Police Bill brings rights concerns

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 opposition

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
its case.”

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
there.

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
situation. 

Non-arrestable offences

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
offence.

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
by police.”

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
fingerprints.

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
was found.

“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.

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5 COMMENTS

  1. This is an untrustworthy bill.It will serve Mr. Baines as Commissioner of RCIP, and will convict more innocent people than GUILTY. Its a shame. This makes it easier for the police to make a case without really following professional protocol in a democratic western society. We can look forward to a slew of civil lawsuits against our government. Where is the money going to come from to compensae all the innocent people that will be convicted who are NOT GUILTY?

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  2. The minister has a right to be concerned given those provisions. Although Mr. Bulgin may state a possible scenario for police action, it do not limited police in their own interpretation.. Further’ he points to a pay-out of 1.3M for a wrongful arrest of a Judge. This judge of course had the means to bring a lawsuit. One can imagine the number of individuals that was wrongfully arrested before and did not bring suit. Fear is the blindfold most used when a citizen civil liberties are being attacked; Rising crime in this case. Reminds me of a not long ago writing; When they came for the Gipsies, no one did anything, when they came for Jews no one did anything, when they came for me, there was no one left to do anything. I said my piece.

    No Objections!

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  3. Another factor that’s been ignored in the Cayman Islands for years is that there is no ‘middle ground’ between democracy and dictatorship or authoritarian rule.

    A country is either under one form of government or the other.

    Technically, the Cayman Islands has always been a de facto ‘dictatorship’, although seen, accepted and tolerated as a benevolent one by most of Cayman’s citizens.

    Thus no public outcry or opposition to a lack of human rights protection laws for many years in spite of this situation being outside the laws of the United Kingdom that protect individual citizens in the United Kingdom.

    There is no middle ground or grey area where these laws are concerned in the United Kingdom.

    Now that Cayman’s dictatorship is becoming more evident and less benevolent, what are the overly tolerant citizens of the Cayman Islands going to do about their own protection or are they willing to become like the citizens of Nazi Germany in the past or Zimbabwe, in more modern times ?

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  4. My only concern in this case would be the abuse of power/authority by a police officer in regards to arresting someone for something that is otherwise not arrestable and unnessesary and may end up misjudging a situation.This could ruin alot of people’s lives and create alot of injustice, especially if the person gives the officers sufficient evidence that they are innocent or are in the process of dealing with the somewhat minor infraction/offence, and just because the officer may not be personally convinced, they would then feel it is right to arrest them anyway instead of following the law.There are cases here and around the world where an officer misjudged a situation, arrested a person and the case ended up being thrown out and charges dropped because of wrongful arrests and abuse of authority by an officer/s as we all know, we are human beings and our human nature sometimes cause us to make the wrong decision or drive us to be unjust because of the bit of authority and power we were entrusted with.I’m concerned that there will be people who will no longer have clean police records when it really should be, and may jeopardize their family lives and jobs because of it.I also hope that officers assess the situations and use their discretion wisely and ensure that although they are trying to uphold the law, they are ensuring that the person being arrested’s family situation is in order(like having their children left home alone unattended, when the officer could have simply given them a ticket and let them be on their way to their children,but instead made a drastic decision to arrest them,placing the children’s safety at risk whilst unattended and doing more harm to the situation than good.) I just hope that this bill is really thought through thorughly and that there is proper checks and balances put in place to ensure that arrests are justified by law and not based on officers’ uncertainty or misjudgement and that there is provable evidence to back them up.I also really hope that the individuals will actually get a fair chance to explain themselves in an interview or in court instead of the simple yes and no questions that in many situations are still depriving the person of real justice, because their side of the story is not properly heard.

    Let’s pray they do the right things and doesn’t through our human rights aside.

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  5. Without a current ‘rights clause’ in the new Caymanian Constitution and one not due until 2012, these are frightening changes to the Police Law when taken as a total package.

    1. Police not having an obligation to inform a suspect of his/her right to remain silent; what happens in the case where a suspect is ill, illiterate or mentally impaired ? Where rheir capacity to comprehend what is happening to them under arrest might not be that of a normal person ?

    2. Non-arrestable offenses; an offense is either arrestable or it isn’t; this provision puts it at the discretion of a police officer totally for what offenses or perceived offenses a person can be arrested. It removes totally the European Convention on Human Rights violation of ‘unlawful arrest’, one that has never been upheld in the Cayman Islands at the best of times.

    3. Crime scene searches: this is the most disturbing one of all. An innocent person can be arrested, searched and intimate specimens taken from them to ‘eliminate’ them as suspects in a crime for which they have not been named a suspect based on compelling and existing evidence ?

    This automatically puts every single person in the Cayman Islands on a suspects list for every single crime committed in the Cayman Islands, theoretically.

    Have the people of the Cayman Islands gone entirely mad, to sit silently and have a police state legally imposed on them by the Caymanian Government in direct violation of all their rights as British citizens ?

    Don’t the people of the Cayman Islands recognise that there is no real political opposition and that they are being stitched up by a political clique that comprises both these so-called politcal parties ?

    Any Bill of Rights introduced into the Constitution now will be totally useless because it will not repeal the clauses of this Police Law that is already in violation of those basic rights.

    If the people of the Cayman Islands do not directly appeal to the Queen of England now, through the office of the Governor, to have this Police Law struck down in its present form, they can kiss their freedom and human rights as British citizens goodbye forever, once this law is passed.

    Again I ask, have the people of the Cayman Islands entirely lost their sanity ?

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