Letters to the Editor: Chipping away individual rights

The most recent announcement
regarding the right to remain silent being taken away from the accused in these
Islands is a bit troubling.

Cayman Islands lawmakers and myself have realised the importance of the  Miranda Rights that protect the rights of the
innocent and the accused. That section relating to the accused had been
provided in the constitution, which was recently approved, but now it is being
taken away.

The chipping away of the positive
aspects of the bill of rights and the constitution has a long lasting affect on
the lives and future of our youth and our society as a whole. It would not hurt
if lawmakers insist that these aspects already 
grafted into the constitution remain and the language carefully drafted
after the US Miranda Law outlined as follows:

You have the right to remain
silent; anything you say can and will be used against you in a court of law.
You have the right to an attorney. If you desire an attorney and cannot afford
one, an attorney will be obtained for you before police questioning.

Anyone who has watched a TV police
drama has heard this speech, or one similar to it. Every day, police throughout
the United States
recite these words of warning to suspects before formally questioning them for
specific crimes. The “You have a right to remain silent” speech is known as the
Miranda Warning because its legal requirements were established in the ground
breaking US Supreme Court case Miranda vs Arizona. In that case, the court ruled that
the statements made by the person accused of a crime could not be used as
evidence at his or her trial unless the accused “voluntarily, knowingly, and
intelligently” waived the constitutional right to remain silent. It was a
revolutionary and highly controversial decision. Until that time, the right to
remain silent had been thought to apply only to trials. The Fifth Amendment to
the US Constitution guaranteed criminal defendants the right not to testify
against themselves in a court of law. In Miranda, however, the Supreme Court extended
the right to remain silent beyond the courtroom to the police interrogation
room.

The US Supreme Court had a major
impact on law enforcement, creating a new procedure protecting the rights of
the accused that have often fallen victim to police interrogation.

What is the Miranda Rights really
saying? The exact wording of the Miranda Rights statement is not specified in
the Supreme Court’s historic decision.

Instead, law enforcement agencies
have created a basic set of simple statements that can be read to accused persons
prior to any questioning.

The Court continues by declaring
what the police must do if the person being interrogated indicates that he or
she does want a lawyer.

The Miranda Rights do not protect
you from being arrested, only from incriminating yourself during questioning.
All police need to legally arrest a person is probable cause; an adequate
reason based on facts and events to believe the person has committed a crime.
Police are required to read him his Miranda Rights only before interrogating a
suspect. While failure to do so may cause any subsequent statements to be
thrown out of court, the arrest may still be legal and valid.

Also, without reading the Miranda
Rights, police are allowed to ask routine questions like name, address, date of
birth and social security number necessary to establishing a person’s identity.
Police can also administer alcohol and drug tests without warning, but persons
being tested may refuse to answer questions during the tests. Source: Court TV
Legal Survival Guide

As A Caymanian I am concerned that
removing the right to remain silent will violate the rights of the accused
while empowering the police for corruption and forced confessions that may not
necessarily be true.

Despite the rise in crime and the
need to apprehend individuals in an effort to make our country safe, robbing
Peter to pay Paul is not the way to go. The RCIPS has its rights, but so does
the accused.

We must be careful, when making
these serious decisions and the AG must get it right this time. I’m not sure he
has. This recent report of a change to our constitution is very troubling.

To date there has been way too much
tampering with out constitution. This is very dangerous and if we continue to
allow this there will be more chipping away of our rights and privileges until
we have nothing left and we find ourselves living under a dictatorship regime
of absolute power.

Florence
Goring-Nozza

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8 COMMENTS

  1. It is quite clear that the writer does not understand the law. I don’t believe that accessing ‘Court TV Survival Guide’ puts the writer in any position of authority!
    Of course a police officer, indeed anyone, may ask an individual questions to ascertain their identity and the individual has the right not to answer. For example, try going to renew a driving licence without having to prove our identity.
    The change in the law in relation to the right to silence is quite simply where an individual relies on a piece of information in cout.
    To give an example:
    Following an alarm sounding at a business premise, John is seen walking along a nearby street at 2.00am carrying a laptop computer. On checking the premises with the owner, it is discovered a laptop computer is missing. There being reasonable grounds for suspecting John has stolen the laptop computer he is arrested.
    Under current system, John need say nothing to police. Several months later at court he claims that he was at a friends house when someone he doesn’t know came in and asked him if he could drop the laptop computer at the home of a mutual friend on the way home.
    Because of the time that has lapsed between the offence and the trial, there is now no realistic way for the police to investigate that claim – the house owner can’t remember the incident and the unknown person remains unknown.
    However, under the new rules, John MUST give this explanation when asked. That way the turth can be more easily ascertained. Police can go to the house and interview anyone there or speak to persons in the vicinity to see if anyone has enterd or left. Clearly, forensic evidence must be collected as soon as possible. By being able to delay providing an explanation the suspect can defea justice. If John is telling the truth he has nothing to fear.
    Finally, the lack of an explanation at the time allows the court to draw an inference: i.e.: why would John not give this information? Could he have given it at the time? The lack of explanation does not mean John is found guilty. There would still be a requirement on the prosecution to prove the offence ‘beyond all reasonable doubt’. The lack of any explanation by the suspect will never override this basic tenet of Justice.
    This change to the ‘right to silence’ has made no difference to justice in the UK and there should be no fear of it.

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  2. Beachbum

    I agree with you entirely that it is clear that this writer does not understand the changes in this law being discussed on this forum but then again; neither do you.

    This writer is relating this law to the Miranda Law in the USA, which you have rightly pointed out, works differently in British law as applied in the UK.

    The key change in this Caymanian Police Law version of the ‘right to remain silent’ is that the police in the Cayman Islands will not be obligated to inform an arrested suspect of this right any at all.

    This is not the law in the United Kingdom and if anyone in the UK ever suggested any such change to this law in the UK, there would massive political and public opposition to the violation of the British citizens rights under British and EU rights protection laws.

    In the UK, the police are obligated to inform an arrested suspect of their right to remain silent and that if they access this right, they will not be able to later on rely in court on any statements that were not given to the police at the time of their arrest.

    From this writer’s overall letter, it is clear that she has yet to understand the overall implications of living in the Cayman Islands under psuedo-British law as opposed to living in the USA under US laws; it goes without saying that she has never lived in Britain, period.

    When this writer was vehemently opposing any suggestions that Caymanian voters should shelve this new Constitution until a proper Bill of Rights was included immediately, she obviuosly was not aware of what would be waiting around the corner.

    Now she has changed her tune to be bleating about Caymanian rights that she, herself, encouraged the Caymanian people to voluntarily give up by agreeing to this flawed Constitution.

    Who and what will protect the people of the Cayman Islands now from becoming a legal police state, no longer under British law or administration ?

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  3. Why get personal, this is a legal issue. I disagree with both of you critics. And you are both wrong in aptitude and attitude.
    Here’s the proof Here is a case of shooting the messenger in the foot again. A dose of Cayman crabmania again. This was a brilliant article. Obviously Ms.Goring-Nozza was focusing on the point that accused innocent persons would suffer because of not being aware of his or her rights while in custody. Don’t try to deliberately mislead others who need to understand the important point she is making ! That being the accused ‘s s right to remain silent and right to an attorney is in jeopardy. Yes it is in the law but the police from here on will not tell the accused of his civil rights and liberty. That’s the problem with the law. I see no flaw with her article I think this is just a petty jealous personal attack. Why would you try to mislead people, she’s basically saying the same thing as Mr Alden McLaughlin, MLA!
    Since you are obviously shortsighted here’s what you should know. I think I can see more clearly than the both of you.
    The lady is not saying that the US laws are binding here in the Cayman Islands but anyone with any insight would agree that the US Miranda law does work and with reliable DNA testing together with well trained law enforcement could very well save the Freedom of an individual that is accused of a murder or other serious crime that HE OR SHE DID NOT COMMIT.
    Why would you let the Attorney General go free while you beat up a messenger that is telling you the truth? Point your finger at him! And your premier who is behind it I’m sure.
    The lesson learned here is that good jurist prudence means adapting laws and principles that have been tested and proven to work well in other jurisdictions. The UK has not done a very good job of solving crimes and their systems do not work.. You obviously know very little about the law for if you did you would be aware that pretty much every case tried in court challenged by the defense based on the circumstances surrounding similar cases of similar nature, regardless of the jurisdiction, US or the UK. When it comes to the law all accounts regardless of jurisdiction are taken into consideration. in passing judgment..
    In evaluating Ms. Goring-Nozza’s recent letter and explanation of the Right to Remain silent. Her stage approach contains a number of conceptual good aspects of the US Miranda Law. Both of you deliberately ignore, it maybe because you are not really teachable?
    It is evident that Ms. Florence Goring Nozza’s reference to the US Miranda Law is an exemplary effort for our Judicial systems for consideration in adoption of moral perspective to help explain this state of affairs. Her reference to the Miranda Law is an example to be looked at through the eyes of the wise and prudent legal pundits. The rule so it will be argued, protects the legitimacy of trial deliberation by FORBIDDING RELIANCE ON AN ASSUMPTION BY THE POLICE, THE PROSECUTION,AND THE JURY THAT DISRESPECTS THE MORAL AUTONOMY OF THE PERSON WHOSE CONDUCT IS BEING JUDGED! This moral objection can arise in civil cases; but it arises more frequently and usually with greater force in criminal proceedings. While there is a need to reserve some judicial power to disallow proof of similar incidents in the civil context, there is usually less reason for the exercise of that power in civil cases than at criminal trials.

    Congratulations Ms. Florence Goring-Nozza. Good article. Brilliant indeed. Thank you for your research.

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  4. Your writer does a brilliant job in explaining the Miranda Law as it applies in the United States, not the United Kingdom or how the new Caymanian version will apply in Cayman.

    Where her arguments are completely false, erroneous and misleading is where she refers to the right to remain silent being included in the new constitution and is being taken away.

    No Bill of Rights is currently in effect in the Cayman Islands and if your writer can show me where one is, she is due an immediate apology but I am quite safe in not having to offer one on that score.

    The right to remain silent under arrest in the Cayman Islands is rooted in British common law and included in the current Police Law, which is now being changed on two important points, not just one.

    The current version of the US Miranda Law is the one currently used in Cayman; this differs from its counterpart used in the United Kingdom in the clause that is now being introduced into the Caymanian version; that a suspect may not rely on any statement in their defense in court that has not been given to the police upon interview.

    This is bringing the current law used in Cayman in line with what is used in Britain.

    The second change that Cayman’s police will not have to inform suspects of this right to remain silent is neither in British, American, European or any other democratic country’s laws.

    One only has to Google your writer’s name and the numerous articles written by her outlining her original stance on accepting the new constitution in its current form is there for all the world to see.

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  5. Good day all. I hope that you find the letter "chipping away at individual rights" as interesting as "sleepwalking past the jury" or "train to circumvent crime" – at least while sitting together and discussing the ills of the country, as we Caymanians do so well. We might not talk to people who can make a difference about our concerns, but at least we will gather together in the neighbourhood bar or in the backyard and discuss it. And we are not going to stand unified in protest against anything either. We are such a peaceful people.

    I reside in a country in which my human rights have been recognized, protected and active every single day of the year. I live in a country in which I have the right to a fair trial that commences first with the police having to have enough evidence to charge me (having gathered this evidence by a procedural code) and ends with the right to a jury. If found guilty, I have the right to an appeal.

    While I may no longer reside in Cayman, it is quite appalling the way that my fellow Caymanians are so relaxed to sit back and allow the government to completely eradicate your civil rights!

    Please do not allow anything I just said to concern you; feel free to sit back and let the government change your political categorization from democratic to dictatorial. You will eventually adjust to life in a new social norm. There are many Cubans who are happy with the way things are in Cuba.

    I know: that’s far fetched isn’t it? Well, yes it very well may be. Especially considering that you have to pass the police state setting first. But again don’t be concerned. We’ve adjusted so well to this reduced level of democracy that we don’t even realise the truth: we’re you are already at it’s doorstep. Sorry. I said "we". I meant "you". Yes you are: the police can stop you walking home from work at 1am and ask you for a urine test for no reason. If you refuse you are liable to up to six months imprisonment because you don’t have the right to refuse a urine specimen – even when there’s no apparent reason for one being requested. That’s the beginner.

    Oh and by the way, while we’re at the police state thing, let me remind you of the Misuse of Drugs Law: the police can enter your home and search without a warrant under this law. Yes they can. They need a warrant to search for anything else, including a child molester who they believe may be within your walls. That’s really cute, isn’t it? The fact that the police decide how they will enter your home. Now see, they can enter to search for drugs and discover someone who is suspected of a crime and arrest them without having a warrant in their hands to search for that individual. That should make you feel really good right about now. Your home can legally be invaded illegally.

    Don’t worry to call any witnesses on your behalf – you’re not entitled to any anonymous witnesses who may fear the pressures that may be exerted on them from the police department AND FROM THE POLITICIANS (oh come on – you know this happens! I can very likely name a member in every one of your families who can testify to police harassment or political pressure. Except it does no good because they fear the retributions of such testimonies.) Anonymous witnesses are for the prosecution. You do not have the right to one. This will make your defence difficult, because you don’t know who your witness is. But that’s ok. The crown will win and after all, that’s the main goal. Sorry! You thought a fair trial was? I hate always having to be the bearer of bad news.

    Oh! I nearly forgot: When you’re at the police station and they’re interviewing you, answer ALL their questions. Forget the part about having the right to remain silent. That’s being stripped from you too. Yep! If they ask you what colour the walls are inside the interview room and you answer, and then they ask you about the "crime" that they have you in custody for and you maintain your right to remain silent, there’s the inference law that they can enact. With the inference law the judge has the authority to infer or instruct the jury (if you have one) to infer that you are guilty because you answered one question but refused to answer another.

    I can only pray that you are arrested for a minor crime, something like a traffic ticket hopefully, because it seems that soon if it’s more than that you will not be entitled to legal aid. The leader of the country and his supporters are making this obvious, isn’t it? Now they’re trying to categorize who is entitled to legal aid based on the crime for which they are accused. Remember, "murderers and child killers should not be entitled to legal aid". Your elected representatives said that. In other words, once you are charged for these crimes you are already deemed guilty and none of government’s money should be spent on providing you with a fair trial. Take your life sentence and go peacefully to your maximum security cell. Hopefully, Amnesty International will come along and help you to prove your innocence before your final breath.

    But don’t get up and do anything about any of this – there’s more so you might as well wait until you have the full bounty before you say anything: Not only have you been wrongfully arrested, have no right to witnesses, have no right to remain silent and have no idea who’s testifying against you, you also will not have a jury of your peers to try you either. Now, you have it going on!!! Nope! You are facing trial by judge alone. The white bus outside the court house is your next ride…the one with the government insignia and the black and white writing that reads: "Cayman Islands Prison Service". At least you’ll get three meals a day. Might not be the most and certainly no where near good food, but you will be fed.

    The only thing I can truly say that I can figure out about all this is that that they will soon actually change the Miranda to "you have the right to remain silent, but if you maintain that right you will be found guilty in the court of law. Anything you say or don’t say can and will be used against you. You have the right to an attorney. If you cannot afford one, we will provide the one that we feel suitable to represent you in the best interest of the crown. Do you understand that you have no rights?" That will simply all the court proceedings and then they can eliminate the right to an appeal shortly after. There’ll be no need for one. You can’t win appeal on laws that have been applied fairly. Even if the law itself is unfair!

    I know, I know. This will not happen to you. Nor will it happen to any of your family. So you have no reason to be concerned and open your mouth to your politicians against the proposed new changes. I don’t know why I keep trying to raise you up to do something about what is happening in Cayman; it isn’t my true intention. I want you to sit back and enjoy this ride, as I figure that you will. Opening your mouth might offend someone in high power and you might not be able to get ahead in life after that because you might lose your job, or worse: you might know someone who’s in court now and speaking out might have a ripple effect on their case – negatively. That’s how it works in Cayman, isn’t it? And the journey hasn’t even begun yet. They haven’t really abused and removed your "rights" yet, per se! And you’re scared already. Don’t do anything. Just sit back and let things roll along. We all have the mentality that "somebody going to do something about this." Leave it up to someone else. Everyone of you. Don’t say a word. Don’t write a letter. Just sit back and relax.

    When you’re ready to leave the beloved isle Cayman because you can’t handle the way that you and your family are being treated, let me know. I assure you I will help you every which way I can. You and your family. But I won’t be able to help all your family. Some are them will be incarcerated and there will be nothing that you or I can do about that.

    Anyway, I didn’t intend to ruin your day. Go on out and enjoy the sunshine! While you can. You’ll only get outside one hour per day in prison.

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  6. Vietnam

    Now that there’s been a number of comments offered on this topic by a number of people, let me address you directly.

    By the comments offered, which have a wide range of views, its quite obvious that Florence Goring-Nozza is no authority on anything and that her ‘well-researched’ letter on the Miranda Rights to us ‘non-teachable’ ‘morons’ amounts to as much useful information to anyone in the Cayman Islands as can be contained in a thimble (that little cap that seamstresses and tailors use to protect their fingers while sewing-in case you don’t know what one is).

    Read Watchuwatchmi’s comments and see if a practical and honest appraisal of the situation in Cayman does not come closer to the truth of the matter.(with quite a bit of tongue-in-cheek humour thrown in for a good laugh as well ha ha ha!)

    What you can encourage your favourite writer to do is to apologise to the Caymanian people for thoroughly misleading them by encouraging them to vote for a non-rights constitution which now has them subject to an emerging, non-democratic police state, start a petition to the Governor of the Cayman Islands to repeal this dictatorial Police Law and personally deliver this petition herself.

    If she cares so much about the rights of the Caymanian people, she owes them that much and we will see that her committment is more than lip service paid in a multitude of useless words.

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  7. Very Good Article Ms. Goring-Nozza. and Vietnam your letter further explaining it was really enlightening.

    I wonder why WatchmiWatchYou did not attack you. Both you, Mr. Alden McLaughlin, including WatchMiWatchYou and Ms. Goring Nozza are all saying the same thing !

    !He seems to not be at all concerned about the people only interested in discrediting the Lady which has excelled in her contributions to local forums. He is fighting a losing battle. I’m not convinced that WatchmiWatchYou is on the same page as the rest of us other than he wants to be the Contributing Authority to the forums and is a very jealous and enviable person. He is the Cayman King Crab obviously!. He seems to have a hidden agenda. Talking through both sides of his mouth! On one side he disagrees with the writer totally then on the other side he agrees with her totally endorsing everything that she researched and presented to readers.

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  8. To Dubai: Regarding your statement ‘I wonder why WatchmiWatchYou did not attack you. Both you, Mr. Alden McLaughlin, including WatchMiWatchYou and Ms. Goring Nozza are all saying the same thing!’: If we are saying the same thing, why would I attack someone who is in agreement with me? That’s not the greatest sense of logic now, is it? Furthermore, there is no law (written nor verbal) that says that if we contribute to a forum we must agree or disagree universally. As humans we all have opinions and fortunately we now have forums to voice those opinions. A forum is one of the ways that the government hears what its people has to say and one of the ways to determine what the majority is saying. Decisions are usually made on this sort of information.

    Regarding your last paragraph, ‘I’m not convinced that WatchmiWatchYou is on the same page as the rest of us other than he wants to be the Contributing Authority to the forums and is a very jealous and enviable person. He is the Cayman King Crab obviously!. He seems to have a hidden agenda. Talking through both sides of his mouth! On one side he disagrees with the writer totally then on the other side he agrees with her totally endorsing everything that she researched and presented to readers.’:
    My goal was not to attack anyone and/or discredit their point of view. This is an open forum and I will enjoy the privilege extended to voice MY concerns/opinions. I don’t have the right nor the capability to be the ‘Contributing Authority’, as you judgementally called me. But I do have a brain and I use it to think. And if I think that something is not right, I will use this and every other avenue to voice my concern as is afforded to me. How much longer it will be afforded is dependent on the government.

    It is also most unfair that you have attacked my character with statements such as ‘jealous and enviable’; you don’t know who I am, but yet you’ve made this assumption.

    I have made my agenda very clear: I am very worried about the rights of the Caymanian people being stripped away. We should all have that agenda. Ironically your very approach to this topic could have extracted the same result that the government approach will, but fortunately, I am not a person easily intimidated or who cowers from ridicule. Had I been I might not have even responded to you and my argument would have died.

    I did not write to agree nor agree with anything that she said; I merely voiced my opinion out of concern in what seemed to be an appropriate place to air my view: on a forum talking about our rights being ‘chipped away’.

    Now that I have hopefully made myself clear, perhaps you could enlighten us with your opinion on the true nature of this topic: Our rights and the violations of such, instead of analysing what we’ve have written.

    But then I did say: ‘And we are not going to stand unified in protest against anything either’, the key word here being ‘unified’. Please don’t spend your time assailing us, but instead use these forums to tell the government exactly how you feel about the fact that you soon won’t be able to enjoy one civil judicial right extended to people in other developed countries. Unless, like I said, you don’t think that it’ll happen to you. Or any of your family.

    And by the way: it’s watchmiwatchu.

    Sincerely,
    Watchmiwatchu.

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