed. The Court of Appeal’s declaration was set aside and the administrative proceedings were ordered to be dismissed as an abuse of process.
2. Court of Appeal of the Eastern Caribbean Supreme Court (Montserrat): On 14 February 2020, the appeal was dismissed insofar as it challenged the abuse-of-process finding. By a majority, the court held that the search was unlawful but not unconstitutional and granted a declaration.
3. High Court: On 9 July 2019, Evans J (Ag) dismissed the administrative application, holding that the search was lawful and that the proceedings were an abuse of process. He did not certify the application as frivolous or vexatious.