Osbourne Douglas v The Governor of the Cayman Islands and The Director of Prisons; Justin Ramoon v The Governor of the Cayman Islands, The Director of Prisons and The Attorney General - Judgment

¶ ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 1 of 52 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 Cause No. G0155 of 2017 2 Legal Aid No. LACR/0162/2015 3 4 BETWEEN 5 OSBOURNE DOUGLAS 6 PLAINTIFF 7 v. 8 9 (1) THE GOVERNOR OF THE CAYMAN ISLANDS 10 (2) THE DIRECTOR OF PRISONS 11 RESPONDENTS 12 13 AND IN THE MATTER: 14 15 Cause No. G0164 of 2017 16 Legal Aid No. LACV 0225/2017 17 18 BETWEEN 19 JUSTIN RAMOON 20 PLAINTIFF 21 v. 22 23 (1) THE GOVERNOR OF THE CAYMAN ISLANDS 24 (2) THE DIRECTOR OF PRISONS 25 (3) THE ATTORNEY GENERAL OF THE CAYMAN ISLANDS 26 27 RESPONDENTS 28 29 Appearances: Mr. Hugh Southey, Q.C., instructed by Mr. Laurence 30 Aiolfi of Mourant Ozannes for Osbourne Douglas 31 32 Mr. Hugh Southey, Q.C., instructed by Mrs. Prathna 33 Bodden of Samson Law Associates for Justin Ramoon 34 35 Mr. Paul Bowen Q.C. instructed by Ms. Reshma 36 Sharma and Ms. Claire Allen of the Attorney 37 General’s Chambers for the Respondents 38 39 40 Before: Justice Michael Wood Actg. 41 42 Judicial Review Hearing: 26th – 29th April 2021 43 44 Oral Judgment handed down: 28th May 2021 45 46 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 2 of 52 1 HEADNOTE 2 3 Civil Division – Judicial Review - Colonial Prisoners’ Removal Act 1884 (the 4 “1884 Act”) – The Applicants challenge, inter alia: The lawfulness of the Plaintiffs' 5 transfer under the 1884 Act and as a matter of domestic law; The failure to adopt a fair 6 and proper procedure affording appropriate procedural safeguards to protect them and 7 their families’ interests; The failure to provide reasons and the written reasons of the 8 decision-maker(s); The violation of the "Bill of Rights" (Bill of Rights, Freedoms and 9 Responsibilities, in Schedule 2 Part 1 of the Constitution of the Cayman Islands) and 10 specifically violations of (i) the prohibition upon inhuman or degrading treatment …; (ii) 11 prohibition on deprivation of liberty … - The failure and refusal to provide decisions and 12 disclosure in accordance with the duty of candour and obligations upon the public 13 authority Respondents - The failure to make adequate provision or take steps to remedy 14 any asserted deficiency to the security in place at HMP Northward. 15 16 17 JUDGMENT 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 3 of 52

¶ [1] This Court has heard an application for over four to five days which was set out as 1 follows in the Summons: 2

¶ [1] In the light of the Court's judgments (a) that a closed material 3 procedure is not available in the Cayman Islands ('the Closed 4 Material Issue') and (b) on the Respondent's summons for public 5 interest immunity ('the PII Issue'), the Plaintiffs' application for 6 judicial review should be struck out under GCR Ord. 18 r. 19 on 7 the grounds it is untriable ('the Strike Out Issue'). 8

¶ [2] Case management directions for the resolution of the following 9 issues: 10 a. The Strike Out Issue. 11 b. Whether the Bill of Rights ('BOR') applies to the decision 12 under challenge and/ or whether the Grand Court has any 13 jurisdiction under s 26 BOR to review the decision on BOR 14 grounds (see Respondent's Grounds, paras 27-29) ('the Bill 15 of Rights Issue') 16 c. The Plaintiffs' substantive application for judicial review. 17

¶ [3] The time limit for any oral or written application by the Respondent 18 [or the Plaintiffs] for leave to appeal (a) the Ouster Issue; (b) the 19 Forum Issue; 1 (c) the Closed Material Issue; ( d) the PII Issue 20 pursuant to section 11 (S)(b) of the Court of Appeal Rules (2014 21 Revision), shall be extended to 28 days after the date on which final 22 judgment is handed down in respect of the Strike Out Issue, the Bill 23 of Rights Issue and the substantive application.” 24 25

¶ [2] As both leading counsel said, this was one of the most difficult and challenging cases 26 that they, with their very considerable experience had ever been involved in. All I can 27 say is that I echo that I echo that view and endorse it. 28 29

¶ [3] I do not propose to set out all the material that has been provided to me. As I said I am 30 very grateful to counsel for all the material, in particular, the authorities which I was 31 provided with quite literally overnight. The authorities themselves run in excess of six 32 thousand (6000) pages. Most helpful of all I have been provided with during the course 33 of this hearing which has been referred to as the Agreed Combined Open Judicial 34 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 4 of 52 Review Bundle which has been updated throughout the hearing and is divided into 1 sections A, B, C and D. 2 3

¶ [4] I will not deal with every point raised during the initial oral arguments or the revised 4 submissions and speaking notes. Some issues raised their heads and then retreated and 5 were not raised again. What I have sought to do is to concentrate on the remaining live 6 issues were dealt with by both leading counsel in their final submissions. And, as I said, 7 they helpfully provided me with their comprehensive speaking notes. 8 9

¶ [5] I have, I stress, not decided every issue raised but I have sought to deal with the 10 remaining issues which will enable me to reach my judgment in this case. 11 THE OFFENCE 12 13

¶ [6] The Plaintiffs, who are brothers, were both convicted of murder and possession of an 14 unlicenced firearm. Both elected trial by Judge Alone and were convicted on the 26th 15 May 2016 by Justice Quin after a nine-day trial. 16 17

¶ [7] On the 19th December 2016 Justice Quin, pursuant to s.14 of the Conditional Release 18 Act (2014 Revision) sentenced the Plaintiffs as follows: 19 20 a. Osbourne Douglas: 21 i. For murder – 34 years’ imprisonment; and 22 ii. For possession of an unlicenced firearm - 10 years’ imprisonment 23 concurrent 24 iii. This made a total of 34 years. 25 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 5 of 52 b. Justin Ramoon: 1 i. For murder – 35 years’ imprisonment; and 2 ii. For possession of an unlicenced firearm - 10 years’ concurrent. 3 iii. This made a total of 35 years. 4 5

¶ [8] I stress that these are the minimum terms which will be served prior to either of these 6 Plaintiffs being considered for release on licence. 7 8

¶ [9] Both Plaintiffs had been in custody for some five hundred and twenty-two (522) days 9 prior to the trial and during the trial. This time was set off against the total sentence. 10 11

¶ [10] I now address the facts, which, in my judgment, are extremely important in these 12 proceedings from the judgment of the Cayman Islands Court of Appeal (CICA) – 13 dismissing the appeals by both Plaintiffs against conviction and sentence. 14 15

¶ [11] The Judgment of the CICA was given by Sir John Goldring, President of the Court. The 16 Judgment appears in the Judicial Review Bundle at section c, and I quote the following 17 from that Judgment. 18 “The facts 19 A short summary of the Crown's case 20

¶ [3] Jason Powery (also known as 'Moggy'), Jerome Hurlston and Justin Ebanks 21 were friends. On the evening of 1 July 2015, they were in the vicinity of the 22 Globe Bar, Martin Drive, George Town in Grand Cayman. A number of 23 people had gathered in an alleyway outside the Globe Bar. Osbourne 24 Douglas, and then Justin Ramoon, came to the area. Osbourne Douglas had 25 a firearm tucked into his waistband. Justin Ebanks and Jerome Hurlston 26 both saw the firearm. Justin Ebanks saw Osbourne Douglas pass the firearm 27 over to Justin Ramoon. Osbourne Douglas left the scene. Justin Ramoon 28 went out of Justin Ebanks' sight. He was then in sight of Jerome Hurlston. 29 Jerome Hurlston saw Justin Ramoon fire one shot to the head of Jason 30 Powery at close range. Justin Ebanks heard the shot. Justin Ramoon 31 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 6 of 52 attempted to shoot Jerome Hurlston. The gun did not go off. Justin Ramoon 1 walked away to his silver/grey Honda motor-car. Osbourne Douglas was 2 waiting for him in the driver's seat. They drove off. In all, they had been 3 in the immediate area for no more than about 10 minutes. 4

¶ [4] There were four different CCTV cameras in four different locations in 5 the area. None of the footage from those cameras depicted the actual 6 shooting. It depicted people and events before and after the shooting. 7 Among other things, it depicted the arrival and departure of each of the 8 appellants. 9

¶ [5] Jason Powery died of a single gunshot wound to the head. 10

¶ [6] A 9mm fired Lugar cartridge was recovered from the scene. The bullet 11 was never recovered. It must have passed through Jason Powery's head. 12 The firearm was never found. 13

¶ [7] On 10 July 2015, Justin Ramoon and Osbourne Douglas were arrested. 14 Each was interviewed three times. Each made no comment, provided a 15 short, prepared statement accepting presence at the scene and denying 16 responsibility for the murder. 17 More detail 18

¶ [8] We shall summarise the evidence in broad terms. We shall return to 19 particular aspects when considering the grounds of appeal. We shall 20 follow the order in which the evidence was called and considered by the 21 judge in his judgment. 22 The eye-witness evidence 23

¶ [9] Jerome Hurlston had known Osbourne Douglas since they were "in 24 pampers." He had grown up with Justin Ramoon. He knew Justin 25 Ramoon's silver/grey Honda motor-car. He said the moonlight, the street 26 light and light from the Globe Bar enabled him to see who was present 27 in the alleyway. He and Osbourne Douglas were a few feet apart. He 28 described Osbourne Douglas staring, looking at them, and singing a 29 song. He had a gun. It was sticking out of his side. Its handle was black. 30 It looked like a Beretta or a Taurus. He described it as a 9mm firearm. 31 At some stage he said he saw Justin Ramoon. He was about 20 feet away. 32 This is how Justice Quin described what Jerome Hurlston then said 33 (pages 11/21-12/19): 34 "Mr. Hurlston said Justin Ramoon looked at him for a little bit 35 and then, as soon as Jason Powery turned to put his beer down, 36 he walked up to Jason Powery and shot him in the face. Mr. 37 Hurlston also heard only one shot. Mr. Hurlston said he saw 38 Justin Ramoon walking back down towards him. He said Justin 39 Ramoon had his head down, but he was looking at Mr. Hurlston, 40 and Mr. Hurlston was looking at him coming closer. He said 41 Justin Ramoon got closer and "his hand reach up". He then said 42 "Andy hit [Justin Ramoonj with his shoulder and the gun went 43 click .... "Mr. Hurlston said he could see Justin Ramoon clearly 44 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 7 of 52 and he could see his clothes. He said that he could see him from 1 the time he saw him stand at the side of the tree. 2 Mr. Hurlston said Justin Ramoon was about 4 feet away from 3 him when he raised the gun or even 3 feet. Mr. Hurlston said he 4 raised the gun but "didn't get time to point it". The man's 5 shoulder hit the gun and it went click. Mr. Hurlston said the gun 6 did not go off" 7

¶ [10] Jerome Hurlston was first seen by the police on 9 July 2015. He said he 8 would consider his position. On 10 July 2015 he gave a video interview 9 which became the basis of his statement. It implicated the appellants. 10

¶ [11] ꞏ We shall come to the inconsistencies in Jerome Hurlston' s evidence 11 when we deal with the grounds of appeal. Throughout he maintained he 12 was telling the truth. 13

¶ [12] Justin Ebanks said he had known Osbourne Douglas since the age of 12. 14 He saw him in the alleyway. Osbourne Douglas looked straight into 15 Jason Powery's face. His chest was pushed out. Justin Ebanks said he 16 could see something shaped like a firearm bulging out. He saw its 17 handle. He said he knelt down by a wall. He was not feeling well. This is 18 how Justice Quin then summarised Justin Ebanks' evidence (pages 19 26/10-27/16): 20 "He said when he looked up he saw Osbourne Douglas give Justin 21 Ramoon the gun. He said he saw both Osbourne Douglas and Justin 22 Ramoon about 12to15 feet away. He said he could see them because 23 of the streetlight. Mr. Ebanks explained at this juncture he could see 24 the back and side of Osbourne Douglas, the left side of his face. He 25 said he could see Mr. Ramoon. He said he was wearing a white shirt 26 and joggers and a pair of slippers. He said Mr. Ramoon walked up 27 to Mr. Douglas and then Osbourne Douglas gave him a gun. When 28 asked what part of Mr. Ramoon he could see, Mr. Ebanks said he 29 could see his whole body. Mr. Ebanks said he could see him from 30 head to toe. He said he had his hair in a bun and he had two little 31 hairs let out over his left eye. Mr. Ebanks said he had a white shirt 32 and three-quarter-length joggers and pair of slippers and a Red 33 Stripe in his hand. 34 Mr. Ebanks demonstrated to the court how he saw Osbourne 35 Douglas turn to the left to see if anybody was looking before pulling 36 out his gun. He said then Mr. Ramoon came up and grabbed it and 37 pushed it into his waist. Mr. Ebanks said Mr. Ramoon looked at him 38 and then Debo and Thalia with "more like a horrible look". He said 39 he drank his beer down fast and "fling it down" and then continued 40 walking. Mr. Ebanks watched him until he went out of his sight. 41 Three seconds after he went out of his sight the shot went off" 42 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 8 of 52

¶ [13] Justin Ebanks said it only took a couple of seconds to pass the gun. He 1 was able clearly to see it. He demonstrated what he said he saw. When 2 it was suggested he had not seen the gun pass, he said, "Mr Douglas had 3 a gun that evening. I seen him with my own two eyeballs give it, giving it 4 to Justin Ramoon. Swore on the Bible. Nothing but the truth and only the 5 truth I am speaking." 6

¶ [14] Justin Ebanks said he had Osbourne Douglas in his view for about 3-4 7 minutes, Justin Ramoon for about 2-3 minutes. 8

¶ [15] Justin Ebanks said he was not forced to say what he did. "I did this 9 because of my own will. They killing an innocent child. Jason Charles 10 Powery is an innocent child." 11

¶ [16] On 3 July 2015 Justin Ebanks had said to the police that he did not see 12 anyone with a gun. He did not know who shot Jason Powery. On 8 July 13 2015 he was interviewed. He implicated the appellants. 14

¶ [17] Justin Ebanks had previous convictions. In July 2014 he was placed on 15 probation for 24 months for inflicting grievious bodily harm. In June 16 2015 he was imprisoned for 5 days for assault occasioning actual bodily 17 harm. On 30 January 2016 he was found in possession of a semi- 18 automatic pistol with three live rounds, for which he was awaiting trial. 19 We shall return to the topic of his possession of pistol and ammunition 20 when dealing with the grounds of appeal. 21 The CCTV footage 22

¶ [18] The prosecution called two witnesses who had examined all the CCTV 23 footage, Officer Francis and Mr Fredericks. The defence called Mr 24 Murphy. Mr Francis first viewed the CCTV footage on 3 July 2015. He 25 subsequently analysed it. His witness statement was dated 15 July 2015. 26 Mr Fredericks was first instructed to provide expert evidence regarding 27 the CCTV footage on 22 July 2015. The accounts of Jerome Hurlston 28 and Justin Ebanks, given on 8 and 10 July 2015 respectively, were 29 consistent with what the analysis of the CCTV footage subsequently 30 revealed. 31

¶ [19] Mr Francis knew both appellants well. Both he and Mr Fredericks (who 32 of course did not know the appellants), described Justin Ramoon and 33 Osbourne Douglas in terms of male 1 and male 2 respectively. In our 34 summary of their evidence, we shall refer to them by name. 35

¶ [20] At 22.28.32 Justin Ebanks and Jerome Hurlston could be seen at the 36 Globe Bar. By 22.33 the appellants had arrived in the area in the 37 silver/grey Honda. Justin Ramoon was driving. He parked the Honda 38 facing the road at the back of a store called the Alpha Outlet Store. The 39 two appellants separated. Osbourne Douglas walked towards the Globe 40 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 9 of 52 Bar. Justin Ramoon moved the Honda from the back of the Alpha store, 1 to a position nearer to and opposite the Globe Bar. By about 22.35 he 2 had parked it, again facing outwards. At 22.37.48 Justin Ramoon walked 3 to the Globe Bar. At about 22.39 he briefly returned to the Honda before 4 going back to the area of the Globe Bar. Osbourne Douglas was still 5 there. At 22.39.18 Osbourne Douglas, Justin Ebanks and Jason Powery 6 could all be seen. Jason Powery was drinking. They were both smoking. 7 By 22.40.57 Justin Ramoon had returned to the area of the Globe Bar. 8 Osbourne Douglas was still there. Between 22.41.04 and 22.42.18 both 9 appellants were in an area not covered by CCTV. They both remained in 10 that blind spot for one minute 14 seconds. At about 22.43.28 Osbourne 11 Douglas moved away. He walked towards the Honda. It was where 12 Justin Ramoon (in Osbourne Douglas' absence), had moved it. Between 13 about 22.43.33-6 people could be seen running away very quickly from 14 the alley, no doubt as a response to what was happening. (The judge said 15 that there was evidence that Osbourne Douglas spent some time clearing 16 the young people away before the shooting took place). At 22.43.37 17 Osbourne Douglas reached the Honda and got into the driving seat. 18 After sitting there for a moment, he drove to the front of Mary Street, 19 where he stopped. By then it was 22.44.36. That placed the Honda nearer 20 the alleyway in which the shooting had by then plainly taken place. The 21 car's new position provided a direct route along the main road out of the 22 area. Osbourne Douglas waited in the Honda. In the meantime, at 23 22.43.44, Justin Ramoon left the area of the Bar. He walked to where 24 Osbourne Douglas (in his absence) had moved the Honda and was 25 waiting in the driving seat. Justin Ramoon got into the passenger seat. 26 At 22.45.30 Osbourne Douglas drove them both away. 27

¶ [21] Mr Francis agreed there were times when he lost sight of the Honda. 28 There appears to have been floated in cross-examination the suggestion 29 that Mr Francis might have seen two different Hondas. A similar 30 suggestion was floated with Mr Fredericks. 31

¶ [22] Mr Murphy was called. He said there was insufficient footage reliably to 32 track individuals. He said, "Whilst it is possible that the individuals 33 being tracked are male I (Justin Ramoon) and male 2 (Osbourne 34 Douglas), the footage does not allow complete, positive identification." 35 He was, he said, suggesting caution. In the final analysis of course, this 36 was for the judge to assess. 37

¶ [23] The appellants' prepared statements were read. There was no 38 submission at the close of the prosecution case. Neither appellant gave 39 evidence. The defence in their detailed, written submissions to the judge, 40 raised two fundamental issues. Firstly, it was submitted that the 41 witnesses Jerome Hurlston and Justin Ebanks were untruthful, 42 unreliable witnesses with an axe to grind, whose evidence could not be 43 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 10 of 52 relied on; secondly, that in any event, they may have been mistaken when 1 they identified the appellants as involved in the shooting. 2 The Judge's conclusions 3

¶ [24] The judge said this about the evidence of Jerome Hurlston and Justin 4 Ebanks (95/3-96/6 and 106/8-13): 5 "I come now to the bad character of Jerome Hurlston and Justin 6 Ebanks. 7 The defence submits that both Jerome Hurlston and Justin 8 Ebanks are men of bad character and belong to a gang in West 9 Bay. The defense state that Justin Ebanks had his own firearm 10 and he had it before the shooting on the 1st of July. The defense 11 submit they are not reliable witnesses. The defense highlight the 12 discrepancies and inconsistencies of the evidence of both Jerome 13 Hurlston and Justin Ebanks. In my view, after close examination 14 of the evidence and the discrepancies and inconsistencies, they 15 are not significantly material. For example, Mr. Hurlston got the 16 type of shirt Osbourne Douglas was wearing wrong. Mr. 17 Hurlston told the police he could only see the outline of a gun 18 under the shirt of Osbourne Douglas, whilst in court he saw part 19 of the gun. Mr. Hurlston said Osbourne Douglas had the gun to 20 the right side of his waist, Justin Ebanks said he had it to the left 21 side. Mr. Hurlston said Osbourne Douglas lifted his foot when 22 he came to stare, whereas Justin Ebanks does not mention that 23 Osbourne Douglas lifted his foot. I find these inconsistencies to 24 be of minor significance and not fundamentally material ... 25 Having reviewed the submissions of both leading counsel, and 26 examined the specific weaknesses that they have drawn to my 27 attention on the eyewitnesses' identification evidence, !find the 28 evidence of Jerome Hurlston and Justin Ebanks to be accurate 29 and reliable. They have been subjected to very vigorous, but fair, 30 cross-examination by two experienced leading counsel, and I 31 find them to be truthful, accurate and reliable witnesses." 32

¶ [25] The judge said he found the evidence of Mr Francis and Mr Fredericks 33 and the CCTV footage itself provided strong support for the eyewitness 34 identifications of Jerome Hurlston and Justin Ebanks. He said too 35 (103/6-24) that their description of the firearm as looking like a 9mm 36 handgun and the finding of9mm cartridge was further evidence 37 supporting the Crown's case. 38 39 40 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 11 of 52

¶ [26] In short, the judge accepted the truth and reliability of Jerome Hurlston's 1 and Justin Ebanks' evidence. He found their evidence to be strongly 2 supported by that of Mr Francis, Mr. Fredericks and the CCTV footage 3 itself. The 9mm spent cartridge located from the scene was consistent 4 with the eyewitnesses' description of the handgun being a 9mm handgun. 5 The case for the prosecution was sufficiently strong to require an answer 6 from the defendants. The only explanation for the appellants' silence was 7 their awareness that they had no answer, or none that would stand up to 8 cross examination, and therefore an adverse inference was drawn. Their 9 intention was to kill. The Grounds of appeal against conviction 10

¶ [27] There are two grounds of appeal. First, and primarily, it is said the judge 11 in his judgment failed to grapple with the evidence which demonstrated 12 that both Jerome Hurlston and Justin Ebanks, upon whom, it is said, the 13 prosecution case rested, told many lies, gave inconsistent accounts, had 14 obvious gang-related criminal backgrounds, had a motive falsely to 15 blame the appellants and had possibly colluded in their accounts. It was 16 not enough merely to say, as it is said the judge did, he found them 17 "truthful, accurate and reliable witnesses." The judge should have set out 18 the reasoning which led to such a conclusion in the face of all the 19 evidence to the contrary. Had the judge properly analysed the evidence 20 he would have been driven to find the evidence of the two witnesses 21 incapable of belief. 22

¶ [28] Second, it is submitted that whether or not Jerome Hurlston and Justin 23 Ebanks were truthful witnesses, the circumstances in which they 24 purported to identify the appellants were such as to make any 25 identification unreliable. That second argument, seemingly strongly 26 advanced at trial, led to the judge giving himself a direction in terms of 27 R v Turnbull [1977] QB 227. As we observed in argument, it does seem 28 to us that the reality of this case as far as Jerome Hurlston and Justin 29 Ebanks were concerned, was not the reliability of their identification of 30 the appellants in the Turnbull sense, but whether they may have been 31 lying and deliberately, falsely implicating the appellants whom they 32 knew to be innocent. The first ground of appeal 33

¶ [29] Mr Larkin QC, on behalf of the first appellant, made three preliminary 34 points. Mr Miskin QC, who did not appear below, adopted them on 35 behalf of the second appellant. 36

¶ [30] First, Mr Larkin submitted the Crown's case was dependent on the 37 truthfulness and reliability of Jerome Hurlston and Justin Ebanks, as the 38 judge said. The judge was wrong to conclude the independent evidence 39 pointed to the appellants' guilt, or any way confirmed their evidence. It 40 was as consistent with the guilt of anyone among those present as with 41 that of the appellants. There was no forensic evidence linking the 42 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 12 of 52 appellants to the shooting. Jerome Hurlston's or Justin Ebanks' vehicles 1 were not examined. The CCTV merely placed the appellants at the scene, 2 which they admitted. Justin Ramoon was staying nearby. He was not the 3 only person who walked away from the scene. Jerome Hurlston did too. 4 Others, as well as the appellants, drove away after the shooting. The 5 CCTV does not depict either appellant with a firearm. Jerome Hurlston 6 could be seen carrying an object prior to the shooting. 7

¶ [31] Second, the appellants had no apparent motive to kill Jason Powery. He 8 and his friends only decided to go to the Globe Bar a short time before 9 arriving there. They were not expected. They were not reluctant to go 10 there. There was, as Justin Ebanks and Jerome Hurlstone confirmed, no 11 dispute between them and the appellants. 12

¶ [32] Third, others had a possible motive to kill Jason Powery. Jason Powery, 13 Jerome Hurlston and Justin Ebanks were known as members of a gang 14 (the Birch Tree Hill gang). There were rumours that two members of the 15 gang had been murdered. 16

¶ [33] Jerome Hurlston, submitted Mr Larkin, was not independent, impartial, 17 honest or reliable. He did not contact the police after the incident. He 18 only identified the appellants after he believed the appellants had named 19 him as being responsible. He had a powerful motive to blame the 20 appellants. He said: 21 "[The appellants} was trying to mix me up like I did something 22 to my friend ... And they send the police to me. You know how 23 much days went 'cross I never went to the police and they sent 24 the police to me ... [the police] they say I set up my friend to kill 25 my friend" 26

¶ [34] Some of what he said was not credible. He initially denied taking any 27 drink or drugs. He then said he could not remember. Justin Ebanks, on 28 the other hand, said, they went into the alley at Jerome Hurlston's 29 request to smoke 'draw.'’ 30

¶ [35] Jerome Hurlston's account of events immediately after the shooting was 31 incredible. In the face of CCTV footage showing him opening the door 32 and reaching in, Jerome Hurlston denied going to Justin Ebanks' car 33 after shooting. He then claimed a man was standing by the car door and 34 staring at him. The CCTV depicted no such man. Justin Ebanks denied 35 there was such a man. Jerome Hurlston was lying because he had 36 something to hide. 37

¶ [36] When no longer a suspect, Jerome Hurlston asked the police to provide 38 him with a boat, a car and money in order to give evidence. 39 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 13 of 52

¶ [37] Mr Larkin submitted that Justin Ebanks equally lacked credibility and 1 reliability. 2

¶ [38] Although he had spoken to Jerome Hurlston before speaking to the police 3 and implicating the appellants, he claimed he did not know the police 4 were investigating that his own associates might have killed Jason 5 Powery. 6

¶ [39] Justin Ebanks claimed he gave Justin Ramoon's street name ('Pot') when 7 first in contact with the police. He said he gave a full account to Officer 8 Daniels. As was agreed, he did neither of those things. He said he had 9 not seen a gun and did not know who was responsible. 10

¶ [40] On 30 January 2016 Justin Ebanks was arrested for possession of a 11 loaded firearm and ammunition. He was awaiting trial. His defence to 12 the charge was duress: he feared for his life because of threats from the 13 appellants. Mr Larkin submitted his defence of duress in the face of the 14 appellants' alleged threats, gave Justin Ebanks a vested interest in the 15 appellants' convictions. 16

¶ [41] Justin Ebanks' gave several different accounts during his evidence. 17

¶ [42] He was carrying the firearm because the appellants had threatened him 18 by text for making a witness statement. He took possession of the firearm 19 three hours after the threat. He could not access the text. He only first 20 mentioned any such threat when arrested on 30 January 2016. The 21 appellants were in custody at the time. He had had the firearm for about 22 12-14 months. He knew who supplied it. He was in fear of his life from 23 that person. He found the firearm. He had had the firearm since the end 24 of 2014 for his protection after David Ebanks, a cousin, was gunned 25 down. He had first obtained the firearm after Jason Powery was shot. 26 He could not say if he was threatened before or after Jason Powery was 27 shot. 28

¶ [43] If Justin Ebanks did have the firearm before Jason Powery was shot, Mr 29 Larkin submitted he may have had it at the time of the shooting. He had 30 an overwhelming incentive to have the appellants convicted. 31

¶ [44] Mr Larkin submitted the judge had to confront the witnesses' lies and 32 inconsistencies. Nowhere in his judgment did he say what discrepancies 33 and inconsistencies he found, or, importantly, how he was able to 34 conclude that they were "not significantly material” or, "of minor 35 significance and not fundamentally material." Such bald assertions, 36 submitted Mr Larkin, were not enough. 37

¶ [45] Moreover, had the judge properly analysed the evidence, he would have 38 been bound to conclude that the credibility of the two witnesses had been 39 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 14 of 52 destroyed. The lack of such analysis masks the fact that there were no 1 sufficient reasons to find the witnesses honest and reliable. 2

¶ [46] Mr Miskin agreed. The judge failed to estimate the two witnesses' 3 truthfulness. He failed to consider whether they were capable of belief 4 Had he done so, he would have been bound to conclude they were not. 5 The second ground: identification 6

¶ [47] Having previously set out how in the light of Turnbull he was required 7 to approach the evidence of identification, the judge said (91/16-21): 8 "In this case, there is no issue of a fleeting glance. The 9 observations by Jerome Hurlston of both Justin Ramoon and 10 Osbourne Douglas were made over time periods of at least a few 11 minutes and the Crown submit there is sufficient time to see and 12 recognise the person." 13

¶ [48] Mr Larkin submitted the judge was wrong in his assessment. Jerome 14 Hurlston had spoken of seeing Justin Ramoon's face for about 10 15 seconds at the time of the shooting, some 7 seconds thereafter. He could 16 not have been watching the gunman all this time. He said the man turned 17 and looked towards them ''for a little bit." The gunman's head was down. 18 Jerome Hurlston looked at the gun. There were people in the alley 19 obstructing his view. He looked at people running away. At one point 20 'Andy' stepped in front of him. There was shadow from a tree. There was 21 evidence that the lighting was poor. The CCTV footage suggested 22 Jerome Hurlston was further away than he said. 23

¶ [49] Mr Larkin made similar points as far as Justin Ebanks' evidence of 24 identification was concerned. 25

¶ [50] Although the evidence was that the appellants were together for 2-3 minutes, 26 the passing of the gun took a couple of seconds. In interview, Justin Ebanks 27 did not demur from the interviewing officer's suggestion that what he saw 28 amounted to a glimpse. 29

¶ [51] In his skeleton argument Mr Larkin set out in some detail why, as he 30 submitted, Justin Ebanks' identification was not reliable. We have read his 31 submissions regarding the light, the obstructions and impediments he relied 32 on. We need not repeat them. Further, he said in interview that it was the 33 sound of the shot rather than any identification of the weapon that led him 34 to conclude it was a 9mm firearm. 35

¶ [52] In the round, Mr Larkin submitted this was a wholly unexpected, shocking 36 and fast-moving event with numbers of people moving around in dark 37 conditions. The time for any identification was brief. Distances changed. 38 Such circumstances would render the alleged eyewitnesses' identification 39 unreliable. There was no supporting evidence. Our conclusion 40 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 15 of 52

¶ [53] This court: 1 "shall allow an appeal against conviction if it thinks- 2 (a) that the verdict ... should be set aside on the 3 ground that under all the circumstances of the 4 case it is unsafe or unsatisfactory ... 5 and in any other case shall dismiss the appeal; 6 Provided that the Court may, notwithstanding 7 that it is of the opinion that the point raised in the 8 appeal might be decided in favour of the 9 appellant, dismiss the appeal if the Court considers 10 that no substantial miscarriage of justice has 11 actually occurred." 12

¶ [54] We start by analysing what the CCTV evidence comes to. As we do so, it 13 will become apparent, as Mr Perry QC on behalf of the Respondent put 14 it, that this was a compelling part of the case against the appellants. 15

¶ [55] The appellants drove to the area in the silver/grey Honda. Having 16 arrived at the Alpha Store, Osbourne Douglas went to the Globe Bar. 17 Justin Ramoon moved the Honda nearer to the Globe Bar. Having done 18 so, he went briefly to the Globe Bar. He returned to the Honda. He went 19 back to the Globe Bar. Osbourne Douglas had remained there. They both 20 moved into the area not covered by CCTV. They were there for over a 21 minute. Osbourne Douglas then left. He walked back to the Honda. He 22 knew where it was. At about the time the shooting was taking place, 23 Osbourne Douglas was walking back to the Honda, or sitting in the 24 driving seat or driving to a new location still nearer to the alleyway in 25 which the shooting had taken place. He stopped the Honda in an ideal 26 position for a getaway. The shooting having taken place, Justin Ramoon 27 walked away from the area of the Bar. He plainly knew where the Honda 28 now was. He walked directly to it. He got into the passenger seat. They 29 drove off. They had been in the area for something like ten minutes. 30

¶ [56] These movements do not suggest two people in the area of the Globe Bar 31 for social or innocent reasons. As the judge concluded, what they 32 amounted to was clear evidence of the carrying out of a pre-arranged 33 plan. 34

¶ [57] In short, the CCTV footage on its own was powerful evidence against the 35 appellants. 36

¶ [58] It does not stop there. What the CCTV footage depicted was in all its 37 essentials consistent with the accounts Jerome Hurlston and Justin 38 Ebanks gave. When, on 10 and 8 July respectively they first gave those 39 accounts, they could not have known what detailed analysis of the CCTV 40 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 16 of 52 footage would reveal. They could not have known there was a blind spot 1 in the CCTV evidence which might implicate the appellants; or about the 2 detailed movements of the appellants and their vehicle. As Mr Perry 3 submitted, it would be very surprising indeed for Jerome Hurlston and 4 Justin Ebanks to collude to provide evidence which subsequently proved 5 to be consistent with CCTV footage. 6

¶ [59] It follows, that we do not accept that the independent evidence provided 7 no support for the evidence of Jerome Hurlston and Justin Ebanks. It was 8 highly material evidence both on its own, and in respect of their 9 credibility and the reliability of their identifications. 10

¶ [60] Although it is now said the evidence of Jerome Hurlston and Justin 11 Ebanks was incapable of belief and that the so-called independent 12 evidence does not support their evidence, it was at no time submitted to 13 the judge that the appellants had no case to answer on that basis. The 14 reason for that is clear. On any proper analysis there was a plain case 15 against the appellants. 16

¶ [61] The defence case did not to any, or any significant extent, weaken that 17 case. Moreover, the failure of the appellants to give evidence entitled the 18 judge to draw the adverse inferences he did. 19

¶ [62] As to the suggestion floated during the trial and before us, that Jerome 20 Hurlston and/or Justin Ebanks might have shot Jason Powery, that 21 seems to us, as no doubt it did to the judge, far-fetched. This was on the 22 evidence three friends out together for an evening. Immediately before 23 Jason Powery was shot through the head, they were having a drink and 24 a smoke together. There was nothing to suggest any argument. 25

¶ [63] We should add: we cannot accept Mr Larkin's submission that if the 26 appellants were responsible for the shooting, it was motiveless. There 27 plainly was a motive. It has simply not been discovered. 28

¶ [64] As Lord Hughes made plain, when giving the Opinion of the Privy 29 Council in R v Crawford [2015] UKPC 44, this court should be very slow 30 before interfering with primary findings of fact of a trial judge 31 particularly following a trial of some length. As he put it (in paragraph 32 9): 33 "There has been no dispute before the Board as to the proper role 34 of an appellate court when reviewing a decision of a trial judge 35 which amounts to a finding of primary fact based upon his 36 assessment of the credibility and reliability of witnesses whom he 37 has seen and heard. It is well established that an appellate court 38 should recognise the very real disadvantage under which it 39 necessarily operates when considering such a finding only on 40 paper. There are many statements of this principle. It is enough to 41 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 17 of 52 set out the formulation of it by Lord Sumner in The Hontestroom 1 [1927) AC 37 at 47-48: 2 "What then is the real effect on the hearing in a Court of 3 Appeal of the fact that the trial judge saw and heard the 4 witnesses ... not to have seen the witnesses puts appellate 5 judges in a permanent position of disadvantage as against 6 the trial judge, and, unless it can be shown that he has 7 failed to use or has palpably misused his advantage, the 8 higher court ought not to take the responsibility of 9 reversing conclusions so arrived at, merely on the result of 10 their own comparisons and criticisms of the witnesses and 11 of their own view of the probabilities of the case. The course 12 of the trial and the whole substance of the judgment must 13 be looked at, and the matter does not depend on the 14 question whether a witness has been cross-examined to 15 credit or has been pronounced by the judge in terms to be 16 unworthy of it. If his estimate of the man forms any 17 substantial part of his reasons for his judgment the trial 18 judge's conclusions of fact should, as I understand the 19 decisions, be let alone. In The Julia (1860) 14 Moo PC 20 210, 235 Lord Kingsdown says: 'They, who require this 21 Board, under such circumstances to reverse a decision 22 of the court below upon a point of this description 23 undertake a task of great and almost insuperable 24 difficulty. . . . We must, in order to reverse, not merely 25 entertain doubts whether the decision below is right but 26 be convinced that it is wrong. '" 27 "The advantage enjoyed by the trial judge applies equally to 28 those comparatively rare criminal cases tried by judge alone, 29 with, of course, appropriate consideration being given to the 30 different standard of proof" 31

¶ [65] As Lord Hughes went on to point out (in paragraph 10), the trial judge 32 is immersed in the evidence in a way which cannot be replicated in the 33 Court of Appeal. He has seen the way the evidence was given, how 34 challenges to it were met. That, as it seems to us, was very much this 35 case. 36

¶ [66] This was a nine day trial. Jerome Hurlston and Justin Ebanks each gave 37 evidence for two days. They were cross-examined by two Leading 38 Counsel. Their credibility was attacked. The reliability of their 39 identifications was probed. The judge had ample opportunity to assess 40 their credibility and reliability. He had detailed, written defence 41 submissions. He accurately summarised them in considerable detail. 42 (His summary ran from page 71/11 to page 79/21 of his judgment). He 43 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 18 of 52 carefully summarised the CCTV evidence, the significance of which he 1 plainly understood. He clearly understood what the issues in the case 2 were. As he put it (90/12-21): "The Crown submit that the court can rely 3 on the evidence of Jerome Hurlston and Justin Ebanks. The defence 4 submit they are lying, alternatively, just mistaken." 5

¶ [67] Having had the detailed submissions and summarised them, the judge 6 plainly thought it sufficient briefly to refer to some aspects of the attack 7 on their credibility. 8

¶ [68] Moreover, although, as we have said, this is not in our view an 9 identification case at all, the judge dealt with that issue in detail (pages 10 95/11 to 96/6). (It seems to us that page 95/11 should be the first line in 11 the next paragraph). 12

¶ [69] He was entitled to place some reliance on the finding of the 9 mm 13 cartridge. As Mr Perry submitted, once collusion is rejected, there is 14 something, albeit of limited weight, in the point the judge makes. 15

¶ [70] As Mr Perry submitted, it is axiomatic that a judge is not required to 16 make findings in respect of every question raised in the course of the 17 trial. He was required to make findings in relation to those matters which 18 it is necessary to resolve in order to reach a conclusion on the issue 19 before it. While each of us might well have set out in more detail our 20 thinking behind the conclusions we had reached, we accept, as Mr Perry 21 submitted, that when looking at the judgment as a whole, it is clear the 22 judge had well in mind what the evidence was and the points made by 23 the defence regarding it. He was entitled to place considerable reliance 24 on the CCTV evidence. As Mr Perry put it, his conclusions set out his 25 findings on the core issues which he had previously summarised. There was 26 the clearest basis upon which to accept the Crown's case and reject the 27 defence. In the round, what the judge said was in all the circumstances 28 adequate. 29

¶ [71] In the final analysis, this was a strong case left wholly unanswered by the 30 appellants. It is quite impossible to say that these convictions are unsafe 31 or unsatisfactory. 32

¶ [72] In the result, we dismiss these appeals against conviction. The appeals 33 against sentence 34

¶ [73] Section 182 of the Penal Code provides that any person convicted of 35 murder shall be sentenced to imprisonment for life. 36

¶ [74] Section 14 of the Conditional Release Law, 2014, states: 37 "14 (1) Notwithstanding any other Law to the contrary, 38 when sentencing a prisoner to a term of 39 imprisonment for life, the court shall specify the 40 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 19 of 52 period of incarceration the prisoner shall serve 1 before the prisoner is eligible to be considered 2 for conditional release on licence, the period 3 being such as the court considers appropriate to 4 satisfy requirements of retribution, deterrence 5 and rehabilitation, but for murder, the period 6 shall be thirty years before the prisoner is 7 eligible for conditional release unless there are - 8 (a) extenuating circumstances, 9 exceptional in nature, in which 10 case the court may impose a 11 lower period of incarceration; or 12 (b) aggravating circumstances, 13 exceptional in nature, in which 14 case the court may impose a 15 longer period of incarceration 16 (2) In making a decision under subsection (l)(a) or 17 (b), the court shall state the extenuating 18 circumstances or the aggravating 19 circumstances, as the case may be." 20

¶ [75] Section 21 states: 21 "21. The Cabinet may make regulations prescribing all 22 matters that are required or permitted by this Law to be 23 prescribed, or are necessary or convenient to be 24 prescribed for giving effect to the purposes of this Law" 25

¶ [76] Regulation 14 of the Conditional Release of Prisoners Regulations, 2016 26 was made pursuant to section 21. It provides that: 27 "For the purposes of determining the earliest possible 28 conditional release date in relation to a prisoner on a term of 29 imprisonment for life, the circumstances set out in Schedule 12 30 shall be considered. 31

¶ [77] Under the heading "sentencing guidelines," Schedule 12 states: 32 "Introduction 33

¶ [1] (1) Where a mandatory life sentence for murder is 34 prescribed by any Law, for the purposes of section 14 of 35 the Law the aggravating and extenuating circumstances 36 are outlined in this schedule. 37 (2) For offences other than murder, for the purposes of 38 section 14 of the Law, the aggravating and extenuating 39 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 20 of 52 circumstances may include all the relevant 1 circumstances of the offence and or the offender. 2 (3) For murder, the period shall be thirty years before the 3 prisoner is eligible for conditional release unless there 4 are extenuating or aggravating circumstances, 5 exceptional in nature, in which case the court may 6 impose a shorter or longer period of incarceration 7 respectively; 8 Aggravating circumstances and extenuating circumstances 9

¶ [2] (1) Detailed consideration of aggravating or mitigating 10 circumstances may result in a minimum term of any 11 length. 12 (2) Aggravating circumstances that may be relevant to the 13 offence of murder include – 14 (a) a significant degree of planning or 15 premeditation; 16 (b) the fact that the victim was particularly 17 vulnerable because of age or disability; 18 (c) mental or physical suffering inflicted on the 19 victim before death, 20 (d) the abuse of a position of trust; 21 (e) the use of duress or threats against another 22 person to facilitate the commission of the 23 offence; 24 (f) the fact that the victim was providing a public 25 service or performing a public duty 26 (g) concealment, destruction or dismemberment of 27 the body 28 (h) previous convictions 29 (i) abduction and sexual or sadistic conduct; and 30 (j) any other circumstances which may be 31 considered relevant. 32 (3) Extenuating circumstances that may be relevant to the 33 offence of murder include - 34 (a) an intention to cause serious bodily harm rather 35 than to kill; 36 (b) lack of premeditation; 37 (c) the fact that the offender suffered from any 38 mental disorder or mental disability which 39 (although not falling within section 185(1) of the 40 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 21 of 52 Penal Code (2013 Revision)), lowered the 1 offender's degree of culpability; 2 (d) the fact that the offender was provoked (for 3 example, by prolonged stress); 4 (e) the fact that the offender acted to any extent in 5 self-defence or in fear of violence; 6 (f) a belief by the offender that the murder was an 7 act of mercy; 8 (g) the age of the offender; and 9 (h) any other circumstances which may be 10 considered relevant. 11 12 Previous convictions 13 14

¶ [3] (1) In considering the seriousness of an offence committed 15 by an offender who has one or more previous 16 convictions, the court must treat each previous 17 conviction as an aggravating circumstance if (in the case 18 of that conviction) the court considers that it can 19 reasonably be so treated having regard, in particular, to- 20 (a) the nature of the offence to which the conviction 21 relates and its relevance to the current offence; 22 and 23 (b) the time that has elapsed since the conviction. 24 (2) Any reference in this schedule to a previous conviction is 25 to be read as a reference to a previous conviction by a 26 court in the Cayman Islands. 27 (3) The court may treat a previous conviction by a court 28 outside the Cayman Islands as an aggravating 29 circumstance in any case where the court considers it 30 appropriate to do so… 31 32 . . Duty to give reasons 33 34 5 (1) Any court making an order pursuant to section 14 must 35 state in open court, in ordinary language, its reasons for 36 deciding on the order made." 37 38

¶ [78] In his sentencing remarks fixing the minimum terms at 34 and 35 years, 39 Mr. Justice Quin, having noted that it was not suggested there were 40 extenuating circumstances such as justified a reduction in the term of 30 41 years, said (paragraph 46 and following): 42 43 "Having heard all the evidence at the trial I find the following to 44 be aggravating circumstances of an exceptional nature: 45 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 22 of 52 i. The pre-possession of the illegal firearm; 1 a) Each defendant had his own distinct role before 2 the shooting, at the time of the shooting and after 3 the shooting that is: 4 b) The Defendant Douglas walked ahead of 5 Defendant Ramoon and cleared the alcove of 6 young people; 7 c) The Defendant Ramoon drove the getaway 8 vehicle to the scene of the murder; 9 d) The Defendant Douglas provided Defendant 10 Ramoon with the firearm just before the killing; 11 e) The Defendant Ramoon shot Mr. Powery in the 12 head at point-blank range, killing him instantly; 13 j) The Defendant Douglas drove the getaway 14 vehicle away from Martin Drive and waited for 15 the Defendant Ramoon in Mary Street; 16 g) The Defendant Ramoon gets into the car and the 17 Defendant Douglas drives off 18 h) As could be seen from the evidence presented by 19 the Prosecution, there was a very significant 20 degree of planning and premeditation. The 21 murder was carried out in less than 10 minutes 22 with clinical precision. The victim was just 23 standing there drinking a beer and there is no 24 evidence of any provocation by the victim; 25 ii. After killing Justin Powery, the Defendant Ramoon 26 walked down the alcove, he looked directly at the murder 27 victim's friend and witness to the murder, Jerome 28 Hurlstone, he raised his gun to shoot at Jerome 29 Hurlstone only to be disturbed by another individual and 30 for the gun to click without firing. Jerome Hurlstone's 31 life was saved by the timely intervention of the third party 32 and the fact that the Defendant's firearm failed to 33 operate a second time. 34 35

¶ [47] It was in fact a very public execution of the most evil 36 nature and it could be accurately described as chillingly 37 clinical in its planning and execution. 38

¶ [48] To adopt Lord Bingham 's words in R v. Kelly, it is a 39 public execution which is far from "regular", far from 40 "routine" and far from "normal". Accordingly, in my 41 view, these are aggravating circumstances, exceptional 42 in nature. 43

¶ [49] There has been a very serious escalation of gun crime 44 over the past 7 years. People must help the police in their 45 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 23 of 52 difficult task of finding out who is bringing the illegal 1 guns into the Cayman Islands and who is harbouring the 2 illegal guns. Over the past years too many young 3 Caymanians have lost their lives because of illegal guns 4 and furthermore, too many small business owners have 5 been the targets of terrifying attacks from armed robbers 6 with illegal firearms. 7

¶ [50] Under the Conditional Release Law, the Court must 8 consider the appropriate period of incarceration to 9 satisfy the requirements of retribution, deterrence and 10 rehabilitation. 11

¶ [51] Accordingly, in my view, the aforesaid exceptional 12 aggravating circumstances and the urgent need for 13 meaningful deterrence merit an upward adjustment from 14 the 30 years to 34 years imprisonment for each 15 defendant. In addition, as a result of his previous 16 conviction for possession of an imitation firearm, which 17 is an additional aggravating circumstance, I make a 18 further upward adjustment of one year in relation to 19 Defendant Ramoon and, consequently, he is sentenced to 20 35 years' imprisonment on Count 1, murder. 21

¶ [52] Accordingly, on Count 1, the charge of murder, pursuant 22 to the Conditional Release Law the Defendant Ramoon 23 will serve 35 years' incarceration before he is eligible for 24 conditional release. The Defendant Douglas shall serve 25 34 years' incarceration before he is eligible for 26 conditional release." The Colonial Prisoners Removal 27 Act 1884 28 29

¶ [79] Since Mr Justice Quin imposed those sentences, the appellants 30 have been removed from Grand Cayman and are serving their 31 sentences in prisons in England. They were transferred under 32 section 2 of the Colonial Prisoners Removal Act 1884, which, as 33 material, provides: 34 “Where as regards a prisoner undergoing sentence of 35 imprisonment in any British possession for any offence it 36 appears to the removing authority ... 37 ... (d) that by reason of there being no prison in the ... 38 British possession in which the prisoner can 39 properly undergo his sentence or otherwise the 40 removal of the prisoner is expedient for his safer 41 custody or for more efficiently carrying his 42 sentence into effect ... 43 in any such case the removing authority may ... order 44 such prisoner to be removed ... to the United Kingdom." 45 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 24 of 52

¶ [80] There is currently an unresolved judicial review of the decision 1 of the English Home Secretary, with the agreement of the 2 Government of the Cayman Islands, to remove the appellants. By 3 the judicial review, they seek to quash the orders for removal. 4 We need not for present purposes go into the reasons advanced 5 for justifying the removal. If the judicial review succeeds, the 6 appellants will serve their sentences in the Cayman Islands. If it 7 fails, they will serve their sentences in the United Kingdom. If 8 that happens, their cases will fall to be considered by the courts 9 of England and Wales under sections 273 and 274 of the 10 Criminal Justice Act 2003. Section 273 provides: 11 "Life prisoners transferred to England and Wales 12 (1) The Secretary of State must refer the case 13 of any transferred life prisoner to the 14 High Court for the making of one or 15 more relevant orders. 16 (2) In subsection (1) "transferred life 17 prisoner" means a person- 18 (a) on whom a court in a country or 19 territory outside the British 20 Islands has imposed one or more 21 sentences of imprisonment .. for 22 an indeterminate period, and 23 (b) who has been transferred to 24 England and Wales ... in 25 pursuance of- 26 (i) an order made by the 27 Secretary of State under 28 section 2 of the Colonial 29 Prisoners Removal Act 30 1884 ... 31 32 (3) In subsection (1) a "relevant order" 33 means- 34 (a) in the case of an offence which 35 appears to the court to be an 36 offence for which, if it had been 37 committed in England and Wales, 38 the sentence would have been 39 fixed by law, an order under 40 subsection (2) or (4) of section 41 269 ... " 42

¶ [81] Section 269, and the sub-sections there referred to, concern the 43 "Determination of the minimum term in relation to mandatory 44 life sentence" as they apply in England and Wales. 45 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 25 of 52

¶ [82] Section 274 provides that the determination of that minimum 1 term will be decided by a single judge of the High Court, with a 2 right of appeal (with leave) to the Court of Appeal 3

¶ [83] In short, if the judicial review fails, the length of the minimum 4 term the appellants will serve in an English prison will be 5 decided by the High Court of England and Wales. When doing 6 so, the Court will, we anticipate, take into account, among other 7 things, why the decision was taken to remove them from the 8 Cayman Islands to England, the fact, as Mr Perry put it, that the 9 Cayman Islands is a small island community with its particular 10 issues as far as serious crime is concerned, as well as the 11 undoubted additional hardship of serving lengthy prison 12 sentences a very long way from home 13

¶ [84] As far as this appeal is concerned, however, as is now agreed, we 14 must apply Cayman law. 15 The grounds of appeal 16

¶ [85] Mr Miskin and Mr Larkin made a number of points, both in respect 17 of the interpretation of the relevant statutory provisions and the 18 factual basis upon which the judge approached the sentencing 19 exercise. 20 The meaning of "circumstances, exceptional in nature" 21

¶ [86] Relying on what was said by Lord Bingham of Cornhill, Chief 22 Justice, when giving the judgment of the Court of Appeal in the case 23 of R v Kelly [2000] 198, Mr Miskin and Mr Larkin submitted that 24 the words "exceptional in nature" in section 14(1) of the Release 25 Law 2014, and paragraph 1 of Schedule 12 of the Conditional 26 Release of Prisoners Regulations 2016, required circumstances 27 which were, as Mr Justice Henderson QC put it in the case of 28 Regina v Ricketts [2017] 1 CILR (paragraph 28 at b), "unusual or 29 uncommon, although [not necessarily] ... unprecedented or very 30 rare." 31

¶ [87] The passage relied upon in Kelly (and cited in his judgment by Mr 32 Justice Henderson) was the following: 33 "We must construe 'exceptional' as an ordinary, 34 familiar English adjective, and not as a term of art. It 35 describes a circumstance which is such as to form an 36 exception, which is out of the ordinary course, or 37 unusual, or special, or uncommon. To be exceptional a 38 circumstance need not be unique, or unprecedented, or 39 very rare,' but it cannot be one that is regularly, or 40 routinely, or normally encountered." (per Lord 41 Bingham CJ at p208C) 42

¶ [88] Mr Justice Quin was wrong, submitted Mr Miskin, to categorise 43 the prior possession and use of a firearm as an aggravating 44 circumstance of exceptional nature. As Mr Justice Henderson 45 said in Ricketts, the possession and use of firearms in cases of 46 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 26 of 52 murder was commonplace in the Cayman Islands. At paragraph 1 39 of his judgment, he said: 2 "It could hardly be said that the use of an unlicensed 3 firearm, in and of itself, is unusual or uncommon. The use 4 of firearms in the commission of offences is rampant on 5 Grand Cayman. Of the six murder cases in which I must set 6 the minimum term, no less than four were shootings." 7

¶ [89] It could not therefore be said, ran the appellants' submission, that 8 the possession and use of firearms was "exceptional in nature" in 9 the Cayman Islands. The use of a firearm could not therefore be 10 an aggravating feature justifying a longer period of 11 imprisonment. 12

¶ [90] Moreover, it was submitted, had the legislature intended the use 13 of a firearm to be an aggravating feature, it would have said as 14 much in Schedule 12, paragraph 2(2). As Mr Justice Henderson 15 said in Ricketts (paragraph 39): 16 "... if the Legislative Assembly considered the use of a 17 firearm to be an exceptional circumstance, it would have 18 listed it ins. 2(2) of Schedule 12. Its omission from that list 19 is explained by the 30 year norm, which is the same as the 20 usual starting point in the UK for murders committed with 21 a firearm." 22

¶ [91] Other criticisms were made of the judge's approach to sentence. 23

¶ [92] He was wrong to state there was "a very significant degree of 24 planning and premeditation," so as to justify reliance on Schedule 25 12, paragraph 2(2)(a). The evidence did not justify uch a finding. 26 To place this case within the category of such cases did not leave 27 room for cases in which there was serious and long-term 28 planning. 29

¶ [93] He should not have taken into account the attempt to shoot at 30 Jerome Hurlston. There was no conviction in respect of it. The 31 judge should have ignored it. 32

¶ [94] It was not right on the evidence, emotively, to describe what 33 happened in terms of a public execution, or as being "chillingly 34 clinical." 35

¶ [95] The judge should not, without having had specific evidence 36 adduced before him, have relied upon what was an assertion that 37 gun crime in the Cayman Islands had escalated. 38

¶ [96] The element of deterrence (and for that matter retribution and 39 rehabilitation) as set out in section 14 did not, on a proper 40 reading of the section, apply to convictions for murder. Murder 41 was dealt with by the thirty year term. 42

¶ [97] The judge was wrong, in Justin Ramoon's case, to add an 43 additional year for the firearms offence committed when he was 44

¶ [19] 45 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 27 of 52

¶ [98] In summary, 30 years was on any assessment, a very long period 1 of incarceration. As the analysis carried out by Justice 2 Henderson in Ricketts showed, it reflected an increase in what 3 previously offenders had served before release when convicted 4 of murder. That emphasised the importance of not watering- 5 down the meaning of the phrase, "exceptional in nature." 6 Our conclusions 7

¶ [99] We start by echoing an aspect of the submissions Mr Perry made 8 to us. The Cayman Islands is an island community. It has its own 9 values where gun crime is concerned. It is very close to 10 jurisdictions, one smaller, one larger, where guns are freely 11 available, and drugs are a considerable problem. So far, its 12 problems have not been as severe as those which have afflicted 13 these neighbouring jurisdictions. It is not surprising if by its 14 legislation it seeks to maintain that position. 15 The Conditional Release Law, 2014 16

¶ [100] We first consider what, in the context of the Conditional Release 17 Law and its consequential regulations, the legislature intended 18 by the words, "exceptional in nature." Did they reflect, as the 19 appellants have submitted, and Justice Henderson ultimately 20 appeared to conclude, an intention to require circumstances 21 which were unusual or uncommon in the sense that they did not 22 frequently occur, or do they, in the context of this legislation, 23 have a different meaning? For while, as Lord Bingham said in 24 Kelly, "exceptional" is not a term of art, what it means must 25 depend entirely upon its statutory context. 26

¶ [101] As Mr Perry submitted, there is a paradox at the heart of the 27 defence submissions. If they are right, the more depraved society 28 becomes, the more acceptable it is for certain crimes to be 29 marked as unexceptional and the court prevented from imposing 30 a sentence which the public would think right and proper. That 31 suggests that what is 'exceptional' is not related to the frequency 32 with which it occurs. Moreover, the flaw in interpreting 33 exceptional in terms of frequency of occurrence can be 34 illustrated in a number of ways. 35

¶ [102] The first public execution by shooting will be exceptional. It will 36 merit imprisonment for longer than 30 years. The fifth such 37 execution will no longer be unusual or uncommon. Its 38 circumstances will no longer be exceptional. Albeit the 39 underlying facts and seriousness of offending are the same, the 40 court cannot for the fifth such offence imprison for longer than 41 30 years. That, as it seems to us, cannot have been the intention 42 of the Legislative Assembly. 43

¶ [103] Section 14 of the Conditional Release Law, when read as a whole, 44 requires the court to consider what is appropriate "to satisfy the 45 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 28 of 52 requirements of retribution, deterrence and rehabilitation." We 1 do not accept Mr Larkin's submission to the contrary. On the basis 2 of the appellants' argument however, it was the intention of the 3 Legislative Assembly that, on the one hand, the court had to satisfy 4 the requirements of deterrence, while, on the other, it could not take 5 into account as a possible aggravating circumstance any means of 6 offending which occurred frequently, such as murder by shooting. 7 That plainly cannot have been the intention of the Legislative 8 Assembly. 9

¶ [104] There is a yet further flaw in interpreting "exceptional" in terms of 10 frequency. Extenuating circumstances must also be "exceptional in 11 nature." A common, but cogent circumstance will not be 12 exceptional and therefore something the court cannot take into 13 account. 14

¶ [105] We therefore conclude that it cannot have been the intention of the 15 Legislative Assembly that the words "exceptional in nature" have 16 anything to do with how infrequent or uncommon in the Cayman 17 Islands were the circumstances of the murder in question. In our 18 judgment the words relate not to the frequency of the conduct, but 19 its seriousness. The issue is whether the circumstances of the 20 murder in question were so serious as to mark out the nature of the 21 case as exceptional, and to justify imposing a longer period of 22 imprisonment. As Mr Perry put it, the question is whether the 23 circumstances were so serious as to take the case into the 24 exceptional category. 25

¶ [106] Equally, when assessing any extenuating circumstances, the court 26 will have in mind, not how often such circumstances may occur, but 27 whether so exceptional is their weight as to justify imposing a lower 28 period of imprisonment. 29

¶ [107] We also cannot agree, as the appellants submitted, and Mr Justice 30 Henderson decided, that because paragraph 2(2) of Schedule 12 31 makes no mention of a firearm as an aggravating circumstance, 32 the Legislative Assembly intended to exclude the use of a firearm 33 as an exceptional circumstance justifying a longer tenn of 34 imprisonment. 35

¶ [108] The words of paragraph 2(2) are clear. The aggravating 36 circumstances set out are not intended to be exhaustive (see 37 section 2(2)(j) in particular). Moreover, it cannot have been the 38 intention of the Legislative Assembly to exclude as a possible 39 aggravating circumstance the use of a firearm, while, (if we are 40 right in our interpretation of section 2(2)), at the same time 41 contemplating the use of, for example, a knife as a possible 42 aggravating circumstance. 43

¶ [109] In our view, whether or not in any given case the use of a 44 particular weapon, such as a firearm, amounts to an aggravating 45 circumstance must depend on all the circumstances of the case 46 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 29 of 52 as a whole. That having been said, it does seem to us that in most 1 cases the prepossession and use of firearms is likely to amount 2 to an aggravating feature. How the judge should approach these 3 issues 4

¶ [110] We agree with Mr Perry, that it is unhelpful to seek to lay down 5 in an over-fonnal way how judges should approach the 6 sentencing exercise in cases of murder. This is preeminently an 7 area for the application of judicial judgment and discretion. 8 Each case will depend on its own facts. The judge will stand back 9 and make an overall assessment of the circumstances as he finds 10 them to be. He will no doubt take into account, among other 11 things, the prevalence of particular sorts of murder in the 12 Cayman Islands, the protection of the public and such 13 aggravating or mitigating circumstances as he finds in the 14 particular case. He will then make and explain his decision. We 15 have no doubt this is an exercise which the judges of the Cayman 16 Islands are well able to carry out. 17 Mr Justice Quin's decision 18

¶ [111] We start with a trite observation. The judge heard the evidence. He 19 was entitled to reflect his view of all the circumstances on the basis 20 of the evidence he heard. 21

¶ [112] It is said that the judge was wrong to state there was "a very 22 significant degree of planning and premeditation," so as to justify 23 reliance on Regulation 14, paragraph 2(2)(a). We do not agree. The 24 judge heard the evidence. He was entitled to conclude that it did 25 disclose a significant degree of planning, particularly in light of the 26 sequence of events revealed by the CCTV evidence. 27

¶ [113] We do not accept that the judge was not entitled to take into account 28 the attempt to shoot Jerome Hurlston. It was an important part of 29 all the circumstances, as he found them. It would have been wholly 30 artificial for the judge simply to have ignored this evidence in his 31 overall assessment. 32

¶ [114] The judge was entitled to describe his assessment of what happened 33 in terms of a public execution, or as being "chillingly clinical." 34 That is what, as he was entitled to, he concluded on all the 35 evidence he heard. 36

¶ [115] We do not accept that this experienced, local judge was not 37 entitled to make the comments he did about gun crime in the 38 Cayman Islands. It was not necessary for evidence to be called. 39 This is a small jurisdiction. Judges such as Mr Justice Quin are 40 familiar with the prevalence of particular forms of crime and 41 offending. The accuracy of his comments is to some extent borne 42 out by Mr Justice Henderson's comments, to which we have 43 referred. Moreover, there is no dispute, as the appellants' 44 submissions have underlined, that the use of guns, at least in 45 cases of murder, is frequent. The concern in the Cayman Islands 46 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 30 of 52 regarding gun crime is also illustrated by the statutory 1 requirement upon the courts to impose severe, mandatory 2 sentences for the possession of firearms. 3

¶ [116] Before turning to whether the judge was entitled to add an extra 4 year for Justin Ramoon's previous conviction for possessing an 5 imitation firearm, we should summarise the facts as they were 6 found by Chief Justice Smellie when sentencing the appellant. 7 Justin Ramoon was 19. He went to the home of another person with 8 what appeared to be a gun. He pointed the gun at the head of the 9 occupant, who saw bullets in the chamber. He thought the gun was 10 loaded. There was a struggle. The gun fell to the ground with a 11 metallic sound. It was never found. That is why the offence was 12 charged as an imitation firearm. 13

¶ [117] In our judgment, having regard to the nature of the offence, the 14 judge was entitled, to treat the previous conviction as an 15 aggravating feature within the terms of paragraph 3(1) of Schedule 16 12 of the Conditional Release Prisoners Regulations 2016. 17

¶ [118] We add this. These appellants wore no disguise. They openly had 18 with them a gun. They were not unknown to at least some (if not 19 most) of those present in the area of the Globe Bar. They plainly did 20 not believe that anyone would dare to give evidence against them. 21 That says much about these appellants. It also underlines the 22 difficulty in obtaining evidence in cases such as this. 23

¶ [119] We accept, as was submitted, that 30 years' imprisonment is on any 24 assessment, a very long period. We accept too that it is important 25 not to water-down the meaning of the phrase, "exceptional in 26 nature." However, it does not seem to us that was what Mr Justice 27 Quin did. He was entitled to approach this sentencing exercise in 28 the way he did.” 29 30 31

¶ [12] I note by looking at paragraphs 111 – 115 the Court’s comments on the possession of 32 firearms. The minimum sentence in the Cayman Islands on a plea of guilty for a first 33 offender charged with possession of an unlicenced firearm is one of seven (7) years. 34 After a trial, as it was in this case, the sentence is a minimum of ten (10) years. 35 36

¶ [13] I echo from my own experience for cases I dealt with on the 23rd June 2017 in the Grand 37 Court – guns are a real problem in the Cayman Islands. Virtually every murder involves 38 one and they cause untold grief to everybody. 39 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 31 of 52

¶ [14] I will pause here to make this comment: I make reference to the Judgment of Justice 1 Quin, and the fact that his view is endorsed by the CICA: There was a significant degree 2 of planning and pre-meditation in this case. The actual murder was carried out in less 3 than ten (10) minutes – that is ten minutes from the time of the arrival of these Plaintiffs 4 to the time they departed. The murder was carried out with what was described as clinical 5 precision. It was, in truth, “a very public execution” of a most evil nature and it could be 6 described as chillingly clinical in its planning and execution. 7 8

¶ [15] Initially, by my calculation, the earliest dates of release for the defendants/Plaintiffs, 9 given their ages, would be when they are respectively 59 years of age (Justin Ramoon) 10 (being born on the 14th July 1950,) and, Osbourne Douglas, in 2049 when he would be 11 age 63 (being born in 1986). 12 13

¶ [16] Their respective ages may have a relevance when considering whether s.9 of the Bill of 14 Rights is applicable, and question of the issue of rehabilitation arises. 15 16 EVENTS LEADING TO REMOVAL 17 18

¶ [17] Justin Ramoon’s previous convictions are set out in the Combined Bundle at D37. I note 19 offences 6, 9 and 10 were quashed on appeal and brief details are at D24. Osbourne 20 Douglas’ previous convictions are at D40. I note offences 4, 6 and 9, where 9 was 21 quashed on appeal and offence number 10. The brief details are at D23. 22 23

¶ [18] Ramoon’s prison disciplinary record is at C215-216. Quite realistically the Respondents 24 accept it is not the worst. Osbourne Douglas’ is at C214. 25 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 32 of 52

¶ [19] Although Justin Ramoon denied vigorously being a member, let alone a leading light, of 1 the Central Military Killers, he has what can only be described as a somewhat 2 unfortunate tattoo on his shoulders – seen at D10. This clearly shows CMK. Any 3 alternative explanation as to why he has that tattoo has yet to be brought forward. There 4 are various reports at D3 – 5, 7 and 8. 5 6

¶ [20] In so far as Osbourne Douglas is concerned, I refer to D9, 14 and 16. Eubanks was a 7 witness at the trial. Although Osbourne Douglas denied possession of a mobile phone, 8 as set out in his disciplinary record, he did in fact plead guilty to possession of a mobile 9 phone. At A132 paragraph 27 and C542 he admitted possession of a mobile phone by 10 pleading guilty and the Respondents submit that that is a clear lie. 11 12

¶ [21] There are a number of preliminary issues relating to this case. 13 14 CLOSED MATERIAL PROCEDURE (CMP) 15 16

¶ [22] The preliminary hearings were heard by Justice Marlene Carter, Acting Judge of the 17 Grand Court. There was consideration as to whether there was the provision for CMP in 18 the Cayman Islands. There was also consideration as to whether the appropriate forum 19 was the Grand Court or the High Court of the United Kingdom. The Judgment of Justice 20 Carter is at C387. I will not, in so far as they are not relevant, and for PII issues, deal 21 with these issues. These decisions are potentially subject to appeal, and, as they have 22 already been ruled upon by a Judge of the Grand Court, it would obviously not be 23 appropriate for me to reconsider or trespass on her territory. I have only considered the 24 CMP authorities where they are relevant to an issue that I have to determine – namely 25 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 33 of 52 the Removal Order, which I will come to and, in particular, the tension between section 1 C272 paragraph 20-21 – namely the tension as whether the CMP is not available in the 2 Cayman Islands. 3 PII ISSUE 4

¶ [23] It was agreed by all parties that a special advocate should be appointed and in due course, 5 Mr. Ashley Underwood Q.C. was appointed. 6 7

¶ [24] Justice Carter ruled on the PII issue. I stress that I have not been invited to re-visit the 8 issue or view any documents at all. All I have view are some redacted documents which 9 are in the Agreed Bundle. In particular, I note C415-417. The documents over which PII 10 were claimed are at C440-C456. 11 12

¶ [25] The Open PII Judgment of Justice Carter (Actg.) is at C415 and Mr. Underwood’s 13 Skeleton Argument is at C327. I have to say I am not sure I agree with C328.3.5 or 14 C329.5. Likewise I disagree with C457.4. But I agree with C489. 15 16

¶ [26] There was a PII hearing in December 2019. 17 18 “The PII hearing took place in December 2019 and included both open and closed 19 sessions at which the Special Advocate was present. 20 … 21 This updated Closed Table was shared with the Special Advocate who carried out 22 his own further review of the judge’s orders and indicated his view of the three 23 categories of document: 24 (a) As to category in ¶5(a), that he did not intend to appeal the orders. 25 (b) As to category 5(b), that he agreed that the material had already been 26 sufficiently disclosed so as to comply with the judges’ orders. 27 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 34 of 52 (c) As to category 5(c), he had no comment other than this was a matter for 1 the judge to resolve. 2 The Court subsequently clarified its order of 19 October 2020 by a Closed Order 3 dated 27 November 2020 confirming that, save in relation to one matter, the 4 category 5(c) items had either already been sufficiently made in open evidence or 5 should not be disclosed on PII or LPP grounds. 6 The Special Advocate has since confirmed that he does not intend to appeal the 7 orders made on 27 November 2020”1 8 9

¶ [27] A further schedule of documents is at C471 – 488. 10 11

¶ [28] The resulting order of Carter J Actg. is at C492. That was approved by all parties (C494) 12 and reiterated at C498. Those are the issues that are before the court as agreed by all 13 parties. 14 15

¶ [29] The Governor’s position is mentioned C364 and also discussion on the up-to-date 16 position in respect of the return of both Applicants to the Cayman Islands. Discussion 17 on that is at C500, C501 and C502 - paragraphs 5.5 to 7.4 as follows: 18 19

¶ [5] In May 2020 I was asked to consider the possible transfer of another 20 prisoner to the United Kingdom. At this time I therefore had to 21 consider in detail the circumstances at Northward Prison. I was 22 satisfied that the prison remained unable to safely and securely 23 accommodate Category A prisoners that continue to pose a risk to 24 national security. Since May 2020 my regular briefings have indicated 25 no changes which would alter my view in this regard. 26 1 Paragraph 3 on page 468, paragraph 6 on 469 and paragraphs 8 and 9 on C470 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 35 of 52

¶ [6] In the meantime I am satisfied that reasonable and proportionate steps 1 have been, and continue to be taken, to facilitate the Plaintiffs' contact 2 with their families having regard to the risk posed by the Plaintiffs, 3 including the risk they pose of continuing their criminal activities and 4 to the security and discipline of Northward prison if they were 5 returned; the nature of the security at Northward Prison; and the fact 6 there are no other establishments where they can be securely detained 7 that would allow them any greater contact with their families. 8

¶ [7] The HMCIPS has obtained information from the UK Prison Service 9 and informed me that contact between the Plaintiffs and their family 10 has occurred as follows: 11 7.1. In September/October 2019 six members of the Plaintiffs' 12 family travelled to the UK and visited the Plaintiffs over 13 a period of two weeks. The cost of this trip of 14 approximately KYD$25,000 was met by the Cayman 15 Islands Government; 16 7.2. HMCIPS has an agreement in place that it will finance 17 the cost of family visits to the Plaintiffs in the UK on a 18 once per annum basis. Unfortunately due to Covid-19 19 family visits were not possible in 2020. In addition to 20 travel restrictions, UK prisons also have visiting 21 restrictions in place to reduce the spread of Covid-19; 22 7.3. Mr. Ramoon is currently at HMP Frankland. Since 1 23 September 2020 Mr. Ramoon has had approximately 933 24 telephone calls with friends and family, including 278 25 calls to his mother, 113 calls to his brother Matio 26 Ramoon, 75 calls to his father and 60 calls to his partner. 27 In addition Mr. Ramoon has had three virtual (video 28 platform) visits with his partner, and sent and received 29 various letters. 30 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 36 of 52 7.4. Mr. Douglas is currently at HMP Long Lartin. I am 1 currently awaiting an update from the UK Prison Service 2 of the family contacts that Mr. Douglas has had which I 3 will ensure is provided to the Court as soon as it is 4 available.” 5 6

¶ [30] The Discussion also continues at C504 paragraphs 3.2-3.4 and C 505 3.6 – 3.7 as set out 7 below: 8 “3.2. Mr. Douglas states that he is now in a relationship with Nina White. Ms. 9 White was employed by HMCIPS until 2017. There are serious concerns 10 about Ms. White and Mr. Douglas' relationship. It would appear that 11 contact between Ms. White and Mr. Douglas began while they were both 12 still in the Cayman Islands. Many of the staff and prisoners currently 13 within Northward would have been in Northward when Mr. Douglas and 14 Ms. White were here. Ms. White would have had access to 15 personal/private information about her clients (prisoners) and 16 potentially staff. There is a concern that she may share this information 17 with Mr. Douglas. 18 3.3. Mr. Douglas states that he has not been offered any professional help in 19 relation to his mental health. Mental health services at Long Lartin 20 include a wide range of mental health support services provided by the 21 NHS. I am advised that Mr. Douglas has not been assessed as needing 22 those services and nor has he self-referred to them; however he does 23 have a dedicated Offender Case Manager. 24 3.4. Both Mr. Ramoon and Mr. Douglas complain of a lack of funds for 25 telephone calls. Ms. White has deposited a total of over £ 10,000 into the 26 accounts of Mr. Douglas, Mr. Ramoon and 4 other prisoners. As recently 27 as 8 March 2021 Ms. White placed £50 into the account of Mr. Douglas. 28 Between 1 September 2020 and 1March2021 Mr. Ramoon made 255 29 telephone calls to a UK number used by Ms. White indicating that she is 30 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 37 of 52 also providing Mr. Ramoon with support. Mr. Ramoon currently has 1 approximately £380 in his prison cash account. 2 …. 3 3.6. Despite restrictions due to Covid-19, both HMP Long Lartin and HMP 4 Frankland allow access to phone calls and virtual visits. This is consistent 5 with the Covid-19 arrangements that were in place at Northward until 6 March 2021 when the restrictions on visiting were relaxed in line with the 7 public risk profile in the Cayman Islands. HMCIPS worked in partnership 8 with Public Health England and the UK Ministry of Justice to create a 9 Covid-19 Pandemic Plans to ensure consistency across many of the 10 Overseas Territories. 11 3.7. It is stated that if Mr. Ramoon were in Northward he would have weekly 12 visits and daily telephone calls with his family. Prisoners in Cayman do have 13 access to visits on a weekly basis and can use the phone daily. The use of 14 daily calls is not unique to Cayman and it is understood that Mr. Douglas 15 and Mr. Ramoon have the same or better access to phones and 16 remote/virtual visits as they would have here. Despite Mr. Ramoon stating 17 that he would have weekly visits, whilst the Plaintiffs were in Northward 18 their respective visits for the 18 month period 1 January 2016 to 1 June 19 2017 were as follows: 20 3.7.1. Mr. Ramoon had 24 visits (average 1.3 visits per month); and 21 3.7.2. Mr. Douglas had 13 visits (average 0.7 visits per month). 22 These figures indicate that the Plaintiffs were not having weekly visits with 23 family even when they were in the Cayman Islands.” 24 25

¶ [31] Carter J’s Judgment goes on at C420 as follows: 26 27 28 29 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 38 of 52 “THE RESPONDENTS’ ARGUMENTS 1

¶ [12] The Respondents submit that in the first instance, the documents which are 2 relevant and prima facie disclosable are those documents which have been 3 relied upon by the decision maker, which may undermine the Respondents’ case 4 or support the Plaintiffs’ case and are necessary for disposing fairly of the cause 5 or matter. The Respondents argue that the further limitation on the duty of 6 candour is determined by the fact that the decision maker is required to provide 7 full and accurate explanations of the facts relevant to the issue to be decided, 8 that the duty becomes one of explaining the reasoning behind the decision by 9 way of affidavit and that any underlying material is disclosed only if reasonably 10 required, significant to the decision or referred to by the decision maker’s 11 affidavit. 12

¶ [13] The Respondents submit that the Court should be mindful that because its role 13 in reviewing the decision of the public authority is to determine whether the 14 decision was rational, fair and proportionate and not to substitute its own view 15 on the facts, the Court is not required to find facts and therefore does not need 16 to have all underlying evidence upon which the decision maker made his 17 decision in order to decide whether he acted lawfully; that the extent of 18 disclosure was to be conditioned by the nature of the decision being reviewed 19 as well as the context in which the decision was made. 20

¶ [14] The Respondents went further to state that even in Bill of Rights cases, 21 disclosure was still to be limited to issues which require it in the interests of 22 justice and that the degree of such disclosure must be determined by the nature 23 of the right engaged and the gravity of the interference with that right. The 24 Respondents put this submission in the following way: 25 “Greater disclosure may be required in cases 26 engaging unqualified rights such as the prohibition on 27 torture (s 3) and more fundament rights such as the 28 right to liberty s 5 or the right to a fair trial in its 29 criminal aspect (s 7). Less disclosure will be required 30 in cases involving interference with rights that are not 31 of such a fundamental nature such as 7 in its civil 32 aspect or qualified rights like s 9 (private and family 33 life), when disclosure or even a ‘gist’ of the decision- 34 makers’ reasons may not be necessary, let alone 35 disclosure of the underlying documents.” 36 37

¶ [15] The Respondents also argue that the material that is both relevant to matters in 38 issue and necessary to dispose fairly of the proceedings has been disclosed 39 pursuant to O.24 r.3 and r. 14 and are in the Plaintiffs’ possession. 40

¶ [16] … 41

¶ [17] … 42

¶ [18] Disclosure of documentation in a Bill of Rights case should be determined by 43 the nature of the right engaged and the degree of interference alleged tempered 44 by the width of the decision-maker’s discretionary area of judgment. The 45 Respondents in effect submit that the nature of the rights that the Plaintiffs allege 46 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 39 of 52 has been engaged is not of such a fundamental nature to require greater 1 disclosure than in any other judicial review matter and that in such cases even 2 disclosure of a gist of the material may not be necessary. “ 3 4

¶ [32] At C422 the Plaintiffs’ case is set out at paragraphs 20-22 E of Carter J’s judgment as 5 follows: 6 “20. For the Plaintiffs the importance of the issues in this case 7 where the applications for Judicial Review are focused on 8 the Bill of Rights was of great relevance. Counsel for the 9 Plaintiffs referred to s.7(1) and s.26 of the Bill of Rights, 10 emphasizing that these constitutional provisions support 11 the view that the interests of justice are particularly 12 powerful in this case where it is alleged that constitutional 13 rights have been violated unfairly. The Plaintiffs allege 14 that the following rights are being infringed: 15

¶ [1] The rights enjoyed by prisoners under section 6. 16

¶ [2] The right to a fair trial protected by section 7. 17

¶ [3] The right to private life protected by section 9. 18

¶ [4] The rights of children protected by section 17. 19

¶ [5] The right to lawful administrative decision making 20 protected by section 19. 21

¶ [21] In particular Counsel for the Plaintiffs pointed to the right 22 to have proceedings under s.26(1) determined. He 23 submitted that this implied that “PII should rarely or never 24 be upheld if that causes a matter to become un-triable or 25 only triable through a fair process. Such a conclusion 26 would be contrary to the express duty imposed by section 27 26 to determine proceedings.”2 28 29

¶ [22] On the matter of how the Court should consider the public 30 interest in favour of maintaining confidentiality against the 31 Plaintiffs’ arguments, the following submissions were 32 made: 33 a. That the Respondents’ apparent reliance on national 34 security should be viewed with care because if an 35 unjustified claim to be entitled to rely on national 36 security may suggest an excessively cautious approach 37 to PII. 38 b. That the justification put forward for PII assumes what 39 is in dispute: that the Plaintiffs pose a risk that cannot 40 be managed by the Cayman Islands’ Prison Service 41 2 Plaintiffs’ skeleton submissions ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 40 of 52 and other public authorities. That risk is not accepted 1 and may need to be determined at trial. 2 c. That sufficient disclosure is required to enable the 3 Court to assess the Respondents’ justification fairly 4 especially in light of the express obligation in section 5 26 to a fair procedure. 6 d. That it may be possible to gist materials (particularly 7 with the assistance of a SA). However, even with 8 gisting, disclosure of significant details is likely to be 9 required, particularly if it is concluded that there is no 10 jurisdiction to order a CMP. On this point the court 11 was referred in particular to Tariq v Secretary of State3 12 and IR v United Kingdom. 13 e. That ultimately the Court must determine for itself 14 whether the interference challenged is proportionate. 15 When determining that issue, proceedings must be 16 adversarial and for this reason there must be sufficient 17 disclosure to enable the Court to assess the justification 18 in circumstances in which the Plaintiffs are able to 19 make a proper challenge.4” 20 21

¶ [33] The Special Advocate’s position is set out at C425 at paragraph 30. 22 23

¶ [34] The relevant portions of Carter J’s Judgment are as follows: 24 “35. This court has carefully considered the underlying sensitive materials in 25 order to determine their relevance to the Plaintiffs’ case and whether the 26 nature of the challenge to the Governor’s decisions outweighs the national 27 security concerns advanced by the Respondents who in any event submit 28 that these documents are prima facie non-disclosable as being documents 29 which was generated since the Plaintiff’s detention in the UK. 30

¶ [40] As stated above, the Respondents submit that all of the documents which 31 are prima facie disclosable, bar those already disclosed to the Plaintiffs, 32 should be withheld from disclosure. The Respondents’ claim for PII rests 33 on the following grounds: 34 (i) any facts or documents in the possession of the Governor 35 and communications between the Governor and Secretary 36 of State are prima facie privileged; 37 (ii) confidential government communications within 38 departments or the Governor’s Office and other 39 government departments should be treated as confidential 40 3 [2012] 1 AC 452 4 Miss Behavin’ Ltd v Belfast City Council [2007] 1 WLR 420. ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 41 of 52 (iii) facts or documents may be withheld on national security 1 grounds 2 (iv) any facts or documents may be withheld if disclosure would 3 risk (a) endangering life; (b) revealing some undercover or 4 other covert source of intelligence; (c) undermining the 5 prison regime; or (d) compromising an ongoing criminal 6 or intelligence investigation. 7 8 NATIONAL SECURITY 9

¶ [42] There is no issue that the first Respondent is entitled to claim that 10 there is sensitive material in this case which should be withheld 11 from the Plaintiffs as he has done by the issuance of the PII 12 Certificate. In this instance the risk to national security 13 encompassed the risk that the defendants may try to escape from 14 HMP Northward. This was the assessment of the First Respondent. 15 There is no question that a court should not seek to undermine the 16 executive’s assessment on matters such as national security because 17 it is recognized that such assessment will be based on facts for 18 which the decision maker has special knowledge or a special 19 responsibility as it relates to that area for which in this case he is 20 uniquely responsible. 21

¶ [43] … 22

¶ [44] The Special Advocate has noted that the court should consider when 23 looking at the issue of national security and PII that “Whether 24 criminality is so serious or is so narrowly directed as to amount to 25 a threat to national security will be a matter of fact and degree. But 26 it does not matter since PII is about public interest, which is not 27 restricted to national security.” 28 29

¶ [48] The Respondents point to the fact of the Plaintiffs’ criminal 30 conviction for a gang related murder and a previous conviction by 31 the Plaintiff Ramoon for possession of an imitation firearm. They 32 point to the manner in which the murder was committed as being 33 bold and in front of numerous witnesses and to the allegation 34 against the Plaintiff Douglas that he attacked Justin Ebanks, a 35 witness against the Plaintiffs at trial, while both were detained at 36 HMP Northward in September 2016. 37

¶ [58] The Court’s task at this point is to determine whether the documents 38 that have been withheld have been so withheld in the public interest, 39 that the claim for PII has been properly made.5 In so doing the 40 Court must assess the documents themselves bearing firmly in mind the 41 interests of justice which favours disclosure against the public 42 interest asserted by the Respondents in this case. 43 5 Somerville v Scottish Ministers [2007] 1 WLR 2757; Balfour v Foreign Office [1994] 1 WLR 681 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 42 of 52

¶ [59] Counsel for the parties and the Special Advocate have been 1 especially helpful with their submissions and have extensively 2 explored the many factors that this court must consider on this 3 balancing exercise. 4

¶ [65] The Respondents submit the following: 5 6 i. “The sensitivity of the underlying material is of the 7 highest order…Some of this material cannot be 8 disclosed regardless of the factors weighing in 9 favour of disclosure.” 10 ii. “There has been sufficient disclosure to put Ps on 11 notice of the reasons and evidence for R1”s 12 decision…there has been sufficient disclosure of 13 the withheld material by way of ‘gist” to enable 14 them to give effective instructions to the Special 15 Advocate if a CMP were to be held and going 16 beyond what is required by s 9.” 17 iii. “…it is not accepted that any of this material is 18 likely to provide ‘substantial support’ to Ps’ case 19 on any of the grounds [of challenge]” 20 iv. “…while Rs accept that their [Ps’] detention in the 21 UK will cause an interference to their right to 22 family life beyond what will occur if they were 23 imprisoned in the Cayman Islands it is a necessary 24 consequence of Ps’ own criminal conduct and the 25 nature of the risk that they present….R’s accept 26 that as a matter of common law natural justice 27 …Ps’ are entitled to basic procedural safeguards… 28 But these are not of such an order to justify the 29 Court ordering disclosure of material to which PII 30 would otherwise attach.” 31 v. As above at (4). 32 vi. “There are alternatives to disclosure of material to 33 which PII should attach if the Grand Court finds it 34 has no jurisdiction to order a CMP.” 35 36

¶ [78] Having now determined that this Court does not have the legislative 37 authority to order a Closed Material Procedure, and noting the 38 Court’s findings in Tariq and IR v United Kingdom, this factor 39 leads this court to find that it must lean toward greater disclosure, 40 if possible, even as it considers that PII has been claimed on the main 41 ground of national security. However, I also note the conclusions 42 of Mr. Justice Ouseley in AHK v Secretary of State [2013] EWHC 43 1426 (Admin) a case in which a CMP was found not to be available. 44 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 43 of 52 “The Claimants have been able to bring judicial review 1 proceedings in respect of the decisions. They have been able to 2 test the position by reference to the evidence which is 3 admissible by the application of the PII test, which they said 4 should be applied. The evidence relied on by the SSHD has been 5 tested to see if the PII claim was made out. The Court then has 6 to consider the claim in the light of what emerges from that 7 process.” 8

¶ [80] The court notes the Plaintiffs position that even if limited disclosure 9 is made after this PII exercise is concluded they submit the matter 10 should still proceed to trial.” 11 12 I RETURN TO EVENTS LEADING TO REMOVAL 13

¶ [35] I quote from the Agreed Bundle at C357-359 – paras 31-37 in relation to the Governor’s 14 position 15 “(a) National security 16

¶ [31] Sensitive material should be withheld to the extent that is 17 necessary to avoid an actual or potential risk to national 18 security: Duncan v Cammell Laird [1942] AC 624, 642; 19 Conway v Rimmer, 939f; 955a-b; [4/52/1516, 32] D v 20 NSPCC, 233c [4/54/1661]. In such cases, although the Court 21 is no longer bound to accept a ministerial certificate on 22 national security grounds (since Conway departed from 23 Duncan on this point), the Court should give particularly 24 significant weight to the certificate of the minister: SSv 25 Rehman, para 54; Balfour v FCO, [1994] 688g-h [2/34/688]. 26 Subject to that caveat, Rs accept that the Court should inspect 27 the documents and review the Governor’s national security 28 assessment. 29

¶ [32] The decisions taken to transfer Ps under the 1884 Act included 30 concerns that they presented a risk to national security, 31 particularly in the event of their escape. While their activities 32 could also be classed as ‘normal criminality’ (Ps’ Skeleton, 33 para 26) the Court should allow a very wide margin of 34 discretion to R1’s assessment that the risks posed by Ps are so 35 grave as to also constitute a risk to national security (SS v 36 Rehman, para 49, 53, 54 [6/71/2487]; CG v Bulgaria, para 43 37 [7/86/3081] Ps are wrong to suggest that it should be given a 38 ‘narrow’ meaning, Skeleton para 24. Accordingly, to the 39 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 44 of 52 extent that any disclosure of sensitive material risks 1 undermining the police’s duty to investigate, detect and 2 prevent serious crime, or the security of HMP Northward or 3 constitutes a real and immediate risk to third parties, that also 4 constitutes a risk to national security given the size, 5 geography and resources of the Cayman Islands and the 6 nature, scale and seriousness of Ps’ criminal activities. 7 (b) The protection, detection and investigation of crime 8

¶ [33] It has long been recognized that the identity of police 9 informants and other police investigation methods are to be 10 kept secret: Whittaker, 385, li. 25, [1/25/423]; citing Lord 11 Reid in Rogers v Home Secretary, 401e-f; Conway v Rimmer, 12 953g-954a [4/52/1530]; D v NSPCC [1978] AC 171, 218C-F, 13 232F-H [4/54/1646, 1660]; Carnduff v Rock, paras 33-36 14 [2/48/1388]. The Court should not order disclosure of any 15 such material unless it is sure that it will not disclose the 16 identity of an informant or other police investigative method; 17 this will mean that in principle such information should not be 18 disclosed at all: Rogers, 401f-g [8/102/3590]. 19 (c) Protection of the public 20

¶ [34] Many of the documents cannot be disclosed without putting 21 third parties at a real and immediate risk – i.e. one which is 22 objectively verified and is present and continuing - of their 23 lives. The Court is obliged not to make such disclosure or risk 24 being in breach of its duties under s 2 BOR: see A (Forced 25 Marriage), para 87-88 [2/26/452]; L, Officer, paras 19, 20, 26 21, 22 [4/58/1802]. A fortiori a precautionary approach is 27 called for in such cases: Rogers, 401f-g [8/102/3590]. 28

¶ [35] These risks to life are evident on the face of Ps’ criminal 29 conviction for the gang-related murder of Jason Powery for 30 which they are serving their sentence. There is also objective 31 and publicly available evidence that Mr. Ramoon (who fired 32 the bullet that killed Mr. Powery at his brother’s behest) has 33 also sought to kill on two other occasions; once on the 34 occasion of the murder of Jason Powery when he tried also to 35 shoot Jerome Hurlston (see CA judgment, para 3, 113 36 (C226)); the second on the occasion of his previous conviction 37 for possession of an imitation firearm (see CA judgment, para 38 116). It is also apparent from the CA’s finding at para 118 of 39 their judgment that Ps believe themselves to be above the law 40 because they committed the offence in front of numerous 41 witnesses and ‘did not believe anyone would dare to give 42 evidence against them’. 43 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 45 of 52

¶ [36] These risks are also evident from the fact that on 26 September 1 2016 Mr. Douglas attacked and injured Justin Ebanks, who 2 was a witness against Ps at their trial, while both were 3 detained at HMP Northward. Relevant information 4 concerning this assault has been disclosed to Ps (C340) 5 (d) Prison security 6

¶ [37] There is a public interest in ensuring the confidentiality of 7 information concerning prison security. Disclosure should not 8 be made to the extent that it may undermine prison security at 9 HMP Northward: McCormick, Re [2017] NIQB 65, para 37 10 [8/100/3547]. Details of the current security arrangements, 11 and their shortcomings, could be exploited by Ps (if they were 12 to be returned) and by other prisoners to whom they were able 13 to pass this information: see unredacted Affidavit (2).” 14 15 16

¶ [36] I now set out the Governor’s position, set out at C385 paras 3- 5.2: 17 “3. On the 30th September I met with Mr. Forbes, and Crown Counsel. I was 18 shown three volumes of documents and three affidavits which I understand 19 are now referred to as the “Closed” documents in this case. I was taken 20 through the contents of the Closed documents. I satisfied myself that the 21 documents could not be disclosed to the Plaintiffs as to do so would be 22 injurious to public interest or otherwise prohibited by law. 23

¶ [4] (redacted) 24

¶ [5] For the other Closed documents I satisfied myself that they needed to be 25 withheld to protect ongoing criminal investigations and/or for the 26 protection of intelligence sources and/ or the protection of life. 27 Furthermore. I considered that to disclose the documents would also be 28 a risk to national security for these reasons: 29 5.1 The basis upon which the Plaintiffs were originally transferred 30 to the United Kingdom in June 2017 (before I took up my post) 31 was that they could not be safely detained at HMP Northward 32 and that their activities presented a threat to national security. 33 That is an assessment with which I agree. Despite their 34 conviction and imprisonment the Plaintiffs had continued to 35 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 46 of 52 engage in serious criminal activity. Intelligence revealed that 1 they had. Or were seeking to obtain. high-powered automatic 2 weapons: theyꞏ had criminal associates with the knowledge and 3 propensity to use them including professional ‘hitmen’ brought 4 by boat from Jamaica; a track record of murdering and 5 attempting to murder gang rivals and witnesses and of making 6 threats of harm including to a senior prison officer. There was 7 intelligence that they exercised control other inmates and might 8 be able to influence prison officers through threats. A series of 9 tit for tat gang killings and shootings involving the Plaintiffs was 10 threatening to escalate, including an incident in which the 11 Plaintiff’s mother’s house was shot up by a rival gang using 12 automatic weapons. There was credible intelligence that they 13 were planning an escape. (redacted portion) In those 14 circumstances it is reasonable to conclude that. had the Plaintiffs 15 remained in the Cayman Islands and had continued with their 16 criminal activities on the same scale they represented an actual 17 or potential threat to the peace and security of this small island 18 nation. For example, there could have been an escape attempt 19 involving smuggling of firearms into the prison, perhaps 20 supported from outside by gang associates armed with automatic 21 weapons: or a retaliatory or other gang-related incident 22 involving theꞏ use of automatic weapons on both sides, that could 23 temporarily have overwhelmed the resources of the RCIPS and 24 led to significant loss of life. 25 5.2 Disclosure of the documents in this matter risks revealing the 26 identities of informants, police officers, witnesses. prison 27 officers, staff at the Governor’s Office, among others who have 28 been involved in the decision to transfer the Plaintiffs and in the 29 court proceedings in which they have challenged their transfer. 30 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 47 of 52 The retaliation which the Plaintiffs have exhibited towards those 1 who speak out against them as witnesses or otherwise cross them 2 in the past, and the risk that they may cause harm to anyone they 3 suspect as a source from the Closed documents, is very real. 4 (ends with redacted sentence)” 5 6

¶ [37] What appears as the “tipping point” or the “catalyst” leading to the 2 plaintiffs being 7 removed from the Cayman Islands was that there was an attack on both Applicants’ 8 mothers’ homes. It was not just an attack, the house was shot up. This is hardly a normal 9 occurrence and, it is a cowardly hallmark of gang violence. It is worth noting from the 10 Governor’s position that it is not challenged that this incident actually took place. So, 11 there the suggestion is that these Applicants are gang members, and leading gang 12 members, and, by chance, within a relatively short period of time following their arrest 13 their mothers’ house were shot up. 14 I RETURN TO THE ISSUES - C492, 494 AND 498 15

¶ [38] Where issues are in dispute – that is, the number of visits or the number of calls made to 16 these Applicants, I have given little, if any, weight to them, so as to remain proportionate. 17 What I have to look at are the effects of the remaining issues. As I have said, I will 18 consider the authorities as they are relevant to the issues that I have to decide. These, in 19 my view, are the agreed points. 20 21 i. This is the first occasion that a Special Advocate has been instructed in the 22 Cayman Islands. 23 24 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 48 of 52 ii. Overseas prisoners serving sentences in the United Kingdom have enhanced 1 rights to the use of telephones and for video calls. The normal spending 2 limits to which would apply to UK prisoners for making phone calls do not 3 apply to “overseas” prisoners. So, in effect, subject to funds and availability, 4 they can make as many calls as they wish. 5 6 iii. The Cayman government has agreed to fund a trip for six (6) members of 7 the family for them to travel and see the Plaintiffs. As I understand it, and if 8 I am wrong I apologise, that is six members of each Plaintiff’s family. All 9 ancillary costs and flights will be paid for up to a total of CI$25,000.00 per 10 year. When visits do take place in the prison establishments in the United 11 Kingdom, block bookings are made. 12 13 iv. Although visits have, regrettably, not taken place because of the Covid-19 14 pandemic, which began in late 2019, they continue in the UK prison system. 15 16 v. There has not, as at the time I first read this judgment, been a request to 17 return either Plaintiff to the Cayman Islands government under the 18 provisions of s.3 of the Colonial Prisoners’ Removal Act 1884. 19 20 vi. Conditions/Arrangements for incarceration in the UK Prison Estate are 21 justiciable in the High Court of England and Wales. As yet, there has been 22 no application apart from proceedings before Mr. Justice William Davis. 23 24 vii. Before a prisoner can be removed from the Cayman Islands to serve the 25 remainder of his/her sentence in the United Kingdom, that action has to be 26 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 49 of 52 at least considered by the Secretary of State of the Foreign Commonwealth 1 Office, the Governor of the appropriate overseas territory and the Lord 2 Chancellor of the United Kingdom6. 3 4 viii. Neither Plaintiff is the sole, let alone primary, carer, for any of their children 5 6 ix. The Issue of re-building HMP Northward in the Cayman Islands has been 7 considered and has been subject to a business case. No decisions are 8 expected to be made prior to the end of 2021 at the earliest. The Governor, 9 and this is very important to note, is responsible on behalf of Her Majesty’s 10 Government, for national security and national safety7. Whilst on the subject 11 of re-building HMP Northward, it has got to be recognised that the world is 12 still in the throes of one of the worst pandemics in history. The budget of 13 the Cayman Islands is heavily dependent on tourism – both those arriving 14 via cruise ships, spending from cruise ship visitors, as well as longer-term 15 guests staying in condominiums and hotels. The spending from the latter is 16 far more than the spending per head of cruise ship passengers. In summary, 17 the budget of the Cayman Islands must be under extreme pressure and 18 schools, Covid-19 and hospitals must take priority. The Governor is entitled 19 to make decisions, particularly those which touch and concern national 20 safety, to see how they fit into place with the Government’s other 21 responsibilities. 22 23 6 (See C53 paragraph 12) 7 See s.55 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 50 of 52

¶ [39] I return to the approach taken by Carter J Actg. to PII and I quote from C437 paragraphs 1 77-80 and C439 paragraphs 83 and 85 as follows: 2 “OUTCOMES 3

¶ [77] The Court has now heard full submissions on PII both in the open 4 session and in the closed session where the Special Advocate was 5 able to advance arguments to aid the Court’s determination. The 6 result of the Court’s deliberation and consideration of the 7 documents for which PII has been claim are attached to this 8 judgment. The Respondents maintain that the court, if it finds that 9 there is material that cannot be disclosed because of the success of 10 the PII application, should order a CMP in fairness to the Plaintiffs 11 as being the avenue through which this court can ensure that the 12 Plaintiffs have access to the documents through the use of a Special 13 Advocate. 14

¶ [78] Having now determined that this Court does not have the legislative 15 authority to order a Closed Material Procedure, and noting the 16 Court’s findings in Tariq and IR v United Kingdom, this factor 17 leads this court to find that it must lean toward greater disclosure, 18 if possible, even as it considers that PII has been claimed on the 19 main ground of national security. However, I also note the 20 conclusions of Mr. Justice Ouseley in AHK v Secretary of State 21

¶ [2013] EWHC 1426 (Admin) a case in which a CMP was found not 22 to be available. 23 “The Claimants have been able to bring judicial review 24 proceedings in respect of the decisions. They have been 25 able to test the position by reference to the evidence which 26 is admissible by the application of the PII test, which they 27 said should be applied. The evidence relied on by the SSHD 28 has been tested to see if the PII claim was made out. The 29 Court then has to consider the claim in the light of what 30 emerges from that process.” 31

¶ [79] It is clear to this court’s mind that the determination that there is 32 no Closed Material Procedure available in this case does not 33 thereby mean that this must be the overriding factor in its 34 consideration of the principles governing its discretion on a PII 35 application or that this is a factor which carries inordinate weight 36 in the balancing exercise that this court must undertake. 37

¶ [80] The court notes the Plaintiffs position that even if limited disclosure 38 is made after this PII exercise is concluded they submit the matter 39 should still proceed to trial.” 40

¶ [81] … 41 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 51 of 52

¶ [82] ….. 1

¶ [83] The risk to third parties and informants in this matter is high. This court 2 must be careful to ensure that the disclosure of the identity of persons 3 who provided information to the police of the Plaintiffs activities will 4 not result in them being harmed. The risk to those persons outweighs 5 the need for disclosure especially in those instances when, as this court 6 has concluded, the information that will be withheld as a result will not 7 advance the Plaintiffs case in any material way. These are matters the 8 disclosure of which could lead to the identity of informants. 9

¶ [84] The documents for which the Respondents claim that the protection of 10 a third party and the protection of informants have been closely 11 examined by this Court. With regard to documents 47-51, the Reports 12 of the Psychologist at HMCIPS, which contain violence risk 13 assessments of each of the Plaintiffs (47 & 48) together with emails 14 relating to reports of plans to harm other inmates at HMP Northward, 15 I am satisfied that these should not be disclosed in the public interest. 16 The Respondents submit that there was a sole psychiatrist at the time by 17 whom those reports could have been compiled and therefore disclosing 18 these reports could easily and certainly result in the identity of the 19 maker who may be at risk because of the Plaintiffs history. 20

¶ [85] While the result of the PII exercise has led to a significant number of 21 documents being withheld from disclosure, the nature of the challenge 22 brought by the Plaintiffs does lead this Court to the view that the 23 Plaintiffs should now view the further documents which are to be 24 disclosed arising from the PII exercise and they should be able to 25 proceed to trial on those matters if any where there is a realistic 26 prospect of the Court being able to decide the case. The observations 27 of the Mr. Justice Ouseley in AHK v Secretary of State [2013] EWHC 28 1426 (Admin) are pertinent in this regard and the court would ask the 29 parties to take a robust view of how the matter will now proceed. The 30 Respondents will need time to comply with the Court’s orders for 31 disclosure as per the Schedule of Documents for which PII is Sought set 32 out below, and to decide whether they will rely on any of the documents 33 for which orders for disclosure have now been made. They will have 14 34 days in which to do so.” 35 36 ________________________________________________________________________________________ Judicial Review Judgment. Douglas (Osbourne) v The Governor of the Cayman Islands and The Director of Prisons - G155/17; Ramoon (Justin) v. The Governor of the Cayman Islands, The Director of Prisons and the Attorney General of the Cayman Islands. – G164/17. Coram: Wood J Actg. Oral Judgment handed down 28th May 2021. Page 52 of 52

¶ [40] Before addressing the decisions and the authorities to which I have been referred I should 1 take into account the judgment of Mr. Justice William Davis8. 2 3

¶ [41] On the 13th January 2020 he set out the facts of the case and the Conditional Release Act 4 of the Cayman Islands – that is done at paragraphs 8, 10, 11, 16, 20 and 21. 5 6

¶ [42] It is obvious that Mr. Justice William Davis ordered a modest reduction in sentence to 7 take account “serving a very long sentence will be a hardship in addition to the mere 8 fact of the length of the sentence.” Accordingly, the Judge made the very modest 9 reduction he made. Again, by my calculation – Douglas Ramoon will be 56 years of age 10 and Osbourne Douglas will be 60. 11 12

¶ [43] Without going through the authorities, I have been able to set out the facts and the way 13 my mind has been working, and, the decision I have herein made is that I refuse any 14 relief requested by the Plaintiffs and I do not intend to stay these proceedings. 15 16 Dated this the 28th day of May 2021 17 18 Justice Michael Wood 19 Acting Judge of the Grand Court 20 21 8 [2020] EWHC 111 QB