MLA: Crown stacking deck in court

McLaughlin worried about civil rights protections

Laws that govern criminal court
proceedings have been continuously adjusted over the past few years to “constantly
strengthen the hand of the prosecution…to give a greater chance of seeing
convictions”, George Town MLA Alden McLaughlin said during Friday’s Legislative
Assembly meeting.

Mr. McLaughlin’s comments came as
the House debated the Court of Appeal (Amendment) Bill, which involves a
seemingly minor change to current law. The amendment would allow appeals of convictions
or acquittals in criminal cases to be brought based on matters of law, as well
as on disputes of fact, in cases where a judge-alone trial had decided a
verdict or a judge had given instructions to a jury to acquit the defendant.

Attorney General Sam Bulgin said
confusing wording in the law has led the court to refuse to hear genuine
appeals in such cases that involve disputes of fact. Mr. Bulgin blamed this on
an unclear wording in the law that notes cases “which involve a question of law
alone” can be brought to the court following a judge-alone decision or a jury
being instructed to acquit by a judge. 

Mr. Bulgin said a number of appeals
have been dismissed on the basis that there is no need for the court to hear
them because of the wording of the law.

The amendment seeks to change that
wording to allow appeals on matters considered “erroneous on a point of law”
rather than those “which involve a question of law alone”. 

Mr. McLaughlin said Friday that
this issue was not just a fine point of lawyerly debate. Rather, he said that
the proposed amendment to the Court of Appeal Law could lead to a major change
where, previously, the criminal trial judge would have given directions to a
jury to acquit “and that was the end of the matter”.

If this change is passed, Mr.
McLaughlin said an accused person could end up being tried twice for the same
crime.

“Notwithstanding their acquittal,
the accused must be put through their appeal and then, if the prosecution is
successful, they have to stand another trial,” Mr. McLaughlin said, adding that
this issue is just one of several recent changes that appeared to undermine the
ability of the accused to defend themselves – forcing them to go through a
longer, drawn out process.

“It is demonstrative of a trend
that has most lawyers in the jurisdiction worried, but also people who worry
about things like human rights,” the opposition party MLA said. “It has the
capacity to undermine the basis of our system of justice.”

Mr. McLaughlin said he has
additional concerns of a similar nature regarding changes to the Police Law
that is being debated this week in the legislature.

“This is not the first time I’ve
expressed that concern (about civil rights)…not the attorney general and many
others,” he said.

Mr. Bulgin said the George Town MLA
had expressed very different concerns when he was a member of the ruling government
and noted that his constituency had become “a bit more narrow” since he joined
the opposition side of the aisle following the May 2009 elections.

“As legislators we
have to do what is right, not necessarily what is popular,” Mr. Bulgin
said. 

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3 COMMENTS

  1. We are seeing it happening before our very eyes! One law after the next! Folks, it is evident that this government (UK or Local) is making her attempts to keep the peoples of the Cayman Islands under her power and control! A DICTATOR whether from the UK or here, is on the rise!

    MARK MY WORDS!

    CAYMAN WE NEED TO WAKE UP AND ENFORCE OUR DEMOCRACY!!!

    OR ELSE, IT IS TOO LATE!

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  2. Let’s make one thing clear here; the Crown as represented in the courts of the Cayman Islands is not the same as the Crown as represented in the courts of the United Kingdom.

    Why is this ?

    This is because the United Kingdom has a fully implemented Human Rights Act which is superceded by the European Convention on Human Rights, as its final court of appeal.

    All laws regarding police powers and citizens rights and responsibilities are governed by this Human Rights Act, with all its protective elements in place.

    There is nothing like this in the Cayman Islands; the Attorney General of the Cayman Islands ‘cherry picks’ which police laws from the UK that he wishes to implement in the Cayman Islands without any type of restriction by any of the human rights statutes that exist in the United Kingdom; a huge difference in the criminal justice systems of both countries.

    Is it possible that ex-minister McLaughlin is now regretting not having a full human rights charter implemented in the Constitution when he had a chance to do so, given the direction in which things seem to be heading ?

    I think his heart has always been in the right place but is it too late to fix things now ?

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  3. It would be most interesting to see the statistics of how many cases are successfully tried versus those which end in a dismissal of sorts. Are we adding laws in the vain attempt that it will tip the scales of justice…..at the cost of human rights?

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