Defence lawyers are urging a rethink of Cayman’s tough pre-charge detention laws, which allow police to hold people in custody for up to 12 days without charges being filed.
The Cayman Islands Criminal Defence Bar Association says the laws are excessive compared to other jurisdictions and recently wrote to Attorney General Sam Bulgin outlining their concerns.
‘The removal of a person’s liberty – especially where the person is detained only on suspicion of committing an offence and not where he is charged or convicted of criminal behavior – must be proportionate and not excessive,’ they wrote.
‘The association … believes that the balance is unreasonably struck against the interests of the detained person.’
CICDBA pointed out the maximum holding period in the UK is four days (except in terrorism cases), while under US federal law, and in Canada and South Africa, the maximum period is 48 hours.
In New Zealand the maximum is five hours; in Russia it is five days. In Spain the maximum is three days (and five days in terrorism cases), while in France the maximum holding time is 48 hours (and up to six days in terrorism cases), the attorneys noted.
‘Police in any jurisdiction face many of the same investigative challenges, and problems such as witnesses who are reluctant to come forward or situations where evidence is difficult to obtain are known and experienced worldwide,’ CICDBA’s letter stated.
‘The Association believes these problems are no more acute in, or specific to, the Cayman Islands and as such do not justify the claim that such long periods of pre-charge detention are warranted in this jurisdiction.’
While the issue is not a new one, it recently came to prominence after police were able to detain former MLA and Cayman Net News journalist Lyndon Martin for just under seven days before laying criminal charges against him.
Royal Cayman Islands Police Service Spokesperson Deborah Denis acknowledged Cayman’s pre-charge detention period is longer than many other jurisdictions, but cautioned the power has only been exercised a handful of times recently.
She said the Police Law (2006 Revision) has adequate checks and balances in place to ensure the power is not misused.
Initially, the law allows for a holding period of up to 72 hours without charges being filed. After that time, a superintendent or higher ranking officer can extend the period by another 72 hours, provided the officer believes the detention is necessary to secure or preserve evidence; that the person has been arrested for a ‘serious arrestable offence’; and that the investigation is being carried out diligently and expeditiously.
At the end of six days, the Commissioner of Police can authorise a further three days detention without charges being filed, provided he too is satisfied the above criteria has been met.
After nine days of detention, officers must take the matter before a Magistrate in a closed-door chambers hearing to win permission to hold the person for an additional three days.
‘At each level, the investigating officer must put forward his reasons for wanting to keep that person in custody longer,’ Ms Denis noted. ‘We must ensure at each stage that our enquiries have been done as diligently and as expeditiously as possible, otherwise the extension will not be given.’
While CICDBA argues police in Cayman face many of the same investigative hurdles as police in other jurisdictions, Ms Denis said the investigative process can be slower here because police often have to enlist the cooperation of overseas agencies to investigate crimes, particularly when DNA and gunshot crime analysis is required from overseas laboratories.
Ms Denis also emphasised that people in custody have the right to legal representation throughout their detention.
Minor crime included
In their letter to the Attorney General, CICBDA expressed concern that the drafting of the Police Law gives the RCIPS authority to detain people for extended periods for a host of relatively minor criminal matters, including disorderly conduct, chain letters, street trading, rogues and vagabonds and indecency between males.
‘The possibility of a person being detained for up to 12 days for a comparatively minor offence cannot be excluded,’ CICDBA warned, ‘especially in the absence of a statutory – or any – definition of what constitutes a ‘serious’ arrestable offence.’
Ms Denis acknowledged the law gave the RCIPS such a power but said the reality is that extended detention is only ever considered for serious crime.
‘If someone is in for a minor offence, we’re not going to hold them for nine days,’ she said.
‘I cannot tell you one instance where someone has been arrested on a minor offence and then held for nine days. It may be allowed, but it does not happen.’
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