Quin J
IN THE GRAND COURT OF THE CAYMAN ISLANDS HOLDEN AT GEORGE TOWN Cause No: 0301/2011 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW PURSUANT TO GCR O.53 r.3 BETWEEN: DENNIE WARREN JR. PLAINTIFF/APPLICANT AND: THE COMMISSIONER OF POLICE DEFENDANT/RESPONDENT Appearances: Mr. Dennie Warren Jr. Before: The Hon. Mr. Justice Charles Quin Heard: 23rd August 2011 and 1st, 6th September 2011 JUDGMENT
On the 5th August 2011 the Plaintiff filed an ex parte application for leave to apply for Judicial Review pursuant to GCR O.53 r.3. In his application the Plaintiff seeks: "1. To quash the decision of the Commissioner of Police;
A declaration on how to interpret the Firearms Law." 2. The Plaintiff filed an affidavit, sworn on the 4th August 2011, together with six grounds on which he sought relief.
The Plaintiff's grounds in support of his application for Judicial Review were that:
(i) The Commissioner of Police acted without legal authority; (ii) The Commissioner of Police acted with procedural impropriety; (iii) The Commissioner of Police’s decision to revoke his licence was biased; (iv) The Commissioner of Police’s decision to revoke his licence was for an improper purpose; (v) Judicial Review is the most effective and convenient remedy, because of the exceptional circumstances of the case; and (vi) The matter is one of great public interest.
In essence, the Plaintiff is seeking an order of certiorari to quash the decision of the Commissioner of Police dated the 23rd May 2011 which revoked the Plaintiff’s firearm licence #CAFA00002326. In addition, the Plaintiff seeks a declaration pursuant to GCR O.53 r.1(2) which reads: “An application for a declaration ……may be made by way of an application for judicial review, and on such an application the Court may grant the declaration …….claimed if it considers that, having regard to – (a) the nature of the matters in respect of which relief may be granted by way of an order of certiorari; (b) the nature of the persons and bodies against whom relief may be granted by way of such an order; and (c) all the circumstances of the case, It would be just and convenient for the declaration to be granted on an application for judicial review.”
In the Plaintiff’s first affidavit dated the 4th August 2011 he refers to a number of material documents, the most important of which is the letter from the Defendant dated the 23rd May 2011 revoking the Plaintiff’s firearm licence.
At the hearing on the 23rd August 2011 the Court raised the issue that the Plaintiff had failed to exhibit all the necessary documentation including the most important letter, namely the letter from the Defendant revoking the Plaintiff’s firearm licence, which letter contained the decision the Plaintiff seeks to quash. The Court also explained to the Plaintiff that a court may, in its discretion, refuse to grant leave to apply for Judicial Review, if an adequate alternative remedy exists, or if such a remedy existed but the Plaintiff had failed to use it.
The Court adjourned the matter to allow the Plaintiff further time to file the Defendant’s letter dated the 23rd May 2011 and any other relevant evidence. In addition, the Court adjourned the matter to give the Plaintiff the opportunity to consider and address the question of his failure to lodge an appeal, pursuant to s.29 of the Firearms Law (2006 Revision). Accordingly, I made an Order in the following terms: 1. That the application for leave to apply for Judicial Review is adjourned. 2. That the Plaintiff has seven (7) days in which to file a supplementary affidavit with exhibits. 3. That the Plaintiff is to serve this Order, the application for leave to apply for Judicial Review, and all affidavit evidence upon which relies, on the Respondent.
4. That this application is adjourned to the 6th September 2011 at 9:30 a.m. for the parties to appear and for further directions.
On the 1st September 2010 the Plaintiff rang my secretary and asked for more time to file the evidence and serve it on the Respondent. Accordingly, the Court acceded to the Plaintiff’s application and ordered that the Plaintiff had until close of business on Friday the 2nd September 2011 in which to file his Supplementary Affidavit with exhibits, and further, that the Plaintiff had until close of business on Friday the 2nd September 2011 in which to serve, on the Defendant, the Order dated the 23rd August 2011, the application for leave to apply for Judicial Review dated the 4th August 2011, and all the affidavit evidence upon which the Plaintiff is relying.
At the hearing on the 6th September 2011 the Plaintiff confirmed that his application for leave to apply for Judicial Review, the grounds for his application, the Order of the Grand Court dated the 23rd August 2001 and his affidavit evidence had all been served on the Defendant on the 2nd September 2011.
The Plaintiff relied on his First Affidavit and his Supplementary Affidavit sworn on the 2nd September 2011. The Plaintiff’s Supplementary Affidavit exhibited forty-nine (49) exhibits including the letter from the Defendant dated the 23rd May 2011 revoking the Plaintiff’s firearm licence, and the subsequent letter from the Defendant dated the 13th July 2011 refusing the Plaintiff’s request to renew his firearm licence.
At the hearing on the 6th September 2011 the Plaintiff, again, chose to represent himself. There was no appearance at the hearing on behalf of the Defendant.
In addition to the material set out above, the Plaintiff provided two further Skeleton Arguments.
The Plaintiff contends that an appeal to the Governor in Cabinet would not serve the interests of justice for the following reasons: a) That an appeal to the Governor in Cabinet is likely to result in considerable delay in the matter being resolved; b) That further, and in the alternative, the issues arising from this matter are almost exclusively legal in nature. In essence, the Plaintiff complains that the Commissioner acted illegally in issuing new forms, which can only be done by the Governor in Cabinet; c) That the Governor in Cabinet is unlikely to go against the Legal Department and the Complaints Commissioner; d) That the matter is of fundamental importance to the rule of law in the Cayman Islands; e) That an administrative decision cannot usurp a regulation; f) That the powers of the Commissioner under the Firearms Law are being used for an improper purpose; g) That the Police Firearm Policy has language clearly indicating that there is an aim to reduce gun ownership – both legal and illegal. The Plaintiff submits that this is not the purpose of the Firearms Law and it is therefore ultra vires; h) That the Commissioner is unduly fettering his discretion by, for example, trying to restrict people to owning only one gun; i) That the Commissioner is acting outside the scope of his power to impose “restrictions” contained in s.19(e) of the Firearms
Law, because the power prescribed therein does not permit him to make application requirements, because only the Governor in Cabinet can make firearm regulations pursuant to s.43 of the Firearms Law.
Section 29(1) of the Firearms Law (2006 Revision) reads: "29. (1) Subject to subsections (2) to (6), any aggrieved party may appeal to the Governor against any decision of an appropriate authority- (a) Refusing to grant any licence or permit; (b) .... (c) ... (d)..... (e) Revoking or refusing to revoke any licence or permit
Section 29(2) reads: "29. (2) Notice of appeal under this section shall be given to the Governor in the prescribed form within twenty-one days of the date on which the aggrieved party first has notice of the decision against which he desires to appeal and shall be accompanied by the prescribed fee."
Section 29(3) reads: "29. (3) Every appeal under this section shall be considered by the Governor at such time and in such manner (whether in the presence or in the absence of the aggrieved party) as the Governor may, in his absolute discretion, think fit."
Section 29(4) reads: "29. (4) Upon the determination of any appeal under this section, the Governor shall give to the appropriate authority against whose decision such appeal is taken such directions as the Governor may, in his absolute discretion, think fit."
Section 29(5) sets out the definition of an “aggrieved party” which means: “...the applicant for or the holder of any licence or permit in respect of the refusal to grant, the amendment of or the revocation of which any appeal is taken and the owner of the firearm to which such application, licence or permit relates…” Correspondence
I now turn to the relevant correspondence exchanged between the parties and exhibited to the Plaintiff’s Second Affidavit filed on the 2nd September 2011.
On the 23rd May 2011 the Defendant wrote to the Plaintiff revoking his firearm licence and stated in the final paragraph: “Should you wish to appeal this decision, you may do so to the Governor as per section 29 of the Firearms Law (2008 Revision) and if you have any further queries, please contact Inspector Iain Yearwood directly.”
On the 6th June 2011 the Plaintiff wrote to the Defendant stating that he wanted to make one final attempt to resolve the matter before resorting to Judicial Review of the Defendant’s decision and taking legal action. The Plaintiff confirmed that the Defendant “should be fully aware that he had sought legal advice on the matter and is now conducting his pre-action protocol procedures before commencement of leave for Judicial Review.” The Plaintiff asked the Defendant to reconsider the revocation of his gun licence and to respond within four days.
On the 9th June 2011 the Attorney General’s Chambers, on behalf of the Defendant, wrote to the Plaintiff asking the Plaintiff for time in which to respond to his letter dated the 6th June 2011 to the Defendant.
On the 9th June 2011 the Plaintiff wrote to the Attorney General’s Chambers, copied to the Defendant, stating: "I am amenable to giving your office until the 30th June 2011 to respond to my concerns raised. However as you may well know section 29(2) of the Firearms Law states that if I also intend to exercise my right of appeal via the Governor in Cabinet I would have twenty-one days in which to do so. Those twenty-one days expire tomorrow. Therefore, I am willing to wait for your response not later than the 30th June 2011 on the condition that given the circumstances my right of appeal would be begin to run twenty-one days from the Commissioner of Police’s final decision to be received not later than the 1st July 2011."
On the 10th June 2011 the Attorney General’s Chambers wrote, on behalf of the Defendant, to the Plaintiff stating that they: "...would not object to the Plaintiff exercising his right of appeal against the decision of the Commissioner made after reconsideration of his application in the event that his application is refused."
Accordingly, the Plaintiff obtained the consent of the Attorney General’s Chambers, and by inference, the Defendant’s consent, that the time period for his right of appeal under the Firearms Law would not begin to run until the final decision of the Defendant after reconsidering the Plaintiff’s application.
On the 6th July 2011 the Defendant wrote to the Plaintiff and stated: "My understanding is that your refusal to grant the Royal Cayman Islands Police Officer access to your home in order to examine your gun safe was based upon a belief that such actions were not authorised by the relevant
legislation. My position is clear, in that I contend that such entry is authorised within the law and moreover is an essential element in ensuring that firearm holders comply with conditions and requirements to ensure that firearms are secure and appropriately stored to fulfill your responsibility as a fit and proper person to hold a firearms licence. That approach is taken to ensure your personal actions do not compromise the safety of the wider community. It is, I believe, a reasonable imposition which balances individual rights and responsibilities with my responsibility as the authorizing officer for firearm licence grants to ensure the appropriateness and suitability of those granted such licences. Your refusal to agree to that reasonable request gives me cause for concern as to your compliance with security conditions upon which your licence was granted; and therefore despite a further request to permit access, led to my revocation of your licence when again access was refused." The Defendant went on to ask of the Plaintiff: "Do you have any further commentary or observation to make in support of your request that I reinstate the revoked firearm licence? I await your commentary in order to review the revocation notice currently in place." The Defendant concluded by confirming that: "This request does not, in any way, negate your right of appeal to the Governor in order to challenge my decision."
The Plaintiff's response to the Defendant's decision not to renew his licence was contained in an email dated the 6th July 2011 in which he stated:
“If additional information was required, you had almost an entire month now to revert to me requesting any additional information and clearly that has not happened. Requesting information after the deadline is not acceptable behaviour for a matter that is pending litigation/Judicial Review.” The Plaintiff further added: “There is nothing further that I can provide you with at this late stage of the proceedings, except that your delay tactics will not be tolerated.”
On the 13th July 2011 the Defendant replied to the Plaintiff stating in conclusion that: “It is with regret that you fail to satisfy me that any weapon held by you is appropriately stored; in consequence, therefore I am unable to grant the re-licencing of your firearm.”
The Plaintiff chose not to exercise his right of appeal, but instead, on the 4th August 2011 filed his application for leave to apply for Judicial Review to quash the decision of the Defendant to revoke his licence and not to renew his licence. The Law
In the House of Lords case of Reg v. Inland Revenue Commissioners, Ex Parte Preston [1985] A.C. 835 Lord Scarman said at paragraph D on page 852: “My fourth proposition is that a remedy by way of Judicial Review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial Review is a collateral challenge: it is not an appeal. Where Parliament has provided by statute appeal procedures, as in the taxing statutes, it will only be very rarely that the courts will allow the collateral process of Judicial Review to be used to attack an appealable decision.”
Lord Templeman added at paragraph D on page 862: "Judicial Review should not be granted where an alternative remedy is available."
In Harney Development Inc. and Another v. Commissioner of Inland Revenue [1996] WLR 727 the House of Lords judgment delivered by Lord Jauncey of Tullichettle stated in the holding at page 728: "Where a statute laid down a comprehensive appeals procedure for administrative decisions, and such a decision had not been appealed, the court would only entertain an application for Judicial Review in exceptional circumstances, typically where an abuse of power was alleged; that, since the assessments involved no unfairness, and therefore no abuse of power, Judicial Review proceedings were inappropriate." Conclusion
It is clear from a review of the correspondence that the Plaintiff had sought legal advice and was aware of his right to appeal under the Firearms Law as an "aggrieved party" against the decision of the Defendant. Indeed, the Plaintiff specifically requested and was granted an extension of time in which to file his appeal.
The Respondent acted fairly and reasonably in specifically agreeing to allow the 21 days to be extended until after reconsidering the Plaintiff's position some weeks after revoking the Plaintiff's licence.
Ground 5 of the Plaintiff's grounds for the Relief contends that: "Judicial Review is the most effective and convenient remedy and that the alternative statutory remedy pursuant to section 29 of the Firearms Law is
“nowhere near so convenient, beneficial and effectual” as the requested Judicial Review process.”
In the English Court of Appeal case of Regina (Sivasubramaniam) v. Wandsworth County Court [2003] 1 WLR 475, Lord Phillips, the then Master of the Rolls reviewed the case law on alternative remedy, including the decisions of Harley Development Inc. v. Comr of Inland Revenue [1996] 1 WLR 727 and R v. Inland Revenue Comrs, Ex p Preston [1985] A.C. 835 and then stated at paragraph 47 on page 490: “What these authorities show is that Judicial Review is customarily refused as an exercise of judicial discretion where an alternative remedy is available. Where Parliament has provided a statutory appeal procedure it will rarely be appropriate to grant permission for Judicial Review. The exceptional case may arise because the statutory procedure is less satisfactory than the procedure of judicial review. Usually, however, the alternative procedure is more convenient and judicial review is refused.”
Having heard the submissions of the Plaintiff and having reviewed the affidavit material on behalf of the Plaintiff and the exhibits, I can find no “exceptional circumstances” which would justify the Plaintiff not filing an appeal as an “aggrieved party” pursuant to s.29(1) of the Firearms Law.
The Court receives further guidance from the English Court of Appeal decision of Judith Jay Sekala v. Secretary of State for the Home Department [1984] Imm A.R. 227 Sir Thomas Bingham, Master of the Rolls, as he then was, stated at page 231: “It does seem to me to be an abuse of process in principle for an applicant, having allowed a time-limit [for an appeal] to expire, then to seek to challenge by Judicial Review that which should have been challenged by way of appeal”, at least there was “what has to be regarded as a deliberate decision not appeal.””
When one considers the procedure under the Firearms Law, and the right of appeal of the “aggrieved party”, there are no restrictions on the Plaintiff identifying the issues between himself and the Defendant, and having the appellate body make a determination on the issues in dispute.
This Court finds further assistance on the question of alternative remedy in the English Court of Appeal case of Ex Parte Waldron [1986] 1 Q.B. 824 where Lord Justice Glidewell at page 852 paragraph F stated: “If Mr. Brooke is hoping (though I doubt whether he is) that this court should formulate a detailed set of circumstances in which, or conditions on which, judicial review of action under the powers of the Mental Health Act 1983 might properly be granted, I fear he will be disappointed. What we can properly do, in my view, is to reiterate what was said by Lord Widgery C.J. in Reg. v. Hillingdon London Borough Council, Ex p Royco Homes Ltd. [1974] Q.B. 720, 728: “In particular, it has always been a principle that certiorari will go only where there is no other equally effective and convenient remedy.” Whether the alternative statutory remedy will resolve the question at issue fully and directly; whether the statutory procedure would be quicker, or slower, than procedure by way of Judicial Review; whether the matter depends on some particular or technical knowledge which is more readily available to the alternative appellate body; these are amongst the matters which a court should take into account when deciding whether to grant relief by way of Judicial Review when an alternative remedy is available.”
I can find no basis for saying that the appellate body could not resolve the question at issue fully and directly. Arguably the statutory procedure would be quicker than the procedure by Judicial Review. Further, I can find no exceptional circumstances in this case for the Court to intervene before the Plaintiff exhausts all his available remedies.
The Firearms Law (2006 Revision) provides the machinery for any “aggrieved party” to appeal to the Governor against any decision of the Defendant as the appropriate authority, and in particular, any decision by the Defendant revoking a
licence or refusing to grant a licence. The Plaintiff was clearly aware of his right of appeal under the law and he had taken legal advice. Like Judith Jay Sekala in paragraph 37 above, he took the deliberate decision not to appeal.
Having reviewed the law and the exchange of correspondence between the parties, I cannot find that an appeal under the Firearms Law is in any way limited. The Plaintiff will be able to present all the arguments that he has put forward in his skeleton arguments to the appellate body. Indeed there are many occasions when an Appeal may be wider than Judicial Review and the appellate body may be able to look at facts, opinion and policy where a reviewing Court would not.
I cannot find any basis for finding that the alternative remedy of the appeal under the Firearms Law is inadequate, nor can I find that it is "nowhere near so convenient, beneficial and effectual" as contended by the Plaintiff.
The Legislative Assembly has provided for a statutory appeals procedure and, as has been stated before, it is not for the Court to usurp the functions of the appellate body.
Accordingly, and for the aforesaid reasons, I refuse to grant the Plaintiff leave to apply for Judicial Review of the Defendant’s decision to revoke the Defendant’s firearm licence. Dated this the 13th day September 2011 Honourable Mr. Justice Charles Quin Judge of the Grand Court