Justin Ramoon v Governor of the Cayman Islands and another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Lloyd-Jones,Lord Reed,Lord Hodge,Lord Briggs,Lord Kitchin |
| Judgment Date | 03 March 2023 |
| Neutral Citation | [2023] UKPC 9 |
| Court | Privy Council |
| Docket Number | Privy Council Appeal No 0066 of 2022 |
[2023] UKPC 9
Lord Reed
Lord Hodge
Lord Lloyd-Jones
Lord Briggs
Lord Kitchin
Privy Council Appeal No 0066 of 2022
Hilary Term
From the Court of Appeal of the Cayman Islands
Appellant
Hugh Southey KC
Prathna Bodden
(Instructed by Simons Muirhead & Burton LLP and Samson Law (Cayman Islands))
Respondent
Paul Bowen KC
Reshma Sharma KC
Tim Johnston
Claire Allen
(Instructed by Attorney General's Chambers (Cayman Islands))
Lord Lloyd-Jones ( with whom Lord Reed, Lord Hodge, Lord Briggs and Lord Kitchin agree):
This appeal raises, in particular, the question whether a closed material procedure (“CMP”) is available before the courts of the Cayman Islands, in the absence of any statutory basis.
On the evening of 1 July 2015 the appellant and his half-brother, Osbourne Douglas, travelled together by car to an area in George Town, Grand Cayman, near the Globe Bar. Douglas entered the Bar where the victim, Jason Powery, was present. Douglas spent a minute or two encouraging young people in the Bar who were close to Powery to move away. The appellant then entered the Bar where Douglas gave him a handgun. Douglas then left the Bar and moved the car a short distance. The appellant went up to Powery and shot him once in the head at short range. He then aimed the gun at and attempted to shoot a witness, Jerome Hurlston, who was standing close by, but the gun did not fire. The appellant then left the Bar, got into the car and was driven away by Douglas.
On 26 May 2016, the appellant and Douglas were both convicted of murder and possession of an unlicensed firearm. The murder was described by the trial judge, Quinn J, as “a very public execution of the most evil nature … chillingly clinical in its planning and execution”. The Court of Appeal in the judgment appealed from observed that “[t]he facts of the murder bear all the hallmarks of what is described in an anonymous Prison Service affidavit as ‘a notorious local gang known as the Central Military Killers (CMK)’.”
On 19 December 2016 the appellant and Douglas were sentenced to life imprisonment with a minimum term of 35 years and 34 years, respectively, with concurrent sentences of 10 years imprisonment for the firearm charge. In the case of the appellant, one additional year was added to his minimum term compared to Douglas to reflect his previous conviction for possession of an imitation firearm.
The appellant and Douglas were sent to HMP Northward, the only male prison in the Cayman Islands, to serve their sentence.
Their appeals against conviction and sentence were dismissed by the Cayman Islands Court of Appeal (Criminal Division) (CICA) on 7 December 2018.
On 21 June 2017, following warrants of reception signed by the Lord Chancellor in the United Kingdom, orders were signed by the United Kingdom Secretary of State for Foreign and Commonwealth Affairs (“the Secretary of State”) removing the appellant and Douglas to prisons in the United Kingdom, pursuant to powers conferred by the Colonial Prisoners Removal Act 1884 (“the 1884 Act”). On 22 and 28 June 2017 notices of concurrence were signed by the then Governor of the Cayman Islands. It is the decision of the Governor to “concur” with the removal orders by the Secretary of State which was challenged in an application for judicial review which has resulted in this appeal.
Douglas was transferred to the United Kingdom on 22 June 2017 and the appellant was transferred on 28 June 2017. They were given no prior warning and were not invited to make representations before the decision to transfer them was taken.
As a consequence of their transfer, the appellant and Douglas became entitled to apply to have their minimum term reconsidered by the High Court in England and Wales. William Davis J subsequently ordered that their minimum terms be reduced by 3 years to reflect the hardship of serving their sentences in the United Kingdom.
Both the appellant and Douglas challenged by way of judicial review the Governor's decision to concur with the Secretary of State's decision to remove them. Following the dismissal of their applications by Wood J (Ag.), they both appealed to the Court of Appeal who dismissed their appeal. Only the appellant now pursues an appeal before the Board.
Brief reasons for the Governor's decisions to concur with their transfer were set out in a letter dated 27 September 2017 from the Attorney-General's Chambers to the appellant in response to pre-action correspondence. The letter stated:
‘… while detained at HMP Northward, [the appellant] had continued to control serious, organised criminal activity in the Cayman Islands. HMP Northward was designed as a lower security facility and is unable to offer the level of security required in order to securely detain your client… It was considered that, as long as [he] remained there, [his] activities would continue to present a serious and tangible threat to public safety and national security in the Cayman Islands.’
The letter went on to explain that the appellant had been given no prior warning of the transfer because this would have had the “potential to undermine the objectives of the removal”, that alternatives to transfer had been considered but were not feasible and that the impact on the appellant's and his family's private and family life had been taken into consideration.
The letter also explained that most of the underlying material relied upon when the removal decisions were taken was considered too sensitive to be disclosed to the appellant and Douglas before their transfer to the United Kingdom. In due course that material was the subject of public interest immunity (“PII”) certificates and a successful application was made by the respondents to withhold those documents from disclosure on PII grounds. However, certain relevant information was disclosed to the appellant, initially in the letter of 27 September 2017 and thereafter by way of redacted affidavit evidence from the Attorney-General's Chambers, the Royal Cayman Islands Police Service, HM Cayman Islands Prison Service and the Governor's Office, plus further unredacted evidence from the current Governor, HE Martyn Roper who took office in October 2018, which indicated that the decision had been taken on public safety and national security grounds. The evidence was to the effect that:
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(1) Douglas was considered to be the leader and the appellant a “senior and influential member” of a criminal gang, the CMK.
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(2) Clear intelligence in the Cayman Islands showed that the appellant and Douglas had been involved from within HMP Northward in the orchestration of serious gun crime and the importation of guns and drugs from Jamaica.
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(3) They had attempted to intimidate staff at the prison.
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(4) There was ‘credible intelligence’ that they were planning an escape.
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(5) The Royal Cayman Islands Police Service and the Prison Service had concluded HMP Northward was not a fit place in which to confine either the appellant or Douglas. There were concerns that if Douglas was removed but the appellant was left on the Island, the appellant would take over his brother's criminal operations.
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(6) Means of avoiding the removal of the appellant or Douglas to the United Kingdom, such as imprisonment in Bermuda or bringing in staff from the United Kingdom, were considered but rejected.
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(7) The need for removal became pressing after an apparent gang-related attack on the house of the mother of the appellant and Douglas in June 2017, which caused the authorities to fear that the brothers would retaliate amidst heightened gang tension.
Redacted copies of the submissions made to the Secretary of State and the Lord Chancellor, which were before the Governor at the time she gave her concurrence, were disclosed, with copies of the warrants authorising the transfers. The notice of concurrence signed by the Governor was also disclosed. However, this material was not disclosed to the appellant or Douglas before their transfer to the United Kingdom.
Other than the submissions made to UK Ministers there was no contemporaneous document detailing the factors taken into account by the Governor. Brief reasons were, however, given in the letter of 27 September 2017 and, in due course, a redacted affidavit from the Governor's Office dated 30 September 2019 was prepared and disclosed, which detailed the decision-making process and the material before the Governor when she took her decision, with the exception of the PII material.
One of the factors identified in the submission to UK Ministers was that HMP Northward had been designed as a medium security prison and was therefore not able to house the appellant securely. In both the letter dated 27 September 2017 and the submission to UK Ministers it was stated that consideration would be given to the return of the appellant and Douglas to the Cayman Islands if the security conditions improved. In an affidavit filed on behalf of the respondent on 30 September 2019, it was stated that a full rebuild of HMP Northward was required and that a full business plan was expected at the end of 2019. In a further affidavit dated 12 March 2021 it was said that an outline business case was presented to Cabinet on 9 February 2021. A rebuild of HMP Northward has yet to take place. Evidence from the present Governor is to the effect that a prison rebuild would not necessarily eliminate the risks posed by the appellant.
The appellant described, in an unsworn statement dated 25 September 2017, a close relationship with his partner and their young son, who was 2 years of age when the appellant was removed, and his wish as a father to be part of his son's life as he grows up. The appellant spoke of his mother, brothers and...
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