Government is actively looking at building a dedicated juvenile justice facility to ensure children do not wind up in adult jails, says Attorney General Sam Bulgin.
Responding to a recent Cayman Islands Human Rights Committee report criticising the detention of children – particularly young girls – in adult prisons, Mr. Bulgin said a secure residential school focusing on educational and corrective outcomes is needed.
‘Government has accepted long ago that it is not ideal to have youngsters housed with adult prisoners,’ Mr. Bulgin said in an interview with the Caymanian Compass.
Although the Government has been looking at the issue for some time, he said the problem has taken on added importance recently for a number of reasons, including recent HRC reports.
‘There is no overwhelming number of young people in this situation, but whether it is five, 10, 15 children, it is too many,’ Mr. Bulgin said.
‘If you can salvage one child, it’s a good deed. It is the responsibility of Government; it’s not just a legal obligation, it’s a moral obligation.’
Mr. Bulgin said the cases cited in the HRC report – where unrepresented young females ended up at the Fairbanks Prison for women – were neither representative nor typical. ‘Having said that, nobody accepts that it is OK to lock children up in adult facilities,’ he said.
Report lacks balance
Mr. Bulgin applauded the Human Rights Committee for bringing awareness to human rights, something that he said ought to be encouraged and that Government supports. ‘But you need to be balanced when you do these reports,’ he added.
Mr. Bulgin pointed to a part of the report criticising mandatory minimum sentences introduced by Government in 2005.
The report stated that these sentences apply equally to children over 10 years of age, going on to warn that children could face mandatory 10 year minimum terms for a wide variety of offences, ‘some as trivial as possessions of air-guns or membership of a gang.’
Mr. Bulgin took issue with these claims.
‘To the uninitiated, that would seem quite disproportionate and bizarre. But the HRC omitted to mention that the legislation that deals with young offenders is the Youth Justice Law – not the Firearms Law and not the Penal Code.
‘If children are convicted of a firearms offence, either by the Grand Court of the Summary Court, they fall to be sentenced under the Youth Justice Law,’ he said.
Mr. Bulgin said judges should presume the Firearms Law does not override the Youth Justice Law. ‘[The legislation containing mandatory minimum sentences] deliberately did not repeal the Youth Justice Law,’ he said.
But Defence Attorneys on Grand Cayman have said the opposite is true.
They point to the common law doctrine of implied repeal. It states that when two laws are in conflict and the later one does not expressly say that the former continues in effect, judges should assume that legislators intended the most recently passed law to take precedence – in this case, the Firearms Law and others passed in 2005 containing mandatory minimum sentences.
Firearms law changes
Mr. Bulgin hinted at some of the amendments government is considering making to the controversial Firearms Law.
Government has previously committed to amend the Firearms Law to give judges sentencing discretion in cases where ‘exceptional circumstances’ exist.
But there have been hold ups in passing the amendment.
Mr. Bulgin said the amendment has again been delayed because his office received last minute representations from lawyers about the proposed amendment.
He wants time to look carefully at their representations, he said.
But, he indicated one of the amendments under consideration would involve giving defendants some incentive to plead guilty to firearms offences.
Defence Attorneys have complained that the mandatory nature of sentences under the Firearms Law gives defendants no incentive to plead guilty, no matter how weak their case is. As defendants have nothing to lose, they are contesting weak cases, taking up valuable court resources and public funds, lawyers say.
The Government has previously proposed two other amendments to the Firearms Law.
The first was intended to eliminate the retrospective application of the law, meaning that people charged with gun offences before the 10 year mandatory minimum sentence took effect in November 2005 would not be subject to it.
The second proposed change intended to eliminate an anomaly that is effectively allowing prosecutors to determine the length of a defendant’s sentence by deciding which court a case is tried in.
This issue came to light in August during the sentencing of 27-year-old Maricelle Manahan of West Bay (see Caymanian Compass, 13 August).
During Manahan’s sentencing Justice Alex Henderson said the defendant should have received less jail time, but since the case was tried in Grand Court the 10 year sentence was his only option.
Defence attorney Nicholas Dixey told the court that was unfair, since the Crown had not agreed to Manahan being tried in Summary Court where he would have only been subjected to a maximum four year sentence.
The amended Firearms Law would eliminate that sentencing anomaly by stating the minimum 10 year sentence for a firearms conviction would apply in Grand Court or a court of summary jurisdiction.
Hard-line on guns
Despite the amendments, Mr. Bulgin signaled the Government will continue to take a hard line on gun possession.
‘I don’t take the position that the mere possession of [a gun], in itself is a mitigating factor,’ he said. ‘The law criminalizes possession.
‘I hope the court is not waiting for [guns] to be used; I hope they are not saying that because it has not been used your transgressions are any less.’
Asked why a mandatory minimum sentence is needed, when the law allows for a maximum sentence of 20 years, Mr. Bulgin emphasised that legislators had a role in the process too.
‘Legislators might have taken a view … that there was this proliferation of gun crime and the sentences that were being handed down by the court did not reflect the gravity of what was happening locally. Their constituency called out to them, so they did what they considered to be expedient.’
The full HRC report can be read at www.humanrights.ky