Privy Council rejects closed material procedure in Cayman Islands

06/03/23

The Privy Council handed down judgment on Friday, 3 March 2023 in an appeal brought by a convicted murderer, Justin Ramoon.

Mr Ramoon and his brother were convicted on 26 May 2016 of his part in what the trial judge called ‘a very public execution of the most evil nature.’  In June 2017 both brothers were removed without warning from detention in Cayman to the United Kingdom pursuant to the power in s. 2 of the Colonial Prisoners Removal Act 1884, which provides that a prisoner may be removed for detention in the UK when ‘the removal of the prisoner is expedient for his safer custody or for more efficiently carrying his sentence into effect’.  The brothers challenged the lawfulness of the Governor General’s decision to concur with the removal orders made by the Secretary of State for Foreign and Commonwealth Affairs by way of judicial review.

In the Grand Court, Carter J (ag) ruled that the overwhelming majority of the material that provided the justification for the Governor’s concurrence could not be disclosed on grounds of Public Interest Immunity (‘PII’) because its disclosure would, among other things, put third parties at risk.  However, the gist of the reasons for the removal decision were disclosed: in Mr Ramoon’s case, he was considered to be a senior and influential member of a criminal gang, there was clear intelligence that he and his brother were involved in orchestrating serious gun crime from within prison, that he had attempted to intimidate prison guards and there was credible intelligence both brothers were planning an escape.  Carter J also ruled that there was no jurisdiction to conduct a Closed Material Procedure (‘CMP’) in Cayman. 

The Grand Court (Wood J (Ag)) subsequently dismissed the substantive applications for judicial review without conducting a CMP.

The brothers appealed the dismissal of their substantive claim for judicial review to the Court of Appeal, although they did not appeal the PII judgment. The Governor resisted the appeals on the grounds that the substantive applications for judicial review should be dismissed on the basis of the material that had been disclosed.  In the alternative, he cross-appealed Carter J’s CMP judgment, arguing that the matters should be remitted for determination by the Grand Court with a CMP, with the appellant’s interests safeguarded by a Special Advocate.  In April 2022, the Court of Appeal (led by Sir Alan Moses) concluded that a fair outcome could only be achieved by means of a CMP and held that the Grand Court had jurisdiction to conduct a CMP.   The Court of Appeal remitted those grounds of the substantive applications that turned on the Governor’s assessment of the PII material, namely those concerning the fairness and proportionality of the decision, to the Grand Court.  The Court of Appeal dismissed the other grounds, namely (a) that the interference with the brothers’ rights to family life was not ‘in accordance with the law’ for the purposes of the Cayman Islands Bill of Rights; and (b) the Governor had failed to take into account the best interests of the brothers’ children.  Mr. Ramoon, but not his brother, appealed to the Privy Council.

The Privy Council (Lords Reed, Hodge, Lloyd-Jones, Briggs and Kitchin), having heard the appeal while sitting in the Cayman Islands, held that:

1. Allowing the appeal on the CMP issue, the courts in Cayman have no jurisdiction to conduct a CMP in the absence of express legislation to that effect. In doing so, they applied Al Rawi v Security Service (SC(E)) [2012] 1 AC 531 but adopted a narrow reading of more recent Supreme Court judgments, in particular R (Haralambous) v Crown Court at St Albans [2018] AC 236.  The Board accepted that, in the absence of a CMP, it was not open to the Grand Court to simply allow the applications for judicial review: to do so would be to ignore what the court knew to be true, namely that there was PII material that supported the Governor’s decision.  Furthermore, some cases will be functionally untriable after a PII hearing because there will be insufficient evidence in open and must be struck out, applying Carnduff v Rock (CA) [2001] 1 WLR 1786.  A strikeout which follows a lawfully conducted PII procedure does not breach fair trial rights, Carnduff v United Kingdom (2004).  Such cases are likely to be exceptional and rare, however.  Mr. Ramoon’s was not such a case, given the amount of material that had been disclosed or gisted.  The proportionality and fairness grounds were therefore remitted to the Grand Court for determination without a CMP.
2. Dismissing the appeals on the other grounds:

(i) Mr. Ramoon’s removal to the United Kingdom, and the Governor’s decision to concur with the removal decision, constituted an interference with his right to family life but it was ‘in accordance with the law’ for the purposes of the Cayman Bill of Rights.  Section 2 of the Colonial Prisoners Removal Act 1884 establishes a test with sufficient precision and attended by adequate safeguards to meet this standard.

(ii) The Governor had also taken into account Mr. Ramoon’s right to family life prior to his removal to the United Kingdom.

The case will now return to the Grand Court to determine the outstanding grounds.

A copy of the judgment is available here.