An attorney says the offence of
harbouring a fugitive is not in Cayman’s laws and therefore arrests of
individuals for the offence by the Royal Cayman Islands Police are unlawful.
He has since given notice of his
intention to seek damages for wrongful confinement to the Legal Department on
behalf of a female client he represents.
Attorney Peter Polack said, “It has
appeared the Legal Department has either failed to provide any, or any
competent advice to the police on the scandalous practise of arresting and
incarcerating innocent members of the public for an imaginary offence.”
He added that as a result, the
Cayman Islands Government may be exposed to millions of dollars in potential
liability claims that could arise from the failure of their chief legal
advisors to protect the interests of the people of the Islands.
The attorney cited several media
stories in which the term harbouring a fugitive was listed as a formal charge.
Police Commissioner David Baines
said the verbiage that exists covers the act of harbouring a fugitive in its
parameters, but conceded that the wording may be different.
“What we do have is a description
of behaviour that constitutes a breach of legislation,” said the police chief.
He explained that in an instance
where the charge was something like aiding and abetting a minor, who is a ward
of the court, essentially it is a contempt of court. Mr. Baines added that it
was not overly important to get caught up with the semantics of describing
crime, but instead, it was crucial to look at whether a breach of the law had
Crown Counsel Nicole Petit echoed
the sentiment expressed by Mr. Baines, saying the offence was one that had
fallen under the umbrella of laws that were in fact in the Penal Code. One part
of the Penal Code that could apply is section 323. (1), which states: “Where a
person has committed an arrestable offence, whoever, knowing or believing him
to be guilty of the offence or of some other arrestable offence, does without
lawful authority or reasonable excuse any act with intent to impede his
apprehension or prosecution, is said to become an accessory after the fact.”
The Penal Code provides for punishments ranging from three to 14 years for
conviction of being an accessory after the fact.
Yet Mr. Polack maintains that the
law must be absolutely consistent in its indictment of one’s character and said
his clients’ incarceration, irrespective of her poor medical condition, was
unacceptable, adding that she was later released without charge and an apology
was offered to her by the inspector on duty at the time.
The attorney said he has been
instructed to initiate private prosecution for the offence of wrongful confinement
against Commissioner of Police Baines, Superintendent Marlon Bodden, Inspector
Lauriston Burton, Inspector Mark Schofield and PC Jack Horner, in addition to
any other members of the police to have had any involvement with the matter.
The case could have implications
for many others when it comes before the courts. However, it will be up to a
judge to decide whether the police have acted outside their powers or if
Cayman’s laws cover the offence of harbouring a fugitive.