A Canadian who was stopped from leaving Cayman last week is asking the Grand Court to order police to give him back his passport.
In an affidavit presented to Justice Alex Henderson on Friday, Daniel Peter Frank Vanderwerff said he was arrested at the airport on 30 April, but was not charged with any offence.
He asked the court to inquire into the legality of his detention on the island. If there is no legal basis for his liberty being restricted, he wants the court to order the return of his passport so that he may go back to Canada.
The affidavit was resented by Attorney James Stenning in open court on Friday. He said there is no power to arrest or detain a person merely to make inquiries about him.
His argument was based on the Magna Carta, the English document that for over 700 years has provided a remedy in cases of illegal restraint or confinement.
Mr. Stenning asked for a notice to be issued to the Commissioner of Police to justify the arrest of Mr. Vanderwerff and his continued detention in the Cayman Islands.
The judge questioned Mr. Stenning and Senior Crown Counsel Andre Mon Desir. Then he signed the notice. The date set for the full hearing is this Thursday, 10 May, before Justice Priya Levers.
Meanwhile, Mr. Vanderwerff is at liberty within the Cayman Islands.
Mr. Stenning compared his client’s situation to that of Napoleon Bonaparte, who was imprisoned on the island of St. Helena. ‘They had to pass an Act of Parliament to hold him there,’ the attorney said.
According to the affidavit, Mr. Vanderwerff was formerly employed with a local construction company. On 30 April he attempted to leave Cayman, but was stopped at the airport by an Immigration officer because of a note on file asking that he be detained and police informed.
A police constable arrived and informed him he was under arrest. Mr. Vanderwerff accompanied the officer to the Financial Crimes Unit where he was questioned without further caution about some matter relating to his former employer accusing him of theft.
The police sergeant who questioned Mr. Vanderwerff did not have evidence to charge him with theft or any crime, the affidavit stated, but the officer insisted that he surrender his passport. The officer said she had authority to allow her time to receive details about the allegations.
Mr. Stenning told the court that when he asked for his client’s release, the officer insisted on taking his passport, saying this was provided for under the Bail Law.
Justice Henderson said he was not persuaded that the police could put someone on bail without laying a charge.
Mr. Mon Desir said there was no distinction between the Bail Law and the Police Law, which allows the police to keep someone in custody up to 10 days while investigating a matter.
The judge said he supposed police could say they would keep a person in custody for 10 days or allow him out on bail if he surrendered his passport.
Mr. Mon Desir pointed to Mr. Vanderwerff’s status on the island – he was neither local nor an ordinary resident. The officer who questioned him considered him a flight risk.
The judge said Cayman has an extradition agreement with Canada.
All the points raised on Friday foreshadowed what the arguments will be at the full hearing, Justice Henderson said.