The vast majority of the evidence supporting claims that two inmates were planning an armed jailbreak from Cayman’s prison was withheld from the men, their lawyers and the judges adjudicating their case.
Killer brothers Osbourne Douglas and Justin Ramoon were deemed a national security threat and deported to the UK to continue serving their life sentences in high-security prisons.
Both men deny the allegations against them.
They are involved in a complex, ongoing lawsuit, challenging the decision on human rights grounds.
Lawyers for the Governor’s Office, named along with the director of prisons in the case, successfully applied for much of the evidence against the men to be withheld through a Public Interest Immunity certificate.
Allowing the brothers access to the files would risk the safety of informants, hamper police investigations and endanger national security, they argued.
Current Governor, Martyn Roper, acknowledged, in an affidavit to the court, that only a tiny fraction of the evidence was being made available to the defendants, their legal team and the court.
“The withheld material compromised 185 separate documents and filled 3 lever arch files of which only a very small number have been disclosed,” he wrote.
The impasse has created an unprecedented dilemma that the Court of Appeal has sought to resolve by ruling that a Closed Material Procedure can be held in the Cayman Islands.
In an historic ruling, handed down on 27 April, the justices wrote that it would be “startling” if the court were compelled to ignore the classified evidence and potentially put the public at risk by allowing the appeal and ordering the brothers be returned to Cayman.
But they acknowledged that dismissing or ‘staying’ the appeal – with the inevitable effect that Ramoon and Douglas remain in the UK – would deny the inmates their constitutional right to challenge the decision.
Brothers deny allegations
The absence of any clear evidence presented to the court, to support claims including that the brothers planned to bring in hitmen on boats from Jamaica, potentially to aid an armed escape, has been a source of frustration for the inmates and their legal teams throughout a case which has rumbled on for almost five years.
Douglas, in a November 2019 statement for the court, complained that the allegations against him were “generalised but largely unspecified”.
He said he had been transferred from HMP Northward to London’s Belmarsh prison without warning and without being able to contact his attorneys for six weeks.
Ramoon, who was moved in similar circumstances, stated, “I have not committed any of these alleged crimes.
“I am provided with no details other than the allegations themselves. Dates, times, locations and names are not supplied to me… without any further details I am completely limited in my response.”
The brothers’ legal team has argued that the intelligence reports could be based on shaky evidence from an “informer with a grudge”.
Security risk
Lawyers for the governor and director of prisons have argued that the UK and its Overseas Territories are part of “one undivided realm” and that the 1884 Colonial Prisoners Removal Act enables them to move inmates to more secure facilities when necessary.
The Prison Papers
Police, prison and Governor’s Office officials – whose anonymous testimony was released in open court – argued that furnishing the brothers with details of the allegations against them was, in itself, a national security risk.
Roper summed up the position in his own statement to the court in support of a Public Interest Immunity certificate, which provides exemption from the normal rules of disclosure required in court proceedings.
The governor said he was satisfied that releasing the evidence would be “injurious to the public interest”.
He added, “Disclosure of the documents in this matter risks revealing the identities of informants, police officers, witnesses, prison officers, staff at the Governor’s Office, among others, who have been involved in the decision to transfer the plaintiffs and in the court proceedings in which they have challenged their transfer.”
A senior police official made a further submission, insisting the evidence could not be revealed and arguing that even redacted intelligence reports from anonymous sources could place informants at risk.
An unprecedented dilemma
After lengthy preliminary legal skirmishes, a closed-court hearing was held in front of Justice Marlene Carter.
A Special Advocate – a QC from the UK – was allowed access to some of the secret files, as part of that process.
After hearing legal argument, Carter largely upheld the application to withhold classified evidence.
The decision has left the court in a challenging and unprecedented predicament – how to fairly assess the validity of the decision to transfer the inmates without access to the bulk of the information on which the decision was based.
In a skeleton argument to the Grand Court in April last year, lawyers for the governor acknowledged this dilemma, citing it as an issue which “arises for the first time in the Cayman Islands”.
They accepted, in written submissions, “that the court does not have available to it relevant information that was before the decision maker”.
Closed-door trial
The Court of Appeal’s decision late last month overturned an earlier judgment from Carter, who initially ruled that a Closed Material Procedure – a type of behind-closed-doors hearing used for terrorist proceedings in the UK – could not be held in Cayman.
Justice Sir Alan Moses, in a written judgment on behalf of the three-person appeals panel, also including Sir Richard Field and Sir Michael Birt, ruled that such hearings are permitted in Cayman despite the lack of explicit enabling legislation.
That means the brothers’ judicial review case appealing the transfer, can now be reconsidered by a judge, with access to the full evidence, in closed session. Neither the inmates themselves nor their lawyers will be able to be present at that session.
The justices acknowledged this option was not ideal, despite offering a seemingly “expedient solution” to the challenge of settling a case which relies on material that can’t be disclosed.
Much of the appeal focussed on the question of the how the court could “exercise its obligation to review the decisions of the governor when it was not permitted to examine the vast majority of the material on which those decisions were based”, Moses wrote.
Citing case precedent, the justices acknowledged the view that closed material procedures involved “so fundamental a breach of the rules of open and natural justice in the conduct of litigation that it should not be permitted unless Parliament has authorised it”.
Despite those concerns, the judgment indicated that this approach is legal and necessary in the circumstances.
“Although I have been concerned as to whether this court would be opening the door too wide, this case is concerned with decisions, which, it is accepted, interfere with important rights concerning the prisoners’ ability to retain some form of family ties,” Moses wrote.
“Those decisions must therefore be justified and proportionate… No judicial review of the Governor’s decision could be considered effective and just, unless the court considers the justification and proportionality of the decisions on the same basis and on the same information as that which was considered by the Governor.”
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