Douglas v Governor of the Cayman Islands and Director of Prisons; Ramoon v Governor of the Cayman Islands, Director of Prisons and Attorney General

• Jurisdiction: Cayman Islands
• Judge: Carter, Ag. J.
• Judgment Date: 02 July 2020
• Court: Grand Court (Cayman Islands)

Douglas

and

Governor of the Cayman Islands and Director of Prisons

Ramoon

and

Governor of the Cayman Islands, Director of Prisons and Attorney General

(Carter, Ag. J.)

GRAND CT.

Administrative Law — judicial review — closed material procedure — no basis for authorizing closed material procedure on prisoners' application for judicial review of decision to transfer them to English prison — no statutory authority for CMP and inherent jurisdiction of court insufficient

Held, ruling as follows:

The respondents asked the court to adopt a procedure that was not known in the Cayman Islands in judicial review proceedings. The court agreed with the respondents' submissions on the inherent jurisdiction of the Grand Court and its relation to the High Court of England and Wales but the court was mindful that it should approach with caution the extension of its inherent jurisdiction, especially if to do so would thereby authorize a procedure that on its face was a departure from the principles of open justice and natural justice. In the present case there was no basis for authorizing a CMP. The respondents could point to no relevant statutory authority authorizing a CMP. The inherent jurisdiction of the court was insufficient in and of itself for the court to imply an authority to authorize a CMP on an application for judicial review even if the court were to find that there were “special reasons in the interests of justice.” None of the authorities relied on by the respondents supported their submissions to the extent necessary for the court to agree that a CMP could be sanctioned in the circumstances of this case. Therefore, the respondents' invitation to the court to find that a CMP might be authorized under the court's inherent jurisdiction for “special reasons in the interests of justice” would be rejected (paras. 53–64).

Cases cited:

(1) A v. United Kingdom, [2009] ECHR 301; (2009), 49 E.H.R.R. 29; 26 BHRC 1, referred to.

(2) AHK v. Home Secy., [2012] EWHC 1117 (Admin), referred to.

(3) Al Rawi v. Security Service, [2011] UKSC 34; [2012] 1 A.C. 531; [2011] 3 W.L.R. 388; [2012] 1 All E.R. 1; [2011] UKHRR 931, considered.

(4) Bank Mellat v. H.M. Treasury (No. 1), [2013] UKSC 38; [2013] 4 All E.R. 495, considered.

(5) CG v. Bulgaria(2008), 47 E.H.R.R. 51, considered.

(6) Carnduff v. Rock, [2001] EWCA Civ 680; [2001] 1 W.L.R. 1786, considered.

(7) Competition & Markets Auth. v. Concordia Intl. RX (UK) Ltd., [2017] EWHC 2911 (Ch); [2019] Bus. L.R. 367, referred to.

(8) Home Office v. Tariq, [2011] UKSC 35; [2012] 1 A.C. 452; [2011] 3 W.L.R. 322; [2012] 1 All E.R. 58; [2011] HRLR 37; [2011] ICR 938; [2011] IRLR 843; [2011] UKHRR 1060; [2012] 1 CMLR 2, referred to.

(9) Home Secy. v. AF (No. 3), [2009] UKHL 28; [2010] 2 A.C. 269; [2009] 3 W.L.R. 74; [2009] 3 All E.R. 643; [2009] HRLR 26; [2009] UKHRR 1177, referred to.

(10) R. v. Davis, [2008] UKHL 36; [2008] 1 A.C. 1128; [2008] 3 W.L.R. 125; [2008] 3 All E.R. 461; [2008] HRLR 35; [2008] 2 Cr. App. R. 33, referred to.

(11) R. (Haralambous) v. St. Albans Crown Ct., [2018] UKSC 1; [2018] A.C. 26; [2018] 2 W.L.R. 357; [2018] 2 All E.R. 303; [2018] Crim. L.R. 672; [2018] 1 Cr. App. R. 26, distinguished.

(12) R. (Rossminster Ltd.) v. Inland Rev. Commrs., [1980] A.C. 952; [1980] 2 W.L.R. 1; [1980] 1 All E.R. 80, referred to.

(13) W (Algeria) v. Home Secy., [2010] EWCA Civ 898, referred to.

The plaintiffs sought judicial review.

The plaintiffs were granted leave to seek judicial review of the Governor's decision to order their transfer from prison in Grand Cayman to a prison in England. They sought an order of certiorari and declarations that the decision breached their rights under the Constitution.

The respondents asked the court to adopt a closed material procedure (CMP) in the proceedings and invited the court to consider this issue before the PII application. The respondents submitted that the court should find that a CMP could be authorized under its inherent jurisdiction for “special reasons in the interests of justice” where, as here, it was necessary for the court in determining a judicial review application to be able to take into account the PII material that was properly before the Secretary of State and the Governor when making the decisions under the Colonial Prisoners Removal Act 1884. The respondents submitted that s.31(2A) and (3C) of the Senior Courts Act 1981 (applicable in the Cayman Islands by virtue of s.11 of the Grand Court Law (2015 Revision)) required the Grand Court to consider the application for judicial review on the basis of the same evidence as the original decision maker and that, in the present case, the court needed to have access to material that was immune from disclosure on public interest grounds. If a CMP was not adopted, the court would not be able to consider the application on the same basis. Any unfairness that might be caused by a CMP could be offset by the appointment of a special advocate and the disclosure that had been made to the plaintiffs to date. CMPs had been held not to be incompatible with the European Convention on Human Rights, which would encompass rights protected by the Bill of Rights. If a CMP were not available, the court might have no other option than to apply the presumption of regularity.

The plaintiffs submitted that the court had no jurisdiction to order a CMP or, alternatively, that a CMP could only be ordered where there was no possibility of a fair trial and the court sought to balance this against the obligation in s.26 of the Bill of Rights to determine an allegation of interference with rights fairly. CMPs required express statutory authorization because they involved a departure from fundamental common law principles of fairness. The present case did not fall within the category of cases in which courts had developed an inherent power to order a CMP. The mere fact that a matter would become untriable without a CMP did not mean that a CMP should be ordered, but a finding that the present claim was untriable was prohibited by the express duty to determine it imposed by s.26 of the Bill of Rights. It could not be determined whether there was a public interest in a CMP until after PII was determined.

Legislation construed:

Grand Court Law (2015 Revision), s.11(1): The relevant terms of this subsection are set out at para. 8.

Cayman Islands Constitution Order 2009 (S.I. 2009/1379), s.26: The relevant terms of this section are set out at para. 20.

Justice and Security Act 2013 (c.18), s.6(11): The relevant terms of this subsection are set out at para. 29.

Senior Courts Act 1981 (c.54), s.19(2): The relevant terms of this subsection are set out at para. 9. s.31(2A): “The High Court—

• (a) must refuse to grant relief on an application for judicial review, and

• (b) may not make an award under subsection (4) on such an application,

if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”

s.31(3C): “When considering whether to grant leave to make an application for judicial review, the High Court—

• (a) may of its own motion consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and

• (b) must consider that question if the defendant asks it to do so.”

P. Bowen, Q.C., R. Sharma, Solicitor General, and C. Allen, Crown Counsel, for the respondents;

H. Southey, Q.C. and L. Aiolfi for the plaintiff Douglas;

P. Bodden for the plaintiff Ramoon;

A. Underwood, Q.C., special advocate.

1 Carter, Ag. J.:

Introduction

The plaintiffs have been granted leave to file for judicial review against the decision of the first respondent to order their transfer from Her Majesty's Prison Service (HMPS) Northward, Grand Cayman to Her Majesty's Prison Belmarsh (“HMP Belmarsh”), England. The plaintiffs seek an order of certiorari and various declarations that the decision was in breach of their rights under the Constitution.1

2 This hearing was set to address further preliminary issues.

3 The first issue before the court was the plaintiffs' application to join the Secretary of State for Foreign and Commonwealth Affairs as a party to the proceedings. Queen's Counsel, Mr. Steven Kovats appeared instructed by Mr. Michael Wingrave for the Secretary of State. The court was informed by counsel for the plaintiffs at the outset of the hearing that, after discussion with Mr. Kovats Q.C., the application for joinder was to be withdrawn. After confirmation from Mr. Kovats, leave was granted for the application to be withdrawn. The Secretary of State did not take any further part in these proceedings.

4 The respondents sought the court's approval of the appointment by the Attorney General of Mr. Ashley Underwood, Q.C. as special advocate in the proceedings. This order was made with the consent of the plaintiffs.

5 The third matter to be determined at the hearing was whether a closed material procedure (CMP) could be adopted in the instant proceedings. Counsel for the respondents invited the court to consider this issue before its consideration of the PII application, which application was to be heard in closed session. Counsel for the respondents submitted that the court should determine, at the very least, whether a CMP was available as a matter of principle before determining the PII application as, on their view, the availability or not of a CMP would be a relevant consideration on the PII application; the relevance being that if the court were to conclude that a CMP was available in principle, then if, as it considered the PII application, it became apparent to the court that there were documents that could not be disclosed in the public interest, the court should stay the PII application and invoke the CMP. Counsel for the plaintiffs did not agree with this proposed sequence. However, this court is clear that the considerations...