Jeffrey Bush v The Cayman Islands Ombudsman
| Jurisdiction | Cayman Islands |
| Judgment Date | 17 July 2019 |
| Docket Number | CAUSE NO: 115 OF 2019 |
| Year | 2019 |
| Court | Grand Court (Cayman Islands) |
and
CAUSE NO: 115 OF 2019
IN THE GRAND COURT OF THE CAYMAN ISLANDS
| To the Clerk of Court, Law Courts, George Town, Grand Cayman | |
| Name, address and description of applicants (s) | Jeffrey Bush, 19 King Road, West Bay |
| Judgment, order, decision or other proceeding in respect of which relief is sought | Decision of the Cayman Islands Ombudsman to refuse to uphold JB's complaint against the police |
| Relief Sought i) An order of certiorari to quash the Defendant's decision; ii) An order of mandamus to compel the Defendant to reconsider the decision; iii) A declaration that section 7(4) of the Police (Complaints by the Public Law) 2017 is incompatible with Section 7 of the Bill of Rights contained within the Cayman Islands Constitution. | |
| Name and address of applicant's attorneys | Samson Law Associates, 4 th Floor Harbour Center, 42 North Church Street, George Town, P.O. Box 2255, Grand Cayman KY1-1107, Cayman Islands |
| Signed  | Dated 17 th July 2019 |
The Plaintiff, Mr Jeffrey Bush (“JB”), seeks leave to apply for judicial review of a decision of the Defendant, the Cayman Islands Ombudsman, who did not uphold his complaint against the police in a Final Investigation Report dated the 15 th May 2019 (“the decision”).
This application is brought under Order 53 of the Grand Court Rules (1995 Revision) and section 12 of the Police (Complaints by the Public Law) 2017. The latter provides an independent statutory avenue of appeal, in addition to the normal route by way of judicial review. As this application seeks a declaration of incompatibility under section 23 of the Bill of Rights contained within Part 1 of The Cayman Islands Constitution Order 2009 (“the Bill of Rights”), the Attorney General has been served pursuant to Order 77A of the Grand Court Rules.
JB has sufficient interest in this matter as he is the subject of the decision.
In summary, JB submits that it is sufficiently arguable that:
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i. The decision was irrational because it did not take into account relevant considerations: The Defendant did not take an independent statement from JB in the course of its investigation, despite him being the complainant;
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ii. The Defendant's failure to take an independent statement from JB was unfair and a breach of natural justice, as it deprived him of the right to make representations in the course of the investigation;
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iii. The findings of fact made in the decision were not sustainable on the evidence;
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iv. Section 7(4) of the Police (Complaints by the Public Law) 2017 (“the 2017 Law”) is incompatible with Section 7 of the Bill of Rights within the Cayman Islands Constitution. Section 7(4) of the 2017 Law binds a complainant to the findings of fact made by the Defendant in any related administrative or civil proceedings. The statute therefore purports to bind a court to the original findings of fact, which would include (i) a court determining a civil claim brought by JB against the police and (ii) the Grand Court sitting on appeal of the Ombudsman. This violates the right to a fair trial under section 7.
JB seeks the following relief:
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i. An order of certiorari to quash the Defendant's decision;
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ii. An order of mandamus to compel the Defendant to reconsider the decision;
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iii. A declaration of the incompatibility of section 7(4) of the 2017 Law with the Bill of Rights.
It is submitted that leave to apply for judicial review should be granted.
Leave for judicial review is available to JB pursuant to two routes. Under section 12 of the Police (Complaints by the Public) Law 2017 (“the 2017 Law”):
“(1) In the case of a final investigation report, the complainant or the police officer concerned may seek leave of the Grand Court for judicial review of the Ombudsman's determination within twenty-eight days, and the time shall begin to run at the dispatch of the final investigation report to a delivery agent who is directed to deliver it to the complainant and the police officer concerned.
[…]
(3) The judicial review shall be limited to jurisdiction, findings of fact and the decision as to whether the complaint was well founded but shall not include recommendations made.”
Under Order 53 — “Applications for Judicial Review” — an applicant may apply for leave for judicial review under rule 3(1). Such an application must be made promptly and in any event within three months from the date when grounds for the application first arose (rule 4(1)).
The Court shall not grant leave unless it considers that the applicant has sufficient interest in the matter to which the application relates (Order 53, rule 3(7)).
Leave should be granted where the case is sufficiently arguable to merit investigation at a substantive hearing (see, e.g. R v. Ebanks, ex parte Henderson [ 2009 CILR 48] at paragraphs 10 to 11).
Under Order 77A, rule 3(1):
“In any proceedings to which the Attorney General is not already a party, where a party seeks a declaration that primary legislation, or any part thereof, is incompatible with a section or sections of the Bill of Rights, the party seeking the declaration shall forthwith serve on the Attorney General copies of the originating process together with all pleadings and particulars already served on the parties to those proceedings.”
On the 20 th July 2018, JB was involved in a police chase following his alleged failure to stop when requested by officers. He was followed to the area near Lacovia Apartments on West Bay Road, where he left the car and ran onto Seven Mile Beach. He was pursued by police, who detained him on the beach.
In the course of being detained, a police officer struck JB to the side of his chest, causing injury. He was subsequently taken to the Cayman Islands Detention Centre on the same day, where he complained of pain to the police officers. He asked to be taken to hospital, but was released on bail before this took place.
JB later attended George Town Hospital on the 27 th July 2018, where he was informed that his tenth and eleventh ribs had been fractured.
On the 8 th August 2018, JB made a complaint to the RCIPS Professional Standards Unit, which was later referred to the Defendant. The complaint alleged that police had assaulted JB in the course of the arrest, causing injury. The Defendant investigated the matter and produced a report dated the 15 th May 2019.
The report considered two issues:
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i. Was the arrest of Jeffrey Bush lawful?
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ii. Was the force used to effect his arrest reasonable and proportionate? 1
In the course of the investigation, the Defendant considered various material arising from the police enquiry. This included video-recorded interviews of JB taken by police on the 29 th July 2018 and 3 rd August 2018, a written statement from JB taken by the police on the
8 th August 2018, statements of various officers attending the scene and involved in the arrest, statements of officers involved in JB's subsequent detention, and medical records. 2 It should be noted that these documents have not been disclosed to JBThough the Defendant considered the interview and written police statement given by JB, at no time did it take an independent statement from JB in the course of its own investigation.
According to the Defendant's report, JB stated that he had two broken ribs in his police interview on the 29 th July 2018. He stated that he had spoken with the custody officer about this on the night of his arrest but was not taken to hospital. 3
According to the Defendant's report, a further interview was conducted with JB by police on the 3 rd August 2019. The report found that, during that interview, “[a] t no point did Mr Bush raise any issues about the injuries he says happened during contact with police officers that night”. 4
According to the Defendant's report, JB stated in his 8 th August 2018 police statement that “fa]s he reached the beach, he felt someone jump on his back and tackle him to the ground. The officer put a knee in his back while he was lying on the ground and punched him to his left side and said “look how you got me sweating”. 5
The Defendant considered the police witness statements of the officers who had arrested JB: APS Peter Maragh and PC Sedroy Thomas. The summary given in the Defendant's report is that they said that “Mr Bush attempted to flee again and was tackled by officers. Mr Bush continued to struggle, and the officers had to forcibly place his arms behind his back in order put [sic] handcuffs on him. […] None of the officers reported that he complained of any injury or assault.” 6
In respect of whether it could uphold JB's complaint that unreasonable force had been used, the Defendant stated:
“Section 153 of The Police Law (2017 Revision) provides police officers the authority to use reasonable force to effect an arrest. I accept the medical evidence that Mr Bush suffered broken ribs, however I find no evidence to support his claim that the injury occurred during his arrest or during his time in police custody. Mr Bush made no reference to any injuries or pain following the arrest, despite numerous opportunities to do so. He did not mention any pain during his time in custody. He waited a week before he reported the injury. In considering the evidence provided by Mr Bush and the police officers, I find that the force used to arrest Mr Bush was reasonable and proportionate.” 7
The Final Investigation Report is dated the 15 th May 2019. It came into JB's...
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