Report of The Tribunal to The Governor of The Cayman Islands (Cayman Islands)

Removal of a judge for misbehaviour requires more than a failure to meet the high standards expected of the judiciary. Under Cayman Islands (Constitution) Order 1972, conduct must fall so far below the expected standard that it demonstrates unfitness to remain in office. The central question is whether confidence in the justice system, viewed with knowledge of the material circumstances, would be undermined if the judge continued to sit. A course of conduct may make misbehaviour merge into incapacity. An investigating tribunal should establish the facts and advise whether removal is warranted, but the Judicial Committee must make its own assessment of the legal consequences of those facts.

The Governor referred allegations concerning the conduct of Madam Justice Levers, a judge of the Grand Court of the Cayman Islands, to an investigating tribunal under Cayman Islands (Constitution) Order 1972. The Tribunal recommended that the question of removal be referred to the Judicial Committee and concluded that her conduct amounted to misbehaviour warranting removal. On appeal from the Court of Appeal of the Cayman Islands, Levers J challenged the Tribunal’s conclusions and remit and alleged procedural unfairness by the Chief Justice, the Governor and the Tribunal. The central issues were the proper roles of those bodies, the threshold for removing a judge, and whether the overall conduct established inability or misbehaviour.

Lord Phillips delivered the judgment of the Board. The Board rejected the public-law challenges and advised Her Majesty that Madam Justice Levers should be removed from office for misbehaviour.

1. Procedural fairness. Rees v Crane [1994] 2 AC 173 concerned a constitutional scheme in which a commission’s representation triggered the appointment of a tribunal. The Cayman scheme was materially different: the Governor decided whether to appoint a tribunal. The Chief Justice owed a duty to act fairly in official dealings with other judges, but any unfairness in his conduct would not itself invalidate the Governor’s decision. The Governor had given Levers J an opportunity to respond, formed his own view and obtained independent advice. The additional complaints and delay in funding had no material effect on the validity of the appointment.
2. Tribunal’s role. The Terms of Reference expressly required the Tribunal to investigate the facts and advise whether the conduct amounted to misbehaviour warranting removal. The Board would generally accept primary factual findings unless shown to be unsound, but it had to form its own view on whether those facts justified removal. The Tribunal could have considered a challenge to its jurisdiction, but its refusal to do so did not of itself invalidate the report. Its categorisation of incidents was permissible, although extreme condemnatory language capable of irreparably damaging the judge’s reputation before final appraisal was inappropriate.
3. Applicable standard. The Bangalore Principles described standards to which judges should aspire, but failure to meet them did not automatically amount to misconduct. Judicial independence required removal only where conduct fell so far below the expected standard as to demonstrate unfitness to remain in office. The test was whether confidence in the justice system of those appearing before the judge or the public generally, with knowledge of the material circumstances, would be undermined if the judge continued to sit. A course of conduct could cause misbehaviour to merge into incapacity. All relevant findings, favourable and unfavourable, and the substantial evidence of good character had to be considered. Evidence from parties in stressful family litigation required caution and prudent corroboration.
4. Application. The comments in the Bryan proceedings were flagrantly biased and racist and, viewed against the judicial standards, would alone have justified removal. The conduct in Bush, Parchment and Sidey Ebanks, together with persistent disparagement of judicial colleagues and continuing unacceptable courtroom behaviour, demonstrated that Levers J was not fit to remain a judge. The Board did not endorse the Tribunal’s unqualified condemnation, but the overall misconduct was sufficient to require removal.

• Privy Council: On appeal from the Court of Appeal of the Cayman Islands, the Board, in [2010] UKPC 24, advised Her Majesty that Madam Justice Levers should be removed from office for misbehaviour.
• Court of Appeal of the Cayman Islands: The appeal came from that court. Its decision and citation are not stated in the judgment.