George Neil v The Attorney General of Jamaica

• Jurisdiction: Jamaica
• Judge: D. Fraser J
• Judgment Date: 06 March 2020
• Date: 06 March 2020
• Docket Number: CLAIM NO. 2015HCV05030
• Court: Supreme Court (Jamaica)

[2020] JMSC Civ 37

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

CLAIM NO. 2015HCV05030

Between

George Neil

Claimant

and

The Attorney General of Jamaica

1 ^st Defendant/Applicant

and

Office of Utilities Regulation

2 ^nd Defendant

AND

Spectrum Management Authority

3 ^rd Defendant

Ms. Althea Jarrett, Deputy Solicitor General and Ms. Apryl July instructed by the Director of State Proceedings for the 1 ^st defendant/ applicant.

Ms. Kaydian Wood for the 3 ^rd defendant.

Mrs. Kaydian Smith-Newton, Legal Officer, Ministry of Science Energy and Technology present.

Claim of Public Interest Immunity — Duty of the court to balance competing aspects of the public interest in the administration of justice versus limiting disclosure to preserve national security — Minister's Certificate should be given significant weight but is not conclusive — Three stage test to determine effectiveness of Certificate, relevance of documents sought to be withheld and whether documents if relevant should not be disclosed to avoid substantial harm to the public interest

IN CHAMBERS

D. Fraser J

THE APPLICATION

1 On 23 October 2019, the 1 ^st defendant filed an ex parte application seeking, amongst others, the following court orders, that:

• (1) The defendant be permitted not to disclose the existence of letter dated February 18, 2003 from the then Minister of National Security Peter Phillips to the then Minister of Commerce and Technology Phillip Paulwell. [During the hearing of the application, it was conceded that the existence of the letter was already disclosed by the 2 ^nd defendant in its list of documents filed on October 11, 2019. Thus, counsel stated that the application was being amended for the defendant to be permitted to withhold disclosure of the letter or at least to withhold disclosure of bullet point 2 of that letter.]; and

• (2) The defendants be permitted not to disclose the names and signatures of the authors of the following documents:-

  • (a) Letter dated June 16, 2014 from the Jamaica Constabulary Force to the Office of Utilities Regulations.

  • (b) Letter dated January 2, 2015 from the National Intelligence Bureau to the Office of Utilities Regulations.

  • (c) Letter dated January 21, 2015 from the National Intelligence Bureau to the Office of Utilities Regulations.

  • (d) Letter dated April 17, 2015, from the National Intelligence Bureau to the Office of Utilities Regulations.

  • (e) Letter dated February 28, 2017 from the Office of Utilities Regulations to the Commissioner of Police.

  • (f) Letter dated March 28, 2017 from the Jamaica Constabulary Force to the Office of Utilities Regulations.

  • (g) Letter dated April 4, 2017 from the Jamaica Constabulary Force to the Office of Utilities Regulations.

  • (h) Letter dated March 27, 2017 from National Intelligence Bureau to the Deputy Commissioner of Police.

2 The grounds on which the orders were sought may be summarised as follows:

• i) By virtue of rule 28.15(2) of the Civil Procedure Rules (CPR) the Attorney General was exercising her right and duty to seek the court's permission, ex parte, not to disclose certain information on the basis that such disclosure would damage the public interest;

• ii) The correspondence from the Jamaica Constabulary Force (JCF), particularly the National Intelligence Bureau contains sensitive national intelligence findings in relation to the claimant and it was feared that disclosure of the names and signatures of the members of the JCF signing to those findings, would put their lives and that of their family members in danger; and

• iii) The aforesaid letter dated February 18, 2003 contained secret and confidential matters involving the national security of Jamaica that in the public interest should not be disclosed.

3 The application was supported by affidavits of Marlene Aldred, Solicitor General and Maria Myers-Hamilton, Managing Director of the Spectrum Management Authority.

THE SUBMISSIONS

4 In support of the application, counsel made the following submissions, that:

• (1) Given the 1 ^st defendant's role as guardian of the public interest the Attorney General has the duty and the right to bring this application in light of what is accepted as the Attorney General's unique responsibility in this area of the law. (See R v Chief Constable of West Midlands Police Ex parte Wiley [1995] 1 AC 274 per Lord Bridge of Harwich at page 287 and Disclosure 5 ^th Ed. by Paul Matthews and Hodge M Malek Q.C para.12.18);

• (2) A person may object to the disclosure or inspection of a document, a class of documents or part of a document on the ground of public interest immunity. It involves the balancing of two competing aspects of the public interest – a) the public interest in the proper administration of justice by making all relevant materials available to all parties to litigation; and, b) the public interest in withholding and not releasing information which could be harmful to the State and the public service if disclosed. (See Al Rawi and others v Security Services and others [2012] 1 All ER 1 at paras. 140 to 143 per Lord Clarke SCJ and R v Chief Constable of West Midlands Police Ex p. Wiley, supra, (pp. 296 and 298);

• (3) The threshold test for when public interest immunity may be claimed is whether the disclosure will cause ‘substantial harm’ to the public interest. ( R. v Chief Constable Ex p. Wiley, supra, (p. 281);

• (4) The Minister's Certificate is not conclusive and it is for the court to perform the balancing exercise and make a final determination on whether a claim for public interest immunity is to be upheld. (See R v Chief Constable Ex p. Wiley, supra, (p. 296 – 297);

• (5) In Disclosure 5 ^th Ed. by Paul Matthews and Hodge M Malek Q.C, the learned authors identify national security as a category of public interest immunity;

• (6) The application by the 1 ^st defendant for this court to uphold the Minister's claim of public interest immunity in withholding the names and signatures of the members of the JCF who signed the letters/intelligence reports listed at items (a) to (h) of the notice of application is well founded, meritorious and supported by authority;

• (7) There is no request to have the designations removed, only the names of the JCF members. Further, given that the identities of the large number of officers from various arms of the JCF involved in preparing the reports have not been disclosed, it is reasonable to seek to protect the senior officers who were the signatories to the letters/intelligence reports and who in any event would not necessarily have themselves been involved in the investigations;

• (8) The just determination of the claimant's claim for constitutional redress does not necessitate the disclosure of the names and signatures of the JCF members who signed the letters/intelligence reports;

• (9) While the Minister did not explicitly say that the disclosure of the letter of February 18, 2003 would harm the public interest, he did say that it is a secret and confidential letter containing secret and confidential matters involving the national security of Jamaica. The fact that the letter is so described, is sufficient to enable the court to place significant weight on the Minister's certification that it is in the public interest that disclosure be withheld for such a secret and confidential letter. There is value in the long line of authorities in placing some weight on a ministerial certification that it is private, confidential and relates to national security;

• (10) The court is invited to adopt the following three stage process outlined in Disclosure 5 ^th Ed. by Paul Matthews and Hodge M Malek Q.C page 415 at para. 12.21; and

• (11) The court is further invited to view the documents in making the aforementioned determinations and to rely on the dicta of Lord Clarke in Al Rawi, supra, at para. 145(iii) and the case of Major General Antony Anderson, Chief of Defence Staff, Jamaica Defence Board v Independent Commission of Investigations [2018] JMFC Full 4 (see para. 176).

ANALYSIS

5 Rule 28.15 of the CPR governs the procedure to be adopted when a claim of right to withhold disclosure or inspection of a document is to be made. Paragraphs 1, 2, 3, 6 and 7 provide:

• (1) A person who claims a right to withhold disclosure or inspection of a document, class of document or part of a document must –

  • (a) make such claim for the document; and

  • (b) state the grounds on which such right is claimed, in the list or otherwise in writing to the person wishing to inspect the document.

• (2) A person may however apply to the court, without notice, for an order permitting that person not to disclose the existence of a document on the ground that disclosure of the existence of the document would damage the public interest

• (3) A person who applies under paragraph (2) must –

  • (a) identify the document, documents or parts of documents for which a right to withhold disclosure is claimed; and

  • (b) give evidence on affidavit showing –

    • (i) that the applicant has a right or duty to withhold disclosure; and

    • (ii) the grounds on which such right or duty is claimed.

• (4) …

• (5) …

• (6) On hearing such an application the court must make an order that the document be disclosed unless it is satisfied that there is a right to withhold disclosure.

• (7) Where a person –

  • (a) claims a right to withhold inspection; or

  • (b) applies for an order permitting that person not to disclose the existence of, a document or part of a document, the court may require the person to produce that document to the court to enable it to decide whether the claim is justified.

• (8) …

6 I accept that as guardian of the public interest the 1 ^st defendant has the duty and the right to make this application. (See R v Chief Constable of West Midlands Police ex parte Wiley [1995] 1 AC 274 per Lord Bridge of Harwich at page 287 and Disclosure 5 ^th Ed...