Major changes to civil liberties

Lawmakers say measures needed to fight crime

Cayman Islands legislators approved two bills Monday that will affect the way
police and the courts handle the identity of witnesses and the freedoms of
those who have been accused of crimes, but who have not been charged.

The Bail (Amendment) Bill, 2010
will allow those released on police bail to have an electronic monitoring
device attached to them if they are released under curfew conditions.

Police can impose curfews on those
who are released on police bail without charge, but they have no way to monitor
those who are released on a 24-7 basis.

Deputy Governor Donovan Ebanks
said, quite frequently, suspects who are released on police bail commit more
offences even before they are charged with the previous crimes.

“The bill does not extend the
current authority of the police to impose a curfew on a person granted bail,”
Mr. Ebanks said. “It should improve the effectiveness of the exercise of that
authority by providing actual evidence of violations of a curfew.”

In addition to the bail bill,
lawmakers approved the Criminal Evidence (Witness Anonymity) Bill, 2010 – which
will allow police and the court system to use statements from anonymous witnesses
as evidence in proceedings where it is established that the witness may be in
danger.

The bill would allow anonymous
witnesses to be used in criminal investigations related to the following
allegations: murder, attempted murder, manslaughter, robbery, attempted robbery
and rape. Any firearms-related offences committed in connection with those
crimes can also qualify for the use of anonymous witnesses.

To obtain a qualification for an
investigation or anonymity order, either the commissioner of police or Cayman Islands attorney general would have to make
application to a magistrate. The magistrate’s decision on the application can
be appealed to a Grand Court
judge.

A court may also make a witness anonymity order to protect the
identity of testifying witnesses

Those measures can include: that a
witnesses name be withheld or stricken from court records disclosed to any
party in the proceedings; using a pseudonym for the witness; not asking
questions of the witness, which might lead to their identification; the
screening of the witness in a courtroom; and the use of a modulator to disguise
the voice of a testifying witness.

Calling violent crime “the beast
that is haunting us,” Attorney General Sam Bulgin urged lawmakers to pass the
witness anonymity proposal. They did so unanimously on Monday.

“Grand Cayman
is undergoing…a shift, where the use of firearms is making persons reluctant to
come forward and speak to police,” Mr. Bulgin said. “But a witness will only be
designated as anonymous…if he or she is willing to come forward.

“Some will argue the culture of
silence is understandable given the size of our community. What must be equally
understood is that we have to be the collective eyes and ears of our
community.”

Although opposition lawmakers unanimously
supported both the bail amendment and witness anonymity plans, George Town MLA Alden
McLaughlin said the country should realise how crucial it is to ensure the
criminal court system continues to operate on the presumption of innocence and
guarantees the rights of all defendants to a fair trial.

“This is an extraordinary piece of
legislation,” Mr. McLaughlin said, referring to the witness anonymity bill. “It
runs counter to the rights of an accused to be able to confront those who
allege his responsibility for a crime.

“If we do not have a system that
ensures the fair trial of those who come before it, then the whole house of
cards will collapse,” he said. “(If not) all of us are at risk of trial by
police officers…not by a jury of our peers.”

Mr. Bulgin assured lawmakers that
anonymous witnesses would only be used in cases where that witness would
otherwise not be able to testify. He said the witnesses’ record for truthfulness
would also be taken into account.

He also noted that the UK and New
Zealand employ such witness anonymity measures.

“We are not in uncharted waters
here,” the attorney general said.

Mr. McLaughlin pointed out that
both those countries have robust legal assistance systems for those who cannot
afford their own defence lawyers. He said Cayman needed to ensure that its own
legal aid system was maintained effectively.

“The opposition’s support of the
witness anonymity bill is conditional upon the belief…that the principal tenets
of our judicial system will be upheld,” Mr. McLaughlin said. “There is a strong
school of thought in this country…that believes we ought not to be paying
significant sums of money for persons to be properly represented. ‘How can we
be paying for these murderers?’ they will ask.”

That last statement drew the ire of
Premier McKeeva Bush, who is attempting to reform Cayman’s legal aid system to
implement a public defender’s office.

“We wouldn’t want a situation where
people don’t have access to legal aid, but I wonder how far we can take it,”
Mr. Bush said. “If you don’t have the money, what do you do?

“By God, what about the
responsibilities of people? They must go on a rampage and shoot and burn and
kill young children and we must go find the money?” Mr. Bush said. “Think about
that, honourable members.”

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