Court mistakes led to access failure in JR case
(CNS): Following an independent review into why documents in a significant public interest case remained under wraps, Chief Justice Anthony Smellie has said that Justice Richard Williams had no part in preventing the publication of the papers. The documents, which related to the judicial review application by Kattina Anglin into the use of the governor’s constitutional power to impose the Civil Partnership Law, were not posted to the Judicial Administration website as a result of a mistake that was compounded by a misleading email.
CJ Smellie said the clerk of the court did not, as suggested, “reach out” to the judge and he had not given an “indication” that any documents relating to the case should not be public.
After releasing a statement last month that raised more confusion about the chain of events that left CNS, another media house and the public struggling to get access to the documents several months after the judge had given leave for the ex parte JR application to be heard, the top judge appointed an independent QC to take a closer look at what happened.
In an email sent to this media house in January, the court clerk had clearly stated that the documents were not accessible because she needed permission to publish the documents on the court website from the judge in the case and she had not received that go-ahead from him.
The statement issued on Thursday by the chief justice detailing the outcome of the fact finding mission said that the explanation given to CNS “was inadvertently misleading” and that his original statement setting out the correct position, which he had hoped would reassure the public, had left questions unanswered.
“The inconsistency of one with the other instead led to justifiable concern and some even questioned whether there might have been a deliberate attempt to suppress information,” CJ Smellie stated in the most recent statement. “Unfortunately, some have also sought to impugn the integrity of Justice Williams and of the process.”
The chief justice went on to say that it was a mistake by the clerk and not any act by the judge that led to the documents being withheld from the press and the public, despite our efforts to access them, and the administrative staff did not need the judge’s permission to put the documents online once the case was cleared.
In a long explanation, the chief justice said the issue started when, as a result of an “inadvertent oversight”, the document was not uploaded immediately onto the Register of Judgments, which led to a chain of events that compounded the incorrect belief that it was not cleared for publication when in fact it was.
“Justice Williams did not inhibit, prohibit or otherwise embargo the timely publication on the Website or otherwise access to the public of the Leave Application, the Judgment or other documents in the Cause. He made no order to that effect and understood, correctly, that no authorisation from him was necessary for such publication,” the senior judge said, adding that the clerk who responded to CNS did not, as she had told us, “reach out” to the judge about the case. “He gave no ‘indication’ to her at any time that the Application or indeed any other document was not available to the public. The press criticisms of him are unwarranted.”
But the press reports were informed by court officials. After numerous requests in person, via phone and in emails by this and other media houses, we were repeatedly told that the documents were not available as they had not received permission from the judge. In the conclusions from the inquiry, the lawyer found contemporaneous emails that indicated both Justice Williams and the chief justice had favoured press admission to the case once it was set to be heard and that it was of public interest. CNS had also noted this in our reporting when we were able to secure some of the documents in the case via other means.
But it was still not apparent to the media that, despite the judge’s belief this was an important public interest case, the press would be given access to the documents or admission to hearings. Although CNS and the Cayman Compass had sent a request to attend the first Chambers hearing for the case, listed for 16 December, we were told by the judge’s assistant the case had been adjourned administratively. At that point we were given no indication whether or not we would, once it was relisted, be allowed entry.
It is apparent from the findings of the independent review, however, that there was likely a misunderstanding based on the knock-on effect of administrative mistakes. These issues are now being addressed, the CJ indicated in his statement.
“I am now aware of weaknesses in administrative practice and they are being remedied. I am taking the necessary steps so that these unfortunate circumstances do not recur,” he said.
Colours Caribbean, the NGO that represents the interests of the LGBT Community in Cayman and the region, which is now a party to this judicial review, said they welcomed the independent review. The activists thanked the chief justice for taking their concerns seriously and said they would take a close look at the findings of the inquiry. Following the various stories on CNS regarding the missing documents, the activists had lobbied the court to address the issue.
“We are delighted the Chief Justice concluded that the inconsistencies we highlighted between the statement by the court and the statement by the Clerk of the Court ‘led to justifiable concern’. We were deeply unimpressed with the Governor’s blatant dismissal of our concerns and this outcome demonstrates that such dismissal was indeed unacceptable,” the activists added.
Meanwhile, no date has been fixed yet for the hearing and CNS will continue to monitor the court listings for a public hearing. While the case directly concerns the LGBT community because if it succeeds the recently won rights that the Civil Partnership Law afford them on the road to marriage equality will be lost. But the case has even wider implications as it addresses the circumstances under which the governor can use the significant powers he has under the constitutional provision in section 81 that allows him to make laws for the country on matters relating to external affairs.
CNS was not contacted about our efforts to find these documents by the lawyer conducting the review, who has not been named.
See the CJ’s statement and the findings of the review in the CNS Library.
- Fascinated
- Happy
- Sad
- Angry
- Bored
- Afraid
Another case of evidence being swept under the rug and nobody gets fired. What’s new pussycat………nothing.
The truth is Direct Rule is the only way to deal with these buffoons and hold them accountable, along with all the politicians who’ve laughed at and walked over the common man on this island for way too long, with uneducated women beaters holding the balance of power.
The election will change nothing.
When I worked at the Court under the Court Administrator Kevin McCormac, he was responsible for uploading to the website, or at least authorizing it, and he diligently ensured that this was done.
McCormac was also very press friendly and was available to the media to assist them ALWAYS.
The court needs administrative staff who understand media relations. This should not be up to the judges. They have enough to do.
Another thing I found in interacting with Court staff is that some are very officious — taking on the responsibility for answering for judges when they have no background, capability, or delegation of responsibility to do so.
The court needs to ensure that there is a central person who is responsible for media relations and that ALL media inquiries are directed to that person.
That is how an efficient organization works.
Otherwise, you get this crazy mix up that breeds conspiracy theories.
keep um on their toes ppl……
Can anyone explain what happened to the recent “Mr A” judgment? Why has THAT been taken down too?
Good question. Another case apparently swept under the carpet, this time concerning an incompetent lawyer generously given anonymity by the courts. Thank XXXX the judgments were circulated on social media before that happened.
Obviously because the judgment contained enough information to identify the attorney. Not sure what the case for secrecy is if the public needs to know which lawyer not to use.
Anywhere else, the self-respecting judge would fire, or discipline the scapegoat in some understandable and proportionate way, as part of the misdirection theatre. There’s a whole element of insincerity to these political charades that never holds up, beyond the superficial excuse-making.
The CJ comments are a pile of crock in my opinion.
I don’t you know what a crock is (hint, the comments are definitely not a pile of earthenware pots or jars) 🙂
The CJ attempt to explain the situation only further muddled the water.
This is typical of the legal system in this country. Lies lies and damn lies. This mealy mouth response is to ensure that two Caymanians are not fired. The administration of the court and the Legal Department is a mess and nothing is being done to improve our legal system. The 2 chief officers administer on a basis of pettiness. No one has any idea of how bad it is to work for these organisations.
My personal experience is that court staff are often either made to lie for judges are blamed for mistakes of judges. My own case Simamba v Kawaley and Myers GC 161 https://judicial.ky/court_search/ was filed on 28 October 2020. It was kept off the website for long time. It was only this year (around the time this Anglin Case became an issue and I pushed) that it was placed on the website. Also, I tried to file a default judgement against the judge but despite the fact that there had been no response from the judge on the file, the Clerk refused to register my judgement as required by the rules. The Clerk sent it to a judge and I was told the response from the judge was filed a month before. No, no, no. A judiciary has to have credibility. I have now complained to the Ombudsman and Human Rights Commission. This cannot go on!!! There are about 200 cases filed in the Grand Court every year, how can there be a mix-up like this. Someone is lying!!!
Oh wow. Just wow. I went over a few of your documents.
Jeepers, it’s exactly like they hope if they muck you around enough you’ll eventually give up!
I had my own issues with a plain (no assets besides a join bank account he drained) ol’ divorce. My “attorney” was seen having lunch with his and I ended up getting screwed. I didn’t have the money to fight it so I crawled under a rock. My only comeuppance was running into a now ‘famous’ judge at Blue Parrot (tells you how long ago it was) who advised me to go to the courthouse and file for the divorce certificate myself thereby avoiding dealing with the lawyer. I will never forget that and will always appreciate him for that. (Was glad he won his case against CIG)
I do hope you get satisfaction with your issue.
Smellie’s claim that “I am now aware of weaknesses in administrative practice” is at best, false and, at worst, a lie.
OffshoreAlert revealed nearly 3 years ago that about half of all cases filed at the Financial Services Division of the Grand Court were being sealed. Instead of owning up to the practice, the Court lied about it to the Cayman Compass by essentially claiming the OffshoreAlert article was not true (while simultaneously secretly unsealing most of the cases that it had secretly sealed).
The Court’s biggest lie was that winding up petitions were typically unsealed within a few days of being filed … a claim that had no basis in substance and that was simply plucked out of thin air.
Whether this was all at Smellie’s direction or the Chief Administrator had ‘gone rogue’ is anyone’s guess.
Smellie also claimed in his recent statement that “Open justice is a core principle” … this from a man whose Court a few years ago banned the copying of records to prevent them from being publicly aired, until the practice was exposed by OffshoreAlert, causing the Court to abandon yet another hare-brained secrecy scheme.
The administrative arm of the Grand Court is a shambles and Smellie has known about it for a long time.
Well said. I could not agree more!
CJ Smellie runs the court like his private company and I suspect the clerk was trying to be in lockstep with her boss. That has obviously backfired as Justice Williams wasn’t prepared to be the fall guy. CNS. Can you make an inquiry into the process of selecting the magistrate who heard the case involving McKeeva Bush? Was the CJ involved in selecting Mag. Gunn? And if so is this the usual process? That case from beginning to end is suspicious. The prosecutor in the case charging the 3 separate attacks on the girl as the level of common assualt makes no sense. Apart from the injuries she sustained, there were numerous aggravating features which easily warranted an ABH charge.. the first attack may have been unplanned but the subsequent attacks on the same night would have been premeditated, which would easily support the elevated charge. Plus Bush throwing metal pans at her which caused bruises on her arms plus attacking her physically and it needing 4 men to free her, these actions are clearly not common assualt charges. A slap is common assualt. The issue though it seems was to protect Bush, as being convicted of an offence which carries a sentence of beyond 12 months precludes him standing as a candidate in elections in Cayman I believe I read somewhere. Common assualt has a maximum sentence of 12 months, abh is I believe 3 or 4 years.
The prosecution knew they had to charge because it was such appalling behaviour by Bush in a public place and in the view of so many and the cameras, and that he would be convicted. The magistrate’s ruling in not giving a custodial sentence is highly questionable ie. A bit of time at northward was clearly warranted. Any other person who assaulted the same person 3 times in succession would have been given at least a couple of months in prison so as to reflect on their actions and as a deterrent to others. There should have been no suspension and the curfew thing is of no consequence… a guy his age should be in for the night after work any way. Since it was the alcohol which created the behaviour then the magistrate should have ordered attending AA for 1 year and random alcohol tests for 2 years and failure of either would cause a probation breach and he been immediately sent to serve his 2 months sentence.
Additionally, the epithets used by Bush in calling the young lady a lesbian, etc should also have attracted a charge of intentional harassment, alarm and distress; who was the prosecutor?and a judicial review of his/her performance is warranted.
It’s also contempt of court to deny his guilty pleas and three criminal convictions, plus an orchestrated illicit treating event held in Dec 26th using govt staff and resources to flier his electoral district. He has violated his non-custodial sentencing and should be remanded to HM Northward awaiting new trial for these charges. The CSPL, ACC, Elections Office, RCiPS, Judiciary, and Governor’s Office are all complicit.
So correct me if I am wrong…
The ‘judge’ did nothing wrong…
His ‘clerk’ made an error…
And ‘nobody’ will be held to account for this travesty.
Gee, I feel better (sarcasm). As I hear the sweeping of the broom to get the evidence under the rug.
Can’t be much space left under that rug by now.
Oh, a mistake…. we haven’t heard that one before
Will anything be done about the Clerk?
Yea… A promotion! At your cost!
Have we not been repeatedly told that local court cannot overturn actions on the Governor when instructions from the UK are given and any attempt to do that would be exercise in futility? Please correct me if I am wrong.
Well done Hon. Chief Justice.
The clerk of the court should be removed. How many “mistakes” will she be permitted to make? Are we not supposed to have a sophisticated 1st world judicial system?