Police who arrest a foreign national but do not charge him may hold his passport for a reasonable time, but circumstances determine reasonableness.
That was one of two conclusions Justice Alexander Henderson made in a judgment earlier this month.
The application came before him in May on behalf of Canadian citizen Daniel Peter Frank Vanderwerff, who had been living here on a work permit.
Vanderwerff was arrested by police on 30 April at the airport while he was attempting to leave the island. He was told he was under investigation for theft, but was not charged. Police bailed him and kept his passport.
Days later, Defence Attorney James Stenning presented Vanderwerff’s application to Grand Court for a writ of habeas corpus, which requires authorities to produce the person being detained so the court can determine if his detention is lawful.
In Vanderwerff’s case, he was not being detained in a prison, but he was detained in the sense that there was a restraint on his liberty.
Vanderwerff said in his affidavit that any allegation of theft was unwarranted. His family had returned to Canada, he believed he would be unable to find employment in Cayman in his present circumstances and he was living on credit cards – a situation that could not last indefinitely.
Justice Henderson had to consider how long a foreigner who wishes to leave the country can be detained in the Cayman Islands because he is under police investigation and to what extent may the court inquire into the strength of the evidence against such a person who then makes a habeas corpus application.
He heard arguments on three days over the next weeks. Crown Counsel George Keightley appeared on behalf of the Royal Cayman Islands Police.
Justice Henderson referred to the Police Law, which sets out procedure when an officer arrests someone on reasonable grounds.
That procedure allows for the suspect to be kept in custody without being charged for up to 12 days – 72 hours at a time, with officers of increasing seniority making the decision based on how the investigation is progressing. The fourth and final 72 hours must be by order of the Summary Court.
If the person is not charged by then, he must be released from custody.
In contrast, where the suspect is released on bail, the only requirement is the arresting officer’s belief that an arrestable offence has been committed. The Bail Law permits the arresting officer to impose bail conditions to ensure the suspect surrenders to custody.
‘Holding a suspect’s passport is a common device for ensuring that he does so,’ the judge said.
Mr. Stenning argued that the court should inquire into the nature and strength of the evidence against Vanderwerff to determine if the sergeant did have reasonable grounds to believe he committed theft.
Justice Henderson concluded there was insufficient detail in her affidavit to permit a court to determine objectively whether that the evidence did amount to reasonable grounds. He directed that a summary of the evidence relied on be filed within 10 days.
He said Mr. Stenning could re-list the matter for hearing after that deadline had passed.
In deciding how long Vanderwerff could be kept in Cayman against his will, the judge said neither the Police Law nor the Bail Law impose any time limit.
‘In the absence of any time limit in the legislation, I attribute to the Legislative Assembly an intention that a suspect may be held in the Cayman Islands on police bail only for a reasonable time,’ he said.
‘What is reasonable will depend on all the circumstances, including:
• the nature and extent of the allegations;
• the period of time a diligent and competent police force acting in good faith might be expected to take to investigate the allegations;
• the seriousness of the allegations; the degree of difficulty posed by having to extradite the suspect from his home country if he is allowed to return there;
• the nature and extent of the suspect’s ties to the Cayman Islands;
• the difficulty and expense suffered by the suspect in remaining in the Cayman Islands against his will.’
The judge said this list was not exhaustive.
The time period allowed will be longer than the 12 day maximum when a person is held in custody, he said. But it will not necessarily be as long as the usual amount of time taken to investigate allegations against suspects who reside here permanently.
‘It is not unreasonable to expect the authorities to expedite an investigation into allegations against someone who finds himself in the same circumstances as Mr. Vanderwerff…. In assessing what is a reasonable time, the court is entitled to assume that adequate resources will be applied to the investigation,’ the judge said.
Mr. Keightley was directed to file within 10 days a view of what would be a reasonable time for the investigation.
The judge said Mr. Vanderwerff could also file an affidavit on the subject.
If, at the continuation of the hearing the judge concluded that the arrest was lawful, the question of reasonable time would then be addressed.
The 10-day deadline was the reason Mr. Stenning had asked for the matter to continue on 20 June. It was on 20 June that his client was charged.
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