UK conducted secret report

(CNS): During the proceedings of Justice Priya Levers’ tribunal it was revealed that another behind the scenes enquiry of the local judiciary had taken place that had not been revealed to the public. Although the full details were not disclosed, it became apparent that Dale Simon (left), head of the Office for Judicial Complaints (OJC) in the UK, had visited the Cayman Islands in June 2008 to conduct a report.

According to Stanley Brodie QC, who was representing Levers, the report, which he described as fairly lengthy along with an addendum, was contained in the evidence before the tribunal and was sent to Governor Stuart Jack on 5 June 2008. No details of the main report, why the report was instigated or how long Simons had been in Cayman making her investigations were revealed. Nor was any light thrown on whether the enquiry was initiated as a result of the Justice Levers case (although her case was mentioned in the addendum), or as a result of the Special Police Investigation Team, which had also been looking into the judiciary as revealed during the Justice Alex Henderson Judicial Review.

According to the OJC website, the office was set up on the 3 April 2006 to handle complaints about the personal conduct of all judicial office holders in England and Wales and some who sit on tribunals in Scotland and Northern Ireland. It provides advice and assistance to the Lord Chancellor and Lord Chief Justice in the performance of their joint role, but the website does not indicate if the office has jurisdiction in Overseas Territories.

Although the site holds various reports and statements regarding enquiries made in the UK, the report that Simons allegedly conducted in Cayman does not appear. Brodie, however, did read part of the addendum to Simon’s main report during the proceedings and included some of her findings in his final submissions. He noted that she had found an absence of alternative public accountability for the judiciary in Cayman other than removal.

“The constitution of the Cayman Islands provides for one disciplinary sanction arising from the misbehaviour of a judge, and that is removal," Brodie read from her report on Monday, 18 May. "Consideration of removal will necessarily only arise in the most extreme cases of prolonged misbehaviour.  Therefore judges cannot currently be held to account for misbehaviour that does not raise the question of removal but nonetheless adversely impacts on public confidence in the judiciary in the Cayman Islands.”

She noted in the addendum that the chief justice has responsibility for the judiciary but he has no power to ensure that judges act appropriately, though judges normally respect the view of the chief justice. Continuing to read from her report, Brodie revealed that Simons had reported that in most cases a word from the chief justice will be sufficient to address any areas of concern and prevent further misbehaviour.

He said she had recommend that, in view of the size of the judiciary in the Cayman Islands, there was no need for a wholesale adoption of discipline procedures currently in force in England and Wales, but that there was an urgent need for the introduction of disciplinary rules and provision for the imposition of disciplinary sanctions below the level of removal. 

“In my opinion this step is necessary to address inappropriate behaviour at an early stage and thereby ensure that the judiciary commands the continued respect of the public,” Simon reported. “The formal disciplinary sanctions short of removal that are available to the Lord Chancellor, the Lord Chief Justice in England and Wales can advise, formal warning or reprimand.  Advice is usually issued where a judicial office holder engaged in ill advised behaviour, but the impact on his or her judicial office is minimal.”  The report explained that formal warnings are issued for more serious incidents of misbehaviour and reprimands are issued either as a consequence of repeated minormisconduct or a single incident of serious personal misconduct.

"Repeated instances of serious personal misconduct or a single incident of gross misconduct would place a judicial office holder in jeopardy of being removed.  If a system of this nature were introduced in the Cayman Islands, I believe the Governor would be greatly assisted in any future decisions as to the appropriateness of initiating the removal procedures, as he would be able to clearly identify the scale of the judge’s offending behaviour and whether or not the behaviour was aggravated by the imposition of lesser disciplinary sanctions," Simon had found. 

Brodie used her report to highlight the fact that under the current Constitution, the only sanction that can face a judge in Cayman is removal. The Constitution states that if the governor considers that the question of removing a judge of the Grand Court from office for misbehaviour ought to be investigated then he shall appoint a tribunal, which shall consist of a chairman and not less than two other members selected by the governor from among persons who hold or have held high judicial office; the tribunal shall inquire into the matter and report on the facts thereof to the governor and advise the governor whether he should request that the question of the removal of that judge should be referred by Her Majesty to the Judicial Committee; and if the tribunal so advises, the governor shall request that the question should be referred accordingly.