Measure expected to pass today
You have the right to remain
silent, but in certain circumstances that silence can be used against you in a
court of law.
You have the right to consult an
attorney within 24 hours of your arrest, but no one really has to tell you
about that right.
Police will have the ability to
detain and take physical samples from certain individuals who are in the
vicinity of crime scenes – without making a formal arrest – for the purposes of
ruling them out as potential suspects.
Individuals can also be arrested
for alleged crimes which are typically considered non-arrestable offences if
police consider it “impracticable” to issue summons for court.
Those are all provisions contained
in the Police Bill that was debated in the Legislative Assembly in the past
week. The bill is expected to be approved Wednesday in a third and final vote
by assembly members.
No one opposed the measure Monday
when a crucial second vote was taken, although Opposition Leader Kurt Tibbetts
raised concerns about all of the proposals mentioned above.
“The Constitution itself…simply
says that the person has a right to remain silent. It seems to me that there is
certainly a conflict,” Mr. Tibbetts said during debate on the bill. “We believe
this is a fundamental departure from the common law system.
“A person is presumed innocent
until proven guilty.”
Attorney General Sam Bulgin said
the United Kingdom has used a similar provision since 1994, and it has since
been well-tested and has held up in both English courts and in the European
Court of Human Rights in Strasbourg
Mr. Bulgin also denied that the
bill would eliminate the right to silence as it exists under Cayman law.
“The (bill) does not in any way
detract from that right; it couldn’t,” he said. “The fact that an accused
person remains silent is something the jury should take into account.
“But the Crown still has to prove
Mr. Bulgin pointed out that the
bill would not force any accused person to give testimony in their own defence,
thereby protecting the suspect in a criminal case from self-incrimination.
Lawyer must be present
According to the provisions of the
Police Bill, 2010, which will replace the country’s Police Law if approved,
adverse inferences can be drawn from an accused person’s silence by a court or
a jury in certain circumstances.
For instance, if someone arrested
at the scene of a robbery has cuts on their hands and there is a broken window
at the scene, police may question the person about how the cuts came to be
That person is allowed to remain
silent. However, if he later relies on a defence in court that explains how his
hands were cut – an explanation that he did not provide to police at the scene
– an adverse inference can be drawn by the jury or judge hearing the case.
Mr. Bulgin said Monday that the
adverse inference itself is not enough to convict a person; that there must be
evidence supporting the Crown’s claims.
“The judge will have to be
extremely scrupulous in directing a jury,” Mr. Bulgin said.
The Police Bill also states that a
person who has not been able to consult with an attorney prior to a police
interview would not have the adverse inference from silence considered in their
court case. This was an issue raised in April by the Cayman Islands Criminal
Defence Bar Association in a letter to Solicitor General Cheryll Richards.
“Legal aid is not available to
suspects until they are charged and taken to court and, therefore, is not
available to persons at the time of their arrest, detention or interview at the
police station,” the Defence Bar wrote in its 11 April letter. “Unless an
attorney is prepared to act on a pro bono basis or the detained person can
afford to pay an attorney’s fee, the suspect will not receive independent legal
advice on the implications of his failure to answer questions at the time he is
asked to do so by police.”
Mr. Bulgin said the bill does not
contemplate allowing negative inferences to be drawn in court in such a
Mr. Tibbetts said he was confused
about a section of the Police Bill that allows certain people to be arrested
for offences that they typically could not be arrested for.
Under Section 59 of the bill, where
a police officer has “reasonable grounds” for suspecting a person has committed
a non-arrestable offence, the officer may arrest that person in circumstances
where serving a summons is not practical.
“It’s befuddling to me, if it
permits a police officer under any conditions to arrest a person or suspect
that they believe has committed a non-arrestable offence,” Mr. Tibbetts said.
”How can you arrest that person?”
Mr. Bulgin gave an example of a
person who had committed a non-arrestable offence who was about to fly out of
the country. In that situation, issuing a court summons could not be done until
well after the person had departed.
“There is really nothing
frightening about the provision in its current wording,” Mr. Bulgin said.
The Cayman Islands government
recently had to pay nearly $1.3 million following the wrongful arrest of Grand
Court Justice Alex Henderson. A visiting judge ruled in deciding the case that
Mr. Henderson was detained by police for a non-arrestable offence.
No mention was made of Mr.
Henderson’s case in the LA or whether this new provision would have applied to
the judge’s case.
Crime scene searches
Section 32 of the Police Bill
allows police to take physical specimens – which are not defined – from anyone
present at the scene of a crime “for purposes of elimination” from a suspected
These specimens can include
fingerprints, palm prints, footprints and photographs. Mr. Tibbetts said some
of the specimens taken could be considered to be fairly invasive.
“Section 32 can be seen to be very
worrying,” Mr. Tibbetts said. “This could easily mean that if anyone happens
upon a crime scene, they could be subjected to the full range of identification
Mr. Bulgin said it would be
difficult under the bill to have a precise definition of a physical specimen.
He said crime scene identification methods would mainly be by photographs and
The two types of evidence police
can collect from individuals are defined as intimate and non-intimate samples.
Non-intimate samples can include everything from fingerprints, to hair
(non-pubic) samples, and mouth swabs for DNA.
Breaking and entering
The Police Bill also gives
investigating officers the ability to break into unattended or abandoned vehicles
in cases where “reasonable suspicion” exists.
For instance, if an officer
suspects someone has illegal drugs stashed in their car, they could break into the
vehicle through a window without first obtaining a warrant.
However, Mr. Tibbetts questioned
whether police would have any responsibility to clean up the mess if nothing
“The owner should be given
restitution if nothing is found that relates to criminal activity,” he said. “I
think that’s only fair to expect.”
Mr. Bulgin said there was no
specific provision for that in the bill, but the police department has previously
paid to repair the doors of homes they have broken into and entered during
warranted searches if nothing was found.