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: 19 October 2020
• Court: Court of Appeal (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.

Evidence — privilege — public interest immunity — on PII application, court to conduct balancing exercise, weighing necessity of disclosure against public interest in non-disclosure

Prisons — transfer of prisoner — judicial review — prisoners imprisoned for gang-related murder challenged Governor's decision to transfer them to English prison — Governor brought PII application to withhold certain documents — grounds for PII claim included national security and risk to third parties and informants

Held, ruling as follows:

(1) The statutory basis for a PII application was found in the Grand Court Rules. GCR O.24, r.3 empowered the court to make an order for discovery and r.14 permitted the court to inspect documents in respect of which claims to confidentiality or other grounds to restrict production were made. On an application for documents to be withheld on the ground of public interest immunity, the court would first review the documents to determine whether they were prima facie disclosable. The court would consider whether the documents were prima facie immune from disclosure on public interest grounds. The court would then carry out a balancing exercise, weighing the necessity of disclosure in relation to each document against the public interest in non-disclosure (paras. 6–7).

(2) The court carefully considered the underlying sensitive materials to determine their relevance to the plaintiffs' case and whether the nature of the challenge to the Governor's decisions outweighed the national security concerns advanced by the respondents. The court was satisfied that the documents were not before the Governor when she made the decision under challenge. They were not relevant in that they neither supported the plaintiffs' case nor undermined the respondents' case. The documents were not necessary to dispose fairly of these proceedings (paras. 35–38).

(3) The court went on to determine whether the documents which were prima facie disclosable should be withheld. The respondents claimed public interest immunity on four grounds: (i) facts or documents in the possession of the Governor and communications between the Governor and Secretary of State were prima facie privileged; (ii) confidential government communications; (iii) national security; and (iv) to avoid endangering life, revealing an undercover or covert source of intelligence, undermining the prison regime, or compromising an ongoing criminal or intelligence investigation. Each of these grounds had been recognized to varying extents as giving rise to the application of public interest immunity. In every case, the court had to look at the circumstances and facts of the individual application. The risk to national security encompassed the risk that the plaintiffs might try to escape from prison in the Cayman Islands. This was the assessment of the first respondent. There was no question that a court should not seek to undermine the executive's assessment on matters such as national security because it was recognized that such assessment would be based on facts of which the decision-maker had special knowledge or a special responsibility. The court was mindful of the plaintiffs' arguments that an unjustified claim to be entitled to rely on national security might lead to an excessively cautious approach to disclosure and that, while national security was relevant, it should not be determinative given the nature of the litigation, and also that the court must assess whether the material that the respondents sought to keep from being disclosed was genuinely national security material (paras. 42–46).

(4) The court assessed the documents bearing firmly in mind the interests of justice which favoured disclosure against the public interest asserted by the respondents. The court was mindful of the plaintiffs' arguments with respect to s.26 of the Constitution, wherein the court's duty to determine proceedings should weigh against a finding of public interest immunity where to do so would cause the matter to become untriable. The court considered the arguments by both sides on the extent of necessary disclosure. The respondents essentially argued that all material that should be provided to the plaintiffs had already been disclosed, whereas the plaintiffs argued that the material so far disclosed was insufficient and that the proper application of PII should result in sufficient disclosure to enable the court to fully review the justification for the decisions in question. The plaintiffs conceded that it might be possible to gist materials but maintained that, even with gisting, disclosure of significant details was likely to be required (paras. 66–67).

(5) The court was satisfied that of the materials from the redacted affidavits that might have been referred or might have been before the Governor at the time she made the decision, some had been disclosed to the plaintiffs. Other material which might have been referred to in the unredacted affidavits and for which gists or copies had not been ordered to be disclosed were documents properly not disclosed and properly to be PII protected. With regard to the documents for which legal privilege had not been claimed but where PII was sought as being communications between the Governor's office and other confidential government communications within departments, these documents had been included in the PII application because they related specifically to the transfer of the plaintiffs. They were high-level documents, not routine communications, and were properly to be PII protected. The risk to third parties and informants in this case was high. The court had to be careful to ensure that the disclosure of the identity of persons who provided information to the police of the plaintiffs' activities would not result in them being harmed. The risk to those persons outweighed the need for disclosure especially in those instances when the information that would be withheld as a result would not advance the plaintiffs' case in any material way. These were matters the disclosure of which could lead to the identity of informants. While the result of the PII exercise led to a significant number of documents being withheld from disclosure, the nature of the challenge brought by the plaintiffs did lead the court to the view that the plaintiffs should now view the further documents which were to be disclosed. The court's decision on the documents for which PII was claimed was set out in the schedules at the end of this judgment (paras. 79–90).

Cases cited:

(1) AHK v. Home Secy., [2013] EWHC 1426 (Admin), considered.

(2) Air Canada v. Trade Secy. (No. 2), [1983] 2 A.C. 394; [1983] 2 W.L.R. 494; [1983] 1 All E.R. 161, referred to.

(3) Balfour v. Foreign & Commonwealth Office, [1994] 1 W.L.R. 681; [1994] 2 All E.R. 588; [1994] ICR 277, referred to.

(4) Belfast City Council v. Miss Behavin' Ltd., [2007] UKHL 19; [2007] 1 W.L.R. 1420; [2007] 3 All E.R. 1007, referred to.

(5) Burmah Oil Co. Ltd. v. Bank of England, [1980] A.C. 1090; [1979] 3 All E.R. 700, referred to.

(6) CG v. Bulgaria(2008), 47 EHRR 51, referred to.

(7) Conway v. Rimmer, [1968] A.C. 910; [1968] 1 All E.R. 874, considered.

(8) Home Secy. v. Rehman, [2001] UKHL 47; [2003] 1 A.C. 153; [2001] 3 W.L.R. 877; [2002] 1 All E.R. 122; [2002] Imm AR 98; [2002] INLR 92, considered.

(9) 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, considered.

(10) IR v. Home Secy., [2009] UKSIAC SC 70/2008, October 30th, 2009; on appeal, [2011] EWCA Civ 704; [2012] 1 W.L.R. 232; [2011] 4 All E.R. 908; on appeal, App. Nos. 14876/12 and 63339/12, E.Ct.H.R., January 28th, 2014, considered.

(11) McCormick, Re, [2017] NIQB 65, referred to.

(12) R. (Archway Sheet Metal Works) v. Communities & Local Govt. Secy., [2015] EWHC 794 (Admin), referred to.

(13) R. (Bancoult (No. 2)) v. Foreign Secy., [2016] UKSC 35; [2017] A.C. 300; [2016] 3 W.L.R. 157; [2016] HRLR 16, considered.

(14) R. (Bennett) v. Horseferry Rd. Mags.' Ct., [1994] 1 A.C. 42; [1993] 3 W.L.R. 90; [1993] 3 All E.R. 138; [1994] C.O.D. 123; (1994), 98 Cr. App. R. 114, referred to.

(15) R. (Cart) v. Upper Tribunal, [2011] UKSC 28; [2012] 1 A.C. 663; [2011] 3 W.L.R. 107; [2011] 4 All E.R. 127; [2011] STI 1943; [2012] 1 FLR 997; [2011] STC 1659; [2011] Imm AR 704; [2012] Fam. Law 398; [2011] PTSR 1053, referred to.

(16) 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.

(17) R. (Wiley) v. Chief Const. West Midlands Police, [1995] 1 A.C. 274; [1994] 3 W.L.R. 433; [1994] 3 All E.R. 420, referred to.

(18) Rogers v. Home Secy., [1973] A.C. 388, considered.

(19) Somerville v. Scottish Mins., [2007] UKHL 44; [2007] 1 W.L.R. 2734; (2007), 151 SJLB 1398; 2007 SCLR 830; 2007 SLT 1113; 2008 SC (HL) 45; [2008] HRLR 3; [2008] UKHRR 570, considered.

(20) Tweed v. Parades Commn. for Northern Ireland, [2006] UKHL 53; [2007] 1 A.C. 650; [2007] 1 W.L.R. 1; [2007] 2 All E.R. 273, considered.

(21) Watler v. Whittaker, 1994–95 CILR 512; on appeal, 1996 CILR 378, considered.

The plaintiffs sought judicial review.

The plaintiffs had been sentenced to imprisonment for a gang-related murder. They 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 court refused the respondents' application for the court to adopt a closed material procedure in the proceedings (that decision is reported at 2021 (1) CILR 1). The first respondent produced a PII certificate which stated that in his...