Legal changes that could make it
easier for police and prosecutors to secure criminal convictions are being
planned in the draft of the new Police Bill.
Those changes would also have a
major impact on an individual’s rights in situations where a criminal
investigation is being conducted by Royal Cayman Islands Police or other law
Solicitor General Cheryll Richards
said Tuesday that the ability for jurors or a judge to draw negative inferences
from a criminal suspect’s refusal to answer police in certain situations was
being contemplated in the draft of the Police Bill.
A draft of that proposal has not
yet been made public.
“The court or jury may draw such
inferences as appear to be proper from the failure of the accused to give
evidence without good cause,” Ms Richards said.
The proposal also gives that same
ability to judges and juries if the suspect refuses or fails to account for
objects, substances or marks.
“That is something we do not
presently have,” she said. “A person who is suspected of having committed an
offence – under the draft bill – may be required by an investigating officer to
give an account of…any of those items and a court or jury may draw such inferences
from an accused persons failure or refusal to give accounts for those items.”
The bill would also allow negative
inferences to be drawn in cases where an officer conducting a criminal investigation
asks an individual to account for their presence at a particular location.
RCIPS Commissioner David Baines
said this last measure would not allow police to randomly harass people in the
street and would not give officers an excuse to arrest someone simply because
they are hanging around in a particular area.
“Let’s use a scenario, a person is
unconscious on the street, a man with bloodied nose stood over him…bloody
hands, and an officer asks him ‘what are you doing here’? And he tells (the
officer) ‘go away’. Mr. Baines said. “What would the ordinary person in the
street…think would be a reasonable reaction?”
Mr. Baines said the negative or
adverse inference would only be used in context of evidence gathering for a
court case, not as a reason to arrest someone.
“There has to be a context, in
every request, to give an account,” Ms Richards said. (The officer) must have
reasonable cause before he poses that question.”
Ms Richards said the ability to
draw negative inferences from an individual’s refusal to answer questions
during an investigation would be balanced within the proposed bill.
“The accused person must first be
told of the possible effect of any failure or refusal and he or she should be
allowed an opportunity to consult an attorney,” she said.
Under the Cayman Islands newly approved
Constitution, all suspects in criminal cases have the right to legal representation
according to the Bill of Rights. But whether a police officer is required to
inform them of that right is not specifically stated.
Also, the Bill of Rights section of
the Constitution does not come into effect until 6 November, 2012.
The UK’s Criminal Justice and
Public Order Act of 1994 provided that country with some guidelines under which
adverse inferences could be drawn from an individual’s silence by a court or a
jury. Those include:
*If the suspect fails to mention
any fact which he or she later relies upon and which, in the circumstances at
the time, the accused could reasonably be expected to mention that fact.
*The suspect fails to give evidence
at trial or answer any question.
*The suspect fails to account –
upon his or her arrest – for objects, substances or marks in his or her
possession or on his or her person upon arrest.
*The suspect fails to account – upon
arrest – for his presence at a particular location.
Other powers the Cayman
Islands draft Police Bill could give to police officers include requiring
people who are arrested or charged to provide a greater range of evidence
samples, including skin impressions of a person’s body. Right now, the law only
allows for the taking of fingerprints and DNA samples.
The proposal could allow officers
to drug test suspects arrested in connection with firearms cases.