The Royal Gazette has reported that, on 29 November 2016, Bermuda’s Commission of Inquiry provisionally granted Ewart Brown’s application, through his counsel Jerome Lynch QC, to set aside a subpoena on the grounds that being compelled to give oral evidence before the Commission would breach his privilege against self-incrimination (given the apparent status of a pending criminal investigation into related allegations that is being conducted by Bermuda’s Police Service).
The Commission’s order was made subject to a condition that Dr. Brown file and serve a sworn affidavit in support of the application.
The Commission’s full ruling has not yet been made available on the Inquiry website.
There have been a number of other legal challenges to the Commission’s subpoenas (including an unsuccessful challenge before the Supreme Court of Bermuda and the Court of Appeal for Bermuda), and, if nothing else, the nature of these challenges provides some illustration of the practical difficulties (and time and expense) associated with compelling the production of evidence by unwilling or hostile witnesses or document custodians (in the context of a Commission of Inquiry that is already over budget and behind schedule).
As Sir Anthony Evans made clear in his oral remarks on 29 November 2016, the more cost effective and practical course for the Commission might simply be to draw adverse inferences against non-cooperative parties or witnesses, based on the evidence that has been made available.
Whether or not it is permissible or appropriate to draw an adverse inference from the mere fact that a witness has asserted a privilege against self-incrimination will obviously be an issue for further debate, and it may depend on the nature of the other evidence that has been made available from other sources for the purpose of the Commission’s findings.
Closing arguments are expected to be made over the next few days.