A new Human Rights Committee report based on cases before the Youth Court earlier this year raises troubling human rights issues regarding Cayman’s juvenile justice system, particularly in relation to the jailing of children in adult prisons.
Released this week, the report identifies a litany of international human rights breaches stemming from the detention of children, some as young as 13, at Fairbanks Prison.
Among the HRC’s concerns are the detention of children pending trial, the sentencing of children without access to legal representation, the imprisonment of children in an adult facility and a severe lack of appropriate facilities for juveniles accused of crimes.
‘Whilst the HRC is appreciative of the difficulties faced by all agencies involved in the juvenile justice system, these difficulties do not justify failure to comply with international obligations designed to ensure that young persons accused of crimes receive appropriate supervision, treatment and education,’ the report’s authors write.
In the report, the HRC examined the cases of ‘C’, ‘M’, ‘J’, ‘A’, and ‘B’; all young females that were facing criminal allegations in the youth court earlier this year. The girls, aged between 13 and 16 at the time, had all previously been placed in the Francis Bodden girls’ home.
At least four were charged with court imposed rehabilitation orders and all were charged with offences arising from an altercation with police officers at the home, the report said.
Four of the girls were either returned to Fairbanks prison on remand or were given sentences of imprisonment that were to be served, or deemed served, there.
None of the girls were legally represented at or before the hearings, it said.
Some of the instruments the Cayman Islands appear to be in breach of include the United Nations Convention on the Rights of the Child, The Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights.
There are also apparent breaches of conventions relating to the administration of juvenile justice, women’s rights and prisoner’s rights, the report said.
Mandatory sentences criticised
Mandatory minimum sentences are also criticised in the report for being overly preoccupied with punishment and failing to comprehensively address the needs of children, as required under international law.
‘Where these mandatory sentences exist, they do not only apply to adults but equally to children who are over the age of criminal responsibility, which in the Cayman Islands stands at 10 years old,’ the reports’ authors stated.
The controversial mandatory minimum 10 year sentence for certain firearms offences, introduced by the PPM Government in 2005, comes in for particular criticism.
‘Under these provisions, children are facing mandatory ten-year terms of imprisonment for a wide variety offences some as trivial as possession of air-guns or membership of a gang.
‘This is disproportionate, unjust and contrary to internationally accepted norms and to a multitude of international instruments,’ it said.
Describing mandatory minimum sentences as ‘an unfortunate and retrograde step for the recognition of fundamental human rights in the Cayman Islands’, the report’s authors call for constitutional human rights guarantees to prevent legislators encroaching upon such rights.
‘The HRC appreciates that the enactment of the laws providing for these sentences may well have been viewed as necessary in response to a perceived danger. However, this is precisely why human rights require constitutional elevation,’ it said.
‘Constitutional guarantees could ensure that law-makers are always fully cognizant of proposals which have the potential to undermine human rights; and in addition, should also provide a mechanism whereby such laws can be promptly and effectively challenged and, if necessary, annulled.’
In September the Government announced an amendment to the controversial Firearms Law that would give judges discretion to determine jail sentences in ‘exceptional circumstances’.
However the amendment was put on hold after lawyers complained that the amendment did nothing for those already sentenced under the law and did not remove a provision in the law that allowed it to apply to offences that occurred before the provision was introduced in 2005.
‘The HRC understands that mandatory sentences are currently under review,’ the report said.
‘This is a welcome development that the HRC supports. However, the HRC equally understands that the legislative proposals currently under consideration may also give rise to human rights issues.’
Concluding its report, the HRC said it is clear that in many cases the various agencies involved simply do not have the facilities available to them to allow proper disposal of the cases in accordance with the relevant international instruments
It quoted a judge in ‘C’s’ case: ‘[there is] no appropriate facility or programme for juveniles,’ the judge said.
‘We need a specialist programme tailored for adolescents…the limitations of the system mean that if she breaches [her youth court order] I have to return her to custody…I don’t have any choices…The situation at Frances Bodden has deteriorated to the point where there is no point placing her there.’
She continued: ‘the absence of formal ruling from ministers, young defendants go to Tranquility Bay. In our experience it is uniformly bad. It is high time that we have a facility here or explore alternatives … We need a secure facility with an education facility … We need a secure remand facility where [young people] can receive education and therapy.
‘Eagle House does not begin to meet needs of boys and for girls there is nothing at all … Frances Bodden is a home, it does not offer counseling and is not properly built for re-training or re-education … We need some facility between home and prison.’
The full final report can be accessed at www.humanrights.ky