McDonald-Bishop J
____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 1 of 107 1 2 3 IN THE GRAND COURT OF THE CAYMAN ISLANDS 4 CIVIL DIVISION 5 CAUSE NO. G0155/2017 6 LEGAL AID NO. LACR/ 0162 /2015 7 BETWEEN: 8 OSBOURNE DOUGLAS 9 PLAINTIFF 10 AND: 11 (1) THE GOVERNOR OF THE CAYMAN ISLANDS 12 (2) THE DIRECTOR OF PRISONS 13 RESPONDENTS 14 15 CONSOLIDATED WITH: 16 17 CAUSE NO. G0164/2017 18 LEGAL AID NO. LACR/ 0225 /2015 19 BETWEEN: 20 JUSTIN RAMOON 21 PLAINTIFF 22 AND: 23 (1) THE GOVERNOR OF THE CAYMAN ISLANDS 24 (2) THE DIRECTOR OF PRISONS 25 RESPONDENTS 26 27 IN OPEN COURT 28 Before: The Hon Mrs Justice Marva McDonald-Bishop (Ag) 29 30 31 Appearances: Hugh Southey KC instructed by Prathna Bodden of Samson Law 32 for the Plaintiffs 33 Paul Bowen KC, instructed by Reshma Sharma KC, Solicitor 34 General and Claire Allen, Deputy Solicitor General of the Attorney 35 General’s Chambers 36 Page 1 of 107 G0155/2017 2024-11-27 Page 1 of 107 G0155/2017 2024-11-27 Digitally signed by Advance Performance Exponents Inc Date: 2024.11.29 09:04:32 -05:00 Reason: Apex Certified Location: Apex ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 2 of 107 Heard: 20 – 23, November 2023 1 Draft Judgment circulated: 24 October 2024 2 Judgment delivered: 27 November 2024 3 4 Judicial Review – Concurrence of Governor for removal of convicted prisoners to the United Kingdom to 5 serve life sentences – Interference of Governor’s concurring decision with human rights of the prisoners – 6 Constitutionality of the Governor’s concurring decision –Prisoners’ right to respect for private and family 7 life –– The Colonial Prisoners Removal Act 1884 (47 and 48 Vict. C. 31), s2(d) – Cayman Islands 8 Constitution Order 2009, ss 6,9, 19, 24,26 9 10 11 12 13 JUDGMENT 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Page 2 of 107 G0155/2017 2024-11-27 Page 2 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 3 of 107 INTRODUCTION 1
The journey to the present proceedings has been long and litigious, spanning a complex procedural 2 history that has taken the parties up to the highest appellate level of the Privy Council and back to 3 the Grand Court for the resolution of certain unresolved issues. It is a classic study in hard-fought 4 litigation concerning the constitutional rights of prisoners transferred from the Cayman Islands to 5 the United Kingdom to serve life sentences. 6 7
These proceedings encompass two consolidated applications for judicial review and concurrent 8 claims for breaches of the Constitution of the Cayman Islands (“the Constitution”) instituted by the 9 Plaintiffs, Osbourne Douglas (“Douglas”) and Justin Ramoon (“Ramoon”) against the 10 Respondents, the Governor of the Cayman Islands (“the Governor”) and the Director of Prisons. 11 The applications challenge the Governor’s decision to concur with the United Kingdom Secretary 12 of State for Foreign and Commonwealth Affairs (“the Secretary of State”), to remove them from a 13 prison in the Cayman Islands (“HMP Northward”) to the United Kingdom prison system to serve 14 the remainder of their sentences resulting from their convictions for murder and possession of an 15 unlicensed firearm in the Grand Court of the Cayman Islands in 2016. The removal orders were 16 made pursuant to section 2(d) of the Colonial Prisoners Removal Act 1884 (47 and 48 Vict. C. 31) 17 (“the 1884 Act”), with the concurrence of the Governor of the Cayman Islands. Therefore, the 18 decisions to remove the Plaintiffs were composite, involving cooperation between the Secretary of 19 State and the Government of the Cayman Islands. 20 21
The Director of Prisons is joined as a party because of his statutory responsibilities for His 22 Majesty’s Cayman Islands Prison Service (“HMCIPS”) under the Prisons Act (2020 Revision). By 23 section 7 of that statute, he is in control and management of HMCIPS, which includes having 24 responsibilities for the prison building and the discipline and good order of prisoners. As such, he 25 would have had immediate responsibilities for the Plaintiffs when they were detained at HMP 26 Northward. 27 28
The factual and procedural background to the proceedings has largely been traversed in earlier, 29 related judgments of the Court of Appeal of the Cayman Islands and the Privy Council (see Ramoon 30 and Douglas v Her Majesty the Queen Criminal Appeal Nos 34 and 35 of 2016, delivered 7 31 December 2018 (“CICA Criminal appeal judgment”), Douglas and Ramoon v The Governor of 32 Page 3 of 107 G0155/2017 2024-11-27 Page 3 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 4 of 107 the Cayman Islands and The Director of Prisons CICA Civil Appeal Nos 15 and 16 of 2021 1 delivered 27 April 2022 (“CICA Civil appeal judgment”) and Justin Ramoon v Governor of the 2 Cayman Islands and another (Cayman Islands) [2023] UKPC 9 (“PC judgment”). It is, however, 3 necessary for a clear appreciation of the instant proceedings to first provide a synopsis of the 4 relevant background and chronology of events which led to the decisions to transfer the Plaintiffs 5 to the United Kingdom and the resultant litigation that has ensued. 6 7 THE FACTUAL BACKGROUND AND CHRONOLOGY OF EVENTS 8 The Plaintiffs’ offending and conviction 9
The Plaintiffs are half-brothers who share the same mother. Douglas is a citizen of the United 10 Kingdom and the Cayman Islands. Ramoon is a citizen of the Cayman Islands. Up to June 2017, 11 they both resided in Grand Cayman. They are both unmarried but are fathers of young children. 12 Their mother and most of their family members also reside in the Cayman Islands. 13 14
The Plaintiffs’ current predicament with which these proceedings are concerned arose from an 15 incident, which occurred on 1 July 2015 in George Town, Grand Cayman. In that incident, Ramoon 16 shot and killed Jason Powery at a bar in George Town, using a firearm given to him by Douglas 17 moments before. The Plaintiffs were arrested and charged, and, on 26 May 2016, convicted of 18 murder and possession of an unlicensed firearm. 19 20
On 19 December 2016, the Plaintiffs were sentenced to life imprisonment for the offence of murder 21 with the stipulations that Douglas should serve a minimum of 34 years and Ramoon a minimum 22 term of 35 years before eligibility for parole. They were also sentenced to concurrent terms of 10 23 years’ imprisonment for possession of an unlicensed firearm. Ramoon was sentenced to an 24 additional year on his minimum term to reflect his previous conviction for possession of an 25 imitation firearm. They were both committed to HMP Northward, the only male prison in the 26 Cayman Islands, to serve their sentences. 27 28
The Plaintiffs appealed their convictions and sentences to the Court of Appeal. On 7 December 29 2018, their appeals were dismissed. There was no further appeal regarding their convictions and 30 sentences. 31 32 Page 4 of 107 G0155/2017 2024-11-27 Page 4 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 5 of 107 The Plaintiffs’ transfer 1
On 27 April 2017, the Royal Cayman Islands Police Service (“RCIPS”) made an urgent request to 2 the Cayman Islands Government to consider the Plaintiffs’ removal to the United Kingdom 3 pursuant to the 1884 Act. Following that request, the Government made submissions to the Minister 4 of State for the Overseas Territories for the removal of both Plaintiffs to the United Kingdom. On 5 15 and 16 June 2017, the Lord Chancellor signed warrants of reception for Douglas and Ramoon, 6 respectively. Orders for the Plaintiffs’ removal were made by the Secretary of State on 21 June 7
The next day, on 22 June 2017, the Governor signed a notice of concurrence to the decision 8 to remove Douglas to the United Kingdom resulting in his transfer to the United Kingdom on that 9 date. 10 11
Following the removal of Douglas, the Cayman Islands Government issued a press release which 12 read: 13 “This evening 22 June 2017, a prisoner was transported to the 14 United Kingdom under the Colonial Prisoners Removal Act, 1884. 15 The prisoner will be housed by Her Majesty’s Prison and 16 Probation Service until further notice. This removal was 17 authorised by the UK and Cayman Islands Governments in the 18 interests of national security and the public safety of the people of 19 the Cayman Islands.” 20 21
Six days later, on 28 June 2017, the Governor signed another notice of concurrence to remove 22 Ramoon to the United Kingdom, which led to his transfer on that date. 23 24 Pre-action correspondence after the transfers 25
Douglas’ lawyers wrote to the Respondents on 31 August 2017 requesting reasons for the decision 26 to remove him and disclosure of relevant documents related to his removal. On 21 September 2017, 27 lawyers for Ramoon made similar requests. The Attorney General’s Chambers responded to the 28 letters from Douglas and Ramoon's lawyers on September 26 and 27, 2017, respectively. The letters 29 outlined the reasons for the Governor's decision to relocate both Plaintiffs to the United Kingdom, 30 which were consistent in content. The letters disclosed some critical information that has been 31 extracted and summarised below. 32 Page 5 of 107 G0155/2017 2024-11-27 Page 5 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 6 of 107 (a) While detained at HMP Northward, the Plaintiffs had continued to control serious 1 organised criminal activity in the Cayman Islands. HMP Northward was designed as a 2 lower security facility and is unable to offer the level of security required in order to 3 securely detain the Plaintiffs. It was considered that, as long as they remained there, their 4 activities would continue to present a serious and tangible threat to public safety and 5 national security in the Cayman Islands. In these circumstances, it was agreed between 6 local and United Kingdom authorities that the only viable way to manage the risk posed by 7 the Plaintiffs was removal under section 2(d) of the 1884 Act. 8 (b) Consideration was given to other alternatives, including transferring them elsewhere to 9 another British overseas territory in the region, but it was decided that no suitable 10 alternative existed. Transfer to a prison in the United Kingdom was the only appropriate 11 option. 12 (c) The Plaintiffs were not notified of the intended removal because given the circumstances 13 that informed the decision to transfer them, any forewarning would have had the potential 14 to undermine the objectives of the removal. 15 (d) Consideration was given to the human rights implications of any transfer, with reference 16 to the right to respect for private and family life in section 9(1) of Part 1 of Schedule 2 to 17 the Cayman Islands Constitution Order 2009 ("the Bill of Rights") and Article 8(1) of the 18 European Convention on Human Rights (“the Convention”). Specifically, it was noted that 19 the Plaintiffs had grown up in the Cayman Islands and had family, including their children, 20 there. It was also taken into account that they would receive weekly visits from family 21 members. 22 (e) However, it was noted that the right to respect for private and family life permits 23 proportionate limitations for certain specified purposes as set out in section 9(3)(a) of the 24 Bill of Rights and Article 8(2) of the Convention. 25 (f) The removal of both Plaintiffs was considered a necessary and proportionate interference 26 with their rights. Any disruption to their family relationships would be mitigated by the 27 fact that foreign national prisoners in the United Kingdom are permitted to call abroad 28 regularly and that the Cayman Islands Government might consider providing financial 29 assistance to enable a close family member to visit each Plaintiff if a particular need was 30 shown. 31 Page 6 of 107 G0155/2017 2024-11-27 Page 6 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 7 of 107 (g) While it was intended that consideration would be given to the Plaintiffs’ return to the 1 Cayman Islands at a later date, should the security conditions at HMP Northward improve, 2 the basis for the decision to remove them remained current, and, therefore, their requests 3 for an immediate return to the Cayman Islands could not be acceded to. 4 (h) Further, the information in response to which the Plaintiffs were removed was of a sensitive 5 nature and would likely be the subject of a public interest immunity application in the event 6 that the Plaintiffs proceeded to challenge their removal by way of litigation. As such, the 7 Attorney General was unable to accede to their requests for disclosure of documentation at 8 that stage. 9 10
It should be noted, parenthetically, that following the letters from the Attorney General’s Chambers, 11 there was further disclosure of material relative to the decisions to remove the Plaintiffs, which will 12 be later discussed within the appropriate context. 13 14 The commencement and procedural history of the litigation 15
Reacting to the decisions to remove them to the United Kingdom, the Plaintiffs filed applications 16 for leave to apply for judicial review on 21 and 28 September 2017. Douglas’ application was filed 17 before his lawyers received a response from the Attorney General to their request for reasons and 18 disclosure. The Plaintiffs were granted leave to file their applications for judicial review by Carter 19 J (Ag) on 7 and 14 December 2017. Carter J (Ag) also ordered, among other things, that the 20 Plaintiffs’ applications and grounds for leave to apply for judicial review stand as “a duly 21 constituted application brought concurrently pursuant to section 26 of the Bill of Rights”. She 22 further made orders for disclosure, required the Respondents to indicate whether the applications 23 were being opposed on jurisdictional grounds and whether there would be applications for material 24 to be withheld from disclosure on public interest immunity (“PII”) grounds. 25 26
On 17 January 2018, by order of the court, the two applications for judicial review were 27 consolidated and other directions given regarding disclosure and the PII application. 28 29 30 31 Page 7 of 107 G0155/2017 2024-11-27 Page 7 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 8 of 107
These orders and others resulted in several interlocutory applications with corresponding satellite 1 proceedings and decisions. However, before providing an insight into those satellite proceedings 2 (which is necessary for an understanding of the issues that are for consideration before this court), 3 it is deemed necessary to set out the scope of the applications for judicial review. 4 5 The applications and grounds for judicial review 6
Amidst several satellite proceedings, the Plaintiffs amended their applications for judicial review 7 in October and November 2019. They advanced the same challenge to the decisions, having 8 expressly adopted each other’s judicial review grounds in their respective amended applications. 9 The joint challenge stands on six major grounds that had been extracted from paras. 13 – 40 of 10 Douglas’ application and para. 25 of Ramoon’s application. These grounds are compressed in 11 outline as follows: 12 (a) The failure to provide written reasons for the decisions to remove the Plaintiffs from the 13 Cayman Islands (Osbourne ground (b), Ramoon ground (1)); 14 (b) The absence of any lawful or legitimate basis for the removal of the Plaintiffs (Osbourne 15 ground (a), Ramoon ground (2)); 16 (c) The removal is not justified or is disproportionate, and in breach of sections 6 and 9 of the 17 Bill of Rights (Osbourne ground (a), Ramoon ground (5)); 18 (d) The absence of proper procedural safeguards and guarantees of fairness surrounding the 19 decision to remove the Plaintiffs from the Cayman Islands (Osbourne ground (b), Ramoon 20 ground (3)); 21 (e) Breach of the right to access justice at common law and/or section 7 of the Bill of Rights 22 (Ramoon ground (4)); and 23 (f) Failure to have regard for the best interests of the Plaintiffs’ children in the decision-making 24 process (Ramoon ground (6)). 25 26
Collectively, the Plaintiffs seek the following relief: 27 (a) A declaration that the removal decisions and/or any decision to transfer and/or consent to 28 their transfer to the United Kingdom constitutes a violation of the Constitution of the 29 Cayman Islands (and specifically the rights identified in the grounds). 30 Page 8 of 107 G0155/2017 2024-11-27 Page 8 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 9 of 107 (b) A declaration that their continued detention in the United Kingdom is in breach of the 1 Constitution. 2 (c) An order of certiorari quashing the removal decisions. 3 (d) An order of mandamus, (or certiorari of any decision taken to the contrary) that the 4 Respondents forthwith order their return to the Cayman Islands and take all necessary steps 5 to have them returned to HMP Northward to serve the remainder of their sentences. 6 (e) A declaration or an order of mandamus that ensures that the procedure by which any such 7 decision is taken by the Respondents shall hereafter be rendered fair and provide adequate 8 safeguards for their rights and the rights of their family. 9 (f) Such further, necessary and consequential or other relief the court shall deem appropriate. 10 (g) Costs. 11 Relevant satellite applications and decisions of the Grand Court 12
Both sides brought various satellite proceedings between February 2018 (before the Plaintiffs 13 amended their judicial review applications) and February 2021 (after the amendments). There were 14 corresponding decisions made and directions given for the progress of the case to the substantive 15 hearing of the applications for judicial review. The most material proceedings, decisions and 16 directions emanating from them will be specifically mentioned to provide some context for the 17 instant proceedings. 18 19
Between February and March 2018, the Respondents issued a summons for the court to set aside 20 the grant of leave to apply for judicial review and requested a PII hearing. The application to set 21 aside the grant of leave for judicial review did not succeed. 22 23
In July 2019, Carter J (Ag) had to consider further preliminary issues, including the Plaintiffs' 24 application for disclosure, the Respondents' PII application, the appointment of a special advocate, 25 and whether a closed material procedure ("CMP") was available in the Cayman Islands. A special 26 advocate, Mr Ashley Underwood KC, was appointed by Carter J (Ag) to represent the Plaintiffs’ 27 interests at the PII and CMP hearings. The special advocate was given access to all the withheld 28 material and made representations on the Plaintiffs’ behalf regarding their material. The Plaintiffs 29 were excluded from those hearings. 30 Page 9 of 107 G0155/2017 2024-11-27 Page 9 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 10 of 107
By judgments dated 2 July 2020 (“the CMP Judgment”) and 19 October 2020 (“the PII Judgment”), 1 Carter J (Ag) held, respectively, that a CMP was not available in the Cayman Islands, and that a 2 substantial amount of the documents on which the Governor relied in making the impugned 3 decisions were to be withheld from disclosure on PII grounds. PII was upheld on, among other 4 grounds, national security and the threat to third parties. 5 6
By order dated 7 January 2021, Carter J (Ag) gave case management directions, including 7 adjourning the following matters for determination at a final hearing: 8 (a) The Respondents’ application to strike out the applications for judicial review on the 9 ground that they were untriable; 10 (b) The preliminary question raised by the Respondents as to whether the Bill of Rights applied 11 to the impugned decisions or whether the Grand Court has jurisdiction under section 26 of 12 the Bill of Rights to review the decisions on Bill of Rights grounds (“The Bill of Rights 13 Issue”); and 14 (c) The Plaintiffs’ substantive applications for judicial review. 15 16
The Respondents reserved their position regarding any appeal until the final hearing of the judicial 17 review applications. In keeping with that position, Carter J (Ag) extended time for the parties to 18 appeal the CMP and PII Judgments until after the conclusion of the substantive applications for 19 judicial review. 20 The final hearing of the applications for judicial review 21
The final hearing of the Plaintiffs’ applications for judicial review was conducted before Wood J 22 (Ag) in 2021. He had no access to the PII material as no CMP was available. On 28 May 2021, 23 with written reasons following on 29 November 2021, he refused the applications. 24 25
By this time, the Plaintiffs’ appeals against their convictions and sentences had been dismissed by 26 the Court of Appeal on 7 December 2018. 27 28 29 30 31 Page 10 of 107 G0155/2017 2024-11-27 Page 10 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 11 of 107 PROCEEDINGS IN THE COURT OF APPEAL 1
The Plaintiffs appealed Wood J (Ag)’s refusal of their applications for judicial review. The 2 Respondents filed a counter-notice of appeal from the CMP judgment of Carter J(Ag), contending 3 that a CMP was available in the Cayman Islands. 4 5
The Court of Appeal noted that it was accepted by all concerned in the appeal that the decision of 6 Wood J. (Ag) on the substantive applications for judicial review was inadequate (para. 3 of the 7 CICA civil appeal judgment). As a result, his decision could not stand. 8 9
The Court of Appeal identified and addressed the primary issues for its determination, namely: 10 (a) whether the Bill of Rights applies to the decisions (“the Bill of Rights Issue”); 11 (b) whether the 1884 Act is in accordance with the law (“the Lawfulness Issue”); 12 (c) the options available to the court should a CMP not be available (“the CMP Issue”); 13 (d) whether the Respondents took into account the Plaintiffs’ family ties when making the 14 decisions regarding the removal (“the Substantive Issue”); and 15 (e) the extent to which the Plaintiffs can rely on a failure to build or rebuild a prison in the 16 Cayman Islands (“the Prison Upgrade/Rebuild Issue”). 17 18
On these issues, the Court of Appeal decided as follows: 19 20 (1) The Bill of Rights issue 21
The Bill of Rights applies to the impugned decisions, the determination of the applications for 22 judicial review, and the appeals. The evidence shows a significant impact on the Plaintiffs' rights 23 guaranteed by section 9 of the Bill of Rights. 24 25 (2) The Lawfulness Issue 26
The 1884 Act is in “accordance with the law” for the purposes of the rights enjoyed by the Plaintiffs 27 to respect for their private and family life under section 9 of the Bill of Rights. The terms of the 28 1884 Act are sufficiently precise, and there is no need to introduce a third policy to govern the 29 Page 11 of 107 G0155/2017 2024-11-27 Page 11 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 12 of 107 exercise of the Governor’s discretion. The procedures available to the plaintiffs to challenge the 1 removal were and are sufficiently precise. 2 3 (3) The CMP Issue (alternatives to a CMP) 4
The alternatives to a CMP were unsatisfactory. The Plaintiffs’ rights could only be justly and fairly 5 vindicated by an effective judicial review process which is not possible unless the court considers 6 the justification for and the proportionality of the decisions on the same basis and on the same 7 information as that which was considered by the Governor, which is not possible without a CMP. 8 A CMP was, therefore, necessary for the Plaintiffs to challenge the decisions and to have their 9 challenge determined fairly by the court, which would not be possible without a CMP. It was not 10 open to the court to allow the appeal and the applications for judicial review simply because there 11 had been no disclosure of the PII material and no opportunity for the court to review the PII material 12 in a CMP. On the other hand, the Respondents’ argument that the appeal and the applications should 13 be struck out or stayed could not succeed. 14 15 (4) The CMP Issue (availability of CMP) 16
A CMP is available in the Cayman Islands; therefore, a CMP could and should be ordered. 17 18 (5) The Substantive Issue 19
Although little contemporaneous evidence was disclosed of the reasons for the impugned decisions, 20 the Respondents had taken into account the family ties of the Plaintiffs when making the decisions 21 although the disclosed part of the redacted submission to the United Kingdom Ministers disclosed 22 no reference to their children or their families. On the main issue of whether the decisions were a 23 disproportionate and unjustifiable interference with the Plaintiffs’ constitutional rights as alleged 24 by them, the case should be remitted to the Grand Court for determination following a CMP, which 25 was available in the Cayman Islands. 26 27 (6) The Prison Upgrade/Rebuild Issue 28
This issue was remitted for consideration along with the substantive issue of proportionality. 29 30 31 32 Page 12 of 107 G0155/2017 2024-11-27 Page 12 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 13 of 107 RAMOON’S APPEAL TO THE PRIVY COUNCIL 1
Ramoon appealed to the Privy Council on the Lawfulness, CMP and the Substantive issues. 2 Douglas did not appeal. The Respondents cross-appealed on the issue concerning the alternatives 3 to a CMP in the event the Board concluded that no CMP was available in the Cayman Islands. 4 There was no appeal or cross-appeal regarding the Court of Appeal’s treatment of the Prison 5 Upgrade/Rebuild Issue, which was remitted for hearing by this court. 6 7
The Privy Council formulated the issues for its consideration in these terms: 8 (a) Whether the Court of Appeal erred in concluding that the Grand Court had jurisdiction to 9 hold a CMP or (if such jurisdiction existed) that the jurisdiction could properly be 10 exercised. 11 (b) Whether, in the event that the Court of Appeal erred and no CMP was available, the 12 application for judicial review should be allowed, dismissed, stayed or struck out or 13 remitted to the Grand Court for reconsideration. 14 (c) Whether the decision challenged was “in accordance with the law”. 15 (d) Whether no account was taken of the impact of transfer on the appellant’s and child’s 16 family life and that the decision was accordingly unlawful. 17 18
In outline, the gravamen of the Privy Council’s decision on the critical issues was as follows. 19 20 (1) The Lawfulness Issue 21
The Board agreed with the Court of Appeal that section 2 of the 1884 Act establishes a test with 22 sufficient precision to meet the requirement that it be 'in accordance with the law' and that further 23 elaboration of the test is not required. The objective identified in section 2 of the Act, which is the 24 prisoner’s safer custody, is a legitimate objective and requires a comparison of the risk to the public 25 or national security, were the prisoner not to be removed. Subject to one matter, which is the absence 26 of notification to Ramoon before removal, there were adequate safeguards against abuse of the 27 power of removal conferred by section 2 of the 1884 Act. 28 29 30 31 Page 13 of 107 G0155/2017 2024-11-27 Page 13 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 14 of 107
The one outstanding matter is Ramoon’s complaint that his removal was not in accordance with the 1 law because he was not given any advance warning of his removal and had no opportunity to 2 challenge it in advance. This aspect of the plea must be addressed based on the evidence at the 3 remitted judicial review hearing. 4 5 (2) The CMP Issues (availability of CMP) 6
Reversing the Court of Appeal, the Board opined that a CMP was unavailable to the Grand Court 7 in the judicial review hearing. It was not open to the Board to invent a CMP on the Cayman Islands 8 under the guise of the development of the common law. It was a matter for the legislature. 9 Accordingly, the Respondents' cross-appeal on this issue could not succeed. 10 11
This case is not an exceptional case in which the PII ruling has resulted in a situation where, without 12 disclosure of the PII material, the Grand Court would be unable to decide the dispute fairly. There 13 was reasonably extensive disclosure and "gisting" of the contents of the PII documents. Moreover, 14 as far as the threat posed by the Plaintiffs was concerned, there was compelling evidence of the 15 dangerousness arising from their conviction for a "particularly cold-blooded gang killing". There 16 was no unfairness in the Plaintiffs' claim for judicial review proceeding to trial based on the 17 material, which is now available due to the PII exercise. The appeal, therefore, failed on this issue. 18 19 (3) Whether the decisions did not take into account the impact of the transfer on family life 20
The Board saw no reason to depart from the primary findings of fact of the Court of Appeal that 21 Ramoon’s right to family life and his child's family life were not ignored. However, his rights to 22 dignity, respect for his family life and the right to respect for the family life of his child must be 23 taken into account and given due weight in the proportionality balancing exercise, with the child's 24 best interest as a primary consideration. Whether or not appropriate weight was given to these 25 considerations in the proportionality balancing exercise is a matter for the hearing of the remitted 26 judicial review. 27 28
Though Douglas was not a party to the appeal, the pronouncements of the Privy Council in 29 Ramoon’s appeal are binding on this court in relation to him. Accordingly, the decision is applied 30 with equal force in considering the case of both Plaintiffs, jointly and severally. 31 32 Page 14 of 107 G0155/2017 2024-11-27 Page 14 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 15 of 107 THE REMITTED ISSUES FOR DETERMINATION 1
Upon the invitation of the court, the Plaintiffs’ counsel filed a List of Issues with the comments of 2 the Respondents’ counsel, aimed at delineating the issues to be determined by the court following 3 the appeal process and the remittal of the judicial review for hearing. 4 5
Two broad issues have been identified, which the court has adopted, bearing in mind the comments 6 of the Respondents in respect of each: 7 (a) Whether the removal was a disproportionate interference with the Plaintiffs’ right to private 8 and family life and their right to be treated with humanity and with respect for the inherent 9 dignity of the human person in breach of section 6 and/or section 9 of the Bill of Rights in 10 its substantive aspect (“the proportionality ground”) (Ramoon amended grounds [70] – 11
and Douglas amended grounds [15] – [24]); and 12 (b) Whether the Plaintiffs’ removal was unfair and breached section 9 of the Bill of Rights in its 13 procedural aspect because they were not given a realistic opportunity to make representations 14 before their removal (“the fairness ground”) (Ramoon amended grounds [56] – [64] and 15 Douglas amended grounds [25] – [35] 16 17
From these grounds and the written skeleton arguments of the parties, three sub-issues have been 18 raised for the consideration of the court in determining the remitted grounds, which are: 19 (a) Whether the Respondents are unable to demonstrate that the removal was proportionate in 20 light of the failure to make provision for high-risk prisoners (“the Prison 21 Upgrade/Rebuild Issue”) (Ramoon amended grounds [79(3)] and Douglas amended 22 grounds [23(a)]). 23 (b) Whether proportionality is considered at date of removal or in light of subsequent 24 developments (“the Timing Issue”). 25 (c) What approach the Court should take in the light of the fact much of the underlying 26 evidence on which the Decisions were based has been withheld by order of Carter J on PII 27 grounds (“the PII Issue”). 28 29 30 31 Page 15 of 107 G0155/2017 2024-11-27 Page 15 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 16 of 107 THE ESSENTIAL LEGAL AND CONSTITUTIONAL FRAMEWORK 1
To determine the issues remitted to the court for resolution and the sub-issues arising from them, a 2 clear understanding of the legislative and constitutional context in which the impugned decisions 3 were made and the challenge brought by the Plaintiffs to them is critical. 4 5 The applicable legislative scheme 6
Section 2(d) of the 1884 Act sanctioned the Plaintiffs' removal from the Cayman Islands to the 7 United Kingdom. The relevant provisions of the Act that relate to the decisions to remove the 8 Plaintiffs state in part: 9 “2. Removal of prisoners from British possessions in certain 10 cases 11 Where as regards a prisoner undergoing sentence of 12 imprisonment in any British possession for any offence it appears 13 to the removing authority and herein-after mentioned either- 14 (a) ... 15 (b) ... 16 (c) ...; or 17 (d) that by reason of there being no prison in the said British 18 possession in which the prisoner can properly undergo his 19 sentence or otherwise the removal of the prisoner is 20 expedient for his safer custody or for more efficiently 21 carrying his sentence into effect...” 22 In any such case the removing authority may, subject, nevertheless 23 to the regulations in force under this Act, order such prisoner to 24 be removed to any British possession or to the United Kingdom to 25 undergo his sentence or the residue thereof.” (Emphasis added) 26 27
By virtue of section 5, the removing authority for the purposes of the 1884 Act is the Secretary of 28 State acting with the concurrence of the Government of every British possession concerned. In this 29 case, the Secretary of State would act with the concurrence of the Government of the Cayman 30 Islands- the British possession concerned. 31 32
The procedure for removing the Plaintiffs under section 2 was prescribed by regulations in the 33 Colonial Prisoners Removal Order in Council 1907 No. 742 (“the 1907 Order”), which was 34 followed. 35 36 Page 16 of 107 G0155/2017 2024-11-27 Page 16 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 17 of 107
Section 8 of the 1884 Act addresses how transferred prisoners are dealt with upon transfer. The 1 section reads, in so far as is relevant: 2 “8. Dealing with removed prisoner 3 (1) Every prisoner removed in pursuance of this Act shall, 4 until he is returned in pursuance of this Act, be dealt with in the 5 part of Her Majesty's dominions to which he is removed, in like 6 manner as if his sentence (with such variation, if any, of the 7 conditions thereof as may have been duly made in pursuance of 8 regulations under this Act) had been duly awarded in that part, 9 and shall be subject accordingly to all laws and regulations in 10 force in that part, with the following qualifications, that his 11 conviction judgment and sentence may be questioned in the part 12 of Her Majesty's dominions from which he has been removed in 13 the same manner as if he had not been removed, and that his 14 sentence may be remitted and his discharge ordered in the same 15 manner and by the same authority as if he had not been 16 removed.” 17 18
As life prisoners transferred to the United Kingdom under the 1884 Act, the Plaintiffs had the right 19 conferred by section 273 of the Criminal Justice Act 2003 to apply to the High Court to determine 20 the minimum term they must serve before eligibility for parole. They availed themselves of that 21 right and received a reduction of three years in their minimum term to reflect the additional hardship 22 caused by serving their sentences in the United Kingdom. See, for instance, regarding Osbourne 23 Douglas, the judgment of Davis J in Re OD (Minimum Term) [2019] EWHC 3018 (QB). The same 24 decision was made in Ramoon's case. 25 26
Also, like every other life prisoner in the United Kingdom, the Plaintiffs are entitled to apply to the 27 United Kingdom Parole Board to be considered for release at the expiry of the minimum term to 28 which they had been sentenced under sections 28 and 34(1) of the Crime (Sentences) Act 1997. 29 30
Also, of relevance is the fact that they have the same rights to contact as any other prisoner in the 31 United Kingdom prison system: see Prison Rules 1999/728, r. 34. Additionally, they have enhanced 32 rights as foreign national prisoners, including free phone calls once a month, unlimited cash on 33 their phone cards, and flexible telephone hours. 34 35 Page 17 of 107 G0155/2017 2024-11-27 Page 17 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 18 of 107
Although the Plaintiffs are subject to the laws of the United Kingdom upon their removal, they are 1 seeking orders to be made by this court for their return to the Cayman Islands. Section 3 of the 1884 2 Act, therefore, becomes relevant. It reads: 3 “3. Return of removed prisoner. 4 (1) Where a prisoner has been removed in pursuance of this Act, 5 a Secretary of State or the Government of a British possession to 6 which the prisoner has been so removed, may order the prisoner, 7 for the purpose of undergoing the residue of his sentence, to be 8 returned to the British possession from which he was removed. 9 10 (2) If a Secretary of State or the Government of a British 11 possession to which a prisoner is removed under this Act, requires 12 the prisoner to be returned for discharge to the British possession 13 from which he was removed, the prisoner shall, in accordance 14 with the regulations under this Act, be returned to the said British 15 possession for the purpose of being there discharged at the 16 expiration of his sentence. In any other case a prisoner when 17 discharged at the expiration of his sentence shall be entitled to be 18 sent free of cost to the British possession from which he was 19 removed; 20 Provided that where a prisoner at the date of his sentence 21 belonged to the Royal Navy or to Her Majesty's regular military 22 forces, nothing in this section shall require such prisoner to be 23 returned to the British possession from which he was removed, or 24 entitle him to be sent there free of cost.” 25 26
The United Kingdom being the ‘British possession’ to which the Plaintiffs had been removed - that 27 may order their return to the Cayman Islands, the British possession from which they were 28 removed. 29 30 The relevant constitutional provisions 31
A brief consideration of some relevant provisions of the Constitution is also helpful as it relates to 32 the Governor's powers and role within the scheme of the 1884 Act vis-à-vis the role of His Majesty 33 in the affairs of the Cayman Islands when the decisions were made. 34 35
The Governor is appointed by His Majesty (section 29 of the Constitution) and exercises the 36 Crown's authority in accordance with (and subject to) the terms of the Constitution (section 31). 37 By section 43(1), executive power is vested in His Majesty, but that power is exercised on his behalf 38 Page 18 of 107 G0155/2017 2024-11-27 Page 18 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 19 of 107 by the Government of the Cayman Islands, consisting of the Governor as His Majesty's 1 representative and the Cabinet, either directly or through public officers (section 42(3)). By virtue 2 of section 55 of the Constitution, the unique functions of the Governor include responsibility for 3 the internal security of the Islands. 4 5
The Governor's responsibility for the internal security of the Islands is a material fact of note when 6 the court considers the constitutionality of the Governor's action in concurring with the decisions 7 to remove the Plaintiffs from the Cayman Islands. 8 9
Disgruntled by their transfer to the United Kingdom, with no plan in place for their immediate 10 return to the Cayman Islands, the Plaintiffs have alleged infringement of their rights guaranteed by 11 the Bill of Rights and are seeking redress, pursuant to sections 26 and 27 of the Bill of Rights, 12 which provide, in so far as is relevant: 13 "26. (1) Any person may apply to the Grand Court to claim that 14 government has breached or threatened his or her rights and freedoms 15 under the Bill of Rights and the Grand Court shall determine such an 16 application fairly and within a reasonable time." 17 18 "27. (1) In relation to any decision or act of a public official which the 19 court finds is (or would be) unlawful, it may grant such relief or remedy, 20 or make such order within its powers as it considers just and 21 appropriate." 22 23
The Plaintiffs have alleged violation of their rights guaranteed by sections 6(1) and 9(1) of the Bill 24 of Rights and have prayed in aid sections 19 and 24 in seeking redress for their removal to the 25 United Kingdom. 26 27
Section 6 (1) of the Bill of Rights provides: 28 "All persons deprived of their liberty (in this section referred to as 29 'prisoners') have the right to be treated with humanity and with 30 respect for the inherent dignity of the human person." 31 32
Section 9 provides, in so far as is relevant: 33 Page 19 of 107 G0155/2017 2024-11-27 Page 19 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 20 of 107 “(1) Government shall respect every person's private and 1 family life, his or her home and his or her 2 correspondence. 3 4 (2) … 5 6 (3) Nothing in any law or done under its authority shall be held 7 to contravene this section to the extent that it is reasonably 8 justifiable in a democratic society— 9 10 a. in the interests of defence, public safety, public order, 11 public morality, public health, town and country 12 planning, or the development or utilisation of any other 13 property in such a manner as to promote the public 14 benefit; 15 16 b. for the purpose of protecting the rights and freedoms of 17 other persons; …". 18 19
By virtue of section 19: 20 “(1) All decisions and acts of public officials must be lawful, 21 rational, proportionate, and procedurally fair. 22 23 (2) Every person whose interests have been adversely 24 affected by such a decision or act has the right to request 25 and be given written reasons for that decision or act.” 26 27
Section 24 provides in these terms regarding the duty of public officials: 28 "It is unlawful for a public official to make a decision or to act in 29 a way that is incompatible with the Bill of Rights unless the public 30 official is required or authorised to do so by primary legislation, 31 in which case the legislation shall be declared incompatible with 32 the Bill of Rights and the nature of that incompatibility shall be 33 specified." 34 35
Under s.28, “public official” includes, among other things, “a public or governmental body and any 36 organisation or person carrying out a public function or duty, including the Governor, except where 37 the nature of their act is private”. The Respondents are indisputably public officials. 38 39 Page 20 of 107 G0155/2017 2024-11-27 Page 20 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 21 of 107
It is settled beyond dispute on the authority of the Court of Appeal that "the Bill of Rights forms 1 the framework according to which the decision of the Governor falls to be judged” (CICA civil 2 appeal judgment at para 62). Nothing in the 1884 Act authorises or requires the Governor to act in 3 a way incompatible with the Bill of Rights, so the exceptions in section 24 could never apply to the 4 1884 Act. The Court of Appeal also opined that given that the 1884 Act applies to both the United 5 Kingdom and the Cayman Islands, it must, therefore, be interpreted and applied in the same way 6 both in the Cayman Islands and in the United Kingdom and so the courts of the Cayman Islands 7 must interpret it in a manner which is compatible with the Human Rights Act 1998 (paras 58 and 8 59 of the CICA civil appeal judgment). Those rights are consistent and compatible with rights under 9 the Bill of Rights. 10 11
However, as the Court of Appeal highlighted, although the scope of the Convention was extended 12 to the Cayman Islands, the Islands had adopted their model of the 1998 Act, although not in 13 identical terms (para 61 of the CICA civil appeal judgment). Accordingly, nothing in the 1884 Act 14 or the Human Rights Act 1998 could authorise a decision which infringes a prisoner's rights under 15 section 6 or section 9 of the Bill of Rights – the rights at the centre of the dispute in this case. 16 17
In this context, it should also be noted that the United Kingdom had permanently extended the 18 European Court of Human Rights (the ECtHR) jurisdiction to the Cayman Islands from 23 February 19
Therefore, the jurisprudence of the ECtHR is relevant to the interpretation and application of 20 the Bill of Rights, where necessary. 21 22 THE CONTENTS AND SCOPE OF SECTIONS 6 AND 9 OF THE BILL OF RIGHTS 23 24
The scope and contents of the rights guaranteed by sections 6 and 9 of the Bill of Rights in issue 25 are given specific consideration because the parties do not agree on the scope and significance of 26 s.6 in this case and, therefore, the treatment that should be accorded it in the analysis on 27 proportionality and justification. 28 29 Section 6 of the Bill of Rights 30
Section 6(1) guarantees the Plaintiffs the right as prisoners to be treated with humanity and with 31 respect for the inherent dignity of the human person. There is no express analogous provision to 32 Page 21 of 107 G0155/2017 2024-11-27 Page 21 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 22 of 107 this section in the Convention. The distinct stand-alone place of this right in a human rights regime 1 is adopted from Article 10.1. of the International Covenant on Civil and Political Rights (“ICCPR”). 2 3
Article 10.3. provides, in part, that "the penitentiary system shall comprise the treatment of 4 prisoners, the essential aim of which shall be their reformation and social rehabilitation". This is 5 not expressly adopted in section 6 of the Bill of Rights but is implied in its terms and becomes 6 applicable through the ECtHR jurisprudence regarding prisoners' rights. 7 8
A brief but helpful explanation of the scope and content of this right is gleaned from an exposition 9 on the human rights system of Australia provided on the website for the Office of the Attorney- 10 General of that jurisdiction (see https://www.ag.gov.au/rights-and-protections/human-rights-and- 11 anti-discrimination/human-rights-scrutiny/public-sector-guidance-sheets/right-humane-treatment- 12 detention last accessed on 24 October 2024). Like the Cayman Islands, Australia has incorporated 13 Article 10 of the ICCPR in its human rights regime. It is explained that the right means that 14 detainees should not be subject to any form of hardship or constraint in addition to those that are 15 unavoidable incidents of detention in a closed environment. The right is said to complement the 16 prohibition on torture and cruel, inhuman or degrading treatment or punishment but is engaged by 17 a broader range of less severe mistreatment. Mistreatment may amount to a violation of Article 10 18 even if it does not rise to the level of torture or cruel, inhuman or degrading treatment or 19 punishment. 20 21
The right has been held to be violated in cases where the detainee was, for example, "subjected to 22 unreasonable restrictions on correspondence with his/her family". It applies to anyone detained, 23 regardless of age or citizenship. 24 25
The Reporting under the ICCPR Training Guide, Professional Training Series No. 23 (2021) 26 (online manual), prepared by the United Nations Human Rights Office of the High Commissioner, 27 is also instructive. It directs that in determining whether the conditions of detention violate the 28 standard guaranteed by Article 10, the nature and context of the treatment, its duration and its 29 physical or mental effects and the characteristics of the individuals concerned should be considered. 30 Examples of inhuman conditions include a lack of adequate food, water, medical services, 31 accommodation and bedding, and a minimum level of privacy. State parties should, among other 32 Page 22 of 107 G0155/2017 2024-11-27 Page 22 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 23 of 107 things, put in place legislative, administrative, and practical measures to rehabilitate convicted 1 persons, including education, vocational training, and guidance. 2 3
The Guide also discusses links with other articles of the Covenant. It notes that Article 10 is 4 frequently mentioned in conjunction with Articles 6 (right to life), 7 (prohibition of torture) and 9 5 (right to liberty and security of person) since non-compliance with Article 10 can lead to violations 6 of the rights guaranteed by the other provisions. It is also generally quoted in connection with 7 Article 14 (right to a fair trial), as the safeguards contained in this article are a way of guaranteeing 8 the other rights. Section 6(1) should, therefore, be viewed in the same light as impacting other 9 rights. 10 11
In the absence of any express limitation in the Bill of Rights, similar to that in Article 4 of the 12 ICCPR, which allows derogation from article 10 in limited circumstances, the Plaintiffs' argument, 13 in this case, is that section 6(1) of the Bill of Rights is an absolute right admitting no derogation. 14 They contend that it demands a separate and distinct analysis and treatment from the section 9 15 rights that are subject to limitation because a breach of section 6 cannot be justified. The 16 Respondents do not accept this argument, hence the issue that has arisen for the court’s 17 determination. A look at section 9 is now warranted. 18 19 Section 9 of the Bill of Rights 20
Section 9 of the Bill of Rights is analogous to Article 8 of the European Convention on Human 21 Rights (ECHR). Article 8 reads: 22 "1. Everyone has the right to respect for his private and family life, 23 his home and his correspondence. 24 25
There shall be no interference by a public authority with the 26 exercise of this right except such as in accordance with the law 27 and is necessary in a democratic society in the interests of 28 national security, public safety or the economic well-being of the 29 country, for the prevention of disorder or crime, for the protection 30 of health or morals, or for the protection of the rights and 31 freedoms of others." 32 33 34 Page 23 of 107 G0155/2017 2024-11-27 Page 23 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 24 of 107
The Plaintiffs claim a violation of the right to respect for their family life. In so far as the 1 interpretation and application of section 9(1) of the Bill of Rights, within the context of this case 2 are concerned, the oft-cited case of Polyakova and Others v Russia App. No. 35090/09, ECtHR7 3 March 2017 (“Polyakova”), is instructive. In that case, the applicants complained of a violation of 4 Article 8 of the Convention on account of the lack of an effective opportunity for prisoners and 5 their relations to maintain family and social ties during their imprisonment in a remote penal facility 6 ranging at distances from between 2000-8000 kilometres from their home. After examining each 7 applicant's particular circumstances, the court concluded there was a violation of Article 8 of the 8 Convention regarding the prisoners and their families' rights guaranteed by Article 8. The court, 9 referring to its established jurisprudence from previously decided cases, affirmed some statements 10 of principle of relevance to this case at paras. 81-89 and 100-101 of the judgment. These principles 11 are summarised below. 12 13
The essential object of Article 8 of the Convention is to protect the individual against arbitrary 14 interference by public authorities. The provision protects, in particular, a right to personal 15 development and to establish and develop relationships with other human beings and the outside 16 world (see Pretty v the United Kingdom, no. 2346/02 at 61, ECHR 2002-III). The Convention must 17 be interpreted and applied to render its rights practical and effective, not theoretical and illusory 18 (see Christine Goodwin v the United Kingdom [GC], no. 28957/95 at 74, ECHR 2002 – VI). Any 19 interference with a right protected by the first paragraph of Article 8 (paragraph 8.1) of the 20 Convention must be justified in terms of the second paragraph (paragraph 8.2), namely as being "in 21 accordance with the law" and "necessary in a democratic society" for one or more of the legitimate 22 aims listed therein. 23 24
The very essence of the Convention is respect for human dignity. Rehabilitation, that is, the 25 reintegration into society of a convicted person, is required in any community that established 26 human dignity as its centrepiece (see Vinter and others v the United Kingdom [GC], nos. 66069/09 27 113, ECHR 2013 (Extracts)). 28 29
Prisoners continue to enjoy all the fundamental rights and freedom guaranteed under the 30 Convention except for the right to liberty, where lawfully imposed detention expressly falls within 31 the scope of Article 5 of the Convention. There is no question that a prisoner forfeits his Convention 32 Page 24 of 107 G0155/2017 2024-11-27 Page 24 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 25 of 107 rights because of his status as a person detained following conviction. Article 8 of the Convention 1 requires the State to assist prisoners as far as possible to create and sustain ties with people outside 2 prison to promote the prisoners' social rehabilitation. In this context, the location of the place where 3 the prisoner is located is relevant. 4 5
Regarding visiting rights, Article 8 of the Convention requires States to take into account the 6 interests of the convict, their relatives and family members. The State does not have a free hand in 7 introducing restrictions in a general manner without affording any degree of flexibility for 8 determining whether limitations in specific cases are appropriate or necessary, especially regarding 9 post-conviction prisoners The margin of appreciation left to the State in the assessment of the 10 permissible limits of the interference with private and family life in the sphere of regulation of 11 visiting rights of prisoners has been narrowing (see Khoroshensko v Russia Application no. 12 41418/04). 13 14
While the Convention does not grant the prisoners the right to choose their place of detention, and 15 the fact that prisoners may be separated from their families and housed at some distance from them 16 is an inevitable consequence of their imprisonment, to ensure respect for the inherent dignity of the 17 human person, the States should aim at maintaining and promoting prisoners' contacts with the 18 outside world. To achieve this aim, the domestic law should provide prisoners (or, where relevant, 19 their relatives) with a realistic opportunity to advance reasons against their allocation to a particular 20 penal facility and to have them weighed against any other considerations in the light of the 21 requirements of Article 8 of the Convention before the domestic authorities. This would mean that 22 Article 8 of the Convention should be incorporated into decision-making. 23 24
There are various ways to include considerations of Article 8 of the Convention in the decision- 25 making process; the consultation procedure is one of the safeguards against arbitrariness. What is 26 salient in this context is that the domestic authorities perform an individual assessment of a 27 prisoner's situation before deciding on allocation to a penal facility. A formalistic reference to, for 28 example, security considerations without examining the person's circumstances cannot substitute 29 for such individual assessment. 30 31 Page 25 of 107 G0155/2017 2024-11-27 Page 25 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 26 of 107
Any restriction on the Convention rights of the prisoner must be justified in each case. This 1 justification can flow, among other things, from the necessary and inevitable consequences of 2 imprisonment or an adequate link between the restriction and the circumstances of the prisoner in 3 question (see Dickson v. the United Kingdom [GC], no. 44362/04, at 68, ECHR 2007-V). 4 5
In the earlier case of Vintman v Ukraine (2014) ECHR 28403105, cited in Polyakova, it was stated 6 at para 78 that: 7 “…detaining an individual in a prison which is so far away from 8 their family that visits are made very difficult or even impossible 9 may, in some circumstances, amount to interference with family 10 life, as the opportunity for family members to visit the prisoner is 11 vital to maintaining family life… It is, therefore, an essential part 12 of a prisoner's right to respect for family life that the authorities 13 assist them in maintaining contact with their close family.” 14 15
The preceding principles form the common thread running through all cases involving the rights of 16 transferred prisoners under Article 8 of the Convention. (See too Fraile Iturralde v Spain (2019) 17 66498/17, [17-19] [116/1938]; Danilevich v Russia (2021), [47] [55/1878]; Khodorkovskiy v 18 Russia (2014) 59 E.H.R.R. 7, [835-837] and Ilerde and others v Turkey (Applications 19 nos. 35614/19 and 10 others)). As such, the principles distilled from these cases are strongly 20 applicable to the consideration of this case, which involves the engagement of prisoners' rights 21 under section 9(1) of the Bill of Rights. Therefore, as the authorities have established, the Plaintiffs 22 are still entitled to the protection of their human rights that their detention has not suspended. Their 23 section 9 right to respect for family life is one such right of immediate relevance that has not been 24 suspended or obliterated by incarceration or transfer. 25 26
However, the right is not absolute. It is qualified by section 9(3) of the Bill of Rights in the same 27 way Article 8.2 of the Convention has done to Article 8.1. The right can be departed from where 28 and to the extent that it is "reasonably justifiable in a democratic society" for any of the purposes 29 specified in section 9(3). Those purposes include protecting specific public interests, including 30 defence, public safety, public order, public morals and the rights and freedoms of other persons. 31 Therefore, a government measure that interferes with a prisoner's right to family life, while he or 32 she is detained, may be lawful if justified under section 9(3). 33 34 Page 26 of 107 G0155/2017 2024-11-27 Page 26 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 27 of 107
The evidence and background to these proceedings, including the decisions of the appellate courts 1 detailed above and the concession of the Respondents, have already established that the Plaintiffs' 2 removal, so far away from home, has significantly interfered with their family life. Section 9(1) of 3 the Bill of Rights is indisputably engaged and interfered with, thereby requiring justification under 4 section 9(3) of the Bill of Rights. 5 6 WHETHER A SEPARATE ANALYSIS IS REQUIRED FOR SECTION 6 RIGHTS 7 8
The Plaintiffs have projected the section 6 right as a separate and distinct right that has been 9 interfered with and, as such, should be given separate analysis and treatment from the section 9 10 right when justification for the interference is being considered. They maintain that treating 11 prisoners with dignity requires safeguarding the rights in issue. In particular, respect for dignity 12 requires the Respondents to ‘aim at maintaining and promoting prisoners’ contacts with the outside 13 world’. The sort of transfer in issue undermines contact and dignity, they contended. According to 14 them, section 6(1) demonstrates the particular weight attached to the dignity of prisoners by 15 Cayman society. The importance of dignity means that a lack of resources is no answer in the 16 context of complaints such as those in this case. Section 6 is in terms that make it clear that it gives 17 rise to unqualified rights, and so interference with it cannot be justified on any ground advanced by 18 the Respondents or at all. 19 20
The Respondents contend, in opposition, that section 6 adds nothing to the analysis of the section 21 9 right, at least in the context of a prisoner's right to assistance with maintaining family contacts, 22 because that right is already protected by section 9 and so a violation of section 9 will involve a 23 breach of section 6. So, according to the Respondents, the duty under section 6 of the Bill of Rights 24 does not impose any additional or more onerous duty in this specific context. 25 26
To support their position, the Respondents noted that the ECtHR has referred to the terms of Article 27 10 of the ICCPR in several cases, including those engaging Article 3 of the Convention (the 28 prohibition against torture, degrading and inhuman treatment). They noted that the contents of 29 Article 10 of the ICCPR "are undoubtedly to be implied into other ECHR articles, including Article 30 8, because 'the very essence of the Convention is respect for human dignity': (see, for example, 31 Polyakova paras 87-88, 100, 113).” For these reasons, the Plaintiffs’ assertion that section 6 32 provides for an 'absolute right' and 'interference with it cannot be justified’ is not supported by 33 Page 27 of 107 G0155/2017 2024-11-27 Page 27 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 28 of 107 authority and provides no assistance when determining whether there is a breach of section 6 in 1 this context. According to the Respondents, the answer is that there will be a breach of section 6 2 when the failure to promote the maintenance of a prisoner's family contacts amounts to a violation 3 of section 9. That is how the right to dignity is understood in the Strasbourg jurisprudence and the 4 approach they are inviting this court to take. 5 6
Having assessed the contents of the relevant rights, I am moved to agree more with the Respondents' 7 position that section 6 does not warrant a separate analysis in so far as it is raised within the context 8 of the section 9 right. Regarding the argument that the interference with respect for private and 9 family life has given rise to a violation of section 6, there would be no requirement for a separate 10 analysis of section 6. In such circumstances, it would be the violation of the right to respect for 11 family life under section 9 that would feed into section 6, thereby leading to a violation of that 12 right. There would be no independent free-standing facts that would separately engage section 6. 13 Based on the Strasbourg Court's jurisprudence, inherent in the Plaintiffs’ section 9 right, which is 14 engaged in this case, is their inherent right to be treated with humanity and respect for their dignity 15 as human beings, which is given expression in section 6 of the Bill of Rights. As the court said in 16 Polyakova, “in order to ensure respect for the inherent dignity of the human person, the States 17 should aim at promoting prisoners' contacts with the outside world” (para [100]). 18 19
To this extent, therefore, even though section 6 is expressed as an absolute right, where it is 20 inextricably wrapped up in the section 9 right, as in this case, and not engaged based on any other 21 free-standing ground, then it would not be violated if section 9 is not violated. The section 6 right 22 raised on the pleadings in this case is, in effect, coterminous and co-extensive with the section 9 23 right that is also pleaded. For this reason, a violation of section 6 cannot be found if the interference 24 with the right under section 9 is justified. 25 26
It follows that the fact that section 6 is expressed in absolute terms would not benefit the Plaintiffs 27 if the Respondents are found to have established justification for interfering with the section 9 28 rights. For there to be a violation of section 6, the Plaintiffs would have to establish some other 29 independently pleaded ground on which section 6 can properly be found to be engaged. On my 30 assessment of the grounds and evidence in the case, I have found none. Therefore, whether there is 31 a violation of section 6(1) of the Bill of Rights will be determined after the question regarding the 32 Page 28 of 107 G0155/2017 2024-11-27 Page 28 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 29 of 107 justification for the interference of section 9 is analysed and resolved, without conducting any 1 separate analysis. 2 3 THE PROPORTIONALITY GROUND 4 Issue 1 – whether the removal was a disproportionate interference with the Plaintiffs’ right 5 to private and family life and their right to be treated with humanity and with respect for the 6 inherent dignity of the human person in breach of sections 6 and/or section 9 of the Bill of 7 Rights in its substantive aspect 8 9
As it relates to the Plaintiffs' challenge on substantive grounds, they complain, in sum, that the 10 decisions are unfair and disproportionate for six broad reasons, namely: (a) the abnormal long- 11 distance transfers; (b) the impact of the transfers on their family life; (c) the impact of the transfers 12 on the family life of the children; (d) the interference with mental health rights, particularly, in the 13 case of Douglas; (e) interference with right of access to lawyers; (f) no consideration given to 14 mitigation at time of the decisions; (g) limited mitigation of the impact of transfer; and (h) absence 15 of plans to facilitate return of the Plaintiffs to include high security provisions in the Cayman 16 Island's prison systems for Category A prisoners. 17 18
The Respondents have conceded that the exceptional circumstances of this case, including the fact 19 that the Plaintiffs have young children, have constituted a significant interference with the Plaintiffs' 20 rights to and respect for family life. 21 22
However, while the Respondents have accepted that there has been significant interference with the 23 Plaintiffs and their children's rights to family life, they do not agree that the interference is to the 24 extent contended by the Plaintiffs. The Respondents contend that the interference with the 25 Plaintiffs’ right to respect for their private and family life is justified, lawful and proportionate 26 under section 9(3) of the Bill of Rights on national security and public safety grounds. This, they 27 say, is demonstrated by the risk the Plaintiffs posed to the safety and security of the Cayman Islands 28 and its people based on established facts and facts derived from intelligence. The established facts, 29 according to them, include (a) the Plaintiffs' predicate offending and conviction with a continuous 30 denial of guilt; (b) their previous convictions; (c) their gang membership; (d) their disciplinary 31 records while incarcerated; (e) their Category A status which still remains despite their detention in 32 the United Kingdom; (f) the inability of HMP Northward to safely secure them; and (g) the steps 33 Page 29 of 107 G0155/2017 2024-11-27 Page 29 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 30 of 107 taken to mitigate the effects of the transfer. In so far as the intelligence material is concerned, that 1 discloses, among other things, the Plaintiffs' continuing involvement in criminality, a plan to escape 2 custody, and the risk they posed to prison employees and the public in the Cayman Islands. 3 Therefore, there is no violation of the Plaintiffs’ constitutional rights under sections 6 and 9 of the 4 Bill of Rights as alleged. 5 6
The Plaintiffs have rejected the reasons put forward by the Respondents as justification for the 7 transfers. They deny that they are involved in any criminality and pose a threat to national security 8 and public safety. Their evidence in this regard has been considered. Accordingly, it is recognized 9 that they have joined issue with the Respondents on all the matters relied on as justification for the 10 decisions to remove them from the Cayman Islands. 11 12
It is by now well-established that the impugned decisions have substantially interfered with the 13 Plaintiffs right to respect for their family life. This is the admission of the Respondents and the 14 conclusion of the appellate courts by which I am bound. The question is whether the interference 15 is justified under section 9(3). 16 17
At para 36 of the Court of Appeal's judgment, Moses JA helpfully identified what he viewed as the 18 central issue which falls to be determined in the judicial review hearing, when he stated in part: 19 “…in the instant case the issue which falls to be determined is 20 whether the Respondents can make out their case that the risks to 21 national security and public safety were such as to compel a 22 decision to remove the appellants from the islands, and if they can, 23 whether there was any less drastic alternative which might have 24 afforded greater protection to the prisoners' rights and interests of 25 their children.” 26 27 The relevant sub-issues 28
Before addressing the issue arising on the substantive proportionality ground, it is imperative to 29 settle some collateral matters that are relevant to conducting the inquiry regarding proportionality 30 and justification. These collateral matters have arisen from the terms of the Plaintiffs' pleaded case, 31 the Respondents’ response to that case, the parties' oral and written submissions, the Plaintiffs’ List 32 of Issues with the Respondents’ Comments filed in October 2023 and the requirements of the 33 general law. These collateral matters include the burden and standard of proof, the approach 34 Page 30 of 107 G0155/2017 2024-11-27 Page 30 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 31 of 107 and standard of review to be deployed in the assessment of proportionality, and the sub-issues 1 identified by the parties, which I will address as - the Timing Issue; the Prison Upgrade/Rebuild 2 Issue; and the PII Issue. 3 4 The approach 5 6 (i) The burden and standard of proof 7
The Respondents have rightly accepted that the onus is on them to justify interfering with the 8 Plaintiffs' rights to respect for their private and family life guaranteed by section 9(1) of the Bill of 9 Rights. This is in keeping with the accepted principle of law that once the interference with their 10 constitutional right is established by the Plaintiffs, the burden shifts to the State to prove that the 11 interference is justified under section 9(3) (see R (Aguilar Quila) v Secretary of State for the Home 12 Department [2012] 1 AC 621 at [45] (“Quila”)). The State has admitted the interference resulting 13 in a shifting of the evidential and legal burden to prove the interference was justified. 14 15
The State is required to prove justification on a balance of probabilities in keeping with the general 16 civil standard of proof. 17 18 (ii) The test of 'reasonably justifiable in a democratic society' 19
The test to be applied in determining whether the State has justified the interference with the 20 Plaintiffs’ constitutional rights in this case is now well-settled. The authorities have established 21 that in cases of judicial review, involving human rights challenges, the approach is one of 22 proportionality, which is different from the approach in treating with traditional judicial review 23 grounds. 24 25
The test that the court must apply to the question of whether a challenged measure on human rights 26 grounds is reasonably justified in a democratic society is for the court to ask and answer these four 27 questions: (i) whether the objective of the impugned measure is sufficiently important to justify the 28 limitation of a fundamental right; (ii) whether the limitation on the right is rationally connected to 29 the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having 30 regard to these matters and to the severity of the consequences, a fair balance has been struck 31 between the rights of the individual and the interests of the community. See Huang v Secretary of 32 State for Home Department [2007] 2 AC 167 (“Huang”); Bank Mellat v HM Treasury (No 2) 33 Page 31 of 107 G0155/2017 2024-11-27 Page 31 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 32 of 107
AC 700, 770 (“Bank Mellat (No 2)”) at paras. 20 (Lord Sumption JSC) and 73-74 (Lord 1 Reed JSC) and Royal Cayman Islands Police Assn. v Police Commissioner [2019] (1) CILR 107. 2 3
In Suraj v Attorney General of Trinidad and Tobago [2022] UKPC 26, [2022] 3 WLR 309 and 4 later, in The Attorney General v The Jamaican Bar Association, The General Legal Council v 5 The Jamaican Bar Association [2023] UKPC 6, at para 77 (“The Jamaican Bar Association 6 case”), the Privy Council affirmed the above approach as "the modern conventional approach to 7 issues of proportionality". It stated that it is similar to the test laid down in the Canadian case of R 8 v Oakes [1986] 1 SCR 103 (“the Oakes test”). 9 10
Lord Sumption further observed in Bank Mellat (No 2) at para 20, that the four requirements, 11 although "logically separate" may "inevitably overlap in practice because the same facts are likely 12 to be relevant to more than one of them". 13 14 (iii) The standard of review in assessing proportionality 15
Appreciating the standard of review that the court should apply in assessing proportionality is 16 critical. In this regard, I am guided by the relevant authorities relied on by the parties. See, in 17 particular, Tweed v Parades Commission for Northern Ireland (HL(NI)) (2007) 1 A.C. 650, where, 18 at para 35, Lord Carswell approved the pronouncements of Lord Steyn in R (Daley) v Home 19 Secretary [2001] 2 AC 532, 547 at para 27 (“Daley”); Bank Mellat (No 2), and R (Prolife Alliance) 20 v British Broadcasting Corporation [2004] 1 AC 185. 21 22
I have also received invaluable guidance from the helpful work of Anthony White QC and Matthew 23 Purchase, Administrative Law, in the text Civil Appeals, Second Edition (General Editor, Sir 24 Michael Burton). The learned writers drew from case law and succinctly restated the key principles 25 at pages 389-392, paras 9-100 to 9-109 of their work. 26 27
The statements of principles from those authoritative sources have been distilled, synthesised and 28 compressed, for expediency, while adhering as closely as possible to the formulation of the 29 principles by the relevant cited authorities. 30 31 Page 32 of 107 G0155/2017 2024-11-27 Page 32 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 33 of 107
The Human Rights Act 1998, which incorporated most of the articles of the ECHR into UK law, 1 has had a significant impact on the court’s approach to the decisions of public authorities in judicial 2 review proceedings. The Act requires public bodies to act compatibly with those articles. A 3 stipulation in those articles that any interference with those rights is lawful, only if it is 4 proportionate in response to a legitimate aim, requires the courts to assess for themselves the 5 balance that the decision maker has struck. Thus, cases involving Convention rights have 6 introduced a new dimension to judicial review. 7 8
The starting point is that while there is an overlap between the traditional grounds of review and 9 the approach of proportionality, the intensity of review is greater under the proportionality 10 approach. The doctrine of proportionality may require the reviewing court to assess the balance 11 which the decision maker has struck, not merely whether it is within the range of rational or 12 reasonable decisions. 13 14
Human rights decisions under the Convention tend to be very fact-specific, and any judgment on 15 the proportionality of a public authority's interference with a protected Convention right is likely 16 to call for a careful and accurate evaluation of the facts. 17 18
A more intensive review and a closer factual analysis of the justification for restrictions imposed is 19 required than used to be undertaken on judicial review challenges. The heightened scrutiny test 20 developed in the case of R v Ministry of Defence, ex p Smith, [1996] QB 517, 554 is not necessarily 21 appropriate to the protection of human rights. The intensity of the review is guaranteed by the twin 22 requirements that (a) the limitation of the right was necessary in a democratic society in the sense 23 of meeting a pressing social need, and (b) the interference was proportionate to the legitimate aim 24 being pursued. Therefore, the differences in the approach between the traditional grounds of review 25 and the proportionality approach may sometimes yield different results. It is, therefore, important 26 that cases involving Convention rights must always be analysed in the correct way. This does not 27 mean there is a shift to merits review. On the contrary, the respective roles of judges and 28 administrators are fundamentally distinct and will remain so. The intensity of review in a public 29 law case will depend on the subject matter, even in cases involving Convention rights; context is 30 everything. 31 32 Page 33 of 107 G0155/2017 2024-11-27 Page 33 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 34 of 107
In addressing the critical question in any proportionality case as to whether the interference with 1 the right in question is objectively justified, it is the court's recognition of the margin of appreciation 2 due to administrative decision-makers, which stops the challenge from being a merits review; the 3 two concepts go hand in hand. With the margin, national courts will accept that there are some 4 circumstances in which the legislature, executive and public bodies are better placed to perform 5 those functions. Therefore, regard must be had to the margin of appreciation in evaluating the 6 challenged decision. 7 8
The margin of appreciation recognises that the court does not become the primary decision-maker 9 on matters of policy, judgment, and discretion so that public authorities should be left with room to 10 make legitimate choices. The width of the margin of appreciation and the intensity of the review, 11 which it dictates, can change depending on the context and circumstances. In other words, 12 proportionality is a flexi-principle, while the latitude connotes the degree of deference by the court 13 to public body. The extent of the margin will depend on a variety of considerations and, with it, 14 the intensity of review appropriate in the particular case. 15 16
In a proportionality challenge under the Convention, the focus is on the result, not the process. The 17 court must determine whether the decision itself was proportionate, not whether the decision maker 18 correctly applied the principles of proportionality and reached a rational conclusion on the question. 19 So proportionality must be assessed objectively by the court. See R(SB) v Governors of Denbigh 20 High School [2007] 1 AC 100 at para. 30 and R (Nassari) v Secretary of State for the Home 21 Department [2010] 1 AC 1 paras 12-14. 22 23
However, proportionality is a matter of judgment, not fact (see A. Secretary of State for the Home 24 Department. [2005] 2 AC 68 at para 44). It will remain a rare case where findings of fact will need 25 to or should be made in judicial review. The challenge, by definition, goes to the legality of the 26 decision impugned. Generally, no fact-finding will be necessary unless perhaps in the procedural 27 challenges where it may be necessary to establish what happened during the course of the decision- 28 making process rather than what material was before the decision-maker. 29 30 31 Page 34 of 107 G0155/2017 2024-11-27 Page 34 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 35 of 107
The margin of appreciation respects and serves to maintain the carefully-guarded distinction 1 between the public body as a primary decision-maker and the court as the reviewing authority. 2 3
Ultimately, it is for this court to determine whether the human rights of the Plaintiffs have, in fact, 4 been infringed and not whether the removing authority properly took them into account (Belfast 5 City Council v Miss Behavin’ Limited [2007] UKHL 19). 6 7 (iv) The Prison Upgrade/Rebuild issue (List of Issues sub-issue a.) 8
In the filed List of Issues, the Plaintiffs have posed this question for resolution within the context 9 of the proportionality ground: 10 “Whether the Respondents are unable to demonstrate that the 11 removal was proportionate in light of the failure to make provision 12 for high-risk prisoners (‘the Prison Rebuil[d] Issue’) (Ramoon 13 amended grounds [79(3)] and Douglas amended grounds 14 [23(a)]);” 15 16
The Respondents do not accept that the sub-issue as framed by the Plaintiffs in the terms stated 17 above falls for determination. They submitted that, at the Court of Appeal, they sought to strike out 18 the part of the claim that asserts a failure to rebuild HMP Northward to accommodate Category A 19 prisoners, as unlawful but that the Court of Appeal refused to do so. Rather, the Court of Appeal 20 only allowed this ground to proceed on a very limited basis which is not reflected in the sub-issue 21 as framed. Reference was made to para 159 of the CICA civil appeal judgment in support of this 22 argument. At para. 159, Moses JA opined: 23 “But the Appellants’ argument that failure to deploy resources can 24 be no defence to a failure to respect the prisoners’ rights is not a 25 direct challenge to the decision not to build a different or more 26 secure prison. It is open to them, on the pleadings, to make that 27 argument. Their argument is not that the failure to build or rebuild 28 a prison was unlawful but rather that if there was an unjustified 29 and disproportionate interference with the prisoners’ rights then 30 that failure would not afford a defence. I would, therefore, rule 31 that it is open to them to make that argument on the pleadings” 32 33 His Lordship then stated at para [160]: “It is not possible to go any further; resolution of the 34 question will be for the Grand Court on remittal applying a CMP.” 35 36 Page 35 of 107 G0155/2017 2024-11-27 Page 35 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 36 of 107
Based on the Respondents’ interpretation of the Court of Appeal’s judgment, Mr Bowen KC argued 1 on their behalf that the issue concerning upgrading or rebuilding HMP Northward would only arise 2 if the Plaintiffs had first established that their removal was an unjustified interference with their 3 section 9 rights. In their view, the issue as framed does not reflect the terms on which the Court of 4 Appeal permitted the Plaintiffs to advance this argument at the remitted judicial review hearing. 5 The Court of Appeal requires the Plaintiffs first to establish that the removal decisions were 6 disproportionate. 7 8
The Plaintiffs responded that the Respondents’ argument is flawed on three distinct bases. The first 9 is that the ECtHR case law demonstrates that the duty to provide resources is intended to prevent 10 separation such as that in issue (see Polyakova). It is not simply considered when a breach of Article 11 8 is established. That is reflected in the fact that there is no defence under Article 8 to a 12 disproportionate decision. Secondly, consistent with the case law of the ECtHR, section 6 is in 13 issue. Section 6 is an absolute right and interference with it cannot be justified. Thirdly, the 14 Respondents’ reliance on the judgment of the Court of Appeal is misplaced. The Court of Appeal 15 was merely confirming that the Plaintiffs could rely on resource issues as pleaded and the approach 16 they have explained above is pleaded. 17 18
I note that despite the debate between the parties, there was no ground of appeal (or counter-appeal) 19 involving that issue before the Privy Council. Therefore, the Board did not treat with it as a specific 20 issue because it was not raised before them. However, it is noted that in treating with the findings 21 of the Court of Appeal on that aspect of the claim, the Privy Council stated, at para 29[6] of its 22 judgment, that the Court of Appeal had concluded that - 23 “The Plaintiffs could rely on a failure to build or rebuild a prison 24 with necessary security in the Cayman Islands as part of their 25 challenge to their transfer on human rights grounds, but 26 resolution of that issue would be remitted to the Grand Court 27 applying a CMP.” 28 29
Evidently, the Board had interpreted this aspect of the Court of Appeal’s reasoning to be that the 30 Plaintiffs may rely on the failure to build or rebuild a prison with the necessary security measures 31 as part of their challenge to their transfer on human rights grounds. 32 33 Page 36 of 107 G0155/2017 2024-11-27 Page 36 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 37 of 107
Given that the Court of Appeal had not rejected the notion that there could be an argument regarding 1 the failure to build or rebuild a more secure prison within the context of the proportionality ground, 2 I would follow the Privy Council’s formulation of what it recorded to be the Court of Appeal’s 3 conclusion regarding this matter. I have chosen to do so because the Court of Appeal’s formulation 4 of how the argument may be deployed is, unfortunately, not clearly understood. As the Respondents 5 have contended, it seems from the Court of Appeal’s reasoning that the argument raising lack of 6 resources, arising from the failure to build or rebuild a prison could only be argued by the Plaintiffs 7 after the Respondents have raised it as a defence following a finding that the interference was 8 disproportionate and unjustifiable. 9 10
However, in my view which reflects the Plaintiffs’ position, once it is already established to the 11 court’s satisfaction that there had been disproportionate and unjustifiable interference with the 12 Plaintiffs’ rights, it would be open to the court to conclude then and there, given the absence of 13 justification, that there is a violation of the rights. On that reasoning, there would be no further 14 room after such a finding for the Respondents to raise lack of resources as an excuse or defence 15 thereby giving rise to a consideration of the prison rebuild issue. The Plaintiffs would have a right 16 to raise such arguments or to respond to them before any determination of proportionality. This 17 accords with the Plaintiffs’ position on the issue. 18 19
My approach in dealing with this issue is, even more, informed by a consideration of the Plaintiffs’ 20 pleadings that each has adopted. In the original application for judicial review filed on 28 21 September 2017, Ramoon did not specifically plead failure to upgrade HMP Northward as a distinct 22 ground where he set out his grounds for judicial review at para. 29 of his claim. At ground 7 of the 23 claim, he stated his detention was in breach of section 5 of the Bill of Rights and or breach of, 24 among other things, “the public law duties of provision”. Later, at para. 90, in the context of that 25 ground, Ramoon averred “in the further alternative” that the Respondents’ “failure to make 26 provision or take reasonable steps to remedy any asserted deficiency to the security in place at HMP 27 Northward is in breach of obligations at law and unlawful”. Although this ground was not explicitly 28 stated in Douglas’ pleadings, he, nevertheless, adopted it. 29 30 31 Page 37 of 107 G0155/2017 2024-11-27 Page 37 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 38 of 107
Later, Ramoon amended his application removing ground 7 under which the Prison 1 Upgrade/Rebuild issue was originally pleaded. Para. 90 of the original application which had 2 expanded that ground was removed. At first blush, there seemed to have been an abandonment of 3 the ground regarding illegality. However, at para 79 of his amended application, under the heading 4 dealing with ground 5, Ramoon raises issues regarding proportionality and justification (the 5 proportionality ground), Ramoon pleaded that the Respondents have failed to demonstrate that the 6 decision in question is proportionate for three reasons. The first reason stated at para. 79(1), which 7 is the relevant one, is that it must have been clear for many years that there was a need to make 8 provision for prisoners who are high risk. That implies that there is no reason why changes to the 9 prison could not have been made years ago. Douglas adopted this ground in his amended 10 application at paragraph 23a of his amended grounds. 11 12
It was against this background of the amended pleadings that the arguments arose in the Court of 13 Appeal regarding the Prison Upgrade/Rebuild Issue. The Respondents’ position was that the 14 pleading regarding the prison was no longer being pursued and the argument relying on it should 15 not be permitted. The Court of Appeal refused to strike out the Plaintiffs’ pleadings because it found 16 that the argument advanced before it was not a challenge on the ground of unlawfulness of the 17 failure to upgrade or rebuild a prison. However, it cannot be said that what is stated by the Plaintiffs 18 in the List of Issues is a challenge to the lawfulness of a decision regarding the prison. 19 20
However, I accept the Respondents’ viewpoint that the sub-issue as framed in the List of Issues 21 does not accord with the Court of Appeal’s formulation or the manner it stated the argument 22 regarding the prison may be deployed. Notwithstanding this, a consideration of paras. 79(1) 23 (Ramoon) and 23a (Douglas) of the amended pleaded grounds clearly shows pleadings relative to 24 the Prison Upgrade/Rebuild issue in the context of the proportionality ground. No reference is made 25 there to the illegality of the decision not to provide a prison, which was pleaded in para 90 of 26 Ramoon’s original application. I note that no reference was made in the Court of Appeal’s judgment 27 to this revised ground in para 79. It appears that its attention was directed to the original pleading 28 in para 90 under the original ground 7 and not the averment made within the context of 29 proportionality at para 5 of the amended application. 30 31 Page 38 of 107 G0155/2017 2024-11-27 Page 38 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 39 of 107
Having considered the amended pleadings at paras 79 and 23 of Ramoon’s and Douglas’ amended 1 applications regarding the Prison Upgrade/Rebuild Issue, respectively, I would hold that it is open 2 to the Plaintiffs to argue the Prison Upgrade/Rebuild Issue based on what is pleaded in their 3 amended applications. Accordingly, it seems fair for the Plaintiffs to maintain that the Prison 4 Upgrade/Rebuild Issue is part of their case under the proportionality grounds. Therefore, it falls to 5 be examined by this court as part of the proportionality ground in the terms it is pleaded in Plaintiffs’ 6 amended application and regardless of how it is formulated in the List of Issues. 7 8
I am far more comfortable with adopting this position because the ground, as contained in the 9 amended application, was not struck out by the Court of Appeal, but instead was remitted to this 10 court for consideration. This decision of the Court of Appeal was not challenged before the Privy 11 Council and, therefore, remains undisturbed. Therefore, the sub-issue will be addressed within its 12 proper context at the material time. 13 14 (v) The Timing Issue – whether proportionally is considered at the date of removal or in light of 15 subsequent developments (List of Issues –sub-issue b.) 16 17
The Plaintiffs contended that, in considering proportionality, the court must consider evidence of 18 the impact of the impugned decisions up to the hearing. They provided detailed reasoning for this 19 viewpoint, which the court has considered. Primarily, they contended that the review cannot be 20 confined to the date of the Governor’s decision. This is because the court has to determine 21 proportionality for itself as it is the primary decision-maker regarding whether there has been a 22 violation of the right in question. Second, assessing proportionality requires an evaluation of 'the 23 severity of the consequences', and those consequences become more evident as time passes. 24 Therefore, the court will not be determining issues for itself if it restricts itself to only the matters 25 known at the date of the decisions. Reliance is placed on Belfast CC v Miss Behavin and Bank 26 Mellat (No 2). 27 28
The Plaintiffs contended further that it was the Governor's office and other Cayman authorities who 29 sought the transfer of the Plaintiffs. Therefore, the Governor must continue to review the 30 justification for transfer because the obligations imposed by section 9(1) of the Bill of Rights 31 require the Respondents to minimise separation. The Governor is subject to continuing obligations 32 to comply with the Bill of Rights. The United Kingdom authorities are in a worse position to assess 33 Page 39 of 107 G0155/2017 2024-11-27 Page 39 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 40 of 107 proportionality (by analogy with R (Barclay) v Lord Chancellor (No 2) [2015] AC 276 at [39]). 1 While the Governor must seek the consent of the United Kingdom for the Plaintiffs' return, that 2 does not mean she has no role to play. In cases like Vintman, the ECtHR considered what happened 3 after the decision in question (see Vintman, at para [103]). 4 5
The Respondents disagree with the Plaintiffs' position. They contended, in opposition, that the court 6 can only be concerned with the lawfulness of the transfer at the time of the Governor's concurrence 7 to the removal. The court’s function, they submitted, is to determine the lawfulness of the decisions 8 at the time they were taken and by reference to the evidence that was before the Governor, the 9 decision-maker. That is because any decision as to whether the Plaintiffs should be transferred back 10 to the Cayman Islands from the United Kingdom is a matter for the United Kingdom Government 11 (the Secretary of State) under the terms of the 1884 Act, (section 3(1)). The Governor has no 12 function within that statutory framework, although it is accepted that, in practice, the Governor may 13 request the Secretary of State to exercise the power of return under section 3(1). If the decisions 14 were lawful at the time they were made, then, in that case, any issue as to the lawfulness of the 15 continuing detention in the United Kingdom for the purposes of section 9 of the Bill of Rights is a 16 matter for the United Kingdom Government and not the Cayman Islands Government. Therefore, 17 the Plaintiffs' challenge to any decision not to return them to the Cayman Islands can only be made 18 against the Secretary of State in the High Court in London. 19 20
The Respondents contended further that the simple fact that a court making a human rights 21 assessment must determine for itself the proportionality of the interference does not mean that it 22 must do so by reference to material that was not available to the decision- maker at the time of the 23 decisions. After citing for support the statements of principle in such cases as A, R and another v 24 CC Kent Constabulary (CA) [2013] EWCA Civ 1706 at [79-84], and R (BAA) v Home Secretary 25 (CA) [2021] 4 WLR 124 at [46], the Respondents maintained that none of the circumstances arise 26 in this case which would justify a departure from the principle that the lawfulness of the decision 27 must be assessed on the material before the decision-maker at the time it was made and not by 28 reference to fresh material after the decision was made. 29 30
In settling the contention raised by the parties on this sub-issue an apt starting point is to note that 31 the impact of the Governor's decisions would have been felt after the Plaintiffs' removal when they 32 Page 40 of 107 G0155/2017 2024-11-27 Page 40 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 41 of 107 were in the United Kingdom. What transpired in the United Kingdom is, therefore, relevant in 1 showing the fact of interference, the extent of the interference and the impact of the interference. It 2 is, however, by now an admitted fact that there has been significant interference with the Plaintiffs' 3 right to respect for their family life due to their removal from the Cayman Islands. As already stated, 4 the interference is established, the question now is justification which lies on the Respondents. 5 6
Therefore, the court is not now concerned with any decision to continue to keep the Plaintiffs in 7 the United Kingdom or not to return them to the Cayman Islands. For this reason, subsequent 8 developments affecting the question of the Plaintiffs’ return are not relevant to this enquiry. The 9 acceptability of the Governor's justification for concurring in the transfer of the Plaintiffs depends 10 on the prevailing circumstances at the time she made the decisions that led to the Plaintiffs removal 11 from the Cayman Islands. It was when the Plaintiffs were removed from the Cayman Islands, that 12 the Governor's concurring decisions would have crystallised. The Plaintiffs’ status would have 13 changed from that of Caymanian prisoners to being United Kingdom prisoners in their capacity as 14 transferred prisoners (section 8 of the 1884 Act). 15 16
In considering this sub-issue as to the appropriate timeline for considering proportionality, I have 17 gained invaluable guidance from the cases of A, R Oao v CC Kent Constabulary (“Kent 18 Constabulary”) paras. [79-84] and R (BAA) v Home Secretary (paras [44]-[46]). These authorities 19 have established three circumstances in which a court may consider the lawfulness of executive 20 action by reference to fresh material that was not before the decision-maker at the time the 21 impugned decision was made. These are where: 22 (a) the court is effectively the primary decision-maker rather than carrying out a process of 23 judicial review. See Kent Constabulary (paras 78-84) citing Huang and Manchester City 24 Council v Pinnock [2011] 2 A.C. 104; 25 (b) the decision-maker is a public body with a continuing duty concerning the matter, although 26 in such cases, the more appropriate course is usually for the affected individual to ask the 27 decision-maker to consider the up-to-date material and to make a fresh decision that may 28 be the subject of judicial review: Kent Constabulary (paras 78-84); and 29 (c) the fresh material relates to a fact in issue that existed at the time of the decision and which 30 the decision-maker ought to have known: BAA (para 46). 31 Page 41 of 107 G0155/2017 2024-11-27 Page 41 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 42 of 107
Beatson LJ observed in Kent Constabulary, at para. 80, that: 1 "If the court is required to scrutinise such material, it is difficult 2 to see how the process can be characterised as one of the review 3 of a decision made by the public authority which has been given 4 primary responsibility for a subject matter, often because of its 5 special knowledge and expertise." 6
At para 91 of the same judgment, Beatson LJ concluded: 7 "In a case such as this, where the primary decision-maker is not 8 under a continuing duty in relation to the matter in the way that 9 the Home Secretary is in the cases to which I referred … the 10 reviewing court should not consider post-decision material when 11 conducting its assessment of whether a prima facie infringement 12 of an ECHR right has been justified as proportionate." 13 14
In BAA at para. 44, reference is made to the court's pronouncements in DB v Chief Constable of 15 the Police Service of NI [2017] UKSC 7, at para 76, where it was stated that "… a judgment on 16 what is proportionate should not be informed by hindsight”. Then, the court in BAA stated (para 17 46): 18 "Where a salient fact emerges before a court or tribunal in the 19 course of its own review in a human rights case, then unless that 20 fact was known, or should have been known, it must be wrong 21 in principle to condemn an earlier decision in relation to the 22 rights in question, whether a matter of a decision as to 23 proportionality or otherwise" (Emphasis added) 24 25
Beatson LJ explained in Kent Constabulary that in carrying out this exercise to determine the 26 relevant time for considering proportionality, the first task is to establish the relevant facts, which 27 may well have changed since the original decision was made. In this case, the relevant facts are (a) 28 whether the removal of the Plaintiffs to the United Kingdom was expedient for their safer custody 29 due to the risk they allegedly posed to national security and public safety and the inability of the 30 Cayman Islands Government to securely accommodate them at HMP Northward in the light of that 31 risk assessment; and (b) whether the removal was a necessary and proportionate response to the 32 alleged risk. 33 34 35 Page 42 of 107 G0155/2017 2024-11-27 Page 42 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 43 of 107
Having applied the applicable principles of law to the relevant facts for determination, I find that 1 none of the three circumstances that would justify this court considering material or information 2 not available to the Governor at the time the decisions were made arise in the circumstances of this 3 case. I endorse the Respondents' submissions, in the light of the standard of review already 4 established, that even though the court is the decision-maker regarding proportionality, it is not the 5 primary decision-maker concerning the removal of the Plaintiffs. It is still conducting a judicial 6 review of the Governor's decisions, which is not a merits review. Therefore, it is not open to the 7 court to review the decision on material that was never before the Governor or which she would 8 not have known or ought to have known at the time she concurred in the removal decisions. 9 Furthermore, as highlighted by counsel for the Respondents, it is not part of the Plaintiffs' case that 10 the Governor failed to take into account facts or any fact in issue that she knew or ought to have 11 known at the time of the decisions. 12 13
The statutory context in which the Governor exercised her power and the circumstances of the case 14 are not such that the Governor bore responsibility for the Plaintiffs upon their detention in the 15 United Kingdom especially in the context of this case where the removal was a composite decision 16 between the Cayman Islands and the United Kingdom Governments. Therefore, there came a time 17 when the responsibility for the Plaintiffs would have shifted to the United Kingdom especially in 18 matters over which the Cayman Government had no control or jurisdiction. As already indicated, 19 the Plaintiffs, upon their removal, were by law, transferred prisoners who fell within the jurisdiction 20 of the United Kingdom. Accordingly, their treatment in detention was the responsibility of the 21 United Kingdom Government and not the Cayman Islands Government. The Governor, therefore, 22 was not required to consider new facts for a new decision to be made by her under the law regarding 23 the detention of the Plaintiffs in the United Kingdom or their return. No other decision is required 24 of her or can properly be made by her within the statutory regime regarding the interference with 25 the Plaintiffs' rights under section 9(1) to cease while they are in the United Kingdom. 26 27
Indeed, neither Respondents in the instant case has any continuing statutory duty regarding the 28 Plaintiffs while they are in the United Kingdom as transferred prisoners. This means that new 29 developments in the United Kingdom resulting from the transfer will be for the Secretary of State 30 and the United Kingdom prison authorities and not for the Respondents. There is, therefore, no 31 Page 43 of 107 G0155/2017 2024-11-27 Page 43 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 44 of 107 scope within the relevant statutory scheme of the 1884 Act for the Respondents or any of them to 1 review the challenged decisions. 2 3
Kent Constabulary has established that the court may employ a flexible approach in some cases as 4 some flexibility will enable the court to do justice, especially in an immigration context in changed 5 circumstances. But the authorities have established that even within that context, the proper way of 6 proceeding would be for a claimant to make a fresh application to the decision-maker, which would 7 be subject to further review by the court (See Kent Constabulary [77 and 78] citing Secretary of 8 State for the Home Department [2004] LGR 463). The appropriate course in many cases, the court 9 said, “is not to review the decision on the basis of new material” [para 84]. 10 11
Counsel for the Respondents posited that, “the focus must be on the material that was available to 12 the Secretary of State and the Governor at the time of the [d]ecisions, including the anticipated 13 impact of removal on the Plaintiffs' right to family life at or shortly after the decision to remove, 14 having regard to any mitigating measures that were and are available". I accept those submissions. 15 16
Accordingly, to assess proportionality, the court is not required to take into account all the updated 17 consequences of the removal as advanced by the Plaintiffs. Following the guidance afforded by 18 case law, the Plaintiffs would have to satisfactorily establish that the updated material being relied 19 on to show unjustifiable continuing interference with their sections 6 and 9 rights in the United 20 Kingdom relates to a fact that existed at the time of the decisions or is a fact in issue which the 21 Governor knew or ought to have known at the time she made the decisions (see BAA [46]). 22 23
In disposing of the sub-issue, I will conclude that the pertinent time for assessing proportionality 24 and determining justification, in this case, would be at the time the Governor gave her concurrence 25 for the Plaintiffs’ removal and up to when the Plaintiffs were removed from the Cayman Islands. 26 This approach has considered matters known and ought to have been known or anticipated by the 27 Governor as the probable and reasonably foreseeable consequences of the decisions on the 28 Plaintiffs' right to respect for family life. The enquiry also involves an evaluation of the measures 29 taken to mitigate those consequences following the Plaintiffs’ removal from the Cayman Islands. In 30 essence, not all the subsequent developments, following their removal from the Cayman Islands, 31 that have been relied on by the Plaintiffs, as constituting unjustifiable interference with their 32 Page 44 of 107 G0155/2017 2024-11-27 Page 44 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 45 of 107 sections 9 and 6 rights, can be laid at the feet of the Governor and/or the Director of Prisons. This 1 will be demonstrated during my analysis of the substantive proportionality ground. 2 3 (vi) THE PII ISSUE – what approach the court should take to the material withheld from disclosure 4 on PII grounds 5
The remaining sub-issue for special consideration relates to the court's treatment of the material 6 excluded by Carter J (Ag) on PII grounds. These sub-issues arise primarily from the Plaintiffs' 7 written submissions (paras 40 and 56) and the Respondents’ response to them. 8 9
In speaking on this sub-issue, Mr Southey KC submitted on behalf of the Plaintiffs that if material 10 is withheld by the Respondents following a PII application, the court cannot consider the material, 11 and so it cannot justify the interference with the Plaintiffs' rights. According to King's Counsel, the 12 interference with the Plaintiffs' rights is not justified because, for example, no fact-finding is 13 possible because evidence has been withheld. In particular, he said, the court is required to make 14 findings as to whether the allegations that are said to justify the interference are true. According to 15 King's Counsel, disclosure is particularly important where fact-finding is required. He relies on Al- 16 Sweady v Secretary of State for the Defence [2009] EWHC 2387 (Admin) (“Al-Sweady”) in 17 support of his arguments. 18 19
Mr Southey further argued that the court needs to look at the material as a matter of principle, and 20 it cannot assume that the assertions are well-founded. The court, he contended, is not in a position 21 to assess risk to national security because it does not have the material subject to PII to provide the 22 whole picture. Whatever the court does, there will be a mismatch between the material considered 23 by the Governor in making the decision and the material available to the court. In his view, 24 underlying material must be disclosed as summaries may mislead (see Tweed v Parades 25 Commission for Northern Ireland [2007] 1 AC 650). 26 27
King's Counsel submits that even if fact-finding is not required, the disclosure in this case lacks 28 sufficient particulars to enable the court to assess the weight to be given to matters relied on by the 29 decision-makers (Kent Constabulary para [36]). In the absence of material and in circumstances in 30 which the burden is on the Respondents (Quila), the court must proceed on the basis that no weight 31 must be given to assertions not supported by underlying material. Further, without disclosure of the 32 Page 45 of 107 G0155/2017 2024-11-27 Page 45 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 46 of 107 underlying material, it is not possible to assess the credibility of the claim, and it cannot be assumed 1 that the Respondents had a lawful basis for the decisions challenged (Begum v Tower Hamlets 2 LBC [2003] 2 AC 430 (“Begum”) at [99]). 3
Mr Southey maintained that it is important that a reliable decision be made that takes all relevant 4 matters into account. He stated that the justification put forward by the Respondents lacks any 5 adequate evidential basis. The court does not have the PII material, and so on the facts of this case, 6 the application for judicial review succeeds because the Respondents have not made good their 7 defence in the case. 8 9
Mr Bowen strenuously countered Mr Southey’s arguments regarding the non-disclosure of the 10 underlying material and its adverse effect on the Respondents' case. In short, Mr Bowen pointed 11 out that Mr Southey, acting on behalf of the Plaintiffs in the Court of Appeal and the Privy Council, 12 had explicitly abandoned that position after the Court of Appeal and the Privy Council rejected it. 13 Mr Bowen noted that Mr Southey has now sought to revive before this court the same position he 14 had abandoned before the Privy Council. Therefore, the court should reject his submissions. 15 16
Mr Bowen further posited that based on the reasoning of the Privy Council, it is not open to this 17 court to proceed as if the PII material does not exist. The court, he said, cannot turn a blind eye as 18 a matter of rationality or binding authority. The court has to take into account, where there is 19 evidence or gist that this intelligence existed. The correct approach for the court, he said, is to 20 determine the applications by reference to the open material but to accept, at face value, the 21 Respondents' evidence - including the gist of the underlying material - to the extent it is based upon 22 material that Carter J (Ag) has ordered withheld on PII grounds. The Board has already ruled that 23 this does not create unfairness, but instead, it is a "procedural limitation on the use of classified 24 information”, which is justified under Article 6/ section 26 of the Bill of Rights (see para 52 of the 25 PC judgment). Mr Bowen maintained that if there was any inconsistency between that underlying 26 material and the open evidence and the gist, that would have been identified in the PII process. 27 Carter J (Ag) had already identified in the PII judgment that the underlying material does not assist 28 the Plaintiffs (see para 83 of the PII judgment). 29 30 31 Page 46 of 107 G0155/2017 2024-11-27 Page 46 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 47 of 107
Furthermore, and in any event, he continued, a fact-finding exercise such as that contended for by 1 the Plaintiffs would have been unnecessary and unwarranted even if the relevant material was not 2 subject to PII. What is required is balancing the impact of the removal on the Plaintiffs against the 3 interests of national security and public safety. That involved a number of expert judgments made 4 by a range of decision-makers, including the RCIPS, the OTD's Regional Prisons advisers, the 5 Secretary of State and the Governor that the Plaintiffs posed a risk to national security and public 6 safety. Even if the underlying material could be disclosed, those judgments were all based on a 7 range of information, little of which is susceptible to an established standard of proof, and the court 8 is required to give due deference to the experience and expertise of the persons making those 9 judgments. That would be the case even where the court is exercising a jurisdiction to make primary 10 findings of fact rather than its jurisdiction in judicial review: see Begum and Secretary of State v 11 Rehman [2003]1 AC 153 (“Rehman”). The approach contended for by the Plaintiffs simply revives 12 an argument that had already been dismissed and abandoned by the Plaintiffs before the Board. The 13 court should not follow it. The only question for the court is whether the interference with the 14 Plaintiffs' rights was justified by reference to the Governor's assessment of risk to national security 15 and public safety informed by those judgments. 16 17
It is noted that both the Privy Council and the Court of Appeal had frontally addressed the 18 arguments raised by Mr Southey in these proceedings regarding the exclusion of the underlying 19 material on PII grounds. His argument is, indeed, a restoration of the arguments he raised on appeal, 20 which were roundly rejected by the Court of Appeal and the Privy Council. In treating with Mr 21 Southey's argument regarding undisclosed material, the Privy Council, in its judgment, stated at 22 para. 53: 23 “Before the Court of Appeal Mr Hugh Southey KC on behalf of the 24 appellants submitted that in the absence of a CMP the court would 25 be unable properly to assess the justification and proportionality 26 of the decisions and, since the burden is on the respondents to 27 establish that the undisputed interference with their rights was 28 justified and proportionate, the consequence must be that without 29 the material which formed the basis of the decisions they must fail 30 to discharge that burden. This submission was rejected by the 31 Court of Appeal, correctly in the Board's view. Sir Alan Moses 32 (at paras 97-98) gave a number of reasons for this conclusion.” 33 (Emphasis added) 34 35 Page 47 of 107 G0155/2017 2024-11-27 Page 47 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 48 of 107
The Board then set out the Court of Appeal's reasons for rejecting Mr Southey's argument with 1 which their Lordships agreed. In outline, the reasoning of the Court of Appeal at paras. 97-103 of 2 the CICA civil appeal judgment, accepted by the Board, was as follows: 3 (a) Such a decision in favour of the Plaintiffs deprives the Respondents of the opportunity to 4 rely on material, which it is known would support the Respondents' open case, namely, that 5 the Plaintiffs as leaders of the CMK gang continued to pose a threat to national security 6 and public order on the Islands, including an immediate danger of escape and the use of 7 weapons. It would be contrary to what is already known to proceed on the basis that there 8 was no evidence to support the Respondents' case. Carter J's judgment at para 83 as to the 9 claims to PII makes this clear (para 98). 10 (b) There is plainly a conflict between the interests of the public in the Islands and the interests 11 of the Plaintiffs. In such a conflict, the protection of the public should prevail, all the more 12 so where national security is at risk. There is evidence of the risk to national security given 13 by the Governor and endorsed in the judgment of Carter J (Ag.) (para 99). 14 (c) The Plaintiffs' liberty is not at stake in this case. The court could not close its eyes to 15 evidence that it knows speaks of the danger that the removal of the Plaintiffs is designed 16 to obviate. To decide in favour of the Plaintiffs because of the withholding of material on 17 PII grounds would be to ignore the need to safeguard national security and to protect the 18 Islanders (para 102). 19 (d) Simply quashing the decisions to remove the Plaintiffs would lead to an impasse, with the 20 Governor and Secretary of State remaking the same decision upon the return of the matter 21 to them by the court (para 103). 22 23
That having been said, the Privy Council then observed at para 53 that: 24 “On the present appeal, Mr Southey has expressly abandoned the 25 position he took below and limits himself to the submission that, 26 if no CMP procedure is available, the judicial review should be 27 remitted to the Grand Court where it should be decided on the 28 basis of the material which has been disclosed.” (Emphasis 29 added) 30 31 Page 48 of 107 G0155/2017 2024-11-27 Page 48 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 49 of 107
After considering Mr Bowen's argument regarding the treatment of the case in the absence of the 1 PII material and the availability of a CMP, the Privy Council opined that this is unlikely to be a 2 case in which the withholding of disclosure on grounds of PII would make the claim un-triable, in 3 the sense that it prevents a fair trial of the issues [55]. The Privy Council then referred to the 4 redacted PII judgment of Carter J (Ag) and drew attention to certain matters therein to which this 5 court has had regard (see para [56] of the PC judgment). Among those matters was that the judge 6 had the assistance of a special advocate performing the role of amicus curiae for the purpose of the 7 exercise. He represented the interests of the Plaintiffs. 8 9
Included in their Lordship's consideration also was the judge's division of the documents for which 10 PII was claimed into two categories, namely, those available to the Governor at the time she made 11 the decision to transfer, and the Respondents' unredacted affidavits and the material specifically 12 referred to in those affidavits. Some of the material specifically referred to in the Respondents' 13 unredacted affidavits were documents that were not before the Governor when she made the 14 impugned decisions. Those documents were ruled irrelevant as they neither supported the Plaintiffs' 15 case nor undermined the Respondents' case. They were unnecessary for the fair disposal of the 16 proceedings (para 56(3) of the PC judgment). 17 18
Carter J (Ag) had indicated that among the material, prima facie, disclosable were redacted copies 19 of the submission that was made by the Governor to the Secretary of State seeking the removal of 20 the prisoners to the United Kingdom as well as the gist of the allegations upon which the decisions 21 to transfer the Plaintiffs were partially made. The Board detailed the gist of the allegations recorded 22 by Carter J (Ag) as well as her conclusions regarding the material before her (para 56(4) of the 23 Board's judgment). 24 25
Carter J(Ag), for her part, had further observed at several portions of her judgment that: 26 “42. There is no issue that the first Respondent is entitled to claim 27 that there is sensitive material in this case which should be 28 withheld from the Plaintiffs as he has done by the issuance of the 29 PII Certificate. In this instance the risk to national security 30 encompassed the risk that the defendants may try to escape from 31 HMP Northward. This was the assessment of the First 32 Respondent. There is no question that a court should not seek to 33 undermine the executive's assessment on matters such as national 34 Page 49 of 107 G0155/2017 2024-11-27 Page 49 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 50 of 107 security because it is recognized that such assessment will be 1 based on facts for which the decision maker has special 2 knowledge or a special responsibility as it relates to that area for 3 which in this case he is uniquely responsible. 4 …. 5 6
I am satisfied that of the materials from the redacted 7 affidavits that may have been referred or may have been before 8 the Governor at the time she made the decision, some of these have 9 been disclosed to the Plaintiffs. Others [sic] material which may 10 have not been ordered disclosed by this court are documents 11 properly not disclosed and are properly to be PII protected. 12 13
… There were documents relating to the Plaintiffs' transfers 14 that were regarded as high-level documents on the Conway v 15 Rimmer and Whittaker v Waller scale that were properly to be 16 PII protected. 17 18
The risk to third parties and informants in this matter is high. 19 This court must be careful to ensure that the disclosure of the 20 identity of persons who provided information to the police of the 21 Plaintiffs' activities will not result in them being harmed. The 22 risk to those persons outweighs the need for disclosure especially 23 in these instances when, as this court has concluded, the 24 information that will be withheld as a result will not advance the 25 Plaintiffs' case in any material way. These are matters the 26 disclosure of which could lead to the identity of informants.” 27 (Emphasis as in the original) 28 29
After a consideration of the findings and conclusions of Carter J(Ag), the Board then stated (para 30 57) “In the Board's view, it is a telling feature of the present case that there was no appeal against 31 the PII ruling of Carter J (Ag)”. 32 33
Their Lordships then concluded (para 59): 34 “59. In the present case the judge examined all the documents for 35 which PII was claimed. The instruction of a special advocate as 36 amicus curiae in the PII process was an additional assurance that 37 the respondents' case for PII was rigourously tested and that the 38 interests of the parties were protected. In the Board's view, there 39 is no reason to suppose that the present case is an exceptional case 40 Page 50 of 107 G0155/2017 2024-11-27 Page 50 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 51 of 107 in which the PII ruling has resulted in a situation where, without 1 disclosure of the PII material, the court is unable fairly to decide 2 this dispute. On the contrary, there was here extensive disclosure 3 and, in addition, gisting of documents. Moreover, so far as the 4 threat posed by [the Plaintiffs] is concerned, there was compelling 5 evidence of their dangerousness arising from their conviction for 6 a particularly cold-blooded gang killing. The Board does not 7 consider it necessary to remit this matter to Carter J (ag) for a 8 decision as to whether her PII ruling renders the judicial review 9 proceeding untriable. It can see no unfairness in [Ramoon's] 10 claim for judicial review proceeding to trial on the basis of the 11 material which is now available as a result of the PII exercise.” 12 (Emphasis added). 13 14
In light of the Board’s pronouncements, some of which are extracted above, and its treatment of 15 the same submissions of Mr Southey regarding the undisclosed underlying material, I have no 16 option but to reject his arguments in these proceedings. Mr Bowen is correct that he has rehashed 17 the same arguments rejected by the higher courts as having no merit. I am bound by those decisions, 18 even though on my own analysis, I have found the arguments to be unmeritorious. 19 20
It is safe to conclude from the reasoning of both the Court of Appeal and the Privy Council and on 21 my own analysis that this court cannot ignore the fact that some of the supporting material on which 22 the Governor relied to concur in the transfer of the Plaintiffs had been withheld on PII grounds. 23 The court cannot ignore that the undisclosed material existed at the time of the decisions and that, 24 at face value, it contains information that would support the Respondents' case regarding the risk 25 allegedly posed by the Plaintiffs. Indeed, as the Board opined, a decision in favour of the Plaintiffs 26 due to the absence of the underlying material would deprive the Respondents of the opportunity to 27 rely on material that it was known would support their case (for emphasis). I accept the 28 unchallenged word of Carter J (Ag) that the undisclosed information she ordered withheld on PII 29 ground could not materially assist the Plaintiffs, in any event. Therefore, it is difficult to envisage 30 how the Plaintiffs would be prejudiced by the absence of the underlying material on which the risk 31 assessment was made. From every indication, it would be unfair to the Respondents if this court 32 were to proceed as if the undisclosed information on PII grounds does not support their case. 33 34 Page 51 of 107 G0155/2017 2024-11-27 Page 51 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 52 of 107
While I do appreciate that there is an imbalance between the information that was available to the 1 Governor at the time the decisions were made and that which is now available to the court, I believe 2 there is enough before this court on the open evidence, including the gist of the undisclosed 3 underlying material, for it to fairly decide the applications. The participation of the Special 4 Advocate in the PII hearing has led me to conclude that it is safe to rely on the gist of those 5 undisclosed material. For that reason, disclosing the PII material is unnecessary to dispose of the 6 claim fairly. Therefore, the Respondents’ justification defence has been evaluated despite the 7 absence of all the material available to the Governor. 8 9
The other aspect of Mr Southey’s submissions regarding the material withheld on PII grounds that 10 must be addressed is that this court has to reach binding findings of fact regarding the underlying 11 facts on which the risk assessment was based before the decisions can be found to be proportionate 12 and justified. Therefore, because the material is not disclosed, the credibility of the Respondents’ 13 assertion cannot be established. King's Counsel further submitted that aspects of the Respondents' 14 justification for the transfers are mere assertions and are not proved to be based on credible 15 evidence. In this regard, Mr Southey contended that if it is accepted that the primary reason for the 16 transfer is the Plaintiffs' continued engagement in criminality, then that is a "hard-edged" question 17 of fact on which the Respondents bear the burden of proof. 18 19
If he is wrong about that, he said, then the fact of continuing criminality relied on as the reason for 20 the transfer is, at the very least, a question of fact as to whether there was evidence that suggested 21 criminality. King's Counsel further noted that the need for fact-finding in a national security context 22 is consistent in human rights cases and so, even though national security is in issue, the State needs 23 to prove specific facts on a balance of the probabilities (CG Bulgaria app 1365/07 (2008) 47 EHRR 24 51 and Home Secretary v Rehman cited). For all these reasons, he submitted, the court is not in a 25 position to place any weight on the underlying facts on which the risk assessment was based in the 26 proportionality balancing exercise. 27 28
The Respondents have not accepted this position. Mr Bowen, on their behalf, submitted that the 29 assessment of future risks, such as those to be made under the 1884 Act, does not involve "hard- 30 edged" questions of fact that would have required the removing authority, and this court to be 31 satisfied as to the truth of the facts relied on to any particular standard of proof for proportionality 32 Page 52 of 107 G0155/2017 2024-11-27 Page 52 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 53 of 107 to be determined. The relevant facts, he said, are whether the Plaintiffs posed a risk to national 1 security and public safety of the Cayman Islands that warranted their removal for their safer 2 custody. Mr Bowen submitted that there is no burden on the Respondents, who bear the burden of 3 proof, to establish the truth, credibility or reliability of the underlying facts on which the risk 4 assessment was made and the decisions taken to remove the Plaintiffs. 5 6
I have considered the competing contentions and the applicable law in addressing the question of 7 the approach to fact-finding in assessing proportionality in this case. I am drawn to the logic in Mr 8 Bowen's arguments on this issue on the strength of the authorities and for other reasons outlined 9 below. 10 11
I have commenced the assessment of this sub-issue with the recognition that it has already been 12 established that the Respondents are required to establish the justification they have alleged, on a 13 balance of probabilities, in keeping with the standard of proof in civil proceedings. Regarding the 14 question of proportionality, however, the authorities have established that there are situations in 15 which the onus and standard of proof might not assume significance in determining proportionality. 16 This is so in cases where there are agreed facts or where the determination of proportionality does 17 not necessarily involve the resolution of disputed facts and fact-finding. The court in Quila, at para. 18 44, noted that "in an evaluation which transcends matters of fact [it is] not apt to describe the 19 requisite standard of proof as being, for example, on a balance of probabilities". 20 21
In Ali v Secretary of State (SC(E)) [2016] 1 WLR 4799, the court held that the onus of proof is on 22 the State to justify an interference but questions of onus are unlikely to be important where the 23 relevant facts have been established. Therefore, where there are disputed facts, the incidence of the 24 onus and standard of proof may assume greater importance than where there are no disputed facts. 25 26
Also, the Privy Council in the Jamaican Bar Association case, at para 27, in dealing specifically 27 with the question regarding the standard of proof, expressed its reluctance to become engaged in 28 the supposed relevance between the civil and criminal standards of proof in the context of that case. 29 This, their Lordships explained, was because the standards are concerned with the proof of disputed 30 facts, not with the interpretation of statutory language or the evaluation of demonstrable 31 Page 53 of 107 G0155/2017 2024-11-27 Page 53 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 54 of 107 justification. In that case, the Board noted that there were no contentious issues of primary fact to 1 which a standard of proof "could sensibly" be applied. 2 3
There is, therefore, strong authority for the view that the onus and standard of proof relative to the 4 asserted facts, which underly the impugned decisions in this case, will only be materially relevant 5 if there are disputed questions of fact concerning the issue to be determined and which would 6 necessitate fact-finding by this court. Therefore, the question to be asked and answered is: Are the 7 underlying facts, on which the Governor based her risk assessment and granted her notices of 8 concurrence, "hard-edged questions of fact", which must be proved on a balance of probabilities? 9 10
Al-Sweady is one of those authorities that has assisted with this enquiry. The case has established 11 that where there are "hard-edged" questions of fact in issue, the correct approach for the court is to 12 ensure that the truth of the matter in issue is established. This may necessitate disclosure and cross- 13 examination of witnesses, which would warrant fact-finding. The court identified five main areas 14 of factual disputes between the parties that were regarded as "hard-edged" questions of facts. That 15 meant that determining those questions of fact (fact-finding) was bound to be crucial in deciding 16 which party would be successful. 17 18
The court reasoned that if the usual approach was adopted in the case by resolving the dispute of 19 fact in favour of the defendants without embarking on a fact-finding exercise, the State would have 20 succeeded, and that would have had the more far-reaching consequence that a defendant would 21 always succeed if sued for infringement of human rights which was in dispute. In the circumstances, 22 the court opined that a different approach was needed because "hard-edged" questions of fact 23 represented an important exception to the general rule precluding the court from substituting its 24 views in judicial review cases. The court found it necessary to allow cross-examination of the 25 makers of witness statements on those "hard-edged "questions of fact. The court stated that it 26 envisaged “that such cross-examination might occur with increasing regularity in cases where there 27 are crucial factual disputes between the parties relating to the jurisdiction of the ECHR and the 28 engagement of its Articles.” (emphasis added) 29 30 31 Page 54 of 107 G0155/2017 2024-11-27 Page 54 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 55 of 107
In Kent Constabulary, the court also explored the issue regarding the appropriateness of fact- 1 finding in judicial review proceedings alleging human rights breaches, albeit within the context of 2 disclosure. Beatson LJ, stated several noteworthy points on this issue at paras. 58-61 of the 3 judgment. He opined that the judicial review procedure under the Civil Procedure Rules is not 4 designed or well-suited to hear witnesses and decide disputed questions of fact, albeit that it would 5 in some cases be necessary, such as where the question before the court is a jurisdictional fact or 6 when determining whether there had been a breach of one of the rights under the 7 Convention. While there is a need for intense scrutiny of the decision, and proportionality has to 8 be judged objectively by the court, it is not a merits review. Although it is for the court itself to 9 assess proportionality, the process is essentially evaluative rather than one determining 'hard-edged 10 questions of fact'. This is one reason the court's starting point would generally be to give appropriate 11 weight to the conclusions of the person who had access to special sources of information and who 12 had been given responsibility for a topic. The court is to consider the state of the available material. 13 Its task is not to determine the truth or falsity of the allegations. In the vast majority of cases, there 14 would be no need to make findings of fact when assessing their reliability. 15 16
In Abortion Services [2023] AC 505 Supplemental at para 30, Lord Reed, PSC reiterated that 17 determining whether an interference with Convention rights is proportionate is not a fact-finding 18 exercise. It involves, he said, "the application in a factual context (often not in material dispute) of 19 the series of legal tests together with a sophisticated body of case law and may also involve the 20 application of statutory provisions or the development of the common law”. His Lordship 21 referenced the dictum of Lord Bingham of Cornhill in A v Secretary of State for the Home 22 Department [2005] 2 AC 68 at para 44 that the ECtHR does not approach questions of 23 proportionality as questions of pure facts, nor should domestic courts do so. Similarly, in the 24 Jamaican Bar Association case, the Privy Council made it clear beyond debate that the standard 25 of proof has no relevance where the issue relates to the evaluation of demonstrable justification. 26 27
From the pronouncements of the courts in the cases above, it seems safe to say that, in the instant 28 case, where the remaining issue for determination is whether the interference is reasonably 29 justifiable in a democratic society, and around which there is no material dispute of fact, there 30 would be no need for fact-finding and the standard of proof would have no relevance. 31 32 Page 55 of 107 G0155/2017 2024-11-27 Page 55 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 56 of 107
I have not rested my conclusions on this sub-issue simply on the foregoing statements of principle 1 distilled from the cases cited above. I have gone further and examined the different strands of 2 justification advanced by the Respondents within the context of other principles deduced from other 3 authorities in treating with the Plaintiffs' submission. Within this context, Rehman stands out as 4 an integral authority that provides useful guidance regarding the approach that must be taken to a 5 risk assessment by a public authority. The House of Lords addressed, in detail, the issue regarding 6 the Secretary of State's entitlement to make a deportation order on the basis that Mr Rehman had 7 endangered national security and that he was a danger to national security. 8 9
The Commission had found that the Secretary of State did not prove the facts relied on to establish 10 the alleged threat to national security to "a high civil balance of probabilities". The Court of Appeal 11 found that the Commission was wrong to so find. Before the House of Lords, it was contended on 12 this point that the Court of Appeal erred in rejecting the Commission's ruling that the Secretary of 13 State had to satisfy it, "to a high civil balance of probabilities", that the deportation of the appellant 14 was made out on public interest grounds because he had engaged in conduct that endangered the 15 national security of the United Kingdom and, unless deported, was likely to continue to do so. 16 17
Lord Slynn of Hadley at paragraph 21 repeated the reasoning of Lord Woolf MR in the Court of 18 Appeal decision in Rehman ([2000] 3 WLR 1240, 1254, at para 44), where Lord Woolf MR said: 19 “However, in any national security case the Secretary of State is 20 entitled to make a decision to deport not only on the basis that the 21 individual has in fact endangered national security but that he is 22 a danger to national security. When the case is being put in this 23 way, it is necessary not to look only at the individual allegations 24 and ask whether they have been proved. It is also necessary to 25 examine the case as a whole against an individual and then ask 26 whether on a global approach that individual is a danger to 27 national security, taking into account the executive's policy with 28 regard to national security. When this is done, the cumulative 29 effect may establish that the individual is to be treated as a danger, 30 although it cannot be proved to a high degree of probability that 31 he has performed any individual act which would justify this 32 conclusion.” 33 34 35 Page 56 of 107 G0155/2017 2024-11-27 Page 56 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 57 of 107
Lord Slynn of Hadley in the lead judgment of the House agreed with Lord Woolf, MR on this point 1 and stated his reasons for doing so in these terms at para 22: 2 “22. Here the liberty of the person and the practice of his family 3 to remain in this country is at stake and when specific acts which 4 have already occurred are relied on, fairness requires that they 5 should be proved to the civil standard of proof. But that is not the 6 whole exercise. The Secretary of State, in deciding whether it is 7 conducive to the public good that a person should be deported, 8 is entitled to have regard to all the information in his possession 9 about the actual and potential activities and the connections of 10 the person concerned. He is entitled to have regard to the 11 precautionary and preventative principles rather than to wait 12 until directly harmful activities have taken place, the individual 13 in the meantime remaining in this country. In doing so he is not 14 merely finding facts but forming an executive judgement or 15 assessment. There must be material on which proportionately 16 and reasonably he can conclude that there is a real possibility of 17 activities harmful to national security but he does not have to be 18 satisfied, nor on appeal to show, that all the material before him 19 is proved, and his conclusion is justified, to a "high civil degree 20 of probability". Establishing a degree of probability does not 21 seem relevant to the reaching of a conclusion on whether there 22 should be a deportation for the public good.” (Emphasis added). 23 24
At para 29 of the judgment, Lord Steyn, in agreeing with Lord Slynn, rejected the submission that 25 the civil standard of proof applied to the Secretary of State and the SIAC. He opined that on the 26 contrary, the task of the Secretary of State was to “evaluate risks in respect of the interests of 27 national security.” 28 29
Lord Hoffmann, for his part, similarly agreed with the Court of Appeal's reasoning on the point 30 regarding proof of the underlying facts on which the risk to national security was based. He noted 31 that the final decision as to whether the person was a danger to national security was “evaluative 32 looking at the evidence as a whole and predictive looking to future danger". According to Lord 33 Hoffmann at para 56: 34 “56. In any case, I agree with the Court of Appeal that the whole 35 concept of a standard of proof is not particularly helpful in a case 36 such as the present. In a criminal or civil trial in which the issue 37 is whether a given event happened, it is sensible to say that one is 38 Page 57 of 107 G0155/2017 2024-11-27 Page 57 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 58 of 107 sure that it did, or that one thinks it more likely than not that it did. 1 But the question in the present case is not whether a given event 2 happened but the extent of future risk. This depends upon an 3 evaluation of the evidence of the appellant's conduct against a 4 broad range of facts with which they may interact. The question 5 of whether the risk to national security is sufficient to justify the 6 appellant's deportation cannot be answered by taking each 7 allegation seriatim and deciding whether it has been established 8 to some standard of proof. It is a question of evaluation and 9 judgment, in which it is necessary to take into account not only the 10 degree of probability of prejudice to national security but also the 11 importance of the security interest at stake and the serious 12 consequences of deportation for the deportee.” 13
In R (Pearce) v Parole Board [2023] AC 807, the Supreme Court of England and Wales gave in- 14 depth consideration to the court's pronouncements in Rehman, among other cases. In Pearce, the 15 focus was on the Parole Board's functions under section 28(6) of the Crime Sentences Act 1997 to 16 determine whether it was no longer necessary for the protection of the public that a prisoner should 17 be confined. At para 14 of its judgment, the court identified the "central issue" in the appeal as 18 "whether the Parole Board, in making its decision, was confined to acting only on facts which it (or 19 some other competent body) had found to be proved on the balance of probabilities, or whether 20 there can be circumstances in which despite the absence of fact-finding, it is entitled to take a 21 complaint or allegation into account when confronting the statutory question". 22 23
Lord Hodges DPSC and Lord Hughes, in the lead judgment of the court, explained Lord Slynn's 24 pronouncements in Rehman at para 22 of that judgment (see above). They noted that Lord Slynn, 25 in referring to the requirement of fairness that past acts should be proved, "was saying no more 26 than" if on such an exercise, specific past activity was to be relied on as having occurred, that 27 activity must be proved to have happened. According to their Lordship, Lord Slynn "was, explicitly, 28 not saying that this was the only basis on which a decision as to future risk could be arrived at". 29 30
Their Lordships opined that "when one comes to assessing risk the unproven possibility that a fact 31 may be true is a factor which can in some circumstances properly be taken into account" (para 61). 32 They then concluded that notwithstanding the differences between the Parole Board's role in Pearce 33 and that of the SIAC in Rehman, the above-stated pronouncements of Lord Slynn and Lord 34 Hoffmann in Rehman support the view that a decision-maker, when assessing future risk, is not as 35 Page 58 of 107 G0155/2017 2024-11-27 Page 58 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 59 of 107 a matter of law compelled to have regard to only those facts which individually have been 1 established on the balance of probabilities. The decision-maker, from the assessment of the 2 evidence as a whole, can take into account, alongside the facts which have been so established, the 3 possibility that allegations which might not have been so established may be true (para. 72). 4 5
The Supreme Court, after a thorough review of various cases, including those involving the making 6 of care orders in respect of children under section 31(2) of the Children Act 1989, opined that "even 7 in that specific context, there is no general rule that an unproven fact can never be considered by 8 way of an assessment of risk (at paras 47-64). At para 62, their Lordship reasoned: 9 “These clearly expressed decisions demonstrate, beyond 10 argument, first that In re H cannot be an application of a universal 11 legal principle that an unproven fact can never figure in legal 12 reasoning, and second, that to the contrary, when one comes to 13 assessing risk the unproven possibility that a fact may be true is 14 a factor which can in some circumstances properly be taken into 15 account.” (Emphasis added) 16 17
The court then summarised its conclusions from the cases it had reviewed in several statements of 18 principle at para 65 of the judgment, the most relevant one for immediate purposes being that in 19 assessing the risk of future behaviour, it is not necessary to consider each allegation of past 20 behaviour individually and decide whether it is established on the balance of probabilities. 21 Depending upon the legal context, the court can assess risk by weighing up the possibility that an 22 allegation or several allegations may be true having regard to the whole material before it: see 23 Rehman para 56, per Lord Hoffmann; In re O [2004] 1 AC 253, paras 12 – 13 and 27, per Lord 24 Nicholls. 25 26
The court further went on to treat with the evidential status of allegations in the Parole Board's 27 assessment. It stated that the central question was whether there was anything in the legal context 28 of the Parole Board's role, when it addressed allegations of past criminal or otherwise risky 29 behaviour, which confined the matters that the Board may take into account to proven facts of past 30 behaviour, while excluding from consideration in any circumstance the possibility that the proven 31 unproven allegations might be true. At para 73, the court responded to that question in the negative, 32 effectively stating that there is nothing in the statutory framework under which the Parole Board 33 Page 59 of 107 G0155/2017 2024-11-27 Page 59 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 60 of 107 acted that confines what the Board may take into account to proven facts of past behaviour. The 1 court opined: 2 “…The question at all times is one of statutory interpretation. The 3 statutory remit of the Board … is that it may not direct the release 4 of the prisoner unless it is satisfied that it is no longer necessary 5 for the protection of the public that he should be confined. There 6 is no further express statutory specification as to how the Board 7 satisfies itself of this test. Nonetheless, the statutory provision does 8 not stand alone; it is to be interpreted in the context of the general 9 law.” 10 11
The court concluded, in so far as is immediately relevant, that (a) there was no general legal rule 12 that in making a risk assessment, the Parole Board was obliged to adopt a two-stage process of 13 making findings of fact on the balance of probabilities and then treating only those matters on 14 which it has made such findings of fact as relevant to the assessment of risk, and (b) there is no rule 15 of substantive fairness, akin to a legitimate expectation, which required the Parole Board to have 16 regard only to found facts in its assessment of risk. 17 18
In the context of that case, the court concluded that section 28(6) of the Crime (Sentences) Act 19 1997, under which the Parole Board acted, did not contain an implicit requirement that in 20 determining whether it was no longer necessary for the protection of the public that a prisoner 21 should be confined, the Parole Board had to disregard the possibility that an allegation against the 22 prisoner which had not been established as true on the balance of probabilities might be true. The 23 court reasoned that there is no general legal principle that in making a risk assessment, a court of 24 law or the Parole Board could have regard to evidence or information only if it is established as a 25 fact by admission or on the balance of probabilities. Further, the public law concept of fair 26 proceedings does not require that only facts so established are to be considered in a risk assessment. 27 Therefore, there is no requirement to be implied into the statute that the Parole Board must disregard 28 the possibility that an allegation, which has not been established as true on a balance of 29 probabilities, may be true. 30 31
The court found evidence of facts connected with the allegation of criminal behaviour, which the 32 Parole Board could have used or used as a basis for assessing whether the prisoner posed a 33 Page 60 of 107 G0155/2017 2024-11-27 Page 60 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 61 of 107 significant risk to the public. The weight to be attached to evidence, it said, was a matter for the 1 Parole Board subject always to a challenge on the ground of public law irrationality. 2 3
In similar vein, Lord Reed in Begum considered the statutory provision that gave the Secretary of 4 State and not the Special Immigrations Appeals Commission (“SIAC”) the power to decide to make 5 a deprivation order. He reasoned that the Secretary of State (the primary decision maker) must 6 satisfy the statutory condition that deprivation was conducive to the public good. The statute did 7 not require the SIAC (the reviewing body) to be satisfied of that. There was no statutory indication 8 that Parliament intended that discretion to have been exercised by the SIAC. 9 10
Lord Reed explained at para. 70 of the judgment that in applying the relevant principles to 11 discretionary decisions, the SIAC must consider the nature of the discretionary power in question 12 and the Secretary of State's statutory responsibility for deciding whether the deprivation was 13 conducive to some public good. Lord Reed noted that some aspects of the Secretary of State's 14 assessment may not be justiciable; others will depend, in many, if not most, cases, on an evaluative 15 judgment of matters, such as the level and nature of the risk posed by the appellant, the effectiveness 16 of the means available to address it, and the acceptability or otherwise of the consequent danger, 17 which are “incapable of objectively verifiable assessment”. The SIAC had to give the Secretary of 18 State's assessment appropriate respect for reasons of “institutional capacity (notwithstanding the 19 experience of the members of the SIAC) and democratic accountability” (emphasis added). 20 21
The principles established in Rehman, Pearce and Begum were considered and applied in U3 v 22 Secretary of State for the Home Department [2023] EWCA Civ. 811. The court undertook an in-depth 23 review of the functions of the SIAC when it heard an appeal against a decision of the Secretary of State 24 to deprive a British citizen of her nationality on the ground that she was a risk to national security. The 25 court delved into the differences in approach between an appeal and judicial review as a starting point. 26 In speaking of judicial review, Lady Justice Elisabeth Laing, who delivered the judgment on behalf of 27 the court reasoned, among other things, that in the human rights field, the proportionality of a decision 28 may call for examination in a judicial review proceeding, but an enquiry into the proportionality of a 29 decision should not be confused with a "full merits" review. 30 31
After considering cases such as Rehman and Pearce, Lady Justice Elisabeth Laing stated at para. [177]: 32 33 Page 61 of 107 G0155/2017 2024-11-27 Page 61 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 62 of 107 "In so far as the appeal was a challenge to the Secretary of State's assessment that at all relevant 1 times, U3 was a danger to national security, SIAC understood those authorities as requiring it 2 to review the assessment by the Secretary of State of the interests of national security within the 3 limits described in those authorities, rather than substituting, for that of the Secretary of State, 4 its view about the danger posed by U3. The Secretary of State's assessment was the starting 5 point for SIAC's consideration of the appeal.” 6 7
Her Ladyship then opined that in closely examining all the evidence to see whether the assessment was 8 mistaken, the SIAC had to, and did, bear in mind, among other things, that an assessment is not based 9 on findings on the balance of probabilities that particular things have happened, or that particular things 10 have been thought, but on an overall consideration of all the material, so as to evaluate future risk. 11 Questions concerning national security risks posed by U3 at the date of the decision were questions for 12 the Secretary of State, with which the SIAC could only interfere on limited grounds. 13 14
In summary, Her Ladyship concluded that the SIAC could and, in some cases, must make findings of 15 fact based on its own assessment of the evidence on the appeal. As long as it respects the limit of the 16 Rehman approach, it may make whatever findings of fact it considers, in its expert judgment, it is able 17 to make and which are appropriate in the appeal it is considering. In the end, the court found that the 18 SIAC did not err in making findings of fact based on its assessment of all the evidence on appeal. The 19 SIAC was also correct in refusing to substitute its own assessment for that of the Secretary of State but 20 instead to review the Secretary of States' assessment to see whether it had a rational basis. 21 22
In the light of the law, as distilled from the foregoing authorities, the first point of departure in 23 conducting the judicial review of the decisions is the statutory framework within which the 24 Governor gave her concurrence to remove the Plaintiffs. The central legal question that confronted 25 the Governor was whether on the facts and circumstances disclosed to her from the various sources 26 on which she relied, it was expedient to remove the Plaintiffs for their safer custody under the 1884 27 Act given the risk they posed to national security and public safety and the inability of HMP 28 Northward to secure them. This was a decision for the Governor in the exercise of her evaluative 29 judgment and not for this court, which has no special knowledge of those matters. In her 30 assessment, discretion and judgment, she considered it was expedient to remove them for their safer 31 custody. She based her decision on established and proved facts, as well as on allegations of 32 continued criminality derived from intelligence. The latter had not been objectively verified in their 33 truth and veracity. 34 35 Page 62 of 107 G0155/2017 2024-11-27 Page 62 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 63 of 107
Having considered the statutory framework against the backdrop of the learning derived from the 1 authorities, it is clear that the Governor was exercising an evaluative judgment on matters that were 2 not all capable of objectively verifiable assessment, such as the level and nature of the risk posed 3 by the Plaintiffs, the effectiveness of the means available to address it (HMP Northward) and the 4 acceptability or otherwise of the danger that could result (the harm to the Cayman Islands). This 5 was the evaluative executive discretion or judgment to be exercised by the Governor within the 6 legal framework of section 2(d) of the 1884 Act in her capacity as the government official 7 responsible for internal security of the Islands. Accordingly, the exercise of the Governor’s 8 discretion, in so far as she relied on the underlying material that the court has not seen, was not 9 based on findings of facts that particular events had happened but rather, on an overall consideration 10 of and global approach to the available material in evaluating future risk, that is, what might happen. 11 12
In making that assessment, the Governor was not making a decision that the Plaintiffs had, in fact, 13 endangered national security and public safety but rather whether they were likely to present a 14 danger to national security and public safety. The question for her was the nature and extent of this 15 future risk. As such, the decision she had to make transcended matters of fact and so no fact-finding 16 was required to which any standard of proof could sensibly apply. It means the Governor would 17 not have been required to look at each allegation in the intelligence report and ask whether it had 18 been proved or proved to any requisite standard. She was required to examine all the available facts 19 and allegations before her as a whole (proven and unproven), and consider, in relation to each 20 Plaintiff, whether she believed he posed a threat to national security and public safety in the light 21 of the capacity of the prison to house them securely. She was not required to conduct a fact-finding 22 assessment as a tribunal of fact determining facts in issue. 23 24
As the court stated in R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs 25
UKSC 3, at para 50 of the judgment: 26 “…The position of a decision-maker trying to assess risk in 27 advance is very different from that of a decision-maker trying to 28 determine whether someone had actually done something wrong. 29 Risk cannot simply be assessed on a balance of probabilities. It 30 involves a question of degree.” 31 32 Page 63 of 107 G0155/2017 2024-11-27 Page 63 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 64 of 107
In the light of the relevant authorities, the Governor, in giving her concurrence to the decisions to 1 remove the Plaintiffs within the ambit of the 1884 Act, need not have been satisfied of the credibility 2 of the information provided to her by way of intelligence. In adopting and applying the statement 3 of principle in Pearce, I would state that the statutory framework within which the Governor 4 exercised her discretion in making the decisions “did not contain an implicit requirement” that in 5 determining whether it was expedient to remove the Plaintiffs for their safer custody in the interest 6 of national security and public safety that she had to disregard the possibility that an allegation 7 against each Plaintiff, which had not been established as true on the balance of probabilities might 8 be true. It was for her acting jointly with the Secretary of State to satisfy the statutory condition 9 for the removal of the Plaintiffs, which was a judgment call. Therefore, fact-finding and the 10 standard of proof would not have been relevant to the Governor’s evaluation of risks based on the 11 undisclosed underlying material on which she relied in making the impugned decisions. 12 13
Likewise, in such a situation, fact-finding and the standard of proof are not relevant to the review 14 exercise to be conducted by this court in so far as it concerns the risk assessment conducted by the 15 Governor based on the undisclosed underlying material. The question for this court is whether it 16 was open to the Governor to have reasonably and holistically made the risk assessment she did on 17 the information presented to her by way of intelligence and other established facts. In other words, 18 this court must be satisfied that there was sufficient material before the Governor on which she 19 could have reasonably concluded that the facts presented to her in the underlying intelligence-based 20 material, on which the Plaintiffs' risk assessment was made, were possibly true. There is no onus 21 on her to prove that those undisclosed underlying facts are, in fact, true. 22 23
In the premises, the crucial question for this court for resolution does not relate to jurisdictional 24 issues or whether there has been an infringement of the Plaintiffs’ rights around which there is a 25 legitimate dispute as to fact. The question is about reasonable justification. On the strength of the 26 relevant authorities, no fact-finding is necessary by this court in resolving that issue. Accordingly, 27 there is no legal obligation on this court to satisfy itself that the allegations contained in the 28 underlying material derived from the intelligence on which the Governor based the decisions are 29 true and are so to any standard of proof. 30 31 32 Page 64 of 107 G0155/2017 2024-11-27 Page 64 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 65 of 107 Conclusion on the sub-issues 1
In concluding on the sub-issues, I would state that the substantive proportionality question has been 2 examined with due regard to the principles regarding the burden and standard of proof, the 3 proportionality test, the standard of review and the approach to assessing proportionality and 4 treating with the underlying material withheld from disclosure on PII grounds. The court is also 5 guided by the reasoning and conclusions arrived at regarding the Timing and Prison 6 Upgrade/Rebuild Issues, which have been applied to the ensuing analysis. 7 8 Proportionality and justification 9
I now turn to examine the case advanced by the Plaintiffs that the interference with their 10 constitutional rights is disproportionate and unjustifiable and the Respondents response in seeking 11 to justify the interference. 12 13 (a) The long distance of the transfers 14
The Plaintiffs contend that their removal to a country thousands of miles from their family in a 15 significantly different time zone has had severe adverse consequences on rights to respect for their 16 private and their family life. This interference, they say, has rendered the decisions disproportionate 17 and unjustified in contravention of modern human rights law and thus in breach of the Cayman 18 Islands Constitution. According to them, the distance of the transfer (which is greater than in any 19 other reported case), and the impact it has had, is enough to ground a violation of section 9. 20 21
Counsel for the Plaintiffs observed that in the modern jurisprudence of the ECtHR, there is no case 22 involving Article 8 arising from transfers of prisoners at a far distance in which no violation was 23 found. In support of their arguments, they drew support from several cases such as Vintman v 24 Ukraine and R (on the application of Stevenson) v Governor of Wakefield Prison [2015] EWHC 25 1014 (Admin) and Fraile Iturralde v Spain (2019) Application No 66498/17. 26 27
The Respondents do not agree that violation of section 9 is established merely on the far distance 28 of the transfer and the adverse impact the transfer has had on the Plaintiffs. The transfer, they say, 29 can, nevertheless, be found not to violate section 9 of the Bill of Rights despite the hardships faced 30 by the Plaintiffs because it is reasonably justified in a democratic society for one or more of the 31 reasons limiting the rights under section 9(3) which have been invoked by the Respondents. 32 Page 65 of 107 G0155/2017 2024-11-27 Page 65 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 66 of 107
Both sides have drawn on cases in support of their respective cases and have sought to distinguish 1 those relied on by each other. It is not necessary to detail the facts and decisions in all those cases. 2 It suffices to say, for present purposes that, having reviewed them within the context of the opposing 3 views of the parties, I accept the Respondents' position that the abnormal distance of the transfer 4 and the resultant adverse impact on the Plaintiffs and their children's family life is not sufficient, 5 without more, to establish a violation of section 9 as contended by the Plaintiffs. 6 7
It is settled on the case law that detaining the Plaintiffs in a prison so far away from their home, 8 which drastically affects their contact with their family, does not automatically mean a violation of 9 section 9, but it may amount to such violation. I accept to be an apt starting point in treating with 10 this question, the guiding principle stated in Polyakova at para. 89 that: 11 "Regarding visiting rights, the State does not have a free hand in 12 introducing restrictions in a general manner without affording any 13 degree of flexibility for determining whether limitation in specific 14 cases are appropriate or indeed necessary… national authorities 15 are under an obligation to prevent the breakdown of family ties 16 and provide prisoners with a reasonably good level of contact with 17 their families, with visits organised as often as possible and in as 18 normal manner as possible." 19 20
Accordingly, in those cases in which violation of Article 8 was found, there was more than just a 21 consideration of the distance and impact on the transferred prisoner but also a consideration of 22 whether the State had "applied the restriction in a general manner without affording any degree of 23 flexibility for determining whether the limitation" in the specific case of the prisoner was 24 "appropriate or necessary". This would include a fair consideration and assessment of the personal 25 circumstances of the particular prisoner on whom the limitation is to be placed and the justification 26 for the limitation. Indeed, my work is made much lighter by the observations of the Court of Appeal 27 at paras 84 and 85 of the CICA civil appeal judgment and the Respondents' submissions on the 28 point which I accept and will adopt. 29 30
Therefore, from the reasoning of the Court of Appeal and the submissions of the Respondents, it is 31 fair to conclude that the authorities have demonstrated that violation has been found where 32 automatic decisions are made in the absence of a fair process, which would involve the absence of 33 (a) individual assessment of the personal circumstances of the prisoner, (b) objective justification 34 Page 66 of 107 G0155/2017 2024-11-27 Page 66 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 67 of 107 for the transfer, (c) legal facility or opportunity for an effective challenge to the limitation and (d) 1 a balancing exercise of the rights and interests of the prisoner with that of the community. See, for 2 instance, Polyakova; Khodorkovskiy v Russia (2014) 59 EHRR 7; Vintman v Ukraine, Rodzevillo 3 v Ukraine (2016) App No 38771/05; Piechowicz v Poland (2015) 60 EHRR 24 and Danilevich v. 4 Russia, Application no.31469/08 (2021). Conversely, no violation had been found in cases in which 5 a fair procedure existed and was deployed in introducing the limitation; the legal framework was 6 in accordance with the law; there was individual assessment of the transferred prisoner's 7 circumstances; an effective means of legal challenge was available; the restrictions were shown to 8 be objectively justified; and suitable means of mitigation existed. The Respondents have cited 9 numerous cases in demonstrating this point, which the Plaintiffs' sought to distinguish on various 10 grounds. The cases include, X v United Kingdom App. No. 5712/72 (1974) ECssnHR; (Richards) 11 v SSHD [2015] EWHC 4280 (Admin) (“Richards”); PK v United Kingdom, 19085/91 9 December 12 1992 (ECssnHR); Messina v Italy (2000) App No 25498/94; Ocalan v Turkey (No 2) (2014) App 13 Nos. 24069/03, 197/04, 6201/06 and 10464/07; Serce v Romania (2015) App No 35049/08; and 14 Palfreeman v Bulgaria (2017) App No 59779/14. 15 16
The core contention of Mr Southey, in response to the Respondents' reliance on these cases, is that 17 the cases are distinguishable. In his view, some do not reflect the modern jurisprudence of the 18 ECtHR regarding distance as they are older and, therefore, of limited value. None of them, he says, 19 is concerned with moving a prisoner from their family in circumstances where they offended within 20 their jurisdiction and the distance over which they are transferred is as long in this case. In simple 21 terms, Mr Southey’s contention is that the distance in this case, which is longer than in any other 22 case cited, has, in itself, rendered the interference abnormal and, accordingly, disproportionate. 23 Therefore, in his view, there is no contemporary case in which the ECtHR has not found a violation 24 where the distance in question is as long as in this case. 25 26
While there might be more than one reason for disagreeing with Mr Southey’s position, I consider 27 it sufficient to single out for particular mention in this context, the case of Richards, which, like 28 this case, involved the transfer of a prisoner from the Cayman Islands to the United Kingdom under 29 the 1884 Act, a decade or so ago. The removal was adjudged to be justified by the High Court of 30 England and Wales (Simler J) on the basis that the Cayman Islands did not have a high-security 31 accommodation that could accommodate the claimant given his high-risk status. This, the learned 32 Page 67 of 107 G0155/2017 2024-11-27 Page 67 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 68 of 107 judge concluded, had distinguished Mr Richards’ case factually from other cases on which he relied 1 (para 20). The learned judge further opined that it is only in exceptional cases that detention far 2 from home will infringe Article 8 (para. 22). 3 4
Given the basic similarities between Richards and the instant case, emanating as they do from the 5 same jurisdiction and by virtue of the exercise of powers under section 2(d) of the 1884 Act for the 6 same reason that there is no high security accommodation on the Island to accommodate them given 7 their status as high-risk prisoners, I place significant reliance on the observation of Simler J that 8 Richards did not fall to be treated as an exceptional case. Essentially, his detention in the United 9 Kingdom, a far distance from his home prison, without more, was not a violation of Article 8. 10 11
Following the resolution of the various issues in the appellate process and the pronouncements of 12 their Lordships at the Privy Council against the backdrop of the principles extracted from the 13 authorities relied on by the parties, the long distance of transfer cannot be determinative of the issue 14 of proportionality. Accordingly, I would hold firm to the view that the removal of the Plaintiffs to 15 the United Kingdom, at such a far distance, which, admittedly, resulted in the substantial 16 interference with their family life and the life of their family, including their children, is not 17 sufficient for the court to find a violation of section 9, without further analysis. There must be 18 further analysis given the limitations imposed on the rights by section 9(3) and the Respondents' 19 reliance on the justificatory criterion provided for in that subsection. Therefore, whether the 20 decisions to transfer the Plaintiffs were objectively justified must be examined in keeping with the 21 applicable law. 22 23 Whether the decisions are objectively justified – applying the proportionality test 24 25
During the currency of the proceedings before the court, relevant information was disclosed to the 26 Plaintiffs regarding the decisions to concur in their removal in addition to the pre-action letters 27 from the Attorney-General’s Chambers. A large portion of the information garnered from the 28 intelligence, however, cannot be disclosed on PII grounds and this right to withhold those materials 29 from the Plaintiffs and the court has been sanctioned by the PII and CMP Judgments of Carter J 30 (Ag), which remain undisturbed as there was no appeal against the PII judgment and the CMP 31 judgment was upheld by the Privy Council. The court, however, had ordered disclosure by way of 32 Page 68 of 107 G0155/2017 2024-11-27 Page 68 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 69 of 107 gist or in redacted form. Hence, the form and manner of evidence adduced by the Respondents in 1 seeking to advance their case. 2 3
Between September 2019 and December 2019, critical information relative to the decisions to 4 transfer the Plaintiffs was disclosed in the form of unredacted, redacted, anonymized, signed or 5 unsigned affidavits from the Attorney General’s Chambers, the RCIPS, HMCIPS and the 6 Governor’s Office. 7 8
These affidavits were filed to provide evidence relative to among other things, (a) the reasons for 9 the withholding of information from disclosure on PII grounds; (b) setting out the reasons of 10 HMCIPS for requesting the transfer of the Plaintiffs under the 1884 Act; and (c) providing details 11 of the decision-making process and the reasons for the decisions. The evidence specifically treated 12 with such matters as the disciplinary records of the Plaintiffs for the periods they were incarcerated 13 in HMP Northward; the security arrangements at HMP Northward Prison; the inadequacy of the 14 security arrangements to securely hold prisoners such as the Plaintiffs; consideration given to the 15 upgrade of HMP Northward; and arrangements for the facilitation of contact between the Plaintiffs 16 in the United Kingdom and their families who reside in the Cayman Islands. 17 18
In keeping with their position regarding the appropriate time at which proportionality should be 19 assessed, the Respondents have based their justification on national security and public safety 20 grounds based on the material available to the Governor at the time of the decisions. They have, 21 nevertheless, provided updated material available to them after the decisions were made, in the 22 event the court were to conclude that updated material is relevant to the assessment of 23 proportionality as contended by the Plaintiffs. 24 25
The court has already decided on the Timing Issue, which will now be applied. As already decided, 26 the relevant time for assessing proportionality is when the decisions were made to transfer the 27 Plaintiffs and upon their removal from the Islands, given the role of the Governor in the decision- 28 making process and the status of the Plaintiffs in the United Kingdom as transferred life prisoners. 29 Therefore, the Respondents cannot rely on later occurrences to justify the challenged decisions in 30 the same way the Plaintiffs should not be allowed to generally rely on updated developments in the 31 United Kingdom to impugn the Governor's decisions. The court has to be mindful of ex post facto 32 justification for the decisions coming from the Respondents as well as ex post facto challenges to 33 the Governor's past decisions. Permitting ex post facto justification and allegations would be 34 Page 69 of 107 G0155/2017 2024-11-27 Page 69 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 70 of 107 objectionable on grounds of unfairness. Therefore, the court has tried to be quite careful in treating 1 with evidence regarding updated developments adduced by both sides. 2 3 (i) Whether the measure pursued a legitimate aim which was sufficiently important to limit 4 a fundamental right 5 6
The need for the Respondents to satisfy the first criterion regarding whether the measure was in 7 pursuit of a legitimate aim necessitates a resolution of the question of whether the claim of a threat 8 to national security and public safety is made out. This is considered critical because Mr Southey 9 has contended during the course of this hearing that the claim regarding the risk to national security 10 is exaggerated as the alleged criminal activities of the Plaintiffs would constitute nothing more than 11 ordinary criminality, which would not justify their transfer on national security or public safety 12 grounds. Apart from those assertions, it is, more importantly, incumbent on the court to scrutinise 13 the claims of risk to national security with great intensity and caution. 14 15
I commence this aspect of the enquiry with a review of the material that was before the Governor 16 at the time the decisions were made. The Respondents' evidence reveals that when the Governor 17 signed the notices of concurrence for the Plaintiffs’ removal, she had (i) information on the 18 Plaintiffs' convictions; (ii) copies of the submissions made to the Secretary of State for Justice and 19 the Minister of State for Overseas Territories (the “United Kingdom authorities”); (iii) information 20 that cannot be disclosed on PII grounds; and (iv) a summary of intelligence on each of the Plaintiffs. 21 22 (i) Information on the convictions 23
At the time of the decisions, the convictions of the Plaintiffs for murder and the circumstances 24 surrounding their convictions were well-established. The circumstances of the murder for which 25 they were convicted were described in the sentencing remarks of the trial judge, Quin J, and 26 accepted by the Court of Appeal and Privy Council as involving "a very significant degree of 27 planning and premeditation" and was “a very public execution of the most evil nature and could be 28 accurately described as chillingly clinical in its planning and execution" (paras 112-114 of the Court 29 of Appeal criminal judgment). 30 31
Regarding the murder, the Court of Appeal concluded its judgment in these words at para 118: 32 Page 70 of 107 G0155/2017 2024-11-27 Page 70 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 71 of 107 "We add this. These appellants wore no disguise. They openly had 1 with them a gun. They were not unknown to at least some (if not 2 most) of those present in the area of the Globe Bar. They plainly 3 did not believe that anyone would dare to give evidence against 4 them. That says much about these appellants." 5 6
The Privy Council also made similar observations regarding the Plaintiffs' convictions for murder 7 at para 59 of the PC judgment, where it stated: 8 "… so far as the threat posed by [Ramoon] and Douglas is 9 concerned, there was compelling evidence of their dangerousness 10 arising from their conviction for a particularly cold-blooded gang 11 killing." 12 13
For this murder, they were, at the time of the decision, sentenced to serve mandatory life sentences 14 of imprisonment with lengthy minimum terms before eligibility for parole of 34 and 35 years. 15 16
The Plaintiffs' convictions and sentences for the murder were vital considerations for the removing 17 authority in conducting its risk assessment regarding the threat posed by the Plaintiffs. These were 18 indisputable established facts on which the Governor could have properly relied. 19 20 (ii) Previous convictions and offending history 21
The Respondents have also relied upon the criminal records of the Plaintiffs, a summary of which 22 was provided to the Governor on 13 June 2017. Ramoon had 13 convictions in addition to the index 23 offences. Osbourne Douglas had 11 in addition to the index offences. The record shows that both 24 commenced their criminal offending as teenagers. Ramoon was charged with the offence of 25 possession of an imitation firearm with intent in 2010 on facts described in the CICA criminal 26 appeal judgment at para 116. The facts as reported are that Ramoon "went to the home of another 27 person with what appeared to be a gun. He pointed the gun at the head of the occupant, who saw 28 bullets in the chamber. He thought the gun was loaded. There was a struggle. The gun fell to the 29 ground with a metallic sound. It was never found. That is why the offence was charged as an 30 imitation firearm.” 31 32
The Plaintiffs' previous records are established past facts that would have been known to the RCIPS 33 and HMCIPS, who provided information to the Governor. There is no dispute about this. The 34 Plaintiffs' previous offending history was, therefore, relevant to the consideration of their 35 Page 71 of 107 G0155/2017 2024-11-27 Page 71 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 72 of 107 convictions and risk assessments. They were persons with an undisputed criminal history at the 1 time the decisions were made. It cannot be denied that their criminal history would have been 2 material to any consideration of their risk and categorisation as prisoners. 3 4 (iii) The Plaintiffs' status as Category A prisoners 5
Associated with their convictions and sentences was the Plaintiffs' status as Category A prisoners. 6 Category A prisoners are defined as prisoners whose escape would be highly dangerous to the 7 public, the police or the security of the State, and for whom the aim must be to make escape 8 impossible. The definition is concerned with the prisoner's dangerousness if he escaped, not how 9 likely he is to escape (see National Offender Management Service (UK), The Review of Security 10 Category – Category A/ Restricted Status Prisoners issued on 10 June 2016). The evidence is that 11 the designation of Category A status is predicated on several considerations, which include the 12 nature of the offence for which the prisoner is convicted and sentenced, the perceived level of risk 13 posed to the public should the prisoner be at large, and his response to custody. 14 15
The Plaintiffs' status as Category A prisoners was an additional pertinent consideration in the risk 16 assessment, particularly, in the context of the information available to the decision-makers of the 17 immediate threat of a planned escape from custody. On the basis of the Plaintiffs' status as Category 18 A prisoners alone it would have been reasonable for the Governor to conclude that their escape 19 would have been highly dangerous to the public and security of the nation. 20 21 (iv) Submissions to the United Kingdom authorities 22
The submissions made to the United Kingdom authorities were the only contemporaneous 23 documents indicating the reasons for the decisions. The terms of the submissions were, however, 24 reflected in the contents of the Attorney-General’s letters of response to the Plaintiffs in September 25 2017, which has already been detailed. In summary, the unredacted portions of the submissions 26 disclosed as part of the open evidence, in so far as is immediately relevant, reveal these facts: 27 (a) The Plaintiffs' murder convictions and sentences (set out above). 28 (b) Douglas was the leader of Cayman's Central Gang and Ramoon was a senior and influential 29 member of the same gang. 30 Page 72 of 107 G0155/2017 2024-11-27 Page 72 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 73 of 107 (c) They were considered highly dangerous in the local community. Intelligence had shown 1 they had been involved in the orchestration of serious gun crime and the importation of 2 guns and drugs from within prison. They also attempted to intimidate staff at HMP 3 Northward. 4 (d) The Cayman Islands' prison authorities were finding it increasingly difficult to 5 accommodate the Plaintiffs securely. HMP Northward was designed as a Category C 6 detention facility. The prison has a single fence and is located by the side of a public road. 7 As a result, there are significant difficulties in preventing contraband, including mobile 8 phones from reaching the prisoners. 9 (e) The consequences would be severe for the Cayman Islands' national security (for which 10 the United Kingdom Government retains responsibility) and its reputation as a safe and 11 secure tourist destination and place to do business. 12 (f) The Cayman Islands' law enforcement agencies agreed that the only viable way to mitigate 13 the risk to the Islands' national security posed by these prisoners was for them to be 14 transferred under the 1884 Act. Given over-crowding in prisons in the other Caribbean 15 Overseas Territories, the lack of a prison with a suitably secure wing and the resultant 16 concerns about dealing with potentially challenging Category A prisoners, it was believed 17 that the only credible option was to relocate both prisoners to the United Kingdom. The 18 Overseas Territories Division’s Regional Prisons Adviser agreed with this assessment. 19 (g) The prisoners’ removal to the United Kingdom would also provide time for improvements 20 to HMP Northward. Once security is considered adequate the return of the prisoners could 21 be considered. 22 (h) It was anticipated that Douglas' relocation to the United Kingdom would help break his 23 grip over his criminal network and lower the risk to national security in the Cayman Islands. 24 It was considered inevitable that Ramoon would take his place at the head of the gang if 25 Douglas was removed on his own. 26 (i) Consideration was given to the impact on the prisoners and their families but collectively 27 it was concluded that the risk of harm to the local community was greater (Ramoon had a 28 child that visited). Any disruption to the prisoners’ family relationships would be mitigated 29 by the fact that the United Kingdom system allows foreign nationals to make regular 30 Page 73 of 107 G0155/2017 2024-11-27 Page 73 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 74 of 107 telephone calls abroad (with a limited number at public expense) although this would need 1 to be closely controlled. Additionally, if a close family member expressed a particular need 2 to see the prisoners following their transfer, the Cayman Islands Government would 3 consider offering financial assistance. 4 5 (v) Intelligence relating to both Plaintiffs and information that cannot be disclosed on PII 6 grounds 7 8
There was also the underlying material garnered from intelligence, a significant portion of which 9 has not been disclosed as a result of the order of Carter J (Ag) excluding them on PII grounds. The 10 gist of the underlying material reveals, among other things, that the police and prison service had 11 provided: 12 (a) “compelling intelligence” showing that while incarcerated at HMP Northward, the 13 Plaintiffs continued to be involved in gang-related criminality, including conspiracy to 14 murder, the smuggling of drugs, firearms and hitmen into Cayman, the smuggling of drugs 15 into HMP Northward and the making of threats against prison staff and assaults on other 16 inmates. 17 (b) “reported intelligence” linking them both to intimidation and manipulation of staff, threats 18 of violence to staff, reports of plans to escape and the use of weapons. 19 (c) intelligence that both Plaintiffs were known to exert considerable negative influence on 20 younger, impressionable prisoners and to use this negative influence for personal 21 advantage. 22 (d) intelligence that prior to the Plaintiffs' removal to the United Kingdom they, particularly 23 Osbourne, were arranging the importation of controlled drugs, firearms and illegal 24 immigrants into the Cayman Islands. 25 (e) intelligence that both Plaintiffs entered the prison system for the first time at 15 years old; 26 they were both members of the CMK Gang- a notorious local gang; Douglas was the leader, 27 and Ramoon, a senior influential member. 28 29 30 Page 74 of 107 G0155/2017 2024-11-27 Page 74 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 75 of 107
Among documents subsequently disclosed following the PII ruling was an affidavit of Governor 1 HE Martyn Roper (affidavit dated 4 December 2019) in which he deposed that he had reviewed the 2 material available at the time his predecessor made the decisions in 2017, which indicated further 3 details of the intelligence available at the time the decisions were made. That, he stated, led him to 4 agree with the decisions. He deposed to further details that reportedly led to the decisions: 5 "Despite their conviction and imprisonment, the [Plaintiffs] had 6 continued to engage in serious criminal activity. Intelligence 7 revealed that they had, or were seeking to obtain, high-powered 8 automatic weapons; they had criminal associates with the 9 knowledge and propensity to use them, including professional 10 'hitmen' brought by boat from Jamaica; a track record of 11 murdering and attempting to murder gang rivals and witnesses 12 and of making threats of harm, including to a senior prison officer. 13 There was intelligence that they exercised control over other 14 inmates and might be able to influence prison officers through 15 threats. A series of tit for tat gang killings and shootings involving 16 the Plaintiffs was threatening to escalate, including an incident in 17 which the Plaintiffs’ mother's house was shot up by a rival gang 18 using automatic weapons. There was credible intelligence that 19 they were planning an escape. [Passage redacted]… 20 21
The court accepts that the undisclosed material excluded on PII grounds cannot advance the 22 Plaintiffs' case in any material way, and neither would it undermine the Respondents' case (PII 23 judgment of Carter J (Ag) para 83). The court cannot reject the gist of the underlying material. 24 Therefore, available for the consideration of the court, is the gist of allegations against the Plaintiffs, 25 which I have already accepted is supported by the underlying undisclosed material based on the 26 judgments of Carter J (Ag), the appellate courts and the role of the special advocate in the PII 27 hearing. Therefore, I am obliged to take the gist of the undisclosed material into account when 28 assessing proportionality. They form part of the body of facts which the Governor could have 29 properly regarded as possibly true in the exercise of her evaluative and predictive judgment in 30 arriving at the challenged decisions. 31 32 (vi) The Plaintiffs' membership in the CMK Gang 33
As is seen above, the material before the Governor, when she made her decision, also alleged that 34 the Plaintiffs were members of the notorious CMK gang. According to the Respondents, although 35 the motive for the murder of Jason Powery was said by the Court of Appeal to be unknown (Court 36 Page 75 of 107 G0155/2017 2024-11-27 Page 75 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 76 of 107 of Appeal criminal judgment at para 63), they assessed that this was a gang-related murder. The 1 evidence is that Douglas is known by the authorities to be the leader of the gang, and Ramoon is a 2 senior and influential member of the same gang. Both are considered to be “highly dangerous in 3 the local community”. As the evidence has shown, this information regarding their alleged gang 4 membership and continuing criminal activities was garnered from intelligence that has not been 5 disclosed on PII grounds (see para 83 of PII judgment of Carter J (Ag)). 6 7
Furthermore, a photograph of a large tattoo with the letters “CMK” on Ramoon's back was among 8 the material disclosed to the Plaintiffs and forms part of the open evidence. The Respondents 9 submitted that the "obvious implication" of this tattoo is that the marking, “CMK”, references 10 Ramoon's membership in that gang. According to the Respondents, there has been no explanation 11 for this tattoo, and nothing emerged from the PII process to contradict the conclusion that it is 12 indicative of his membership in the gang. Accordingly, this court should accept the authorities' 13 assessment that the Plaintiffs were gang members. 14 15
The Plaintiffs have denied being members of any gang as well as being involved in criminality as 16 alleged. They emphatically deny the Respondents' claim that they are a threat to national security 17 and public safety. 18 19
Regarding the labelling of the Plaintiffs as gang members, I find that it was open to the Governor 20 based on the material before her, some of which form part of the open evidence in this case, to 21 conclude in the assessment of the risks that the Plaintiffs were gang members and that the offence 22 of murder for which they were convicted in 2016 was gang-related. The court accepts that there 23 was underlying undisclosed material that supports the gist of the intelligence reports adduced into 24 evidence that the Plaintiffs were members of the CMK gang and continued to be involved in 25 criminality despite their incarceration. 26 27
Also, Ramoon's CMK tattoo would have provided compelling evidence from which the Governor 28 could have concluded that he was a member of the CMK gang and assessed his risk on that basis 29 along with, among other things, his participation with his brother in the 2016 murder in conjunction 30 with his own criminal history. 31 32 Page 76 of 107 G0155/2017 2024-11-27 Page 76 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 77 of 107
As already established in the court's statements regarding the approach to be taken in assessing the 1 intelligence-based material (under the PII Issue), the Governor, in acting on that intelligence, was 2 not obliged to make findings of fact to ascertain the truth of the matters contained in the reports 3 and to do so to any standard of proof. She was not called upon to act as a judicial body but to 4 exercise her executive judgment and discretion in assessing the future risks posed by the Plaintiffs 5 based on reports from her specialist advisers in her capacity as the government official with sole 6 responsibility for internal security. 7 8
The ultimate question confronting the Governor, at the material time, was whether there was no 9 suitable penal facility to safely secure the Plaintiffs in the Cayman Islands, and if so, whether they 10 should be removed to the United Kingdom for their safer custody in accordance with section 2(d) 11 of the 1884 Act. For that purpose, she was only required to determine whether there was a 12 possibility that the information regarding the alleged criminal activities of the Plaintiffs was true 13 and not whether they were, in fact, true. 14 15
As established by the relevant authorities, the Governor, in evaluating the information and 16 conducting her risk assessment, was entitled to take into account established or proven facts of past 17 activities (such as the Plaintiffs' convictions for murder and their previous offending) as well as 18 information regarding matters that were allegedly occurring or have not yet occurred and which 19 have not been established to be true (the material based on intelligence). This is because, as I have 20 already concluded, the assessment of risks within the framework of section 2(d) of the 1884 Act 21 would have been evaluative and predictive regarding future risks and would have transcended 22 matters of fact. In those circumstances, the court cannot insist on strict proof of every fact or 23 information relied on in the risk assessment. 24 25
The court's task on review is not to determine whether the underlying facts on which the risk 26 assessment was based are true and provable but rather to assess whether the Governor would have 27 been entitled to regard them as possibly true. So, despite the Plaintiffs’ denial of gang membership 28 and continuing involvement in criminal activities while incarcerated, the court will have to pay 29 deference to the Governor's treatment of those matters in her risk assessment in her role as the 30 primary decision-maker. There is nothing in the statutory scheme within which she acted that 31 Page 77 of 107 G0155/2017 2024-11-27 Page 77 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 78 of 107 imposed on the court that responsibility regarding risk assessment and the determination of the 1 adequacy of the prison facilities. 2 3 (vii) The inadequacy of the security arrangements at HMP Northward and consideration given to 4 its upgrade 5 6
The evidence has also shown that the Governor had before her information concerning the 7 condition of HMP Northward to effectively and safely house the Plaintiffs as Category A prisoners. 8 There is open evidence substantiating what was contained in the submissions to the United 9 Kingdom authorities regarding HMP Northward. The indisputable evidence from the HMCIPS is 10 that HMP Northward was and remains the only adult male prison establishment in the Cayman 11 Islands. It is described as a low-security estate. They say it "does not conform to the standards of 12 physical and dynamic security that would meet the requirements of a Category A high-security 13 estate or Category B prison". It is not able to "provide assurance of public protection against the 14 threats provided by the most dangerous and high-risk offenders" (prison service affidavit of 15 September 30, 2019). 16 17
The evidence also establishes that the tactical responses that larger jurisdictions employ for 18 managing prisoners with the profile of the Plaintiffs, such as splitting them up and placing them in 19 separate prisons, could not be deployed in the Cayman Islands given its small size and absence of 20 another prison. As a result, "HMCIPS would not be able to effectively mitigate the internal threats 21 and RCIPS cannot properly mitigate the social threats" (prison service affidavit of September 30, 22 2019). 23 24
The submission to the United Kingdom authorities further indicated that the Plaintiffs' removal to 25 the United Kingdom would have provided time for improvements to HMP Northward and that once 26 security was considered adequate, the return of the prisoners could be considered. 27 28
Mr Southey submitted that the Plaintiffs' submissions about resources are important. He maintained 29 that the problems that are said to exist in relation to the accommodation of Category A prisoners 30 have been known for a number of years, going back to 2009, when Kenneth Richards was removed 31 to the United Kingdom. There is no explanation, he said, for the delay in addressing those problems. 32 One possible explanation, he proffered, is the Cayman Islands Government's unwillingness to 33 Page 78 of 107 G0155/2017 2024-11-27 Page 78 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 79 of 107 spend money on providing appropriate accommodation for Category A prisoners. Relying on para 1 113 of Polyakova, King's Counsel maintained that to the extent it is said that resources were an 2 issue, that is no answer to the Plaintiffs' case that their removal was disproportionate and 3 unjustifiable. 4 5
The Respondents have adduced evidence in response to the Plaintiffs' arguments regarding the 6 suitability of HMP Northward and the failure to provide the resources necessary for the Plaintiffs 7 to remain in the Cayman Islands. Evidence from the Respondents during the course of the 8 proceedings reveals that the current position at HMP Northward cannot be addressed through 9 facility upgrades without a full prison re-build. Upgrading the current facility to make it more 10 secure to accommodate high-risk prisoners, they deposed, would not be cost-effective because of 11 the significant internal environmental changes that are needed to hold high-risk prisoners like the 12 Plaintiffs. Regarding the prison rebuild, the Respondents, through the current Governor, have 13 provided evidence that work is underway to prepare for a substantial rebuild of HMP Northward, 14 but the award of a contract is on hold until the 2024-2025 budget even though a preferred supplier 15 has been identified to carry out the works. 16 17
The Respondents, through further affidavit evidence, also contended that the "critical risks” in this 18 particular case were not only about the “physical and dynamic security deficits of HMCIPS” but 19 also about the capabilities of the Plaintiffs “to cause significant harm to those working and living 20 in the prison system and also to those members of the community who would/could be affected by 21 their presence" (affidavit of HE Martyn Roper at [25]). 22 23
Mr Southey has taken issue with the preceding aspects of the Respondents' evidence on HMP 24 Northward as being ex post facto justification. In asking the court to reject them he relied on R 25 (United Trade Action Group Ltd) v TFL [2022] LLR 172 at para 125. 26 27
Mr Southey’s argument that there is ex post facto justification in the Respondents' updated affidavit 28 evidence is rejected by Mr Bowen, who argued that the response is relevant in light of the Plaintiffs' 29 pleadings and submissions regarding the failure to upgrade/rebuild HMP Northward and that lack 30 of resources does not provide a defence or justification. 31 32 Page 79 of 107 G0155/2017 2024-11-27 Page 79 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 80 of 107
I accept Mr Bowen’s contention that the Respondents have adduced the evidence complained of as 1 being ex-post facto justification in response to the Plaintiffs' pleadings and unrelenting arguments 2 pertaining to HMP Northward. Therefore, the evidence ought not to be rejected as ex post facto 3 justification for the decisions. The Respondents are entitled to respond to the case brought against 4 them, and from the very outset, the Respondents have raised concerns about the threat the Plaintiffs 5 posed to the prison staff and inmate population at HMP Northward and that contraband, including 6 telephones, were being smuggled into the prison. Therefore, I find the response of the Respondents 7 on the HMP Northward point to be a part of their "genuine elucidation of the basis for the decision 8 and not an impermissible justification or contradiction after the event": See R (United Trade Action 9 Group Ltd) v TFL para 125(7). 10 11
In any event, even if the Respondents ought not to be permitted to rely on the evidence that a new 12 prison would not obviate the risks posed by the Plaintiffs, I find that the court does not have the 13 institutional competence to reject the Respondents' evaluation of the state of the prison and its 14 ability to securely house the Plaintiffs. It was reasonably open to the Governor to accept, upon the 15 advice of the relevant authorities with whom she was in consultation, that HMP Northward was not 16 suitable for the safe custody of the Category A Plaintiffs in the light of the information about them. 17 The Governor as the official with the sole responsibility for the internal security of the Islands was 18 better placed, than this court could ever be, to determine, on the advice of her specialist consultants 19 and advisers, what was necessary for the interests of national security and public safety when 20 considerations were given to the state of HMP Northward and the risk posed by the Plaintiffs. That 21 determination was a matter totally within the institutional competence, discretion, judgment and 22 policy decision of the Respondents. The court is not in a proper position to substitute a contrary 23 view. 24 25
The Respondents have commended for the court's consideration and adoption the observation of 26 Carter J (Ag) in the PII Judgment at para 42, where she stated, in part, that the "instant risk to 27 national security encompassed the risk that the [Plaintiffs] may try to escape from HMP 28 Northward". This was part of the assessment of the Governor based on intelligence. I would adopt 29 the words of Carter J (Ag) that “there is no question that a court should not seek to undermine the 30 executive's assessment on matters such as national security because it is recognised that such an 31 Page 80 of 107 G0155/2017 2024-11-27 Page 80 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 81 of 107 assessment will be based on facts for which the decision maker has special knowledge or a special 1 responsibility as it relates to that area for which in this case [she] is uniquely responsible”. 2 3
Later, at para 45 of her PII judgment, Carter J(Ag) referenced the dictum of Lord Slynn of Hadley 4 in Rehman regarding the determination of the Secretary of State of whether the appellant's 5 deportation, in that case, was in the interests of national security. Lord Slynn stated (para 15): 6 “It seems to me that the appellant is entitled to say that 'the 7 interests of national security' cannot be used to justify any reason 8 the Secretary of State has for wishing to deport an individual from 9 the United Kingdom. There must be some possibility of risk or 10 danger to the security or well-being of the nation which the 11 Secretary of State considers makes it desirable for the public 12 good that the individual should be deported.” (Emphasis added) 13 14
His Lordship then continued later in the judgment at para 26: 15 “In conclusion even though the Commission has powers of review 16 both of fact and of the exercise of the discretion, the Commission 17 must give due weight to the assessment and conclusions of the 18 Secretary of State in the light at any particular time of his 19 responsibilities, or of Government policy and the means at his 20 disposal of being informed of and understanding the problem 21 involved. He is undoubtedly in the best position to judge what 22 national security requires, even if his decision is open to review. 23 The assessment of what is needed in the light of changing 24 circumstances is primarily for him.” (Emphasis added) 25 26
The Governor's evaluation of the security standards of HMP Northward was connected to the risk 27 assessment based on the Plaintiffs' convictions for murder, past convictions and offending history, 28 their Category A status and the intelligence reports of continuing criminality. There were ample 29 grounds for the Governor, the Director of Prisons, the RCIPS and other advisers to the Governor to 30 form the view that there was a serious possibility of risk or danger to the security or well-being of 31 the nation created by the Plaintiffs’ alleged conduct, past conduct and threat of escape in the light 32 of the unsuitability of HMP Northward to house them as Category A prisoners. 33 34 35 36 Page 81 of 107 G0155/2017 2024-11-27 Page 81 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 82 of 107 (viii) Prison Disciplinary records 1
In establishing justification, the Respondents also relied on the Prison Disciplinary Records from 2 HMP Northward for both Plaintiffs and affidavit evidence from HMCIPS (dated 30 September 3 2019). It is deposed that the reports by the wing prison officers recorded "decent behaviour and 4 conduct" for the Plaintiffs although they have breached prison rules. It is further deposed that 5 “[t]he entries are not consistent with the intelligence linking both of them to intimidation and 6 manipulation of staff, threats of violence to staff, and reports of plans to escape and the use of 7 weapons". There was also the assault by Douglas on Justin Ebanks, the eye witness to the murder 8 in Sept 2016. Intelligence also disclosed that the Plaintiffs were known to exert considerable 9 negative influence on younger, impressionable prisoners and to use the negative influence for 10 personal advantage. They had been convicted of many charges relating to possession of mobile 11 phones while on the high-risk unit. 12 13
The Respondents have asked the court to note that Ramoon, in his statement, denied this allegation 14 of having been convicted for possession of a mobile phone as “simply false”. He stated that, “I 15 have never heard of anyone [having] mobile phone on HRU”. This, however, was proved to be 16 false by an exhibited adjudication report for 5 October 2016, which shows that Ramoon had pleaded 17 guilty to the charge. 18 19
Mr Southey contended that the foregoing matters were not part of the decisions for removing the 20 Plaintiffs. The reason given, he said, was continued criminality. He maintained that in the case of 21 Douglas, there has been no proven charge of violence. He has denied most of the allegations against 22 him but has made the point that there is little he can say without further particulars of the 23 allegations. He accepted that he assaulted a witness but that was impulsive. Ramoon has also denied 24 the allegations against him but stated there is little he can say without further particulars of the 25 allegations. He said he did not possess a phone while in maximum security, and he did not recall 26 making threats but threats are often made in prison with there being no intention to carry them out. 27 As already shown, his denial of the phone charge is proved to be untrue and his record speaks to 28 the infractions while he was in custody. 29 30 31 Page 82 of 107 G0155/2017 2024-11-27 Page 82 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 83 of 107
It is noted that there is no direct indication that the disciplinary record for each Plaintiff was, by 1 itself, considered by the Governor. There is, however, evidence of intelligence regarding their 2 conduct in prison. The Director of Prisons is a party to these proceedings and the conduct of the 3 Plaintiffs in prison would have been known to HMCIPS and relevant to the Respondents’ case. 4 Douglas had himself admitted to assaulting another prisoner. Their conduct at HMP Northward, 5 therefore, cannot be said to be irrelevant in considering whether the risk assessment was reasonable 6 and the Governor was entitled to arrive at the decision she did that the Plaintiffs had to be removed 7 from the Cayman Islands for their safer custody. 8 9
Further, the categorisation of the Plaintiffs as Category A prisoners is partly predicated on how they 10 responded to custody. The disciplinary records are indicative of that fact, which would have been 11 a relevant matter in determining the capacity of HMP Northward to house them safely in light of 12 the intelligence that they were planning an escape and their alleged involvement in continuing 13 criminality while incarcerated. The Respondents can use them in establishing justification as they 14 were facts known at the time. 15 16 (ix) The urgent need for the Plaintiffs’ removal 17
The Respondents also attested to the Governor's consideration of an "apparent gang-related" attack 18 on the house of the Plaintiffs’ mother on 3 June 2017. This attack, the Respondents contended, led 19 to concerns that the Plaintiffs would retaliate, so the Governor's Office increased its efforts to 20 remove Douglas. Around the middle of June, concerns were raised by the Cayman police and prison 21 authorities about leaving Ramoon on the island given his senior position within the CMK Gang and 22 the risk that he would have taken over his brother's operations, including intimidation of prison 23 staff. His Category A status and circumstances surrounding his commission of the offence of 24 murder with a firearm given to him by Douglas were also weighed in considering the need to 25 remove him. 26 27
This attack on the mother’s house was a legitimate concern as it had implications for the 28 maintenance of law and order on the Islands given the possibility of reprisals. The Governor cannot 29 be faulted in considering this as a matter of critical concern in her risk assessment. 30 31 Page 83 of 107 G0155/2017 2024-11-27 Page 83 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 84 of 107
I would adopt the approach established in paras 42 and 45 of the PII judgment of Carter J (Ag), 1 while bearing in mind the need to have regard to the context in which the challenged decisions were 2 made. Within this context, this case involves the exercise of the statutory power of the Governor 3 within the broader constitutional framework of her responsibility for the peace and internal security 4 of the nation. The Cayman Islands comprise a small island state substantially dependent on tourism, 5 which means the entry of foreigners on a large scale on its shores. It is also reputed as a leading 6 international financial centre. The proliferation of organised criminal activities involving dangerous 7 gangs, coupled with the likely escape of dangerous prisoners like the Plaintiffs, would have posed 8 a serious risk to the security, life and safety of the people living in and visiting the Islands. HE 9 Martyn Roper, in his affidavit evidence (affidavit 4 December 2019), painted a compelling picture 10 of the threat to national security and public safety that the continued detention of the Plaintiffs on 11 the Islands could potentially have had, given the information that was available to the Governor at 12 the time the decisions were made. After setting out the intelligence available to the Governor at the 13 time of the decisions, he opined: 14 15 “In those circumstances it is reasonable to conclude that, had the 16 [Plaintiffs] remained in the Cayman Islands and had continued with their 17 criminal activities on the same scale they represented an actual or 18 potential threat to the peace and security of this small island nation. For 19 example, there could have been an escape attempt involving smuggling of 20 firearms into the prison, perhaps supported from outside by gang 21 associates armed with automatic weapons; or a retaliatory or other gang- 22 related incident involving the use of automatic weapons on both sides, that 23 could temporarily have overwhelmed the resources of the RCIPS and led 24 to significant loss of life." 25 26
The conclusion that there was a threat to national security and public safety arose from intelligence 27 regarding continuing criminality and the risk of escape from prison. The risk of an escape from 28 custody of Category A prisoners with the Plaintiffs' known and reported profile, in and of itself, 29 was sufficient to raise national security and public safety concerns. Then, there was the apparent 30 gang-related attack on the Plaintiffs' mother's house, which led the authorities to fear reprisal. With 31 access to information and expert advice not available to the court, the Governor would have had, 32 as Lord Slynn stated in Rehman, "the means at her disposal of being informed of and 33 understanding the problems involved" at the time the decisions were made. The court enjoys no 34 Page 84 of 107 G0155/2017 2024-11-27 Page 84 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 85 of 107 such privilege or advantage. Therefore, at the time the decisions were made, the Governor was 1 undoubtedly in a better position to judge what was required in the interests of national security 2 and/or public safety. 3 4
Although this court is the primary decision-maker regarding the question of the violation of the Bill 5 of Rights, it is not the primary decision-maker regarding the risk posed by the Plaintiffs and the 6 steps to be taken to neutralise or eliminate it. In this area, I have to accord a high degree of deference 7 to the Governor's (and indeed, the Director of Prisons) institutional competence, albeit I am mindful 8 that the court must subject to intense scrutiny any claim of risk to national security which is raised 9 as justification for a breach of a fundamental right. I have considered the pronouncements of the 10 ECtHR in CG and others v Bulgaria at para 40, in treating with the question of whether there is 11 sufficient factual basis disclosed upon which the removing authority could have properly formed 12 the view that national security was threatened by the alleged activities and proclivities of the 13 Plaintiffs for criminality. 14 15
In CG v Bulgaria, it was found that the first applicant's expulsion from Bulgaria amounted to an 16 unjustified interference with the applicant’s right to respect for their family life due to insufficient 17 evidential basis on which the threat to national security was alleged and found to have been proved. 18 The court said, in part, at para 40: 19 20 “The individual must be able to challenge the executive's assertion that 21 national security is at stake. While the executive's assessment of what 22 poses a threat to national security will naturally be of significant weight, 23 the independent authority or court must be able to react in cases where the 24 invocation of this concept has no reasonable basis in the facts or reveals 25 an interpretation of "national security" that is unlawful or contrary to 26 common sense and arbitrary…” 27 28
At para. 43, the court continued in the same vein regarding treating with a claim by the State of a 29 threat to national security: 30 "… It is true that the notion of "national security" is not capable of being 31 comprehensively defined … It may, indeed, be a very wide one, with a 32 large margin of appreciation left to the executive to determine what is in 33 the interests of that security. However, that does not mean that its limits 34 may be stretched beyond its natural meaning." (Emphasis added) 35 Page 85 of 107 G0155/2017 2024-11-27 Page 85 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 86 of 107 1
The court concluded that the national courts, in accepting the State's claim that the first applicant 2 posed a risk to national security, did not subject the executive's claim to "meaningful scrutiny" as 3 required. Essentially, the case establishes the statement of principle that should guide this court, 4 which is that, in assessing whether a claim of threat to national security is made out, the court must 5 "be competent to reject the executive's assertion that there is a threat to national security where it 6 finds it arbitrary or unreasonable" (CG v Bulgaria at para [57]). 7 8
The eradication or reduction of crime for the preservation of public safety is a component of 9 national security. The security of prisons is a pertinent consideration as escaped prisoners pose a 10 serious threat to the life, limb and property of others. The decisions were made in this context of a 11 threat posed by prisoners to the Cayman Islands. Therefore, I accept it was perfectly legitimate and 12 appropriate for the Governor to consider the state of HMP Northward in the risk assessment and to 13 conclude that it was inadequate to securely house the Plaintiffs in the light of all the information 14 within her knowledge that has been disclosed to this court. This includes the gist of the allegations 15 contained in the undisclosed material. 16 17
I am satisfied that the Respondents have provided sufficient evidence to establish that there was 18 some possibility of risk or danger to the national security of the Cayman Islands and the safety of 19 its people, which made it desirable for the public good for the Plaintiffs to be removed from HMP 20 Northward and transferred to the United Kingdom. The decisions cannot be said to have been 21 arbitrary, unreasonable or irrational. 22 23
In the light of the preceding analysis, I am driven to the conclusion that the national security/ public 24 safety imperatives have been proved to the requisite standard. Mr Southey’s arguments that the 25 evidence only pointed to ordinary criminality and no threat to national security is not accepted. 26 Accordingly, I would hold that the measure undertaken under the 1884 Act to transfer the Plaintiffs 27 to the United Kingdom was in pursuit of a legitimate aim or objective, which was to secure the 28 Plaintiffs' safer custody in the United Kingdom in the interests of national security and public safety 29 in the Cayman Islands. 30 31 Page 86 of 107 G0155/2017 2024-11-27 Page 86 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 87 of 107
The second aspect of the first criterion to be satisfied by the Respondents is whether the stated 1 objective of the measure was sufficiently important to limit the Plaintiffs' fundamental right that 2 has been interfered with. I consider it indisputable that the aim of ensuring the Plaintiffs' safer 3 custody in order to safeguard the national security and public safety of the Cayman Islands is a 4 compelling objective sufficiently important to limit the Plaintiffs' section 9 rights, which have been 5 interfered with. 6 7
In my view, the Respondents have satisfied the first criterion necessary to establish justification. 8 9 (ii) Whether the measure is rationally connected to the objective 10
The second criterion the Respondents must satisfy is that the removal of the Plaintiffs was rationally 11 connected to the objective of preserving national security and public safety by ensuring the safer 12 custody of the Plaintiffs. It is fair to say that it is beyond dispute that this second requirement is 13 satisfied. 14 15 (iii) Whether a less intrusive measure could have been used to achieve the objective 16
A more controversial question relates to this third criterion. The Respondents contend that less 17 intrusive measures were not available to ensure the safer custody of the Plaintiffs in the interest of 18 national security and public safety. In addition to the arguments already discussed in treating with 19 the national security enquiry, they pointed to possibilities that were explored as alternatives. For 20 instance, consideration was given to move the Plaintiffs to a prison in Bermuda, another British 21 Overseas Territory, and to transfer prison officers from the United Kingdom to the Cayman Islands. 22 The Respondents’ evidence was also that the tactical responses that larger jurisdictions employ for 23 managing prisoners with the profile of the Plaintiffs, such as splitting them up and placing them in 24 separate prisons, could not be deployed in the Cayman Islands given its small size and absence of 25 another prison. The alternatives were, therefore, considered but found unworkable. 26 27
The Plaintiffs countered by submitting, through their counsel, that there is ex post facto reasoning 28 that the rebuild of HMP Northward would not adequately address the risks posed by the Plaintiffs. 29 According to them, the evidence does not explain why the Plaintiffs could not be held in a high- 30 security prison in the Cayman Islands when high-risk prisoners are not normally moved thousands 31 of miles from their homes. They complained that it appears that no consideration was given as to 32 Page 87 of 107 G0155/2017 2024-11-27 Page 87 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 88 of 107 how other Overseas Territories cope with high-risk prisoners. They argued that the material 1 obtained by the Attorney General suggests that only one prisoner has been transferred from another 2 Overseas Territory, which means other Overseas Territories are coping with high-risk prisoners. 3 Mr Southey pointed to Northern Ireland, which, he argued, "is a small community scarred by 4 terrorism", but which continues to detain prisoners in the sole local high-security prison. There is 5 no evidence that HMP Northward cannot hold prisoners convicted of murder, he said. 6 7
The consideration of this criterion is closely connected to the court’s consideration of the 8 justification of the Respondents based on the unsuitability of HMP Northward. As already 9 indicated in this judgment, the determination regarding the suitability of HMP Northward to house 10 the Plaintiffs was a matter totally within the institutional competence and executive judgment of 11 the removing authority with which I will not interfere. I have already accepted it was open to the 12 Governor to consider the state of HMP Northward in the risk assessment and to conclude that it 13 was inadequate to securely house the Plaintiffs in the light of all the information within her 14 knowledge that has been disclosed to this court. 15 16
The 1884 Act was promulgated to address this very situation, which faced the Cayman Islands with 17 only one male prison ill-equipped to house dangerous prisoners such as the Plaintiffs. The Governor 18 had the mechanism provided by the 1884 Act to ensure the safer custody of the Plaintiffs, which 19 included transfer to the United Kingdom. That mechanism was deployed in the circumstances after 20 other options were considered but found wanting. Section 2(d) of the Act under which the Governor 21 acted was held by the appellate courts to be in accordance with the law. Accordingly, this court 22 would have no lawful basis to substitute its own views for that of the Governor in deciding to 23 transfer the Plaintiffs to the United Kingdom. 24 25
In the light of the circumstances that prevailed at the time the decisions were made, especially given 26 the intelligence of a planned escape and the attack on the Plaintiffs’ mother's house, which evoked 27 a fear of reprisal, it cannot be said that the Governor acted irrationally when she failed to ensure an 28 upgrade or rebuild of the prison so as to obviate the need to remove the Plaintiffs at the time. It is 29 highly illogical to expect a prison re-build to have been undertaken at the time the events unfolded 30 that led to the Plaintiffs' removal. 31 32 Page 88 of 107 G0155/2017 2024-11-27 Page 88 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 89 of 107
Furthermore, I accept, as plausible, counsel for the Respondents’ argument that any decision for a 1 prison upgrade or rebuild was not within the sole remit of the Respondents. I agree that this was 2 not a decision for the Respondents, but one for the Cayman Islands Government, as it would have 3 involved substantial government expenditure and critical decision-making regarding the allocation 4 of scarce resources. In my view, this is an area in which the Cayman Islands Government should 5 be accorded a wide margin of appreciation. Accordingly, I do not accept that a narrow margin of 6 appreciation should be applied to this question of resources as it relates to HMP Northward, as 7 contended by the Plaintiffs (see the Jamaican Bar Association case at para. 78). 8 9
I am led to the conclusion that the Respondents have given reasonable consideration to other 10 available options but, in their judgment, found that none was satisfactory. The transfer was 11 permitted by statute, which is in accordance with the law. The question of what was required in 12 the public interests regarding the perceived threats to public safety and national security posed by 13 dangerous prisoners in the Cayman Islands, is one best left to the Governor and her specialist 14 advisers, including the Director of Prisons. This is a complex and pressing social issue on which 15 the court ought to show deference to the Respondents' decision regarding the best option available 16 to deal with the problem posed by the Plaintiffs, provided it was reasonable. 17 18
I find that the removal of the Plaintiffs was within the range of reasonable options open to the 19 removing authority and an issue on which it must enjoy a wide margin of appreciation. 20 21
Accordingly, I would hold that the third component of the proportionality test is satisfied because 22 nothing suggests that at the time the decisions were made to transfer the Plaintiffs, a less intrusive 23 measure was reasonably open to the removing authority and could reasonably have been used as a 24 suitable alternative to minimise the interference with the Plaintiffs' rights guaranteed by section 9 25 of the Bill of Rights. 26 27 (iii) Whether a fair balance has been struck between the Plaintiffs' constitutional rights 28 to respect for family life and the interests of the community 29 30
This third criterion of the proportionality test to be satisfied arises as the thorniest issue between 31 the parties and for the court's ultimate resolution on the substantive proportionality ground. The 32 question is whether the decisions struck a fair balance. 33 Page 89 of 107 G0155/2017 2024-11-27 Page 89 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 90 of 107
Contemporaneous documentation in the form of the submissions to the United Kingdom authorities 1 illustrates that at the time the decisions were made to transfer the Plaintiffs, specific consideration 2 was given to the impact on their family life, and especially their children’s. A balancing exercise 3 was carried out by reference to the available measures that would mitigate the impact on family 4 life, including access to telephone calls and the prospect of family visits funded by the Cayman 5 Islands Government. It was, therefore, considered that certain facilities would be provided to the 6 Plaintiffs by the Cayman Islands Government as well as by the United Kingdom prison regime for 7 them to maintain contact with their family and mitigate the hardships consequent on removal. 8 9
Based on the information available, the Governor had balanced the rights of the Plaintiffs to respect 10 for family life against the public interests of national security and public safety that the Cayman 11 Islands authorities believed were at stake. The removing authority concluded that national security 12 and public safety were important enough to outweigh the interference with the Plaintiffs' right to 13 respect for family life and that of their children. 14
The burning question that now needs to be analysed is whether the Governor got it wrong. The 15 court is now the primary decision-maker regarding the question whether a fair balance was struck. 16 Therefore, this proportionality review should involve this court's own consideration of weight and 17 balance, as the authorities dictate (See Pham v Home Secretary (SC(E)) [2015] 1 WLR 1591). 18 Regardless of the balance struck by the removing authority, it is ultimately for this court to decide 19 whether a fair balance was struck between the rights of the Plaintiffs and the public interest. 20 21 The impact on the Plaintiffs' right to family life – the evidence 22
The Plaintiffs have given detailed evidence of the effect of removal on their family life. 23 In support of their contention, they have provided unsworn statements from themselves and various 24 affidavits, including from their mother and legal representatives, chronicling their experiences from 25 when they were detained in HMP Northward to their detention in the United Kingdom. They have 26 also filed up-to-date evidence and other information regarding recent family interactions and their 27 current conditions of detention to demonstrate the impact of their transfer on their right to family 28 life. 29 30
The Plaintiffs compare their contact with their family in the Cayman Islands with their contact in 31 the United Kingdom and have concluded that they are worse off in the United Kingdom. The pith 32 Page 90 of 107 G0155/2017 2024-11-27 Page 90 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 91 of 107 and substance of the case being advanced are succinctly set out in the skeleton arguments of counsel 1 on their behalf. The court has also had regard to the document entitled "ANALYSIS OF FAMILY 2 CONTACT", prepared by the Respondents' counsel and agreed, in principle, by counsel for the 3 Plaintiffs as being useful. The case advanced by each Plaintiff regarding interference with their 4 family rights is examined separately but considered together when it is convenient to do so. 5 6 Osbourne Douglas 7
He has a daughter, S, who was seven years old at the time of his transfer from the Cayman Islands 8 (making her approximately 13 years old by the time of the hearing). He also has a younger 9 daughter, JF, with whom he has had no contact. While imprisoned in the Cayman Islands, his 10 mother would bring S to visit as her mother did not visit often. He estimates he would speak daily 11 to his daughter by phone, and she would visit most weekends. His mother, partner, sister and 12 brothers would also visit him regularly at HMP Northward. He would receive those visits weekly. 13 He had daily contact with his family by telephone, often more than once a day. He would see his 14 mother and three siblings most weekends but would speak daily with them by phone. There was a 15 visit from someone in the family every week, and his mother would usually attend HMP Northward 16 every other week for face-to-face visits with him and Ramoon together. 17 18
Upon his transfer to the United Kingdom, he initially had no contact with any family member for 19 nearly three months. He was permitted to see Ramoon several times a week during association 20 times at HMP Belmarsh, where they were both detained. He only spoke to his family approximately 21 once a week for 5 -10 minutes. He received family visits from Cayman between September and 22 October 2019 for the first time, when six family members visited him, including his daughter, S 23 and his mother. After October 2019, he had no direct family visits but was permitted one free call 24 to family once a month and paid calls. The ability to make paid calls depended upon his mother 25 sending money to him. He had a purple (video) visit with his mother and his daughter S in 26 December 2020. He also had visits with his girlfriend, Nina White, until March 2020, when visits 27 were restricted due to Covid-19. 28 29
At HMP Northward, there were restrictions on in-person visits from March 2020 to August 2020. 30 From August 2020 to March 2021, visits were permitted with a negative Covid-19 test. Since March 31 2021, there have been no Covid-19-related restrictions on visiting. Therefore, being in the United 32 Page 91 of 107 G0155/2017 2024-11-27 Page 91 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 92 of 107 Kingdom during Covid-19 restrictions was more disadvantageous to him. Following Covid-19, 1 monthly 30-minute video calls were permitted (at least for a period). By March 2021, he had one 2 call with his family. However, he also has a girlfriend in England with whom he needs to use video 3 calls to keep in contact. 4 5
Between 1 January and 3 August 2023, he made 20 telephone calls to Cayman. However, these 6 calls have generally been short. The time difference also made it difficult for him to speak to his 7 daughter. The limitations upon contact mean his bond with his daughter has been damaged. 8 9 Justin Ramoon 10
At the time of his removal, he had a partner, the mother of his son, ER, who was two months’ shy 11 of his second birthday (now eight years old). His mother and all his family, except for an aunt, 12 resided in the Cayman Islands. At HMP Northward, he had frequent visits and maintained regular 13 contact with his family. When able to do so, he would contact his family (mother, stepfather, and 14 two siblings) by telephone every day except for his brother, who is hearing impaired and could not 15 speak on the phone. He was able to call his family between 8:00 am and 9:15 pm. In the High-Risk 16 Unit, a telephone was put through the hatch in the cell door, and it would be rotated from cell to 17 cell. He would speak to his partner four or five times each day. There would be no limit on the time 18 spent on the telephone unless they had been talking for 30-40 minutes and another prisoner wanted 19 to speak. He would also talk to his son daily. 20 21
His son and his mother would visit him every weekend, while other family members would visit, 22 but not every week. He would speak daily to his mother and three of his siblings. His mother would 23 visit HMP Northward every other week for face-to-face visits with Douglas and him together. His 24 first telephone contact after his transfer was on 19 September 2017. While in the Cayman Islands, 25 he could make daily telephone calls without time limitations. Upon his transfer, it was a struggle in 26 the United Kingdom to make any telephone contact. 27 28
It took months to get the first short call back to his family, and then technological problems 29 frustrated the attempt at conversation. Three phones were on the block where he was housed, and 30 many prisoners and queues existed. Once at the front of the queue, only 10 minutes was permitted, 31 and then one had to rejoin the back of the queue to get additional calls. He made contact by letter 32 Page 92 of 107 G0155/2017 2024-11-27 Page 92 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 93 of 107 before telephone contact was established. Calls are expensive, and there are impediments due to 1 the time zone difference. He speaks to his family one to two times per week and has had two video 2 conferences with his son. It is important to him to maintain a relationship with his son and be a part 3 of his son's life no matter what. He does not want his son to grow up without a father like he did. 4 Regarding his nieces and nephews, with whom he is not so close, he would want to get to know 5 them better. He has faced mental and emotional challenges due to being separated from his family. 6 7 Both Plaintiffs 8
The HMCIPS agreed to fund one family visit per year for up to six family members, but this was 9 not known at the time of the decision challenge. The first family visit occurred in September and 10 October 2019, with several family members visiting the Plaintiffs. However, subsequent visits were 11 prevented due to Covid-19, and visits to the Plaintiffs only resumed in the Autumn of 2022. During 12 this time, Ramoon received almost daily visits from three family members, while Douglas declined 13 visits. In September 2023, both Plaintiffs received separate visits from five family members on at 14 least five occasions. Notably, Ramoon's son did not visit him during these times. The duration of 15 visits to the Plaintiffs varied, with visits to Douglas being about two hours long. 16 17
Ramoon has stated that the visits in England are different from the regular ones previously enjoyed 18 in Cayman because they are intense. The Plaintiffs' mother has also described how difficult the 19 visits are and how the visits to Douglas are unlike those in Cayman. The Plaintiffs pointed out that 20 the Respondents have filed evidence that over £10,000 has been deposited in their accounts and of 21 four other prisoners (pC504). However, there is no breakdown identifying how much a prisoner 22 has received or when he received it. The sums deposited do not determine how many calls a prisoner 23 can make, and historic deposits do not necessarily mean that deposits will continue. 24 25
There is no question that when they were at HMP Northward, they were in better and more frequent 26 contact with their family members who reside in the Cayman Islands than the contact they have 27 enjoyed in the United Kingdom. 28 29 The Respondents’ response 30
The Respondents presented affidavit evidence concerning the Plaintiffs' contact with their family 31 at HMP Northward and in the United Kingdom. Regarding HMP Northward, the Respondents 32 Page 93 of 107 G0155/2017 2024-11-27 Page 93 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 94 of 107 explained that prisoners could make calls each day, but they needed credit on their accounts to 1 make calls from the prison. As it relates to access to phones, there were 27 phones for use by 208 2 prisoners. 3 4
Regarding contact in the United Kingdom, between September and October 2019, six members of 5 the Plaintiffs' family travelled to the United Kingdom for a two-week visit at a cost of CI$25k. 6 HMCIPS has an agreement to finance the cost of similar family visits once a year. Unfortunately, 7 the 2020 trip was not possible due to Covid-19. On his account, Mr Douglas has 17 telephone 8 numbers, including 10 from Cayman. Between September 2020 and 12 March 2021, Ramoon had 9 approximately 933 calls with friends and family (an average of more than four calls per day). 10 £10,000 was paid into a prison account of Douglas, Ramoon and four other prisoners by Douglas' 11 girlfriend, Nina White. Ramoon had three virtual visits and sent and received letters. United 12 Kingdom prison regime, including Prison Rules, allows foreign nationals free phone calls once 13 every four weeks if there are no social visits, access to phones outside normal hours, no restrictions 14 on pound sterling accounts for foreign nationals, and additional phone accounts for foreign 15 nationals. 16 17 Discussion 18
There is no question that the Plaintiffs are affected in their contact with their family, which should 19 be weighed in the balancing exercise. However, their contact with their children deserves to be 20 given deeper consideration and greater weight than their contact with others, given the age of the 21 children and the special need for bonding between children and both parents. Also, I accept, as Mr 22 Southey has submitted, that the restriction on the father-child relationship as a result of the decisions 23 is at a sensitive stage of the children's development, which is in their formative years. This is 24 especially so for Ramoon’s son, E, who was two years old at the time of separation. 25 26
The Plaintiffs accept the Court of Appeal and Privy Council's conclusion that in making the 27 decisions, the Governor had taken account of the impact of the decisions on the children. They 28 contended, however, that later developments concerning matters concerning the children could not 29 have been known at the material time. One such development being that "contact would end". 30 According to the argument, the fact that contact would end was not identified as being likely in the 31 Page 94 of 107 G0155/2017 2024-11-27 Page 94 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 95 of 107 decision-making papers. Accordingly, this impact on the Plaintiffs and their children's right to 1 respect for their family life made the interference disproportionate and unjustifiable. 2 3
A salient starting point in discussing the impact of the separation on the children is a reminder of 4 the context in which the Plaintiffs' right to interact with their children is affected. It is not affected 5 simply upon their removal to the United Kingdom, but started upon their incarceration in the 6 Cayman Islands, following their convictions and the imposition upon them of lengthy sentences. 7 Whether they were removed or not, their contact with their children would have been curtailed by 8 their detention and classification as Category A prisoners, which subjected them to enhanced 9 restrictions in detention. As the Respondents argued through their counsel, "the Plaintiffs' 10 separation from their children was already a necessary and inevitable consequence of their 11 conviction and lengthy prison sentence for offences of the most serious nature…" 12 13
It is, therefore, the additional interference brought about by the removal to the United Kingdom, 14 and for which the Governor can reasonably be held responsible in concurring with the decision, 15 that is considered in the balancing exercise. The overarching question for determination at this 16 juncture is whether the interests of the children to have more frequent and personal contact with 17 their fathers, which they enjoyed in the Cayman Islands, should trump the national security and 18 public safety concerns of the Respondents that have led to the removal. 19 20
It is accepted that the relationship between the Plaintiffs and the children with whom they were in 21 contact while detained in the Cayman Islands was adversely affected as contact had become less 22 personal and frequent, consequent on their removal to the United Kingdom. This was reasonably 23 foreseeable. However, the termination of familial contact between the Plaintiffs and their children, 24 complained about in these proceedings, is another matter. It could not have been reasonably 25 foreseen by the Governor at the time the decisions were made that there would no longer be any 26 contact between Ramoon and his son or between Douglas and S. 27 28
In the case of Ramoon, whose son has not visited him in the United Kingdom, this is not due to any 29 act or omission on the part of the Governor or the Cayman Government but because the child's 30 mother would not permit him to visit. That eventuality, in my view, is not something to be laid at 31 the feet of the Governor in seeking to impugn her decisions. In the case of Douglas, he was never 32 Page 95 of 107 G0155/2017 2024-11-27 Page 95 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 96 of 107 in contact with one daughter even before his removal and provisions were made and considered for 1 him to maintain contact with the child, S, with whom he was in contact in the Cayman Islands. S 2 had visited him in the United Kingdom and he has had contact with her by video calls. There is no 3 report that the interaction between them has ended, even though it cannot be disputed that contact 4 would have been more difficult. 5 6
In the light of the expressed willingness of the State to do what it reasonably could to ensure the 7 Plaintiffs maintain contact with their family, including their children, the steps taken to finance 8 visits of close family members, and the means available in the United Kingdom prison system for 9 them to maintain contact with their family and the outside world, it cannot be said that the ending 10 of relationship could have reasonably been envisaged. 11 12
In assisting the court with the determination of this issue, both sides have relied on the Privy 13 Council case of H(H) v Deputy Prosecutor of the Italian Republic, Genoa [2013] 1 A C 338, an 14 extradition case. The learning derived from the pronouncements of the Privy Council has guided 15 these deliberations. The Board established that, in proceedings dealing with the separation of a 16 parent from his child, for instance, by extradition, detention or deportation, the child's rights to 17 family life are engaged. The question for consideration is how that interest should be safeguarded. 18 In this regard, the Convention must be interpreted harmoniously with the general principles of 19 international law, including Article 3.1 of the United Nations Convention on the Rights of the Child. 20 It states: 21 "In all actions concerning children, whether undertaken by public 22 or private social welfare institutions, courts of law, administrative 23 authorities or legislative bodies, the child's best interests shall be 24 a primary consideration." 25 26
In the instant case, The Privy Council, at para. 69 of its judgment, acknowledged that in the remitted 27 judicial review proceedings, the children's best interests must be taken into account and accorded 28 due weight in the balancing exercise as a primary consideration. However, the children's best 29 interest is not the primary or paramount consideration. Lady Hale made the vital point that the 30 impact upon young children of the removal of their primary caregivers and attachment figures can 31 be devastating and is a factor to be considered (H(H) v Deputy Prosecutor at para 33). Following 32 on her Ladyship's guidance, the court is to identify what the children's best interest requires and ask 33 Page 96 of 107 G0155/2017 2024-11-27 Page 96 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 97 of 107 whether the strength of any other consideration or the cumulative weight of other considerations 1 outweighs the consideration of their best interest. The court is to weigh the nature and gravity of 2 the interference against the importance of the legitimate aims pursued. The question is whether the 3 public interest in the parents' removal can be met without doing much harm to the children. This 4 requires careful consideration, and the proportionality exercise requires the court to consider 5 whether it can be mitigated. 6 7
In this case, the degree of latitude to be given to the primacy of the interests of the children in the 8 balancing exercise depends on the human right at stake, the legitimate aim being pursued, which 9 results in the interference, the seriousness of the criminality that led to the interference and the 10 nature of the relationship between the child and the parent in question. As Lord Mance noted in 11 H(H) v Deputy Prosecutor at para. [90]: 12 "… each case will depend on its own facts and some cases will be 13 more easily resolved than others … Ultimately it will come down 14 to the exercise of judgment as to where the balance must be struck 15 between … two powerful and conflicting interests…" 16 17
The balancing exercise requires careful examination of the interests of the children in maintaining 18 close contact with their fathers, who are separated from them at a far distance, and the public 19 interest in having the fathers remain at that distance due to the risks they pose to national security 20 and public safety. 21 22
In H(H) v Deputy Prosecutor, Lady Hale cited the Australian case of Wan v Minister for 23 Immigration and Multicultural Affairs (2001) 107 FCR 133, in which it was stated at para 32, 24 that: 25 "[The tribunal] was required to identify what the best interests of Mr Wan's 26 children required with respect to the exercise of its discretion and then to 27 assess whether the strength of any other consideration, or the cumulative 28 weight of other considerations, outweighed the consideration of the best 29 interests of the children understood as a primary consideration." 30 31
In this case, the best interests of E and S would be to have their fathers in close proximity to them 32 and to be able to see them more often and interact with them more closely. The partial presence of 33 their fathers in their lives within close proximity as in the Cayman Islands, is better for their 34 Page 97 of 107 G0155/2017 2024-11-27 Page 97 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 98 of 107 development than no contact at all or through contact from such a far distance. It is accepted that 1 Ramoon's son was a toddler when he was separated from his father. The evidence is that he now 2 has no recollection of his father. He is, therefore, seriously affected in his formative years by the 3 absence of his father near to him. Douglas' daughter S is an older child. Her recollection of her 4 father may be better than Ramoon's son. Nevertheless, she, too, would be affected by the lack of 5 closer contact with her father, which she enjoyed while he was at HMP Northward. I am mindful 6 of the strong public interest that children need both parents in their lives. 7 8
However, the fact that they have their mothers, who appear to be, at least, their primary caregivers 9 or attachment figures, has served to mitigate the harm caused by the distance from their fathers who 10 were not playing such a vital role in their lives at the time they were removed. In this case, the 11 Plaintiffs are not the primary or sole caregivers or attachment figures. So, their removal from their 12 children's lives is not likely to be as devastating as it might have been had they been the sole or 13 primary caregivers or attachment figures. 14 15
Furthermore, the State has implemented mitigating measures to fund family visits to the United 16 Kingdom. Douglas' daughter had availed herself of that opportunity. There is also the availability 17 of other means of communication within the United Kingdom prison regime, albeit it is accepted 18 that there are limitations to those methods. Admittedly, they render the contact to be of a lesser 19 quality than that which obtained when the Plaintiffs were at HMP Northward but nevertheless they 20 provide an avenue through which contact can be maintained. 21 22
The Governor had given consideration to the impact on the children and the measures available to 23 mitigate the ill-effects of that impact, but, it was believed that the harm to the community if the 24 Plaintiffs were not removed would be greater than the harm to the children if they were removed. 25 Accordingly, in this exercise, the national security and public safety considerations that compelled 26 the Plaintiffs’ removal from the Cayman Islands are weighty competing interests against which the 27 interests of the children must be juxtaposed and weighed. While there is a weighty public interest 28 in having young children exposed to a structured family unit with two loving parents available to 29 them consistently and in close proximity, there is, on the other hand, a weightier countervailing 30 public interest in ensuring that prisoners convicted of serious offences and who continue to pose a 31 danger to the public are safely secured so as to eliminate or minimise that threat. 32 Page 98 of 107 G0155/2017 2024-11-27 Page 98 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 99 of 107
Having considered and accepted that sufficiently good reason existed for the Governor to conclude 1 that the Plaintiffs posed a clear and present risk to national security and public safety, that there 2 was no suitable alternative measure to deal with the risk; and that steps would be taken to mitigate 3 the impact on their relationship with their family, to include their children, I find that the interests 4 of the children in having their fathers remain in the Cayman Islands must give way to the 5 overwhelming weight of the interests of national security and public safety that required their 6 removal. In this case, the right at stake is not the Plaintiffs’ liberty which would have been a more 7 important right. While the right to respect for family life is important, it is not as critical as the right 8 to liberty which is usually engaged in cases involving prisoners. 9 10
In H(H) v Deputy Prosecutor, the majority, in not agreeing with Lady Hale in respect of the 11 separation of one parent in that appeal (PH) from his children, opined that despite the harm to the 12 children in question of their separation from a parent who was a caregiver, which admittedly would 13 have been severe, the interests of the children were overridden by the seriousness of the offences 14 PH had committed. In that situation, both parents were extradited to face proceedings for criminal 15 offending despite the obvious harm to their children their absence might have caused. There were 16 two weighty conflicting interests to be considered, but the public interest in having the parents 17 punished for their serious offending prevailed over the interests of the children. 18 19
Applying the reasoning of the majority in H(H) v Deputy Prosecutor and the facts thrown up for 20 consideration in this case, I am propelled to the conclusion that in the circumstances of this case, 21 especially having regard to the fact that the Plaintiffs are not caregivers or attachment figures, the 22 interests of the children must yield to the weightier countervailing public interest considerations of 23 public safety and national security. These are public interests of much force and gravity to outweigh 24 the interests of the Plaintiffs' children in this case. 25 26
Given the nature of the relationship between the Plaintiffs and their relatives, it is the children who 27 stand to suffer the most from the interference with their family life. Therefore, the fact that the 28 public interest considerations of national security and public safety are compelling enough to 29 outweigh the children’s significant interests means the rights of the adult family members would 30 also be overridden by the same countervailing public interest considerations of the Caymanian 31 Page 99 of 107 G0155/2017 2024-11-27 Page 99 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 100 of 107 community. I am satisfied that their right must also give way to the public interest that was at stake 1 if the Plaintiffs had remained at HMP Northward. 2 3
In my view, a fair balance was struck by the removing authority. For that reason, I have attached 4 significant weight to the conclusion of the Governor that the Plaintiffs should be removed in the 5 interest of national security and public safety. I find that the removing authority had carefully 6 weighed the competing considerations and rightly concluded that the interference with the section 7 9 right was justified on the substantive proportionality ground (see Belfast City Council v Miss 8 Behavin Limited per Lord Rodger of Earlsferry at para 26). 9 10
Accordingly, it cannot be said in all the circumstances that the Governor's decision was a 11 disproportionate interference with the rights of the Plaintiffs under section 9 of the Bill of Rights. 12 13 Interference with other private rights 14 (a) mental health and absence of offence-focus work 15
Apart from the impact on their family life through reduced family contacts, the Plaintiffs have 16 raised other consequences that they allege resulted from their detention in the United Kingdom and 17 interfered with their human rights. In this regard, Douglas complained that he found it challenging 18 to instruct his lawyers while detained in England. For example, it took nine months to arrange a 19 video conference with the attorney acting in these proceedings. Further, concerns have been raised 20 about his mental health, and the Respondents are relying on it as a justification for his continuous 21 detention in England. The Respondents have said that Cayman may lack the facilities to care for 22 him. His mother is concerned about him. 23 24
Ramoon, for his part, complained that he had not caused any disciplinary issues while detained in 25 England. However, the lack of specific programs targeting his offending behaviour has been used 26 as a reason to keep him in a high-security setting. This high-security detention, he said, is then used 27 as justification for his continued imprisonment in the United Kingdom. In his view, this implies 28 that the absence of programs addressing his offending behaviour prevents him from proving that 29 his risk level has decreased enough for him to return to Cayman. 30 31 Page 100 of 107 G0155/2017 2024-11-27 Page 100 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 101 of 107
The Plaintiffs argued that these matters could not have been considered by the Governor at the time 1 she made her decision. 2 3
However, without any need for deeper analysis, I conclude that the Plaintiffs' arguments regarding 4 these later developments in the United Kingdom should not be accepted. Having regard to what has 5 been established earlier in resolving the Timing Issue, these matters fall outside the established 6 timeframe for the proportionality analysis. These are situations that did not exist at the time the 7 decisions were made by the Governor in concurring with the removal, and so had no part to play in 8 the decisions. Neither were they direct emanations of the decisions in the immediate aftermath of 9 the removal from the Cayman Islands that could be laid at the Governor’s feet. The matters raised 10 all fall within the purview of the United Kingdom authorities under whose jurisdiction the Plaintiffs 11 now fall as transferred prisoners and in respect of which the Respondents have no duty or 12 responsibility. 13 14
For all the preceding reasons, the considerations pertaining to Douglas' mental health challenges in 15 the United Kingdom and the absence of offence-focus work for Ramoon, which it is said affect 16 their prospects for rehabilitation and return to the Cayman Islands, are accorded no place in the 17 balancing exercise. 18 19 (b) Interference with the right of access to lawyers 20
The Plaintiffs have complained that the impugned decisions limited their ability to maintain contact 21 with their lawyers when they were transferred. According to them, this is a further factor that should 22 be taken into account when assessing proportionality, as section 9 (like Article 8) protects that right. 23 For this proposition, they rely on Golder v United Kingdom (1975) 1 EHRR 524 at [43]. 24 25
The Plaintiffs spoke of the challenges they faced in the immediate aftermath of their removal to 26 communicate with counsel. The Respondents have provided evidence (affidavit from the HMCIPS 27 with an exhibited redacted document) that in July and August 2017, the Governor's office was 28 copied on various correspondence from the then Director of HMCIPS with HMPPS, trying to 29 arrange contact between the Plaintiffs and their respective attorneys and family members. There 30 were delays in arranging telephone contact due to the process of having phone numbers verified as 31 required by HMPPS and problems with incompatible technology for video conferences. 32 Page 101 of 107 G0155/2017 2024-11-27 Page 101 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 102 of 107
The problems faced by the Plaintiffs in contacting their lawyers were outside the control of the 1 Caymanian authorities and, in any event, were not prolonged or resulted in any unfairness to the 2 Plaintiffs in the prosecution of their appeal or preparation of their case challenging their removal. 3 They managed to prosecute their criminal appeal while in the United Kingdom and to commence 4 these proceedings while in the United Kingdom. As such, they were not denied legal representation 5 or access to justice in the Cayman Islands or elsewhere as a result of the Governor's decisions. The 6 problem with contacting counsel is, therefore, not treated as a material consideration of any weight 7 in the proportionality balancing exercise. 8 9 Suitability of mitigating measures 10
The Plaintiffs also maintain that the interference with their section 9 rights is disproportionate and 11 unjustifiable because no consideration was given to mitigation at the time of the decisions, and 12 there has been limited mitigation of the impact of the transfer. Having considered the Attorney 13 General's letters to the Plaintiffs' attorneys upon their removal in September 2017 and the evidence 14 of events that unfolded since then, I find this contention of the Plaintiffs to be without merit. 15
Due regard was given to mitigating measures at the time the decisions were made by considering 16 the prospects of state-funded family visits and the measures in the United Kingdom prison regime 17 that allow access to telephone calls and other modes of communication. Steps have also been taken 18 since the decisions to mitigate the impact of the removal, as contemplated, at the time the decisions 19 were made. As the Respondents have demonstrated, without dispute, the Cayman Islands 20 Government has funded annual family visits since 2019 (except for the Covid-19 period over which 21 they had no control) . Douglas had refused visits at one point. The Plaintiffs have also maintained 22 contact with their families and the outside world by other means, including by telephone, video and 23 post. They have the same rights to contact their family as other prisoners in the United Kingdom 24 and enhanced rights as foreign national prisoners to contact family. 25 26
In my view, no fault can be attributed to the Respondents regarding any alleged absence or 27 insufficiency of mitigating measures. Therefore, the Plaintiffs' contention that the interference is 28 unjustifiable for these reasons is not accepted. 29 30 31 32 Page 102 of 107 G0155/2017 2024-11-27 Page 102 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 103 of 107 Conclusion on the substantive proportionality ground 1
Having considered the case advanced by the Plaintiffs regarding the substantive proportionality 2 grounds and the justification defence advanced by the Respondents, I am driven to conclude that 3 the Respondents have justified the interference with the Plaintiffs' substantive rights under section 4 9(1) of the Bill of Rights on national security and public safety grounds pursuant to section 9(3)(a). 5 The Respondents have discharged the burden of proving justification on the substantive ground 6 concerning proportionality. 7 8
To the extent that the alleged breach of section 6 depended on the grounds alleging a substantive 9 breach of the right to respect for private and family life under section 9(1), I find no infringement 10 of section 6 on the basis alleged by the Plaintiffs under this head. The justification for the 11 interference of the section 9 right means no infringement of section 6. Section 6 warrants no 12 separate assessment in this regard. 13 14 ISSUE 2 - THE PROCEDURAL (FAIRNESS) GROUND 15 Whether the Plaintiffs’ removal was unfair and breached section 9 of the Bill of Rights in its 16 procedural aspect because they were not given a realistic opportunity to make representations 17 before their removal (“the fairness ground”) 18
In accordance with the List of Issues prepared by the Plaintiffs and commented on by the 19 Respondents, the Plaintiffs are challenging the decision-making process on the ground that it was 20 unfair as it was in breach of section 19 of the Bill of Rights and/or common law fairness and/or the 21 procedural requirements of the Bill of Rights under sections 6 and 9. The Plaintiffs had alleged 22 procedural unfairness on other grounds. However, following the remittal from the Privy Council, 23 the solitary ground remaining for resolution is that the decision-making process was unfair because 24 they were not given advance notice of the decision to transfer them. Therefore, the claim of 25 unfairness due to lack of reasons for the decision, failure to disclose relevant material, lack of access 26 to their lawyers, and the absence of an oral hearing was not pursued. 27 28
In advancing the unfairness ground, the Plaintiffs placed reliance on R(Balajigari) v Secretary of 29 State for the Home Department [2019] EWCA Civ 673; [2019] 1 WLR 4647, in which Singh LJ 30 reasoned that where fairness requires an opportunity to make representations, unless the 31 circumstances of the case make it impracticable, it will generally be unfair if the opportunity only 32 arises after a decision had been made. 33 Page 103 of 107 G0155/2017 2024-11-27 Page 103 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 104 of 107
The Respondents’ position is simple following the decisions of the Court of Appeal and the Privy 1 Council. Their contention is that this ground adds nothing to the proportionality ground given the 2 Court of Appeal's observation in the CICA civil appeal judgment at para [90] and the Privy 3 Council's judgment at para. [68]. The Court of Appeal had stated that "if the grounds for the 4 [R]espondents' assessment of the risk to national security are well-founded, then to give advance 5 warning would have been absurd." The Board, for its part, noted at para [68] of its judgment: 6 "The one outstanding matter in this regard is the appellant's 7 complaint that his removal was not in accordance with the law 8 because he was not given any advance warning of his removal and 9 had no opportunity to challenge it in advance. In response, the 10 Respondents maintain that there were good reasons of urgency 11 and confidentiality that justified postponing that opportunity until 12 after the decision was taken and that the danger to national 13 security would have been exacerbated by advance warning to the 14 appellant… As Sir Alan Moses observed in his judgment in the 15 Court of Appeal (at para 90), if the grounds for the Respondents' 16 assessment of the risk to national security are well-founded, then 17 to give advance warning would have been absurd. This aspect of 18 the plea will, however, have to be addressed on the basis of the 19 evidence when the remitted judicial hearing takes place." 20 21
The Court of Appeal and the Respondents have acknowledged the dictum of Singh LJ in R(Citizens 22 UK) v Home Secretary [2018] 4 W.L.R. 123[85], which establishes that there may be a need to 23 maintain confidentiality before the decision is taken and put into effect. Having noted the 24 Respondents' explanation that the danger to national security would have been exacerbated by 25 advance warning, the Court of Appeal opined that once the risk to national security is made out, that 26 is, proven to have existed, then it would be absurd to give advance warning. The Privy Council did 27 not criticise that thinking. 28 29
Having already accepted the justification for the interference of the Plaintiffs' rights on the ground 30 of the risk they were assessed to have posed to national security and public safety by their continued 31 detention on the Islands, I am bound to adopt the conclusion of the Court of Appeal that it would 32 have been absurd to give prior warning of the intention to remove them. 33 34 Page 104 of 107 G0155/2017 2024-11-27 Page 104 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 105 of 107
In BX v Home Secretary [2010] 1 W.L.R. 2463, the Secretary of State for the Home Department 1 was considering the modification to a “control order” that would interfere with the controlee's 2 Article 8 rights. Pickford LJ stated that while the Secretary of State was required to consider the 3 controlled person's personal circumstances before the modification decision was made, it is not in 4 every case that he is bound to seek or receive representations from the controlled person before 5 implementing the modification. The learned judge opined that the nature of the security assessment 6 and the evidence on which it is based may be such that the Secretary of State is required to act 7 urgently in the public interest. He continued: 8 "In striking the balance between the public interest and the rights of the 9 individual in such a case, it may not be practicable to seek or to receive 10 representations before acting. This will be the case where notice to the 11 controlled person would itself put at risk the national security interest in 12 the measure to be taken." 13 14
The foregoing dictum does establish, as pointed out by counsel for the Respondents, that the urgent 15 requirements of national security and public safety are good reasons for not giving advance 16 warning. I have accepted that those imperatives provided good reasons for no warning to have been 17 given prior to the removal. The gist reveals startling allegations regarding continued criminality 18 and, above all, a plan to escape custody. This was exacerbated by the attack on the Plaintiffs' 19 mother's house, which triggered the fear of a reprisal. In these circumstances, advance notice could 20 have jeopardised the Respondents' plan to have the Plaintiffs removed as well as public safety. The 21 Attorney General's response in the letters of September 2017 to the Plaintiffs' lawyers that "any 22 forewarning would have had the potential to undermine the objectives of the removal," says it all. 23 24
I conclude that any unfairness to the Plaintiffs in not being given advance warning of their removal 25 would be outstripped by the need to safeguard national security and public safety. 26 27
This conclusion that there is no unfairness is fortified by the fact that the Plaintiffs have not been 28 deprived of an opportunity to make representations and challenge the decisions after they were 29 made to have a reversal of them. This is the purpose of the present proceedings in which their 30 grievances with the decisions have been thoroughly ventilated. 31 32 Page 105 of 107 G0155/2017 2024-11-27 Page 105 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 106 of 107
In the premises, I conclude that there is no procedural unfairness arising from the failure of the 1 Governor to give advance notice to the Plaintiffs of the intention to remove them and to afford an 2 opportunity for representations to be made concerning their removal. Confidentiality was 3 warranted for the sake of public safety and national security. Accordingly, there has been no 4 unjustifiable violation of the Plaintiffs’ rights under sections 6 or 9 of the Bill of Rights, the 5 common law or any other law as contended by the Plaintiffs. The procedural ground, therefore, 6 fails. 7 8 CONCLUSION AND DISPOSAL OF THE APPLICATIONS 9
In keeping with the guidance derived from the relevant authorities reviewed (most of which have 10 not been expressly discussed), the court considers that the removing authority, in arriving at the 11 decisions, complied with the dictates of the 1884 Act and the requirements of the general law 12 regarding constitutionality of the measure of removing the Plaintiffs from HMP Northward. 13 14
The removing authority undertook an individual assessment of the necessity of each Plaintiff’s 15 removal by reference to the risk he posed, his family situation and the ability of HMP Northward 16 to detain him safely. Each Plaintiff was entitled to and was given reasons for the removal. The 17 Plaintiffs were, quite understandably, not given advance notice of the decision taken to remove 18 them because of the need for urgent action and confidentiality given the nature of the risk they were 19 believed to have posed. They have brought judicial review proceedings, which they are entitled to 20 do and have been provided sterling legal representation, at public expense, to conduct these 21 proceedings. They have been given disclosure, in so far as the law permits, with the benefit of the 22 input and protection of a special advocate in the PII hearing. In all the circumstances, the Plaintiffs 23 were provided with fair procedures and superbly competent legal assistance to challenge their 24 removal to a distant prison. The decisions have been found by the court to be objectively justified. 25 26
Therefore, it can safely be said that the Governor’s decisions to concur in the removal of the 27 Plaintiffs to the United Kingdom under the 1884 Act, was in accordance with the law and 28 reasonably justified in a democratic society. The decisions were not unconstitutional on any of the 29 grounds contended by the Plaintiffs. Accordingly, the Respondents cannot be held liable to the 30 Plaintiffs for breach of any constitutional, statutory or common law rights as alleged. 31 32 Page 106 of 107 G0155/2017 2024-11-27 Page 106 of 107 G0155/2017 2024-11-27 ____________________________________________________________________________________________ 241127 - Judgment. G0155/17 - Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons; G0164/17- Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. Coram: McDonald-Bishop J Actg. Page 107 of 107
For all the preceding reasons, the court makes the following orders: 1 2
The Plaintiffs’ applications for judicial review are dismissed. 3 4
No order as to costs. 5 6 7 Dated this the 27th day of November 2024 8 9 MCDONALD-BISHOP J 10 ACTING JUDGE OF THE GRAND COURT 11 12 Page 107 of 107 G0155/2017 2024-11-27 Page 107 of 107 G0155/2017 2024-11-27