Chief Justice of the Cayman Islands v Governor of the Cayman Islands and another [PC]

JurisdictionUK Non-devolved
CourtPrivy Council
JudgeLord Neuberger
Judgment Date15 Nov 2012
Neutral Citation[2012] UKPC 39
Docket NumberAppeal No 0071 of 2012

[2012] UKPC 39

Privy Council

Before

Lord Neuberger

Lord Hope

Lord Mance

Appeal No 0071 of 2012

Chief Justice of the Cayman Islands
(Appellant)
and
The Governor
(First Respondent)

and

The Judicial and Legal Services Commission
(Second Respondent)

Appellant

Lord Falconer QC

(Instructed by Gibson Dunn & Crutcher LLP)

Respondent

Lord Pannick QC

Sir Jeffrey Jowell QC

Naina Patel

(Instructed by Treasury Solicitors)

Heard on 16 October 2012

Lord Neuberger
1

This is a preliminary issue on a petition brought by the Chief Justice of the Cayman Islands ('the Chief Justice'), which has been referred by Her Majesty to the Judicial Committee of the Privy Council ('the Judicial Committee'). It raises a point of some general importance as to whether it is open to the Judicial Committee to decline to rule on issues raised in a petition referred to it by the monarch and, if so, the circumstances in which it would be appropriate for it to do so.

The Cayman Islands Constitution
2

Part V of the Constitution of the Cayman Islands as set out in Schedule 2 to the Cayman Islands Constitution Order 2009 (SI 2009 No 1379) ('the Constitution') is concerned with 'The Judicature'. Section 94 provides for the Grand Court for the Cayman Islands as a 'superior Court of Record'.

3

Section 95 deals with the 'Composition of the Grand Court', and states in subsection (6) that 'The Chief Justice shall be the head of the judiciary of the Cayman Islands'. The following subsection bestows on the Chief Justice 'responsibility for and management of all matters arising in judicature, including responsibility' for certain specified aspects. These aspects include '(a)…representing the views of the judiciary to the Government and the Legislative Assembly', and '(c)…the maintenance of appropriate arrangements for the deployment of the judiciary and the allocation of work within courts'.

4

Section 96 of the Constitution is concerned with '[t]enure of office of judges of the Grand Court'. Subject to certain exceptions (e.g. the Governor's power under subsection (3) to remove a judge from office when 'the Judicial Committee has advised Her Majesty that the judge ought to be removed from office for inability…or misbehaviour'), subsection (1) requires a judge of the Grand Court to 'vacate his or her office when he or she attains the age of 65 years'. However, in paragraph (a) of that subsection, it is provided that 'the Governor [of the Cayman Islands] may permit a judge who attains the age of 65 years to continue in office until he or she has attained such later age, not exceeding the age of 70 years', as agreed between the judge concerned and the Governor, 'following the recommendation of the Judicial and Legal Services Commission' ('the Commission').

5

Section 97(2) of the Constitution empowers the Governor 'acting in accordance with section 106' to appoint acting judges of the Grand Court.

6

Sections 99 to 102 of the Constitution contain roughly similar provisions in relation to the Court of Appeal for the Cayman Islands ('the Court of Appeal') as are contained in sections 94 to 97 in relation to the Grand Court although, rather than providing for a mandatory retirement age, section 101(1) provides that judges of the Court of Appeal are 'appointed for such period as may be specified in their respective instruments of appointment'.

7

Section 106(1) states that the Governor has the '[p]ower to make appointments to [the Grand Court and Court of Appeal]…and to remove and to exercise disciplinary control over [judges of the Grand Court and the Court of Appeal]'. These powers are to be exercised by the Governor 'acting in accordance with the advice of the…Commission', unless the Governor 'determines that compliance with that advice would prejudice Her Majesty's service'.

The background facts
8

Two issues are raised by the instant petition. The first concerns the extension of a Grand Court Justice's appointment, and the second concerns some judicial disciplinary regulations. Both sets of facts can be explained quite shortly for present purposes.

9

The first issue. Justice Henderson was appointed a judge of the Grand Court in May 2003 for a term expiring on 30 June 2011 (which was after he was 65, the appointment having preceded the coming into force of the Constitution). In December 2010, he asked the Governor for an extension of his term, so that it expired the day before he attained the age of 70, namely 4 November 2014. The Governor sought the advice of the Commission, who gave him their view in a letter dated 5 April 2011. In very summary terms, that letter stated that (i) there was good reason for the Justice to remain in office until March, or even June, 2012 so that a successor could be identified and start sitting, but (ii) there was 'no basis upon which it is necessary in the interests of the administration of justice that Justice Henderson should continue in office until 4 November, 2014'.

10

Two weeks later, on 21 April 2011, the Governor sent an e-mail to the Chief Justice, apologising for the delay, attaching the Commission's recommendation, and stating that he was 'content to go along with that advice'.

11

The second issue. In early 2012, the Commission published a Code of Conduct for the Cayman Islands judiciary, and a Complaints Procedure in relation to the Cayman Islands judiciary. Paragraph 7 of the Complaints Procedure was concerned with the role of the Commission after it had investigated a complaint. Sub-paragraph (i) states that the Commission can advise the Governor that '(a)…no disciplinary action is required', '(b)…. the case can properly be disposed of by a lesser sanction than removal', or '(c)…the case does call for the exercise of such powers of disciplinary control short of removal from office as may be conferred by section 106(1) of the Constitution or otherwise'.

12

The Chief Justice complained to the Commission and the Governor about these provisions on the ground that the Constitution did not permit the Governor to impose 'disciplinary sanctions short of removal'. The Commission replied on 9 March 2012, explaining that they were 'not seeking to pre-judge the question whether or not the Governor has powers of disciplinary control short of removal', and that the Complaints Procedure was, in this connection, 'intended to leave those questions open to resolution in the future'.

The petition in this case
13

On 1 May 2012, the Chief Justice presented a petition ('the Petition') to Her Majesty naming the Governor as the First Respondent and the Commission as the Second Respondent. The Petition asks Her Majesty to 'refer the two matters in dispute to the Judicial Committee of the Privy Council for advice pursuant to section 4 of the Judicial Committee Act 1833'. The two issues are clearly identified in the Petition, which also includes full and detailed legal argument as to the Chief Justice's case on those issues.

14

The first issue concerns the basis upon which the Commission made its recommendation (accepted by the Governor) not to extend Justice Henderson's appointment beyond mid-2012. It involves the interpretation of section 96(1)(a) of the Constitution. In a nutshell, the Chief Justice's case on this issue is that (i) the Commission approached the question on the basis that it required 'exceptional circumstances' before an extension could be granted, and (ii) such an approach involves an incorrect interpretation of section 96(1)(a) of the Constitution, bearing in mind the way in which the section is expressed and the need to preserve judicial independence so that Grand Court Justices enjoy security of tenure free from discretionary incursion by the Executive.

15

The second issue relates to paragraph 7 of the Complaints Procedure. It involves the interpretation of section 106(1) of the Constitution. In summary,the Chief Justice's case is that, particularly bearing in mind the need to preserve judicial independence, section 106(1) of the Constitution should not be interpreted as conferring a power on the Governor to impose disciplinary sanctions short of removal on a judge.

16

On 25 June 2012, Her Majesty's Deputy Private Secretary wrote to Lord Falconer of Thoroton, who had signed the Petition together with Mr Daniel Barnett, informing him that '[t]he Queen has agreed that this petition should be referred to the Judicial Committee' and that the then President of the Supreme Court had been informed of this.

The instant application
17

The Second Respondent, the Commission, has played no part so far in relation to the Petition. The First Respondent, the Governor, has applied to the Judicial Committee inviting us 'to advise Her Majesty that it would not be appropriate to give substantive advice on the merits of the two matters raised by the Petitioner'. The primary ground for the Governor's application is that the two issues which the Chief Justice seeks to raise should not be brought straight to the Judicial Committee, but should be resolved, at any rate initially, in the Grand Court by way of judicial review proceedings. The Governor also contends that the second issue is moot, and should not be determined by any court unless and until the Governor proposes to impose on a judge a sanction short of removal.

18

The application is met by two...

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