AG against right to remain silent warning

Attorney General Sam Bulgin pushed for the removal of a constitutional provision that would have required police to inform those they arrest or detain of their right to silence.

Cabinet Minister Alden McLaughlin revealed the reason for the removal of the provision at the meeting about the proposed constitution held at the Family Life Centre last Thursday. The panel of stakeholder representatives was asked by attorney Philip McGhee, who works in the Walkers criminal litigation department, why the provision had been discarded from an earlier constitution draft.

The panellists looked to Mr. McLaughlin to respond.

‘It seems I get all the hard questions,’ he said.

Mr. McLaughlin clarified what was actually removed from the draft constitution.

‘What [the draft] included was the right to be informed of the right to silence, which is a completely different thing than the right to silence,’ he said.

Mr. McLaughlin said the attorney general raised the point during the constitution negotiations in England. He said Mr. Bulgin did not mind including the constitutional right to silence, but he expressed concerns over elevating the right to be informed of one’s right to silence to a constitutional provision.

‘He said he thought it could create a serious impediment to justice,’ Mr. McLaughlin said, noting that Mr. Bulgin had likened the proposal to the Miranda provision in the United States.

The Miranda warnings were mandated by a 1966 United States Supreme Court decision as a means of protecting a criminal suspects’ right to avoid self-incrimination. It is not a part of the US Constitution.

Mr. McLaughlin said that Mr. Bulgin was concerned that having the requirement of warning a criminal suspect about his right to silence in Cayman’s constitution would create a situation where even confessed criminals could walk free if police forget to inform a suspect of his rights.

‘The fear of the AG was, and is, that if we elevate the right to be informed of the right to silence to a constitutional right… we’re likely to end up with a very different system of justice, something more akin to that of the US.’

Mr. McLaughlin said Mr. Bulgin’s argument resonated with the UK attorneys at the negotiations and they agreed to take that provision out of the draft constitution.

Mr. Bulgin sidestepped questions from the Caymanian Compass last week when asked who had requested the change and why it was made.

‘I don’t have any comment about it,’ he said in response.

Cayman Islands Human Rights Committee Chair Sara Collins spoke out about the change, which she said the HRC only became aware of on the last day of talks in London.

‘The HRC noted that it had not been discussed or debated fully with all participants or at the earlier rounds [of negotiations] and that it could not be dealt with in five minutes,’ she said. ‘The HRC appeared to be the only delegation that objected to the change.

‘We explained that the Criminal Defence Bar Association had prepared a paper in July 2008 which spoke against proposed legislation to this effect and asked the other delegates to wait until that paper could be tabled and fully considered.’

Ms Collins said the reason that was given fo why the document couldn’t be tabled was that ‘there was no printer available’.

‘In spite of [our] objection, the right was removed without further debate or consideration,’ she said.

The Cayman Islands Criminal Defence Bar Association issued a statement Thursday about the last-minute change to the constitution draft removing the provisions requiring a person arrested or detained be informed of the right to silent.

‘The CICDBA wrote to the Attorney General on 17 February 2009 advising him that the press had invited us to comment by next week on this development,’ the statement said.

‘Our correspondence sought clarification of the Attorney General’s role in the decision to amend this proposed section and the reason for the decision. We requested an urgent response so that we might be certain of the facts before commenting to the press ourselves next week.

‘We are of the view that our approach was responsible and correct,’ the statement continued. ‘We are yet to receive a response, and are now concerned that the article published in the Caymanian Compass created the impression that our members are not concerned about this troubling development.’

The CICDBA statement pointed out that law enforcement officers in Cayman are presently obliged to inform and remind suspects of the right to silence as mandated by the Judges Rules.

‘The importance of this existing obligation would be emphasised by its inclusion in the Bill of Rights [and] would focus the minds of officers and encourage good practice,’ the statement said.

‘We are of the view that properly training officers to the highest standards as to their duty to inform suspects as to the right to silence is the correct policy, rather than excluding that obligation from the bill [of rights] in order to accommodate substandard officers who may otherwise fail to inform suspects of this right.’

The CICDBA stated it would have expected the attorney general to agree with its position and that he would have been keen to clarify his position in order to counter any unfounded speculation that the amendment to the constitution was conceived by him and/or conceived merely to protect prosecution from the consequence of poor police work.

‘We were surprised and disappointed that our organisation was not consulted in relation to this agreement, and like everyone else, at this time our members can only speculate as to the thinking behind it.’