Justin Ramoon v Governor of the Cayman Islands and another (Cayman Islands)

A court cannot create a closed material procedure (CMP) in ordinary judicial review merely because the executive relied on material protected by public interest immunity. A CMP departs from open justice and natural justice, so creating one without statutory authority would be a major change to the common law. That step belongs, if anywhere, to the legislature. Statutory authority for a CMP in a lower court may support an implied power in an appellate or reviewing court where necessary. PII does not automatically make a claim untriable. Only exceptional cases will be impossible to try fairly. A statutory power to remove prisoners for safer custody may satisfy the “in accordance with the law” requirement, provided adequate safeguards allow effective review of necessity and proportionality.

The appellant was convicted of murder and possession of an unlicensed firearm and was serving a life sentence in the Cayman Islands. The Governor concurred in his removal to the United Kingdom under the Colonial Prisoners Removal Act 1884, on public safety and national security grounds. The decision significantly interfered with his private and family life.

In judicial review proceedings, the Grand Court upheld public interest immunity over much of the underlying material and ruled that no CMP was available. The Court of Appeal of the Cayman Islands held that a CMP could be ordered, dismissed the legality challenge, and remitted the remaining human-rights issues for determination after a CMP. The central questions before the Board were whether a CMP could be used without statutory authority, what should happen if it could not, whether the removal power was in accordance with law, and whether family life had been taken into account.

1. Appeal allowed in part. The Board allowed the appeal on the CMP issue, dismissed the challenges that the removal decision was not in accordance with law and that family life had not been considered, and remitted the proceedings to the Grand Court for the judicial review hearing.
2. A CMP is fundamentally different from public interest immunity. It permits the court to rely on material and submissions withheld from one party, departing from open justice and natural justice. Following Al Rawi v Security Service [2011] UKSC 34, the courts cannot introduce such a procedure in ordinary civil proceedings by procedural innovation or development of the common law. The Board held that it was not open to it to invent a CMP for the Cayman Islands. A change of that constitutional importance must be made by the legislature.
3. Bank Mellat v HM Treasury (No 2) [2013] UKSC 38 and R (Haralambous) v Crown Court at St Albans [2018] UKSC 1 were distinguishable. They involved statutory schemes authorising closed procedures in lower courts, from which a necessary power in the appellate or reviewing court could be inferred. The Governor’s access to sensitive material was not analogous to an ex parte judicial procedure.
4. The absence of a CMP did not require judgment for the appellant, dismissal, a stay, or striking out. A claim may be untriable where PII makes a fair trial impossible, as in Carnduff v Rock [2001] EWCA Civ 680, but such cases are exceptional and rare. Here, the PII process involved examination of the material, a Wiley balancing exercise and assistance from a special advocate. Extensive disclosure and gisting remained available, and the claim could fairly proceed on that material.
5. The removal power in section 2 of the Colonial Prisoners Removal Act 1884 was sufficiently precise. “Safer custody” identified a legitimate objective and required comparison of the risk if the prisoner remained with the alleviation of that risk on removal. The statutory language did not eliminate the requirements of necessity and proportionality at judicial review, and no published policy was required.
6. A lawful scheme also requires safeguards against abuse. The prisoner must have a realistic opportunity to challenge allocation, reasons subject to independent review, and judicial review of proportionality against the prisoner’s family and social ties. The lack of advance warning could be justified by urgency and confidentiality, but that issue remained for the remitted judicial review on the evidence.
7. The appellant’s and his child’s family-life rights had to receive due weight, with the child’s best interests as a primary consideration. The Court of Appeal’s finding that those interests had been taken into account was a primary finding of fact which the Board would not disturb. The weight given to them in the proportionality exercise remained for the Grand Court.

1. Privy Council: Justin Ramoon v Governor of the Cayman Islands and another [2023] UKPC 9. Appeal allowed on the CMP issue, dismissed on the “in accordance with the law” and family-life grounds, and remitted to the Grand Court.
2. Cayman Islands Court of Appeal: Judgment delivered 27 April 2022 and order dated 17 May 2022. The Court of Appeal held that the Colonial Prisoners Removal Act 1884 was sufficiently precise and that a CMP was available, and remitted the remaining judicial-review issues to the Grand Court.
3. Grand Court of the Cayman Islands: Carter J (Ag.) ruled on 2 July 2020 that no CMP was available and on 19 October 2020 upheld PII over most of the material. Wood J (Ag.) dismissed the judicial-review application on 28 May 2021, giving reasons on 29 November 2021.