Under the Cayman Islands draft constitution, individuals taken into custody by police are not required to make any statements or respond to questions from officers immediately following their arrest, at least until they have a chance to consult legal counsel.
It’s generally known as the right to remain silent.
However, due to last minute changes in the proposal, authorities making an arrest will not have to inform individuals in custody of that particular right. In other words, if the arrested person doesn’t know about their rights, arresting officers don’t have to tell them.
The changes in the wording of the right to personal liberty section of the proposed bill of rights were made during the final days of constitutional negotiations between the United Kingdom and Cayman. Questions about who requested the change and why it was made have been met by silence.
‘I don’t have any comment about it,’ Attorney General Sam Bulgin said.
Members of the Cayman Islands Defence Bar Association have also not responded to questions from the Caymanian Compass on the subject.
The second-to-last draft of the bill of rights section on personal liberties reads as follows: ‘Any person who is arrested shall be informed promptly; in a language that he or she understands, of the reason for his or her arrest or detention and of the right to remain silent.’
In the final draft constitution, the one that will be placed before Cayman Islands voters on 20 May, that section states: ‘Any person who is arrested or detained has the right to remain silent and shall be informed promptly, in a language that he or she understands, of the reason for his or her arrest or detention.’
Many countries in the Western world do not include provisions for the right to remain silent in the text of their constitutions.
In the United States, for example, the right to remain silent is actually derived from a Supreme Court decision in 1966 from the case Miranda v. Arizona. A 5-4 split decision of the court ruled that statements made to police by defendants will generally only be admissible in court if the defendant was allowed to consult with his or her attorneys and informed of the right not to incriminate themselves in criminal proceedings.
In the UK, individuals have the right to remain silent but it is conferred in standard legislation. Also, juries are allowed, in certain cases, to make a negative inference if a defendant has utilised that right.
The Cayman Islands currently has a provision that includes the right to remain silent, but it is neither written into the constitution nor in the Police Law. Rather, the measure is included in what’s known as the Judges’ Rules. Those are derived from general guidelines set out in English Common Law regarding police questioning and acceptability of statements taken from suspects.