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Lowenfield can only release SoPs, SoRs for “purposes on an election petition”, not Police probe – Nigel Hughes

The Director of Public Prosecutions (DPP), Shalimar Ali-Hack, SC, and the Commissioner of Police Nigel Hoppie have filed an application in the High Court seeking certified copies of the Statements of Polls (SoPs) and Statements of Recount (SoRs) from the March 2020 General and Regional Elections that are lodged with the Registrar of the Supreme Court of Judicature Sueanna Lovell.

The DPP and Top Cop want certified copies of the SoPs and SoRs to prosecute the electoral fraud cases against Chief Elections Officer (CEO) Keith Lowenfield, Deputy Chief Elections Officer Roxanne Myers, and Region Four Returning Officer Clairmont Mingo which are pending before the Georgetown Magistrates’ Courts.

Under the Representation of the People Act (RoPA),  Lowenfield is the sole custodian of those documents. Lowenfield has now moved to the Court asking to be added as a party to the case filed by the DPP and Top Cop; he is opposing their application. The matter was heard this afternoon before Chief Justice Roxane George, SC.

And Lowenfield’s lawyer Nigel Hughes is contending that other than for the “purposes of an election petition”, his client has no other authority under the law to release the documents.

“What  stops him [Lowenfield] from producing the documents to the Police?” Justice George asked Hughes, who replied, “the purpose for which he has them is for the purpose for the conduct of the election. He does not have it for any other purpose. If the Police want copies, the CEO can only act as so far as to the powers vested in him under the Representation of the People Act.”

According to Hughes, “…And that means he cannot release the documents. He does not have the jurisdiction to give it to anybody other than for the purpose he has them for.”

After the dismissal of Elections Petition #99 which was filed on behalf of the APNU/AFC by Monica Thomas and Brennan Nurse, the Chief Justice ordered GECOM to lodge the original copies of the SoPs and SoRs with the Registrar of the High Court for safekeeping.

Moreover, Hughes submitted that as a consequence of that order, Lowenfield has been divested of any legal jurisdiction over the SoPs and SoRs. Against this backdrop, Hughes argued that the application filed by the DPP and Commissioner of Police is misconceived.

“This application is misconceived. GECOM does not have custody of these documents. The registrar is the court. And unless the Attorney General is representing the Court, he would not be a proper party [to these proceedings].”

But the Chief Justice asked Hughes why would the application be misconceived when the Police requested the documents from the registrar who told them that she had no difficulty handing over the documents but would need a court order to do so.

Hughes told the Chief Justice, “You have clarified that the court has lawful possession of these documents. So, the court is the legal body that has possession of the documents.  The CEO has been divested of any legal jurisdiction over these documents…”

Section 141 of RoPA states, “In any indictment, information or complaint for an offence in relation to ballot boxes, ballot papers, and other election material, the property in them may be stated to be in the Chief Election Officer. Given the context of this provision, the Chief Justice asked Hughes whether the CEO can release the SoPs and SoRs to the Police.

“I suppose… [Lowenfield] would first have to be a respondent to advance full arguments,” the lawyer replied. The Chief Justice will deliver her ruling on whether Lowenfield will be added as a party in this case on May 27, 2021, at 9:15 hrs.

The Commissioner of Police and the Director of Public Prosecutions submit that the certified copies of the SoPs and SoRs are relevant to prove the commission of the offence against Lowenfield,  Mingo, and Myers.

According to the DPP, there is no restriction to the Police obtaining copies of the SoPs and SoRs since  pursuant to the RoPA, they are public records for which there is no restriction such as privacy, privilege, or secrecy.

“By the common law and statute, namely Section 50 of the Criminal Law (Procedure) Act, the Commissioner of Police and any member of the Police Force have the lawful right to collect and recover all documents and property which are relevant to the investigation and prosecution of any criminal offence,” Ali-Hack submitted.

According to the DPP, unofficial copies of the SoPs are in the public domain.

Ali-Hack noted that the original documents will confirm and show that certain numbers of cast votes were recorded on those documents and that together with other evidence will show that Lowenfield, Myers, and Mingo deliberately ignored those recorded figures and made false declarations in furtherance of their conspiracy.