1.
The Board has been asked to advise Her Majesty whether Madam Justice
Levers ("Levers J") should be removed from her office as a Judge of the Grand
Court of the Cayman Islands on the ground of inability to perform that office
or of misbehaviour.
2.
Subsections (2) and (4) of section 49J of the Cayman Islands
(Constitution) Order 1972 ("the Constitution") provide as follows:
"(2) A judge of the Grand Court may be removed from office only for inability to discharge the functions of his
office (whether arising from infirmity of body or mind or any other cause) or
for misbehaviour…
(4) If the Governor considers that
the question of removing a judge of the Grand Court from office for inability
as aforesaid or for misbehaviour ought to be investigated then -
(a) the Governor 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.
(b) 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;"
By instruments of
appointment dated 25 September 2008 His Excellency Stuart Jack CVO, Governor of
the Cayman Islands ("the Governor") recited that pursuant to section 49J(4) of
the Constitution he had deemed it advisable to appoint a tribunal ("the
Tribunal"):
"to inquire into the question of
removing Madam Justice Levers, Judge of the Grand Court from Office for
inability to discharge the functions of her Office (whether arising from
infirmity of body or mind or any other cause) or for misbehaviour and therefore
to investigate and inquire into any and all allegations of inability or
misbehaviour against the said Judge and matters connected with and relating
thereto and to report to me on the facts thereof."
The Governor
appointed as members of the Tribunal the Rt Hon Sir Andrew Leggatt (Chairman),
the Rt Hon Sir Philip Otton and the Hon Sir David Simmons. Sir Andrew and Sir
Philip have served as members of the Court of Appeal of England and Wales and Sir David is the Chief Justice of Barbados.
3.
In a lengthy report dated 12 August 2009 ("the Report") the Tribunal
advised the Governor to request that the question of the removal of Levers J be
referred by Her Majesty to the Judicial Committee of the Privy Council. The Tribunal
expressed the view in strong terms that Levers J had been guilty of
misbehaviour that justified her removal from office.
4.
Mr Stanley Brodie QC, who appeared for Levers J both before the Tribunal
and before the Board, challenged the Tribunal's conclusions and submitted that
it had exceeded its proper function in expressing them. He further submitted
that aspects of the procedure followed, both before and after the appointment
of the Tribunal, infringed principles of natural justice required under public
law. He submitted that the Board should find that this invalidated the
Tribunal's Report and, inferentially, that the Board should not base a
recommendation for the removal of Levers J upon the Tribunal's findings. These
submissions make it necessary to give a summary of the events leading up to the
appointment of the Tribunal.
Events preceding the appointment of the Tribunal.
5.
Levers J was born in Sri Lanka but educated in England where, in 1967, she was called to the bar. She practised in Sri Lanka, in England and subsequently in Bermuda. In 1977 she married a Jamaican and moved to Jamaica, where she practised for the next 27 years. In 2002 she was invited to sit as an
additional judge of the Grand Court and in the following year she applied
successfully for a permanent appointment to that court. She bought a house in Grand Cayman with the intention of making it her permanent home.
6.
In 2005 Levers J suffered kidney failure and was obliged to have regular
dialysis, pending a successful kidney transplant. She has expressly instructed
her counsel that her illness should not be advanced by way of explanation or
mitigation of her conduct at any stage of the story. Those instructions have
been respected. It follows that the Board has been unable to explore whether
her illness, and her dedication to her work during it, may have provided some
explanation for the notable discrepancy between the high regard in which she
was held by many and the incidents which have led to these proceedings (see
paragraph 51 below).
7.
Levers J had been encouraged to apply for a seat on the Grand Court by Anthony Smellie, the Chief Justice of the Cayman Islands ("the Chief
Justice"). For the next four years they maintained a relationship that was
harmonious, both on a professional and a social basis.
8.
Then in March 2007 the Chief Justice was approached by Karen Myren, a
Canadian court reporter with a complaint about the manner in which Levers J
conducted criminal trials. She alleged, among other matters, that Levers J had
a practice of issuing arrest warrants against jurors who failed to attend
court, regardless of the circumstances. At the request of the Chief Justice Ms
Myren prepared a bundle of transcripts as illustrations of the conduct of which
she had complained. She provided these under cover of a memorandum dated 23 March 2007. This alleged that Levers J demonstrated bias against women and in favour of
male defendants.
9.
At about this time the Chief Justice received separate complaints from
two unsuccessful women litigants in relation to the manner in which they had
been treated by Levers J in family proceedings. The complainants were Ms. R and
Ms. C.
10.
Over the next two months the Chief Justice considered a number of
transcripts of trials over which Levers J had presided. Based in part on these
he prepared a schedule of 17 incidents, with his own comments in relation to
some of these. These comments suggested that the incidents demonstrated summary
arrest of jurors, discourtesy to counsel, unfavourable treatment of female
complainants, lack of sensitivity and injudicious use of language and criticism
of fellow judges. He sent the schedule and the transcripts to Levers J under
cover of a memorandum dated 24 May 2007. This began as follows:
"It is with great regret that I am
compelled to write this, but I may no longer ignore what has become a
ground-swell of concerns and complaints.
The most recent is that of Ms. C,
which is enclosed. That of Ms. R, is also enclosed and has been sent also to
the Complaints Commissioner. Both complaints speak for themselves.
Enclosed further are several
transcripts of proceedings before the Court. I called for them to consider the
myriad other complaints which have been received.
Having read and considered the
transcripts, the breakdown which I have done of what they disclose (enclosed)
explains the nature of the concerns as they occur to my mind. On reflection, I
believe you will accept that they disclose a judicial attitude which is not to
be expected from any experienced and compassionate judge. Taken in its worse
light, some of this material reveals a mind set which may be criticised for
being biased against persons because of their ethnicity or other circumstances
and so may even bring into question fitness to hold high judicial office.
After you will have had the
opportunity to consider the material, we must discuss the matter having regard
to the concerns as I have sought to identify them."
The letter went on
to instruct that the summary arrest of jurors had to cease. The Chief Justice
accepted before the Tribunal that the references in this letter to "a
ground-swell of concerns and complaints" and "the myriad other complaints" overstated
the position.
11.
Levers J was surprised and distressed to receive this memorandum, the
more so as the Chief Justice had in March recommended that her tenure of office
be extended for a further five years. Levers J consulted a leading member of
the bar in the Cayman Islands, who advised her that she should make a detailed
response to the memorandum. This she did by a memorandum dated 4 June 2007. In relation to almost all the incidents she denied that her conduct was open
to criticism. In her witness statement of 13 February 2009 she described her response as:
"a balanced, fair and forthright
refutation of the serious allegations that the Chief Justice had made against
me."
She ended her memorandum:
"In view of the contents of this
memorandum, I believe you will agree that the very damaging words ‘and so may
even bring into question fitness to hold high judicial office' can no longer
stand and trust that it will be removed and expunged from my personnel file."
12.
The Chief Justice responded with a lengthy email the next day, June 5.
This accepted Levers J's explanation in respect of two of the incidents, but added:
"I would be better assured to know
that you have fully considered and appropriately resolved in your own mind, all
the concerns in the round."
As to the comment on her fitness to hold high judicial
office, he explained
"These words were intended to be
descriptive of the nature of all the concerns raised, taken as a whole, and in
the event they were to be substantiated. I have neither formed nor expressed
any such view myself and indeed no such view could properly be formed without
proper and full enquiry. No such enquiry has taken place. Indeed, because after
very careful consideration I decided that matters had yet not reached the stage
of requiring that kind of formal treatment and anxious to prevent it, I took
the course of referring the matters to you, on the entirely confidential and
collegiate basis on which I did; even while seeking to make plain the
seriousness with which I consider the matters must be regarded."
On 24 August 2007 the Governor, on the recommendation of
the Chief Justice, appointed Levers J as acting Chief Justice during 28 August
– 16 September 2007 when he was absent from the Caymans.
13.
Between June 2007 and April 2008 there were a number of events that led
the Chief Justice to conclude that Levers J's conduct continued to be cause for
criticism, and these led him to send a private memorandum to the Governor dated
28 April 2008. This started by stating that with regret he felt compelled to
bring to the Governor's attention concerns about the behaviour of Levers J. He
enclosed copies of the exchanges between them, to which the Board has just
referred. He also referred to some significant matters of concern that he had
not yet raised with her. These included a letter of complaint to him dated 11
October 2007 from Mrs. E in respect of comments made about her in a divorce
hearing and a complaint from Ms Elisabeth Lees, Crown Counsel, about Levers J's
conduct of the trial of R v Dilbert. The Chief Justice added:
"I have very good reason to believe
as well that Justice Levers has a direct hand in the dissension which is now
self-evident within the ranks of the Judicial Administration and which has
already presented itself to you in the form of a petition."
This referred to a petition of complaint about pay and
appointments sent to the Governor by members of the court staff on 21 February 2008.
14.
The Governor referred the matters that had been placed before him by the
Chief Justice to Ms Dale Simon, the Head of the Office of Judicial Complaints
for England and Wales, seeking her advice. The Chief Justice was also in direct
contact with Ms Simon. On 28 May he sent her a number of additional transcripts
of court hearings over which Levers J had presided. Ms Simon reported to the
Governor on 5 June 2008. She summarised the material that she had considered
and advised that, taken as a whole, this provided a wealth of evidence that
suggested serious misbehaviour on the part of Levers J that justified the
appointment of a tribunal to investigate whether it would be appropriate to
remove her. She added that Levers J had not had the opportunity to comment on
all the matters alleged and observed that the principles of natural justice
suggested that she should be given the opportunity to comment on the complaints
made against her before the final decision whether or not to appoint a tribunal
of investigation was taken. She added that the Chief Justice was of the very
strong opinion that the Governor should make the decision to appoint a tribunal
and immediately suspend Levers J before giving her a chance to comment on the
matters that the Governor wished the tribunal to consider.
15.
The Governor then instructed counsel, Mr Benjamin Aina, who, on 12 July
2008, produced a detailed case summary of complaints about Levers J between May
2006 and April 2008. These included matters that the Chief Justice had placed
before the Governor after he had consulted Dale Simon, some of which were set
out in a document headed "Complaints: Judicial Misconduct" dated 27 May 2008.
16.
Mr Aina summarised the position as he saw it as follows. Levers J had
failed to heed the advice of the Chief Justice and had been unable or unwilling
to modify her behaviour. The complaints when taken as a whole suggested serious
misbehaviour on the part of Levers J, but she ought to be given an opportunity
to comment on the matters in the case summary before the Governor reached a
final decision whether or not to appoint a tribunal of investigation.
17.
The Governor took this advice. On 16 July 2008 he wrote to Levers J, enclosing the case summary and accompanying documents and inviting her to
respond within 14 days, before he made a decision whether or not to appoint a
tribunal of investigation. On 23 July the Chief Justice wrote to Levers J
confirming a discussion with her under which they had agreed that she would be
relieved of sitting duties for a maximum of 28 days to allow her time to
respond to the case summary and the Governor time to consider what action to
take in the light of her response.
18.
On 8 August 2008 Levers J submitted a detailed response to the case
statement, contending that no case of misbehaviour was made out. This was dated
7 August and had been prepared by James Eadie QC.
19.
On 13 August 2008 Mr Aina produced for the Governor an amended case
summary. This incorporated Levers J's response to the original case summary. It
also included references to three further complaints about Levers J.
20.
On 12 September 2008 the Governor wrote to Levers J, giving her notice
that he had decided to refer her conduct to a tribunal pursuant to section 49(J)(4)
of the Constitution. He referred to Levers J's response of 7 August and
commented:
"I have considered the matters
contained in your response with care. I have also revisited the allegations
contained in the case summary dated 12 July 2008. I regret that I have reached
the decision that the matters contained in the case summary dated 12 July raise
allegations of misbehaviour on your part which ought to be investigated."
The Governor informed Levers J that he had decided to
suspend her from performing her judicial functions pursuant to section 49(J)(6)
of the Constitution. He enclosed the amended case summary and informed her that
this contained a summary of the allegations which he would be requesting the tribunal
to investigate.
The public law challenges
The conduct of the Chief Justice
21.
Mr Brodie submitted that the Chief Justice was in breach of the
requirements of natural justice in two respects. Firstly he failed to allow Levers
J the opportunity to respond to some of the criticisms against her before, by
sending the memorandum of 28 April 2008, he initiated the process that led to
the appointment of the Tribunal. Secondly he thereafter improperly sought to
influence the Governor's decision to appoint the Tribunal.
22.
Mr Brodie founded the first criticism on the decision of the Privy
Council in Rees v Crane [1994] 2 AC 173. That appeal involved judicial
review proceedings commenced by a judge of the High Court of Trinidad. He had
been suspended from sitting by the Chief Justice of Trinidad and Tobago and investigated
by the Judicial and Legal Service Commission, which had recommended to the
President that the question of removing the judge from office should be
investigated, whereupon the President appointed a tribunal to consider that
matter. The Privy Council, upholding the Court of Appeal, held that the Chief
Justice had acted beyond his powers in suspending the judge. The Board further
held that the Commission had been in breach of a duty to treat the judge fairly
in that it had failed to inform him of the allegations made against him and to
give him a chance to answer them, before recommending the appointment of a tribunal.
This breach of natural justice had both invalidated the Commission's recommendation
that a tribunal should be appointed and the consequent appointment of the tribunal.
23.
Mr Brodie submitted that the position of the Chief Justice fell to be
compared with that of the Commission in Rees v Crane. Each had initiated
the process that led to the appointment of the Tribunal, in the case of Rees
v Crane by the President; in the present case by the Governor. The Chief
Justice was in a special position and had acted in an official capacity in
initiating the proceedings against Levers J. Mr Brodie derived support for this
last submission from correspondence disclosed in the course of the hearing
before the Board. On 17 September 2008 the Chief Justice sent an email to the
Governor commenting on his choice of counsel for the hearing before the
Tribunal. The Governor replied:
"Given your position as a
complainant, potential victim/witness in this matter I suggest that you should
distance yourself including from such issues as the choice of QC…"
The Chief Justice responded saying that the Governor's
characterisation of his position was misconceived:
"As Chief Justice I have
responsibility for and management of all matters in Judicature. See section 49I(1)
of the Constitution as read with section 4 of the Grand Court Law. It was in
that capacity that I at first sought to advise Justice Levers about her conduct
and it was in that capacity that I later became obliged to bring the matter to
your attention. In other words, acting in the due process of my legal and
Constitutional responsibilities as Chief Justice."
24.
Mr Brodie sought to buttress his argument by submitting that the terms
of the Chief Justice's email of June 5 2007 had given rise to a legitimate
expectation on the part of Levers J that he would not take any further action
without first giving her the chance to deal with any additional concerns that he
had about her behaviour. Had he done so, Mr Brodie submitted that Levers J
would have been in a position to demonstrate that those additional concerns
were groundless. The Tribunal were to hold that there was no credible or cogent
evidence that Levers J was implicated in the staff petition, and it was this
belief that had weighed most strongly with him in referring Levers J's conduct
to the Governor. Two other matters that had concerned him were to be held by
the Tribunal as falling short of "serious misconduct".
25.
The provisions of section 137 of the Constitution of Trinidad and Tobago that were considered by the Privy Council in Rees v Crane were as follows:
"(1) A judge may be removed from
office only for inability to perform the functions of his office, (whether
arising from infirmity of mind or body or any other cause), or for
misbehaviour, and shall not be so removed except in accordance with the
provisions of this section. (2) A judge shall be removed from office by the
President where the question of removal of that judge has been referred by the
President to the Judicial Committee and the Judicial Committee has advised the
President that the judge ought to be removed from office for such inability or
for misbehaviour. (3) Where the Prime Minister, in the case of the Chief
Justice, or the Judicial and Legal Service Commission, in the case of a judge,
other than the Chief Justice, represents to the President that the question of
removing a judge under this section ought to be investigated, then—(a) the President
shall appoint a tribunal, which shall consist of a chairman and not less than
two other members, selected by the President, acting in accordance with the
advice of the Prime Minister in the case of the Chief Justice or the Prime
Minister after consultation with the Judicial and Legal Service Commission in
the case of a judge, from among persons who hold or have held office as a judge
of a court having unlimited jurisdiction in civil and criminal matters in some
part of the Commonwealth or a court having jurisdiction in appeals from any
such court; (b) the tribunal shall inquire into the matter and report on the
facts thereof to the President and recommend to the President whether he should
refer the question of removal of that judge from office to the Judicial
Committee; and (c) where the tribunal so recommends, the President shall refer
the question accordingly. . . ."
The Chief Justice
was ex officio a member of the Commission, although he took no part in
the meetings which led directly to the decision to appoint a tribunal.
26.
Counsel for the appellants, who included the Commission, argued that the
Commission was too remote from the decision whether or not to remove a judge to
be subject to a requirement to inform the judge of the case against him. In
giving the opinion of the Board, Lord Slynn of Hadley summarised the issue as
follows at p 189
"Their Lordships accept that section
137(3) envisages three stages, before the commission, the tribunal and the
Judicial Committee of the Privy Council, and indeed there may be a prior stage
since it is likely that complaints will have originated with or been channelled
through the Chief Justice.
It is also correct, as the
appellants contend, that in a number of cases to which they refer it has been
decided that in certain preliminary or initiating procedures there was no right
on the part of an individual to know of complaints or to be allowed to answer
them. That right may arise at a later stage and the appellants accept that a
judge being investigated has a right to know of complaints, and to have an
opportunity to deal with them, before the tribunal and before the Judicial
Committee of the Privy Council. It thus falls to be decided whether in this
case the right to be informed and to reply at a later stage dispenses with the
obligation or duty to inform at the commission stage."
27.
Commenting on this issue, the Board observed at p 192:
"Plainly in the present case there
would have been an opportunity for the respondent to answer the complaint at a
later stage before the tribunal and before the Judicial Committee. That is a
pointer in favour of the general practice but it is not conclusive. Section 137
which sets up the three-tier process is silent as to the procedure to be
followed at each stage and as a matter of interpretation is not to be construed
as necessarily excluding a right to be informed and heard at the first stage.
On the contrary its silence on procedures in the absence of other factors
indicates, or at least leaves open the possibility, that there may well be
circumstances in which fairness requires that the party whose case is to be
referred should be told and given a chance to comment. It is not a priori
sufficient to say, as the appellants in effect do, that it is accepted that the
rules of natural justice apply to the procedure as a whole but they do not have
to be followed in any individual stage. The question remains whether fairness
requires that the audi alteram partem rule be applied at the commission stage."
28.
The Board's conclusion was that there was indeed an obligation on the
Commission to inform the judge of the allegations made against him and to deal
with them – not necessarily by an oral hearing, but in whatever way was
necessary for him reasonably to make his reply – p 196. The reason was that the
decision of the Commission was bound to have adverse consequences for the
judge, even if at a later stage of the process the judge was cleared of
incapacity or misbehaviour. The Board observed at p 194:
"The fact that a representation was
made, a tribunal appointed and the respondent suspended on the basis of bodily
infirmity and misbehaviour were bound to raise suspicion or conviction that the
commission and even the President were satisfied that the charges were made
out, in a way which subsequent revocation of the suspension would not
necessarily dissipate. If the respondent had had a chance to reply to such
charges and had been given the opportunity to do so before the representation
was made this suspicion and damage to his reputation might have been avoided.
If he gave no adequate reply then the matter could have gone forward without
justifiable complaint on his part."
29.
Mr Otty QC, for the Governor, submitted that it was not correct to
compare the position of the Chief Justice in the present case with that of the
Commission in Rees v Crane. Under section 137 of the Trinidad and Tobago
Constitution the representation of the Commission that a tribunal should be
appointed was one with which the President was required to comply. Thus the
Commission was the body that took the decision whether or not to appoint a
tribunal. The Cayman Constitution gave the Chief Justice no specific role in
the process of the removal of a judge. Consideration by the Governor of whether
or not to appoint a Tribunal was the first stage of the process laid down by
the Constitution. Thus it was the Governor in the Cayman Islands, not the Chief
Justice, who fell to be compared with the Commission in Trinidad and Tobago.
30.
The difference between the two Constitutions is significant, but not
necessarily conclusive on this issue. The Board in Rees v Crane referred
to a prior stage of the proceedings involving the Chief Justice – see para 26
above. In that case there was a separate allegation of bias against the Chief
Justice and the Commission. In dismissing this the Board made the following
observations about the Chief Justice's conduct at pp 196-197:
"It is indeed unsatisfactory that
the respondent was not told by Bernard CJ of his decision to suspend the
respondent and to raise with the commission the question of referring the
matter to a tribunal. It is also curious to say the least that the respondent
on his return had such difficulty in seeing Bernard CJ.
On the other hand it is to be
assumed that Bernard CJ either accepted that the complaints made to him were
sufficiently established, or that, at any rate, he considered that they were
sufficiently serious to warrant reference to the commission. If he so thought,
he was entitled to refer the matter to the commission. He had, even if in a
hostile way, given the respondent an opportunity to deal with earlier
complaints. Bernard CJ must have realised the seriousness of these complaints
for the respondent and even if he failed to deal fairly with the respondent,
by giving him notice of them and a chance to deal with them, it is not
lightly to be assumed that he would allow personal hostility to colour his
decision to suspend the respondent or to recommend to the commission that the
matter be referred to a tribunal. (Emphasis added)."
31.
The Board considers that the Chief Justice was under a duty to act
fairly in his official dealings with other members of his court. Had he
referred his initial concerns to the Governor without raising them with Levers
J or giving her a chance to deal with them, it could forcefully have been
argued that he had acted unfairly. The Board does not consider, however, that
if the Chief Justice had acted in this way that would have invalidated any
subsequent consideration of the Governor of the matters placed before him. On
the contrary, the Governor would have been under a duty to consider those
matters. What was at stake was not only the position of Levers J, but the due
administration of justice in the Cayman Islands. The Governor would have been
in a position to put right any unfairness by giving Levers J the opportunity to
deal with the matters raised by the Chief Justice before taking the decision,
and it was a decision for him, whether or not to appoint a tribunal of
investigation. In short, when considering whether there was unfairness capable
of invalidating the appointment of the Tribunal it is at the conduct of the
Governor that one must look, rather than at the conduct of the Chief Justice.
32.
In any event the Board acquits the Chief Justice of unfairness. In his
letter to the Governor of 28 April 2008 he stated that he was convinced that no
good could come of his continuing to deal with his concerns internally with
Levers J. In the light of what he knew or reasonably believed about Levers J's
attitude towards him that was a realistic appraisal. As the Board will show,
Levers J had reacted to the Chief Justice's initial approach not as an attempt
to assist a colleague but as a hostile act. The Board does not consider that he
can be criticised for his decision to place matters in the hands of the
Governor. Nor would the Board criticise him for his subsequent contacts with
the Governor. As Chief Justice he was understandably concerned at the impact
that he considered Levers J's conduct was having on the administration of
justice within his jurisdiction, and he cannot be blamed for making his views
plain to the Governor. Furthermore, even if his approaches to the Governor had
amounted to impropriety, this would not have invalidated the Governor's
decision. The Governor told the Chief Justice that he should distance himself
and went on to form his own view of how to proceed, after taking independent
advice from Dale Simon and Mr Aina.
33.
The Board does not consider that the terms of the Chief Justice's email
of 5 June could have given rise to a legitimate expectation on the part of Levers
J that he would not refer her conduct to the Governor without first giving her
the opportunity to answer any concerns he had about her continuing behaviour. A
rather different argument on legitimate expectation was advanced before the
Tribunal. This was that the Chief Justice had given Levers J a legitimate
expectation that nothing further would be done about her past conduct. This
argument was at odds with the statement in para 63 of Levers J's witness
statement that she regarded the Chief Justice's email of 5 June 2007 as "effectively and unfairly putting me on notice".
The conduct of the Governor
34.
Mr Brodie submitted that the Governor had also acted unfairly and in
breach of natural justice in failing to notify Levers J of the three additional
complaints that were incorporated into the amended case statement before
deciding to appoint the Tribunal. The short answer to that submission is that
the Governor made it plain in his letter to Levers J of 12 September 2008 that he was basing his decision on the original case statement. There was no reason
to doubt that statement. The three additional complaints did not add
significantly to the case against Levers J.
35.
Mr Brodie made a discrete attack on the conduct of the Governor in
respect of a significant delay on his part in making arrangements for the
funding of Levers J's reasonable legal costs in relation to the Tribunal's
investigation. The Tribunal itself commented on this, and on the delay that it
caused, in paras 1.11 and 1.12 of its Report. Adequate funding was, however,
ultimately provided. When asked how delay in the provision of this funding
could invalidate the appointment of the Tribunal Mr Brodie appeared to suggest
that the Governor might have set out deliberately to starve Levers J of the
funds that she would need to defend herself when appointing the Tribunal. Such
a submission had not been made before and, in these circumstances, it is not
one that the Board would entertain. The delay in providing funding for Levers J
has no relevance to the issues before the Board.
The conduct of the Tribunal
36.
Mr Brodie sought to advance the points of public law considered above
before the Tribunal. The Tribunal declined to entertain them on the ground that
they were "not within the remit of the Tribunal". Mr Brodie submitted that this
response was unlawful. The matters that he had raised went to the jurisdiction
of the Tribunal. Once he had raised them, the Tribunal was bound to consider them.
It was now well established that a tribunal could entertain a challenge to its
own jurisdiction – see Wandsworth London Borough Council v Winder [1985] AC 461; Boddington v British Transport Police [1999] 2 AC 143; Kay v
Lambeth London Borough Council [2006] 2 AC 465. Mr Brodie submitted that
the Tribunal's unlawful refusal to entertain his submissions on its
jurisdiction was made more serious by a failure to give any reasons for
concluding that they were not within its remit. Its effect was to render the
Tribunal's decision null and void.
37.
The "matter" into which the Constitution provides that a tribunal shall
inquire is "the question of removing a judge of the Grand Court from office for
inability…or misbehaviour". The Terms of Reference, set out in paragraph 41
below, restricted the scope of the Tribunal's investigation to considering the
conduct of Levers J. They did not extend to examining the circumstances of the
Tribunal's own appointment. None the less, the Board does not consider that the
Tribunal could have been criticised had it been prepared to consider an attack
on its own jurisdiction. It is, however, a startling proposition that a
refusal to entertain an attack on its jurisdiction will of itself invalidate
the decision that a tribunal reaches on the substance of the matter with which
it is seised, even if the attack on its jurisdiction is without merit. Mr
Brodie was invited to produce authority that supported this proposition. He did
not do so. The Board concludes that this attack on the validity of the
Tribunal's Report is without merit.
The role of the Tribunal
38.
The Tribunal introduced its Report with an executive summary. This
castigated the conduct of Levers J in strong terms. Her comments in court were
described as "disgraceful" (para 7). Criticism of the Chief Justice and his
administration of the Courts "with the evident intention of undermining him in
the way of his office" was said to be "conduct of such disconcerting
proportions that no judicial system could reasonably be expected to tolerate
its existence" (para 13). Dealing with "an increasingly hostile and mean
attitude towards her fellow judges" the Tribunal commented:
"By so behaving both in public and
private towards her fellow judges Levers J undoubtedly destroyed and forfeited
the respect, support and understanding which previously existed. Once this has
been destroyed the situation is irredeemable. She has poisoned the well to such
an extent that her reputation in this regard (as revealed in this Report) will
inevitably precede and follow her wherever she might ever be able to sit both
in and outside the Cayman Islands. It is to our minds unthinkable that she
should be allowed to resume or continue to sit in any jurisdiction where she
would be sitting with colleagues. Moreover, we consider it an overwhelming
probability that if allowed to sit on her own she would continue to behave in a
similar fashion."
39.
In the body of the Report the Tribunal dealt with the individual
incidents one by one, finding facts when these were in dispute and then
evaluating their significance. The Tribunal used the description "misbehaviour"
to describe misconduct, whether individual or cumulative, of such seriousness
as to warrant removal. The description "serious misconduct" was used to describe
seriously bad behaviour that fell short of misbehaviour. No single epithet was
used to describe bad behaviour that did not amount to serious misconduct. Quite
often the Tribunal described behaviour in critical terms but commented that it
fell short of serious misconduct.
40.
Mr Brodie submitted that the Tribunal exceeded its remit. Its role was
to recommend whether or not the conduct of a judge should be referred to the
Privy Council, not to decide whether that conduct justified the judge's
removal. He submitted that the comments made by the Tribunal in its Executive
Summary that have been quoted above exceeded its powers and were
self-discrediting.
41.
The Terms of Reference of the Tribunal in the present case, as clarified
by the Governor, began as follows:
"1. The Investigating Tribunal
(hereinafter referred to as ‘the Tribunal') is requested to consider
allegations that between August 2004 and June 2008 Madam Justice Levers'
conduct, manner and behaviour towards witnesses, attorneys, court staff and
judges officiating in the Cayman Islands was such as, when taken together, [to]
amount to misbehaviour, as set out in section 49J(2) of the Cayman Islands
(Constitution) Amendment Order 1993.
2. The Tribunal should carry
out a factual investigation and report to the Governor whether the conduct of
Madam Justice Levers taken as a whole has fallen below the standard reasonably
to be expected of a holder of the office of Judge of the Grand Court so as to
warrant proceedings for her removal."
42.
These terms unequivocally required the Tribunal to advise whether Levers
J had been guilty of misbehaviour warranting her removal. It is implicit in Mr
Brodie's submissions that they should not have done so.
43.
The procedure for the removal of a judge in the Constitution has its origin
in the Memorandum of the Lords of the Council on the Removal of Colonial Judges
(1870) 6 Moo. N.S. Appendix ix. The Memorandum stated that it was
unsatisfactory for the Judicial Committee to exercise an original jurisdiction
in relation to the removal of Colonial judges because of the difficulty and
delay in placing evidence before it. The scheme proposed was one whereby the
Governor would investigate the facts and make a provisional decision whether
they justified removal. If so, the Governor would suspend the judge and refer
the matter to the Judicial Committee for review. The Memorandum suggested an
exception to this scheme in respect of misconduct charged that was "purely
judicial". This was not amenable to the decision of the Executive acting on the
advice of Law Officers or "advisers of inferior rank" and should be considered
directly by the Privy Council.
44.
The requirement in the Constitution that the Governor take advice from a
Tribunal made up of those who hold, or have held, high judicial office meets
the latter point. It is implicit that the Tribunal, after investigating the
facts, will only recommend a reference to the Privy Council if it considers
that the judge's conduct amounts to misbehaviour justifying removal. The Board
can see no reason in principle why the Governor should not request the Tribunal
to advise him expressly on whether they consider that the conduct of the judge
that they are investigating justifies his or her removal. There are a number of
advantages in so doing. The removal of a judge is a most serious step and a
Governor can reasonably wish to be satisfied that the Tribunal considers this
justified before requesting a reference to the Privy Council. The procedure
before the Tribunal is likely to be directed to the question of whether the
judge has behaved in a way that justifies removal, and it seems to the Board
desirable that the Tribunal should express its views on that issue. The
findings of the Tribunal will then provide a convenient framework for the
hearing before the Privy Council.
45.
To some extent this will make the task of the Judicial Committee
appellate in nature. The Board will be likely to accept the Tribunal's findings
of primary fact, unless these can be demonstrated to be unsound. As to the
consequences of those findings, however, it is for the Board to form its own
views as to whether they amount to misbehaviour or incapacity justifying
removal.
46.
Having regard to this the Board considers that it was not appropriate
for the Tribunal to castigate Levers J's conduct in the extreme terms adopted
in the Executive Summary. It is one thing for an investigating tribunal to identify
conduct that it considers amounts to misbehaviour justifying removal. It is
quite another to do so in terms that may irreparably damage the reputation of a
judge before her conduct has been appraised by the Judicial Committee.
47.
There can be no objection to the Tribunal's categorisation of different
incidents as those which in its opinion did and those which did not amount to
misbehaviour justifying removal. This helpfully enabled Mr Brodie to
concentrate particularly on those instances of Levers J's conduct that the
Tribunal had considered to be most serious. At one point in his submissions he
appeared to be treating adverse findings of fact which the Tribunal had found
fell short of "serious misconduct" as being matters of no concern. There was no
justification for so doing. In reaching its conclusions the Board has to look
at the overall picture. All relevant findings of fact, whether favourable or
unfavourable have to be taken into account.
Misbehaviour justifying removal
48.
The standard of behaviour to be expected of a judge is set out in the
Bangalore Principles of Judicial Conduct. The Bangalore Principles were
approved at a meeting of Chief Justices and other Supreme Court Justices at the
Hague in November 2002 and were on 27 July 2006 the subject of Resolution
2006/23 of the United Nations Economic and Security Council inviting Member
States to take them into consideration when reviewing or developing rules with
respect to the professional and ethical conduct of the judiciary.
49.
The Tribunal rightly identified the following principles as being
particularly relevant in this case:
"A judge shall ensure that his or
her conduct, both in and out of court, maintains and enhances the confidence of
the public, the legal profession and litigants in the impartiality of the judge
and of the judiciary (paragraph 2.2).
A judge shall ensure that his or her
conduct is above reproach in the view of a reasonable observer (paragraph 3.1).
The behaviour and conduct of a judge
must reaffirm the people's faith in the integrity of the judiciary. Justice
must not merely be done but also be seen to be done (paragraph 3.2).
A judge, like any other citizen, is
entitled to freedom of expression, belief, association and assembly, but in
exercising such rights, a judge shall always conduct himself or herself in such
a manner as to preserve the dignity of the judicial office and the impartiality
and independence of the judiciary (paragraph 4.6).
A judge shall not, in the
performance of judicial duties, by words or conduct, manifest bias or prejudice
towards any person or group on irrelevant grounds (paragraph 5.2).
A judge shall carry out judicial
duties with appropriate consideration for all persons, such as the parties,
witnesses, lawyers, court staff and judicial colleagues, without
differentiation on any irrelevant ground, immaterial to the proper performance
of such duties (paragraph 5.3).
A judge shall maintain order and decorum
in all proceedings before the court and be patient, dignified and courteous in
relation to litigants, jurors, witnesses, lawyers and others with whom the
judge deals in an official capacity... (paragraph 6.6)."
These are standards
that all judges should aspire to achieve but it does not follow that a failure
to do so will automatically amount to misconduct.
50.
The public rightly expects the highest standard of behaviour from a
judge, but the protection of judicial independence demands that a judge shall
not be removed for misbehaviour unless the judge has fallen so far short of that
standard of behaviour as to demonstrate that he or she is not fit to remain in
office. The test is whether the confidence in the justice system of those
appearing before the judge or the public in general, with knowledge of the
material circumstances, will be undermined if the judge continues to sit – see Therrien
v Canada (Minister for Justice) [2001] 2 SCR 3. If a judge, by a course of
conduct, demonstrates an inability to behave with due propriety misbehaviour
can merge into incapacity.
Evidence of good character
51.
Levers J set out in her witness statement details of her qualifications
and her practice up to the time that she was appointed a judge of the Grand Court. The account portrays a successful and highly regarded practitioner. The account
is substantiated by about 30 letters or witness statements speaking of Levers
J's career and her character. The Tribunal was right to say that these
attributed to her most of the qualities with which a judge should be invested,
describing her as "fair, impartial, attentive, courteous, dignified and
helpful". Mr Brodie criticised the Tribunal for attaching insufficient weight
to these statements, suggesting that it belittled them by describing them as
"character references" and by disregarding them when they were an important
part of the overall picture of Levers J's behaviour. The Board has read those
statements and they make impressive reading. They suggest that on the very many
occasions to which they relate Levers J's conduct was exemplary. Indeed, it is
difficult to recognise the judge portrayed by those statements as the same
person as the judge described by some of the witnesses who gave evidence before
the Tribunal. The Board has kept well in mind, when evaluating that evidence,
the large body of favourable evidence relied on by Levers J.
52.
The conduct that the Tribunal found amounted to misbehaviour justifying
removal was partly in court and partly out of court. Some of the conduct in
court occurred when Levers J was presiding over criminal proceedings, and some
when she was sitting in family cases. The Board proposes to follow the same
course as the Tribunal. First it will consider one by one the incidents of
conduct in relation to which the Tribunal made adverse comment. The Board will
then consider Levers J's relationship with the Chief Justice in the period
after the Memorandum of 24 May 2007 and her attitude to the Chief Justice and
her fellow judges. The Board will finally consider the implications of her
conduct, viewed as a whole against the background of the evidence of her good
character and many good qualities as a judge.
Conduct of criminal proceedings
53.
It is convenient to start with the criminal proceedings, for the
material evidence is in the form of transcripts and thus not open to dispute.
54.
Two of the incidents that the Tribunal held to amount to misconduct involved
criticisms of other judges made in open court.
R v Christopher Ebanks
55.
This case was heard on 13 February 2006. Counsel complained to Levers J
that the case had been taken out of the list without notice, but added that he
understood the pressures that the listing officer was under. Levers J
responded:
"Well, Mr Smith, I think it's a
perceived pressure really because if you walk around the courthouse after 2.30
the pressure is de minimis. Half the judges are having coffee, so I don't know
what all this pressure is about, and I say that openly for the record. I can be
quoted. It does not matter to me. It's ridiculous about May and June and July
dates when after 2.00 o'clock nobody is doing anything but reading the
newspaper."
56.
This was one of the matters raised by the Chief Justice in his
Memorandum of 24 May 2007. Levers J apologised to him for her remarks and
accepted before the Tribunal that they were inappropriate. She had had one
colleague in particular in mind when she made her comment. The comment would
have been rightly perceived as being open criticism of her fellow judges. It
was likely to bring them into disrepute. The Tribunal considered this an
incident of serious misconduct. The Board agrees.
57.
Levers J apologised to the Chief Justice for this comment, as she did
for her comment in Ebanks. The Chief Justice could properly have
accepted those apologies and treated her comments as two isolated occasions of
injudicious conduct by a hard working judge under stress had he had no other
reason to be concerned about her conduct.
R v Ming
58.
In this case there was discussion about listing half a day for legal
argument. Counsel mentioned the possibility that this would be on a Friday
afternoon and asked whether that would be convenient to the court. Levers J is
recorded as responding:
"Well, the other judges don't like to
sit in the afternoon, but I don't mind sitting."
Levers J told the
Tribunal that she had referred to "other judges" in general, not to her
colleagues in the Grand Court. In responding to the Chief Justice she had
remarked that "the world over, judges do not sit on a Friday afternoon unless
they have to". The Tribunal did not accept this gloss on her comment. The Board
would not upset that finding. There is other evidence which demonstrates that
Levers J had a low opinion of the industry of at least one of her colleagues
and the likelihood is that the reporter correctly transcribed her comment. It
was not as serious as the comment in Ebanks, in that it was elicited by
counsel's implication that she might not be happy to sit on a Friday afternoon.
The Tribunal described the comment as "wholly inappropriate". The Board would characterise
the comment as "inappropriate".
R v Alton Phillips
59.
Crown counsel complained about Levers J's conduct of this trial, which
was held on 9 May 2006. The charge was of statutory rape by an 18 year old of
his 12 year old girlfriend. The complaint was two-fold. First Levers J wrongly
accused Crown counsel of challenging a juror in order to reverse a ruling that
she had just made refusing to excuse him. The second was that she showed
animosity to the victim and bias in favour of the defendant. The Tribunal
decided to give Levers J the benefit of the doubt. Having read the transcript
the Board considers that this was generous, but accepts the Tribunal's
decision.
R v Linton
60.
This complaint related to the sentencing hearing on 16 November 2006 of a defendant who had pleaded guilty to the statutory rape of a girl aged 14. The
Tribunal found that Levers J made insensitive and inappropriate remarks, but
these did not amount to serious misconduct. The Board agrees.
R v Jensen
61.
This trial on 13 and 14 December 2006 involved a charge of assault by a
man on a woman. The allegation was that Levers J made remarks which showed bias
against the victim in favour of the defendant. The Tribunal found that she made
an improper remark to the Court reporter:
"I couldn't have done any more for
him, could I?"
The Tribunal found
that the evidence did not go so far as to establish that Levers J was guilty of
serious misconduct. The Board endorses both the finding of impropriety and the
finding that it fell short of serious misconduct.
R v Bryan
62.
This complaint related to a sentencing hearing in May 2007 of a
defendant who had pleaded guilty to two counts of grievous bodily harm. One of
the victims was Pauline Hunter, who had once been the defendant's girl friend. The
Defendant beat her about the head with a bicycle pump and she ended up in
hospital with a head wound. The other victim was Mr Ramoon. The Tribunal quoted
the following extracts from the transcript:
"3.37 At the start of the proceedings
Levers J asked where the victims and the defendant came from:
THE
COURT: Now, Pauline Hunter, is she a Caymanian?
MS
LEES: She is Jamaican.
THE
COURT: And Anthony Bryan?
MS
LEES: Is also Jamaican.
THE
COURT: And Ramoon?
MS LEES: I think he's
also Jamaican. Caymanian. So those two are Jamaican and Olney Ramoon is
Caymanian.
THE COURT: So they're on work
permits here, is that it?
THE
COURT: Where is she now?
MS
LEES: She's still in the Cayman Islands.
THE COURT: Why hasn't she been
sent home? Oh, she's married to a Caymanian, is that it?
MS LEES: Mrs. McField.
It says she's also known as Andrea Pauline Hunter and she's now McField. So
she is now married to a Mr McField.
A little while later came this
exchange:
THE COURT: You see, Ms Lees,
these people get away with it. They don't come here and have a savings account.
They send it all back home. So what are we going to do? And even if I sentence
him to 50 years in prison, not going to make [$] 8,000.
MS LEES: Yes My Lady,
that's why I say –
THE COURT: This is – I just
wonder why Cayman has to feed these people? We must get some arrangement where
they go back and do time in jail there. Why should we keep them here?
The officer in the case interjected:
DETECTIVE
INSPECTOR
BAILEY: …She's about to get Caymanian
Status.
THE COURT: What do you mean ‘about
to get Caymanian Status'?
DETECTIVE INSPECTOR
BAILEY: She has
residency … with naturalization.
THE COURT Lord. But can't
somebody object? I mean, what is a woman like that doing getting Caymanian—
DETECTIVE INSPECTOR
BAILEY: She's married.
She's married.
Then Crown Counsel intervened:
MS LEES: My Lady, I
don't know if there is any suggestion that she has brought on these injuries.
THE COURT: Well, you're
married, you live with this man, you know? And—and I bet you he has beaten her
before, but she sticks there, you know? I mean, the only way she's getting
permanent residency and all this sort of thing, is she was married to a
Caymanian. Having made use of him now, she's gone on to her own kind.
Ms Lees pointed out the victim had been living in the Cayman Islands for 19 years.
Levers J interrupted the Defence address in
mitigation:
‘I tell you, this woman was spreading her goodwill
around.'
THE COURT: But this is the
problem I have. They don't make anything of themselves. It's all about money.
They come here, they make use of the country, and then they just send their
money back. They don't – they stick to each other, they don't integrate into
the community and they bring their violent ways with them. This is a problem,
Mr. Miller. This is why we run away from Jamaica, because of the violence. And
what are they doing to this beautiful island now? The same thing that they do
to Jamaica in Jamaica. It really saddens me, because they have the golden
opportunity to improve themselves here, you know? Yes?
3.40 While counsel was still trying
to mitigate there was a further interruption:
THE COURT: But the tragedy is
of sending him to prison in Cayman, it's like giving him a holiday at a hotel.
Because if he went to prison in Jamaica, trust me, it's a different story. As a private practitioner, I have been just to
lock ups to see people, Mr. Miller, and you open the door and you don't see the
difference between the door and the cockroaches. No, really, I'm very serous
about it. Here when I send them to prison, what does he get, one-third off?
MR
MILLER: Five-ninths.
THE
COURT: Five-ninths off?
MR
MILLER: Well, no, he will have to serve five-ninths.
THE COURT: Oh, he will have to serve.
Four-ninths off? Well, and what, he will get excellent food. I'm sure he's
going to get exercise, body building, anything you want. To study. You know?
And I'm not sure about the other, alcohol and that sort of thing, whether that
goes on too. But it's like a holiday here. Yes Mr Miller, maybe you can help
me."
63.
The Court Reporter, Ms Rouse, who drew the attention of the Chief
Justice to this transcript wrote:
"I would only say that, despite the
Defendant pleading guilty, Justice Levers seemed to turn the focus of the
proceedings on the female victim and seemed to indicate she had brought it on
herself. I had never seen anything like this in my 14 years of court reporting.
In my opinion Justice Levers appears to have a problem with Jamaican women…"
64.
The Tribunal found Ms Rouse's comment to be wholly justified. The Board
agrees. There was no justification whatsoever for this series of interventions,
which flagrantly violated the Bangalore principles. They showed bias, and
indeed contempt, for Jamaicans which extended not merely to the defendant but
to his victim, who happily was not in court. The comments about Pauline Hunter
were monstrous, suggesting that she should have been sent "home", describing
her as "a woman like that" and accusing her of "spreading her goodwill around"
– a clear allegation of promiscuity.
65.
The Tribunal found that this incident constituted misbehaviour that
would, of itself, have justified the removal of Levers J. The Board agrees. Her
comments were comparable to those made by Judge Moreau-Bérubé, a judge of the
New Brunswick Provincial Court in the course of sentencing a defendant which
led to her removal, notwithstanding that she had made a public apology three
days later – HM The Queen v Moreau- Bérubé [2002] 1 SCR 249. Her
stance contrasts with that of Levers J, who has entirely failed to acknowledge
that her behaviour was unacceptable.
R v Irvalyn Bush
66.
The facts of this case are not in issue, although their implications
are. Those facts, as stated by the Tribunal, were as follows:
"The case began on 15 August 2007.
The defendant was charged with possession of a firearm. Ms Elisabeth Lees was
Crown Counsel and Mr Nicholas Dixey appears for the defendant. Most of the
evidence was agreed, including how and where the gun was found.
The issue in the case related to
DNA. In the afternoon of the day on which the case began meetings were arranged
between counsel and the DNA experts. Without reference to counsel Levers J
visited the crime scene. . . . She later told counsel that she had visited the
house where the gun was found and formed the view that it might have been
planted. She said that she thought it was important that the jury should see
where the gun was found, so that they could decide whether the gun had been
planted. The following morning the jury visited the scene.
Asked in cross-examination whether, having visited the
scene, she formed the view that the gun might have been planted, Levers J
replied:
‘No, I did not form the view that it might have been
planted, but I did form the view that because [the house] was built on stilts
and because the police having gone straight to it and found it and then stopped
looking, the defence could have a defence of plant.'
A little later in her evidence she said:
‘I formed the view that because of
the circumstances and the way the house was built and the fact that the police
went straight there and stopped after they found the gun, there could have been
raised, if other circumstances were there, a defence of plant.'
When the jury returned from the
scene, Ms Lees intimated to Levers J in chambers that she intended to make a
recusal application. But in view of Levers J's assurance that she would not
raise the matter of planting before the jury, Ms Lees decided not to pursue the
application. Nevertheless in her summing-up Levers J directed the jury that:
‘It was clearly dark and you might feel that they knew
exactly what they were looking for and where they were going to look for it …
They found it under the house and they stopped looking as soon as they found
it.'
There was no suggestion of this either by the defence
or in the evidence."
67.
The Tribunal held that it had been improper for Levers J to visit the
crime scene without informing counsel, to invent a defence of ‘plant' in the
absence of evidence or submission, and to breach her undertaking not to advance
the issue in her summing-up, and that this together amounted to serious
misconduct. What Levers J had been attempting to do was to procure the
acquittal of the defendant by improper means. The defendant was, in the event,
acquitted.
68.
Mr Brodie challenged this analysis of the evidence. In particular, he
submitted that the direction that the jury might feel that the police knew
exactly what they were looking for and where they were going to look for it was
not intended to suggest to the jury that the gun might have been planted. The
Board does not accept that submission. It has read the transcript and considers
that the Tribunal correctly analysed the evidence. Levers J was clearly doing
her best to ensure that the defendant was acquitted. While it is not advisable
for a judge to visit the scene of the crime without first discussing that
intention with counsel, the visit was not, of itself, misconduct. But Levers J
went beyond the bounds of propriety in suggesting that the jury should visit
the scene as a precursor to considering a defence which the defendant had not
advanced and which imputed misconduct to the police. She explained to the
Tribunal:
"…I did form the view that because
[the house] was on stilts and because the police having gone straight to it and
found it and then stopped looking, the defence could have a defence of plant."
Having regard to
that evidence, her suggestion to the jury that the police knew what they were
looking for and where to find it can only have been intended by Levers J to
suggest a plant, albeit that the jury may not have appreciated this. The Board
agrees with the Tribunal that this constituted serious misconduct.
R v Craig Dilbert
69.
On 12 February 2008 Ms Elisabeth Lees, Crown counsel, sent to the
Attorney General a lengthy written complaint alleging that the manner in which
Levers J had conducted this trial, between 21 and 23 January 2008, gave an
appearance of bias against the prosecution. The transcript discloses comments
that the Tribunal rightly found were calculated to belittle the DNA evidence
called by the Crown. It also discloses comments in relation to Ms Lees that the
Tribunal rightly described as "unnecessary and unpleasant conduct". In opening,
counsel to the Tribunal did not seek to attach great significance to this
complaint, and so counsel to Levers J did not cross-examine Ms Lees about it.
For this reason alone the Tribunal did not characterise this conduct as
amounting to serious misconduct and, for the same reason, it would not be right
for the Board to do so. The Board would, however, endorse the Tribunal's
conclusion that Levers J's conduct constituted unacceptable behaviour.
R v Parchment
70.
The facts of this complaint are not in dispute, nor is the fact that
they constituted discreditable behaviour. The Board will adopt the summary of
them made by the Tribunal
71.
On 26 November 2007 Levers J confirmed in writing to the Chief Justice a
spurious complaint that she had first made to him orally. She copied her
letter to the Attorney General and the Solicitor General. She described the
behaviour of the Crown Counsel, Ms Tricia Hutchison, as ‘very unsatisfactory'.
First, she said that counsel had told the jury that Parchment, Jarrett and
Ebanks jointly undertook a robbery. In fact, counsel had correctly told the
jury that Mr Ebanks was involved in the last of three robberies as the driver
of the car that was used. Mr Ebanks said that he was duped into participation,
but he had to admit to having accepted money afterwards. Hence his plea of
guilty to being an accessory after the fact.
72.
Contrary to the assertion of Levers J that the Crown did not indicate
that Mr Ebanks had pleaded guilty to the charge, the transcript shows that
counsel did exactly that. Levers J said that the failure to lead the evidence
caused an injustice to the accused who was denied the opportunity to
cross-examine Mr Ebanks on the plea. The transcript shows that the accused's
attorney did in fact cross-examine Mr Ebanks on that very point.
73.
Levers J concluded her complaint by saying:
"To my mind this behaviour is not to
be condoned and should be brought to the attention of someone in charge of the
conduct of Crown Counsel. It is misconduct . . . I bring this to your attention
in the hope that some strenuous efforts are made by the Legal Department to
ensure that this does not happen again."
74.
The Tribunal considered that Levers J acted recklessly in making this
complaint. The Board agrees. For counsel to be subject to an official complaint
of this nature is not only highly distressing but, potentially, professionally
damaging. Fortunately Ms Hutchison was able to demonstrate by reference to the transcript
that the complaint was without foundation. Levers J should have checked the
transcript, or the tape-recording of the hearing before making her complaint.
The Board endorses the Tribunal's conclusion that this was a simple but
damaging example of serious misconduct.
R v Campbell and Parsons
75.
In this case the Tribunal was not satisfied on the balance of
probabilities that the complaint was made out because it was not corroborated.
Conduct of family cases
76.
The Tribunal considered six family cases over which Levers J had
presided within the same period as the criminal cases. In the first case
considered, the P litigation, the Tribunal heard evidence by video link
from one party to this litigation, Ms P, and also evidence from counsel who had
appeared for each of the parties. Counsel did not support the complaints made
by Ms P and the Tribunal found that the complaints about Levers J's conduct of
this litigation were not made out. In relation to the S E litigation,
to which the Board will come in due course, the Tribunal was critical of
Levers J but concluded that her conduct fell short of serious misconduct. The
Tribunal found that Levers J's conduct in relation to the other four cases
amounted to serious misconduct and that her conduct of the family litigation as
a whole amounted to misbehaviour that demonstrated that she was unfit to hold
judicial office.
77.
Transcript evidence was not available in respect of the family
litigation. The primary evidence in each case came from one of the parties to
the litigation. Family litigation is necessarily stressful, and parties to such
litigation will not necessarily view it objectively, or constitute a reliable
source of evidence. It is prudent to look for corroboration of such evidence
before basing adverse findings upon it, and the Tribunal's findings in relation
to the P litigation demonstrate that approach.
78.
An example of the difficulty of evaluating evidence from a party to
family litigation is provided by the last case that the Board will consider, E
v T. Evidence in that case was given by Ms E, but not by Mr T. Mr T
read the Tribunal's Report and concluded that in a number of instances its
findings of what had transpired at the hearing were not accurate. On 9 June
2010 he wrote a lengthy letter to be delivered by hand to Mr Akiwumi, junior
counsel to Levers J, drawing attention to the relevant findings. That letter
was placed before the Board without objection from Mr Otty, but without any
explanation of the circumstances in which it came to be written and delivered
so late in the day. Mr Brodie did not invite the Board to make positive
findings on the basis of this letter, and it would not be appropriate to do so.
But the detailed particulars set out in the letter have been enough to raise
doubts on the part of the Board as to some of the findings made by the
Tribunal. This has led the Board to approach the family proceedings with
caution and to look for corroboration either from Levers J herself, or from
counsel, as desirable to provide a firm foundation for criticism of Levers J in
relation to these proceedings.
The C Litigation
79.
This litigation involved a dispute between Ms. C, a Canadian national
and Mr R, a Caymanian national. It came before Levers J on 20 October 2006. Ms.
C gave evidence to the Tribunal by video link that Levers J made a number of
derogatory statements about her which suggested that she was biased against
her. The effect of these was set out in the Report as follows:
"‘How am I to know that you are in
fact a good mother? You are obviously a liar.'
‘What were you thinking having a
child with this man given you did not intend to stay with the father?'
‘You people come here and have
babies for these men and then leave thinking someone else will raise their
children in Canada.'
‘I suppose you have no money either.
It is after all a welfare system in Canada.'
‘Look at the work you did in Cayman
. . . the Westin Bodyworks.'
This was a reference to her
employment at the Westin Hotel in the Wellness Centre.
The Tribunal might have observed, but did not, that these alleged
remarks reflected an attitude on the part of Levers J that was evidenced by the
transcript in the criminal case of Bryan. Levers J did not
challenge the gist of the remarks attributed to her, but contended that they
did not display bias and were relevant to the issues before her.
81.
Ms Merren, who had appeared for Ms. C, corroborated much of her
evidence. She recalled that Levers J had, more than once, asked why Ms. C had
had a child with someone with whom she had no intention of living. Levers J had
referred to "you people", by which Ms Merren understood her to mean Canadians. She
said that Levers J was fed up with seeing the same situation where foreign
women came to the Island, got involved with Cayman men, and then tried to leave
with the children. At the end of the hearing she said something to the father
about having a child, although Ms Merren could not remember precisely what she
said.
82.
Mr Brodie submitted that the question of whether Levers J's conduct of
this case was inappropriate had been subsequently resolved in proceedings
brought by Ms. C before the Supreme Court of British Columbia, which had upheld
the order made by Levers J. He criticised the Tribunal for not having regard to
this. The Tribunal recorded that Levers J had pointed out that her decision had
been upheld by the Supreme Court of British Columbia and subsequently endorsed
by a Consent Order. It did not, however, draw any significance from that fact.
The Tribunal's approach to the British Columbian decision cannot be faulted. No
point was taken before that court in relation to the way in which Levers J had
conducted the case, as opposed to the merits of her substantive decision.
83.
The Tribunal held that Levers J behaved in an inappropriate manner and
that she showed bias in favour of the father on account of his gender. She made
a series of derogatory remarks towards Ms. C, referring to her status as a
woman who was a foreigner, her impecuniosity, and as part of the pattern of
foreign women having sexual relations with Cayman men and then seeking to leave
the jurisdiction with their offspring. The Tribunal considered that the use of
the phrase "you people" in its context was aimed at Ms. C as a Canadian and was
particularly offensive.
84.
The Board is not persuaded that Levers J's comments suggested gender
discrimination as such. Furthermore, Levers J could properly have wished to
explore whether Ms. C had deliberately had a child whom she intended to bring
up without involvement of the father. The way she did this, however, was highly
offensive and racist. This was a wholly inappropriate way of treating a
litigant, or indeed anyone, in Levers J's court. The Board is satisfied that
the comments amounted to serious misconduct.
The R Litigation
85.
This involved a dispute about child maintenance between Ms. R and her
ex-husband which came before Levers J in November 2006 and April 2007. Three
days after the second hearing Ms. R wrote an 8 page letter of complaint about
the way that she had been treated to the Complaints Commissioner, with a copy
to the Chief Justice. She complained that Levers J had made embarrassing and
disparaging comments about her and shown bias against her and in favour of her
ex-husband. The Tribunal made the following summary of her complaints:
"By chance before the hearing Ms. R
learnt that Levers J was suffering from kidney problems similar to those
afflicting her ex-husband. Levers J, instead of standing down, proceeded to
hear the case. By this time Ms. R was pregnant. As she entered Levers J's
chambers the judge commented:
‘I see there is another member of
the human race on the way'
and enquired who the father was.
Counsel indicated she had no instructions on the matter, to which the judge
replied:
‘As long as we are clear that it is
not [the respondent's] child.'
Ms. R asserted that she felt that
being pregnant was something she should be embarrassed about, and later remarks
made her feel ‘like a lowly irresponsible person who had got herself pregnant
by some stray guy' and that she should feel ashamed of herself.
Ms. R also complained that Levers J
displayed bias in favour of her ex-husband and against herself. She displayed
her own knowledge of the medical condition that she shared with Mr R, and the
symptoms and the costs of treatment, notwithstanding the absence of any
evidence about these items. She asked the respondent if he would like his
doctor present. Ms. R's perception was that the judge ‘dished out a large dose
of sympathy for him and proceeded to act as his advocate', whilst not taking
her case seriously.
Ms. R had been attending college
part-time for the previous ten years while in full employment. This led Levers
J to remark with sarcasm:
‘That's some commitment. How long
before you finish? Another ten years?'
The learned Judge failed to
appreciate, or deliberately ignored the fact, that attendance at college (she
was studying for a Bachelor's Degree) was while she was in full-time employment
in addition to bringing up two children.
The Respondent's business had begun
to fail. Ms. R attempted to suggest how it might be made more profitable. The judge
sarcastically cut her short. As the parties were leaving her chambers, Levers J
wished the respondent ‘Good Luck'. Her attorney enquired ‘What about my
client?' to which the judge responded:
The Tribunal expressed regret that it had not had evidence from either Ms
Parke, Ms. R's attorney or Ms DaCosta, Mr R's counsel, but made no mention of a
five page memorandum dated 5 August 2008 addressed by Ms Parke to the Chief
Justice, which dealt with Ms. R's complaint. Ms Parke explained that her
recollection of what transpired at the hearing was not very clear so long after
the event and that she was therefore "very hesitant" to confirm the events as
written by her former client. She went on to state what she did remember. This
included the fact that Ms. R was very disappointed by the result. She
remembered Levers J discussing the symptoms of the illness that she had in
common with Mr R. She said that Levers J might have asked at the beginning if Ms.
R's pregnancy was related to the proceedings. As to her closing remarks, she
stated:
"I do recall that at the end of the
proceedings, when we were packing to leave the chambers, the Hon Judge spoke to
the Petitioner and his attorney directly and wished him well in the future etc.
and I admit, that I cheekily added if the same greeting was going to be
extended to my client. This was not meant in a disrespectful manner, as I [was]
simply adding to the conversation. I do not recall the Judge's exact response,
but I believe she did say something about pregnancy vs the Petitioner's
reported illness."
87.
Levers J herself confirmed the comment made about the time that Ms. R
might take to complete her studies, but denied that the comment was sarcastic.
As to the closing remarks, she stated that this was a light hearted exchange.
88.
The Tribunal criticised Levers J for discussing the medical condition
that she had in common with Mr R, indeed it suggested that she might have been wiser
to recuse herself because of this shared condition. The Tribunal held that
because of this discussion Ms. R was justified in perceiving that Levers J was
biased towards her ex-husband. The Tribunal made these closing observations
about Levers J's conduct and ended by commenting that it amounted beyond
reasonable doubt to very serious misconduct:
"This conduct was compounded by the
final exchanges on leaving the judge's chambers. We do not accept that this was
a civil, light-hearted exchange. The final remark (which Levers J does not
deny) was cruel, unnecessary and inappropriate, and was redolent of bias. It
was also consistent with the judge's earlier ill-chosen and insensitive remark
about Ms. R's pregnancy. We also find that on more than one occasion the
judge's penchant for sarcasm got the better of her. Her remark about Ms. R's
academic endeavours was cheap and uttered without regard to Ms. R's worthy
efforts to support herself and her children and at the same time to improve her
situation."
89.
The Board considers that the Tribunal was justified in treating as accurate
the comments of Levers J that Ms. R included in her letter of complaint only
three days after the hearing. The manner in which Levers J dealt with her
pregnancy was insensitive and inappropriate. The Board finds it significant,
however, that the hearing does not appear to have left Ms Parke with the
impression that Levers J was showing overt bias or contempt for her client. On
her evidence the final exchanges were in the nature of light-hearted banter. We
have concluded that Ms. R's view of the proceedings may have been unduly
coloured by her disappointment with the result. The Board does not consider
that a case of misconduct in relation to this litigation has been made out.
The F Litigation
90.
Ms F was a Filipino, divorced from her Caymanian husband. She came
before Levers J on 27 November 2006 on a hearing relating to the custody of the
children of the family and ancillary matters. She found the experience
distressing. Levers J accused her of bringing relatives to the Island to find husbands and made sarcastic remarks about Ms F's brother, who had
established himself with a good job as an engineer. When a further hearing
became necessary in the matter, Ms F wrote to the Clerk of Courts alleging
that:
"It was very obvious that I was not
given a fair judgment by the said judge as she seemed to favour my Caymanian
husband and showed her strong dislike to non-Caymanian."
Ms F requested that
the case should be referred to another judge.
91.
In the event, the case was brought back before Levers J on 11 April 2007. Ms F alleged that on that occasion Levers J said to her:
"So you want more money, why don't
you go back to the Philippines?"
Ms F got upset and
emotional whereupon, according to her, Levers J threatened that if she said one
more thing she would put her in jail. She then telephoned a man to "pick her
up" and a man entered the room. Levers J said that Ms F became difficult and
the lawyers felt threatened, so she called the Marshal but denied that she had
threatened to put Ms F in jail.
92.
The Tribunal accepted Ms F's version of the events at the second
hearing. The Board can see no basis for upsetting that finding. The suggestion
that Ms F go back to the Philippines accords with other evidence of Levers J's
attitude to foreigners in the Cayman Islands. Ms F is unlikely to have invented
the threat to put her in prison. The Tribunal concluded that the way in which
Levers J treated Ms F constituted serious misconduct. The Board concurs.
The S E Litigation
93.
Ms S E is a Costa Rican national who married a black Caymanian. They had
been married for 15 years, had three children and had acquired a family home,
but the marriage failed and she was a petitioner in divorce proceedings before
Levers J on 27 August 2007. On 11 October she wrote a letter of complaint to
the Chief Justice about comments made by Levers J in the course of the hearing.
The Tribunal found that she was an honest witness, but determined only to
accept that part of her evidence which was fully corroborated by Ms Merren, her
counsel. This was an exchange at the end of the hearing. When Levers J ruled
that the children would live with their father, Ms E asked how she could give
custody of the children to their father when he basically spent his time in a
bar drinking and playing darts and dominoes while they were young while she
dedicated her life to them. To this, Levers J replied:
"That's what you get for being
married to a black man. If you had married an Englishman or a white man that
would not have happened to you."
Levers J accepted
that she made this comment, save that she said that in place of "black" she
said "Caribbean".
94.
The Tribunal commented that this was a gratuitous insult to Ms E
regarding her choice of husband from a particular ethnic group and that it was
also a racist remark. The Tribunal decided, however, that this comment fell
short of serious misconduct. The Board does not agree. The judge's comment was
outrageously racist. The Board understands that what may be totally
unacceptable in some places may be common currency in others. Nor does it
suggest that Levers J, who is after all married to a Jamaican, is herself
racist. But a comment such as that will inevitably be perceived as racist by
those who hear it and is totally unacceptable from the bench anywhere in the
world. The Board considers that it constituted serious misconduct. Mr Brodie
submitted that it would not be fair for the Board to treat this incident more
seriously than did the Tribunal. The Board does not agree. In making its own
appraisal of the significance of the facts found by the Tribunal the Board must
be free to differ from the views of the Tribunal in either direction.
E v T
95.
The Board has referred at paragraph 77 to the doubts that the letter
from Mr T has raised over some of the findings made by the Tribunal. It remains
to consider the implications of aspects of the hearing before Levers J that are
not subject to dispute. Ms E had been married to Mr T and they had joint
custody of their two children. They were in dispute as to whether their elder son,
aged 11, should be sent to boarding school in England. Mr T was in favour of
this course. Ms E was opposed to her son, who suffered from Attention Deficit
Hyperactive Disorder, being sent to boarding school before he reached the age
of 16.
96.
At the outset of the hearing Levers J stated that she had been to
boarding school and had sent her three children to boarding school. Ms E felt
that the judge was unsympathetic to her and to her case from the start. This
contrasted to her attitude to Mr T. Mr T's father had been a housemaster at Rugby School and Levers J remarked that her brother had been to that school. She said that
she would telephone her brother to see whether he remembered Mr T's father. Ms
Merren, Ms E's counsel remembered that she did this during a break in the hearing.
97.
The Tribunal described this behaviour as inexcusable and inexplicable,
commenting that it would have been obvious to any objective bystander that the
exchange about the ex-husband's father's position as housemaster and the
telephone call during the adjournment were unjustified and a departure from the
proper standards.
98.
A judge must always be careful to be, and be seen to be, even handed and
impartial. This is particularly important in family cases where emotions run
high and where the judge exercises a wide discretion. Levers J's conduct in
telephoning her brother to enquire if he remembered Mr T's father was
inappropriate and ill-advised. It was likely to give rise to the impression of
being favourably disposed to Mr T and did so. The Board would not, however,
describe this as serious misconduct.
Levers J's relationship with the Chief Justice after
May 2007
99.
The Tribunal devoted the 5th chapter of its Report to the
relationship between the Chief Justice and Levers J. The 6th chapter
of the Report deals with criticism by Levers J of the Chief Justice and other
judges, but concentrates on the other judges. Inevitably there is a degree of
overlap between the two chapters. The judges involved apart from the Chief
Justice were Henderson J, a Canadian who was a full time Judge of the Grand Court, Sanderson J, a Canadian who served as a part time Judge of the Grand Court and Mrs Ramsay-Hale, who held full time office as the Chief Magistrate.
100.
The Tribunal criticised Levers J for the terms of her memorandum of 4 June 2007 on the following grounds. First its tone and content were calculated to inflame
what was a very tense and serious situation. Secondly it made ill-judged
allegations of malice against those who had drawn the Chief Justice's attention
to the matters set out in his memorandum. Thirdly, some of the language used was
disproportionate.
101.
Levers J's response to the memorandum was certainly angry and indignant.
In response to the Chief Justice's disapproval of the way in which Levers J had
treated jurors, she responded by implicitly criticising the Chief Justice by
observing that a practice direction, or at least a telephone call to herself,
would have been helpful. Levers J alleged, in relation to one complaint, that
"Someone who wants to harm me and
prejudice your mind has trawled through the transcript to find this exchange
...This is an example of the malicious judgment of those who brought this to
your attention."
She unjustifiably
accused the Chief Justice of summarily accepting as correct the statements of
Mrs C and Mrs R. She said that the advice that the Chief Justice had given in
respect of the three written complaints "had been taken" and that she had
already implemented procedures to ensure that allegations of that nature,
however unfair they might be, could never be made again in the future.
102.
The Board does not consider that the tone or the nature of Levers J's
memorandum amounted to misconduct. It was the reaction of someone who was hurt
and upset. It did, however, demonstrate a lack of insight into her own
behaviour and a failure to appreciate the considerable shortcomings to which
some of it amounted.
Mrs Webb's evidence
103.
In dealing with events that followed the exchange of memoranda between
the Chief Justice and Levers J the Tribunal commented that Mrs Elizabeth Webb
was an important witness who was helpful in understanding the deterioration of
the relationship between the Chief Justice and Levers J. Mrs Webb was Levers
J's secretary from the time that she joined the Grand Court bench. The Tribunal
did not accept, on balance of probabilities, an important, indeed the most
important, part of Mrs Webb's evidence, but found that she was not lying and
relied other parts of her evidence. Mr Brodie submitted that the Tribunal
should have held that Mrs Webb had lied and should have discounted her evidence
in its entirety.
104.
The part of Mrs Webb's evidence that the Tribunal did not accept related
to a letter that was published in the Cayman Net News that purported to
have been sent to the Editor and which was signed ‘Leticia Barton'. It was one
of a series of letters bearing fictitious signatures that were published by
that newspaper. This correspondence was critical of the administration of
justice in the Cayman Islands in general and of the Chief Justice in
particular.
105.
In a witness statement dated 24 November 2008 she gave a detailed
account of seeing in July 2007 a single sheet of notepaper with writing in
Levers J's hand that was addressed to "the Editor" and signed "Leticia Barton".
She said that she had suspected that Levers J had written the previous letters
to the Cayman Net News and that, the same day, she told both Yasmin
Ebanks and Mrs Caudeiron, (an advocate in practice in the Cayman Islands), about
the Leticia Barton letter. About two weeks later she read the letter signed ‘Leticia
Barton' in the newspaper (this publication was on 27 July). Yasmin Ebanks was a
Listing Officer at the Grand Court. She signed a witness statement on 26 November 2008 in which she confirmed that Mrs Webb had told her about seeing the
manuscript letter before the Leticia Barton letter was published. Mrs Caudeiron
in her witness statement of 24 November 2008 said that she was away the whole
of July 2007, but that on her return in August Mrs Webb told her that she had
seen a letter in Levers J's possession under the name of "Barton" before it was
published in the Cayman Net News. Thus there was in the witness
statements a discrepancy, at least as to timing, between the evidence of Mrs
Webb and that of Ms Caudeiron.
106.
Mr Brodie cross-examined Mrs Webb strenuously about the Leticia Barton
letter. He produced a manuscript letter written for the purpose by Levers J
that reproduced the text of the letter published in the Cayman Net News to
demonstrate that it was impossible for the letter to have been contained on a
single page of notepaper. He suggested that she had conspired with Ms Yasmin
Ebanks to make up a false story about the letter. She insisted that the events
that she had described had occurred.
107.
`When giving evidence in chief, Yasmin Ebanks confirmed Mrs Webb's
evidence. She ended her evidence, however, with the remark that "when the
Barton one came out I had my suspicion about that letter".
108.
Mr Brodie picked up this comment in cross-examination and asked her
whether it was possible that her conversation with Mrs Webb occurred after the
publication of the letter. She did not accept this, but her evidence under
cross-examination was somewhat confused. Mr Brodie did not suggest to her that
she had conspired with Mrs Webb to make up a false story.
109.
The Tribunal observed that the Leticia Barton letter was important
because, had it been shown that Levers J was the author of it she would be
shown to have made offensive allegations critical of the Chief Justice and
other members of the judiciary, and would stand condemned out of her own mouth.
The Board would put it more strongly. The pseudonymous letters, including the
Leticia Barton letter, made personal attacks on individual judges, including
the Chief Justice, and on the judiciary in general. To write such letters under
pseudonyms to the press would have been misbehaviour of the highest order. Mr
Brodie accepted that, if correct, Mrs Webb's evidence would have justified
Levers J's removal.
110.
The Tribunal concluded, however, that
"having weighed the probabilities,
we are unable to conclude that it is more probable than not that Levers J wrote
the published letter. We did not believe that Mrs Webb was lying, but the lack
of specificity in this part of her evidence left room in our view for
misconstruction, confusion or imperfect recollection. That did not detract from
the main tenor of her evidence, which corroborated Levers J's antipathy for
Sanderson J, her criticisms, of him and Henderson J and of the Chief
Magistrate, and her readiness after May 2007 to criticise the Chief Justice,
apparently for no better reason than that he had reproved her. "
111.
The material placed before the Board shows that strenuous steps,
including a police investigation, were taken to identify the writer of the pseudonymous
letters to the Cayman Net News, both before the appointment of the
Tribunal and in preparation for the hearing before the Tribunal. This included
some remarkable correspondence from the Editors of that newspaper, which raised
a suspicion that the creation of the published correspondence might have been
internal. Before the Tribunal and before this Board Mr Otty accepted that he
could not properly seek a finding that Levers J was responsible for that
correspondence. The Board is in no doubt that he was right.
112.
The Board does not consider that the relevant evidence of Mrs Webb could
properly be described as lacking in specificity. Her evidence about seeing the
manuscript letter signed ‘Leticia Barton' was highly specific. She did,
however, state in a supplementary witness statement dated 1 May 2009, that her
conversation with Mrs Caudeiron might have taken place on an occasion after the
day on which she saw the letter. Mrs Caudeiron's veracity was not challenged.
It is clear that after the publication of the Leticia Barton letter Mrs Webb
told her that she had seen the manuscript written by Levers J. The Board
considers it possible that this was also when she told Yasmin Ebanks about it.
The two were close friends and it is likely that they discussed the incident at
a later stage. Mrs Webb may have coloured Mrs Ebanks' recollection as to when
their conversation took place.
113.
The Tribunal heard Mrs Webb giving evidence and concluded that she was
not deliberately lying. The Board is not in a position to reverse that finding.
Mrs Webb was, on her own evidence, under stress at the time. She suspected
Levers J of responsibility for the pseudonymous letters and it is possible
that, after the publication of the Leticia Barton letter, her memory was
defective. On any footing, however, Mrs Webb was not a reliable witness and
evidence from her that is not corroborated should not be relied upon. Into this
category falls her belief that Levers J was implicated in the staff petition,
belief that she transmitted to the Chief Justice. The Tribunal found that there
was no reliable evidence of this; it might have added that those responsible
for the petition strenuously denied that Levers J had had any involvement in
its presentation and that counsel to the Tribunal had commented that all the
direct evidence pointed against such involvement.
114.
Some aspects of Mrs Webb's evidence are corroborated by contemporary
documentation. On 6 August 2007 she typed a letter from Levers J to Mr Charles
Quin QC, who was subsequently to be appointed to the Grand Court, and Mrs Carla
Reid, her trustees, in which she complained that the atmosphere working in the
Judicial Department was the worst that she had experienced in her life and that
the personnel that she had to deal with left a great deal to be desired.
Dealing with her possible death she instructed that there should be no
attendance at her funeral or any memorial service by "the Chief Justice, any
Canadian member of the judiciary that included Mr Foldats, Henderson J, and the
Court reporters". She ended her letter by stating that she was convinced that
she did not wish "such hypocrites and less than decent human beings" to attend
her funeral.
115.
This letter demonstrates that by August 2007 Levers J had formed a
powerful dislike of the Chief Justice, Henderson J and those others that she
mentioned and was not concealing that from Mrs Webb. The Board considers that
it was quite inappropriate for Levers J to get her secretary, who was a member
of the court administration, to type a letter displaying such sentiments. Her
action lent some support, however, to Mrs Webb's evidence that, after Levers J
received the memorandum from the Chief Justice, she became critical of the
Chief Justice, Henderson J, and Sanderson J, whom she believed had instigated
the complaints about her.
116.
It was Mrs Webb's evidence that Levers J regularly made criticisms to
her about her fellow judges and that in August 2007, after a period of sick
leave as a result of stress she told Levers J that she did not wish to hear any
more of the "Court's office issues". She said that this made Levers J very
upset. This seems to have been the case. Levers J got Mrs Webb to type a letter
to a friend which included the statement that her secretary had "offensively
told me that she did not want to hear office gossip! What can I tell you – what
I know is I must say words can either be said at the appropriate time or not!"
The Board considers that it showed extreme insensitivity on the part of Levers
J to get her secretary to type this derogatory comment about herself.
Evidence from other witnesses
117.
Mr Brodie made the point that, in so far that Levers J was critical of
the Chief Justice or her fellow judges, this was in private conversations and
was not capable of amounting to misconduct. The Cayman Islands is a small
jurisdiction. Those in the court administration there are in regular
communication with each other. Comments made to one are likely to be spread on
to others. The Tribunal received a considerable body of evidence, some of it by
the nature of things hearsay, of adverse comments made by Levers J about the
Chief Justice.
118.
In an email sent on 5 June to Mr Robinson, a friend in Jamaica, Levers J described the Chief Justice as "weak". The Tribunal, understandably,
attached particular weight to evidence from Mr Quin, provided in the form of
answers to questions posed by those representing Levers J. He said that he was
aware that Levers J was speaking to people, criticising the Chief Justice and
his administration of the courts. She criticised the Chief Justice on many
occasions to him and he urged her not to do so, but to mend her fences with the
Chief Justice, which she declined to do.
119.
A number of witnesses spoke to Levers J's reaction to the memorandum
that she received from the Chief Justice. Ms Palmer, the personal assistant to
the Chief Justice, saw Levers J on 25 July 2007, who referred to the
memorandum. She said that she was upset by it and that no one was going to
sully her reputation and get away with it. Chief Magistrate Ramsay-Hale said
that at about the time that she received the memorandum, Levers J. described
the Chief Justice as "spineless, lacking backbone and having no balls". She
said that in the middle of 2007 Levers J "ranted" to her about the Chief
Justice at length. Mrs Caudeiron said that Levers J said that the memorandum
had the hallmarks of Sanderson J and that the Canadian court reporters were
also involved. Levers J denied that this conversation had taken place, but the
Tribunal was satisfied that Mrs Caudeiron's account was accurate. Ms Hennie, a
Judicial Secretary in the Judicial Administration Department, said that Levers
J said that she would "never forgive" the Chief Justice for the memorandum.
120.
The evidence of Mrs Webb that on a number of occasions Levers J spoke
critically to her about the Chief Justice reflected evidence given not merely
by Quin J but by a number of other witnesses. There was widespread gossip,
reflected in the pseudonymous correspondence in the Cayman Net News in
relation to the appointment of Mrs Cathy Cheshunt to the post of research
analyst. It was suggested that she had received this appointment despite the
fact that she was not qualified for it because she enjoyed the favour of the
Chief Justice and, in some quarters, because he enjoyed her favours. Mrs
Caudeiron testified that Levers J had stated to her that Mrs Cheshunt did not
have the necessary qualifications and had got the job because of her friendship
with the Chief Justice. Once again the Tribunal did not accept Levers J's assertion
that this conversation had never taken place. Other witnesses said that Levers
J had referred to statements by others to this effect.
121.
The Tribunal summarised the position as follows:
"It is our finding that, thereafter,
Levers J spoke disparagingly of the Chief Justice to various persons within the
justice system of the Cayman Islands. Her remarks filtered back to the Chief
Justice through persons closely connected to the administration of justice such
as Ms Lorraine Hennie, Mrs Elizabeth Webb, Mrs Yasmin Ebanks, Ms Delene Cacho
and Mrs Terrence Caudeiron.
From May 2007 Levers J
surreptitiously undermined the Chief Justice by her constant criticism of him
to third parties. She stubbornly refused to accept the sage advice of Mr Quin
to seek private communication with the Chief Justice. Instead of harkening to
such advice, she preferred to destabilise the Chief Justice through her own
criticisms and by giving currency to rumours uncomplimentary of the Chief
Justice. Such behaviour, in our view, was not congruent with the ethical
standards applicable to a judicial officer. It would put an unusual strain on
common sense for us not to believe that Levers J knew what she was doing, the
implications of what she was doing, and the consequences of her actions. There
could be only one purpose: the undermining of the office and the holder of the
office of Chief Justice."
The Tribunal
concluded that this behaviour amounted beyond reasonable doubt to misbehaviour
justifying Levers J's removal.
122.
The Board would not condemn as misconduct criticism made in good faith,
in private conversation with a friend, by one judge of another, even if that
other is the Chief Justice and even if the criticism is misconceived. Nor would
the Board necessarily condemn such a comment if made to a trusted member of
staff. But the disparagement by Levers J of the Chief Justice, which included a
scurrilous allegation impugning both his private and his public life, was made
to administrative staff, was so widespread and persistent that it was almost
bound to go beyond those to whom she spoke, and was duly reported to the Chief
Justice. It can be difficult to identify the point at which indiscretion
becomes misconduct, but the Board considers that Levers J crossed the line.
Criticism of other members of the judiciary.
123.
Henderson J was included in the list of those whom Levers J had
instructed should not attend her funeral. Evidence of her ill-feeling towards
him also came from Mrs Ramsay-Hale who gave evidence that on one occasion
Levers J asked her to sit between her and Henderson J because she could not
stand the man. Mrs Webb produced photocopies of notes made by Levers J in June
2007 that suggested disapproval of Henderson J's timekeeping. But there was
little evidence of personal disparagement of Henderson J, albeit that there
was evidence that Levers referred in conversation to gossip that he and his
wife smoked cannabis at home.
124.
Levers J had never sought to conceal her hostility and mistrust of
Sanderson J. She accused him of having been behind the Chief Justice's
memorandum and expressed opposition to his appointment as a part time member of
the Grand Court. Two witnesses at least spoke of Levers J referring to the fact
that Sanderson J brought firearms onto the Island. This was true, but he had
obtained the necessary permission to do as a competitor in sharpshooting.
125.
There was evidence that when Mrs Ramsay-Hale first came to the Island
from Jamaica as Chief Magistrate Levers J expressed strong disapproval of her
practice of enjoying a game of dominoes over drinks at the Sunset Club. This
was passed on to Mrs Ramsay-Hale by Howard Hamilton QC, of whose chambers Mrs
Ramsay-Hale had been a member, and according to him she thereafter desisted
from this practice. Mr Hamilton stated in his witness statement that Levers J
did not share the high regard that he had for Mrs Ramsay-Hale's legal
abilities, and repeatedly made this plain in conversations with him.
126.
There was a body of evidence that Levers J made, on occasions,
disparaging comments to judicial staff about the practice of her fellow judges
smoking and drinking coffee, and this tallied with her comment in open court in
R v Christopher Ebanks.
127.
The picture that this evidence paints is of a judge who was given to making
derogatory comments about her colleagues to friends and to members of the
administrative staff. The Tribunal commented that this caused disequilibrium
within the judiciary, that sowing the seeds of disunity in a court of only four
judges in a jurisdiction made up of small islands militated against the
development of judicial collegiality and cohesiveness and that it was bound to
bring the judiciary into disrepute. There is force in the earlier points, but
the final comment perhaps puts the matter too high. The Board is none the less
particularly concerned at Levers J's practice of denigrating her colleagues to
the administrative staff. When one considers as a single course of conduct the
comments made by Levers J about all her colleagues, including the Chief
Justice, serious misconduct is made out. The Board does not consider, however,
that this, of itself, amounted to misbehaviour that would have justified the
removal of Levers J.
Conclusions
128.
It is now time to stand back and look at the overall picture. The large
body of statements of those who have known and who have worked with Levers J
over the years shows that she has many admirable qualities. She is a sound
lawyer. She is industrious and she sets high standards. She had many admirers
at the court. One witness who spoke highly of her was Lillian Curbelo-Bush, the
Administration and Finance Manager of the Justice Department. The following
comments are extracted from her statement, which was adduced by counsel to the
Tribunal:
"I respect Justice Levers
tremendously. She is an extremely analytical person and she will criticise you
if you do not do something properly. That said, when she says something
critical she usually also follows it up with something constructive as well. I
respect her for this… As I mentioned before, Justice Levers is a very critical
person…Justice Levers likes things to be done by the book. If things are not
done properly she will take the matter to the highest authority until it is
resolved… I do not think Justice Levers' behaviour is out of the ordinary. It
is common to find criticism in other co-workers. She can be very harsh but
normally follows criticism up with constructive advice. Justice Levers
maintains decorum and expects those who are involved with the Justice
Department to also have high standards. If the Judiciary cannot uphold the
dignity and integrity that is essential how can we look up to them?"
129.
These comments give the clue to the conflict between the evidence from
the many witnesses who spoke to Levers J's good character, and the evidence of
misconduct that the Board has set out in this advice. Levers J has high
standards and shows strong disapproval for those whom she does not consider
measure up to them. That disapproval has extended both to some who have appeared
in her court and to her own colleagues. Unfortunately she has not kept that
disapproval to herself. It has led her repeatedly to make in court comments
that have ranged from the inappropriate to the outrageous about those who have
appeared before her and, on two occasions, about her judicial colleagues. So
far as those who appeared in her court were concerned, the disapproval and inappropriate
comments in evidence before the Board appear to have been directed
predominantly against women, and particularly women from outside the Cayman Islands, but it would not be right to deduce from those instances any race or gender
bias on the part of Levers J.
130.
By the time that the Chief Justice had prepared his memorandum of 24 May
2007 these comments had cumulatively amounted to misbehaviour justifying the
removal of Levers J from the bench. Indeed the Board has concluded that removal
would have been justified by her comments in Bryan alone. Anyone
who heard those comments could justifiably have concluded that a judge who
behaved in this way should not be permitted to continue to sit.
131.
The Chief Justice did not, however, consider referring her conduct then
and there for consideration by the Governor. Instead he placed the memorandum
before her for her consideration in the hope that it would lead her to avoid
such behaviour in the future.
132.
Unfortunately this hope was not fulfilled. Levers J accepted that her
comments in Ebanks and Ming had been inappropriate, although she
argued that they had been misconstrued, but she did not accept that apart from
these two incidents the Chief Justice's criticism was justified. Rather her
reaction was that she was being unfairly victimised. Her resentment soured her
relationship with the Chief Justice and she thereafter regularly disparaged him
as well as other judicial colleagues in private conversations with a number of
those involved in judicial administration in a manner and to an extent that
constituted misconduct.
133.
More significantly in the eyes of the Board, Levers J continued to behave
in a manner that was unacceptable in the performance of her judicial duties. Her
behaviour in relation to Irvayln Bush, Dilbert, Parchment, and S E was
unacceptable and, in three cases, amounted to serious misconduct. Levers J did
nothing to redeem the conduct to which the Chief Justice had drawn her
attention in his memorandum of 24 May 2007. She did not accept that she had any
need to mend her ways and did not do so.
134.
The Board has been most concerned with those occasions when Levers J has
been guilty in court of completely inexcusable conduct that have given the
appearance of racism, bias against foreigners and bias in favour of the defence
in criminal cases. They have been fatal flaws in a judicial career that has had
many admirable features. The Board does not endorse the unqualified terms in
which the Tribunal saw fit to condemn Levers J, as quoted at paragraph 38
above. The Board is, however, satisfied that by her misconduct Levers J showed
that she was not fit to continue to serve as a judge of the Grand Court and humbly
advises Her Majesty that she should be removed from that office on the ground
of her misbehaviour.
