Recently approved changes in
Cayman’s Police Law that curtail a criminal suspect’s right to remain silent
under questioning will not violate the country’s Bill of Rights when it comes
into effect in November 2012, the Human Rights Commission has said.
Contrary to various reports and
statements in the local media which stated the introduction of ‘adverse
inferences’ to a suspect’s silence in certain cases amounted to the elimination
of the right to silence, committee chairman Richard Coles said that right had
not been abolished or eliminated.
“But under the Police Law it is no
longer an absolute right,” Mr. Coles wrote in a letter to the Caymanian Compass
Monday. “Silence now carries adverse consequences for an accused.”
The committee did have some
concerns about the application of these adverse inferences, particularly since
no regulations that guide police officers in their use have been made public
since the Police Bill, 2010, was passed by the Legislative Assembly last week.
“The accused may not be aware of
these adverse consequences and under the Police Law these do not have to be
explained to the accused by police,” Mr. Coles wrote. “If the accused receives
timely legal advice that may help the situation, but the present legal aid
system would not provide legal advice at this early stage. Legal aid can only
be granted during court proceedings.”
The way adverse inferences would be
applied under the Police Law is essentially that a suspect who remained silent
throughout the police interview process and chose not to defend themselves
during court proceedings would not have such inferences drawn against them.
However, a person who remained
silent during police interviews and then made statements about what occurred in
their own defence at court would be allowed to have adverse inferences drawn
against them, if a judge allowed it.
Cayman Islands Attorney General
Samuel Bulgin said the new version of the Police Law makes it impossible to
draw adverse inferences against anyone who has not received proper legal advice
at the time of their interview with the cops.
The Human Rights Commission notes
that there are “some built-in protections for the accused”, but it questioned
what would be done under the current legal aid system with a criminal defendant
who could not afford to pay their own attorney.
“If legal aid is to be granted at
this stage before a suspect has been charged, who will make this decision?” Mr.
Coles asked. “There is likely to be significant cost to this.”
The Cayman Islands government has
proposed major changes to the legal aid system, which provides attorneys for
indigent defendants, mainly in criminal cases. However, those changes have not
been put in place and both the Human Rights Commission and the court system
seem unaware of what the government has planned with regard to legal aid.
Code of practice
Although the governor must assent
to any and all laws passed by the Legislative Assembly before they come into
effect, the Human Rights Commission opined that the new Police Law should not
take effect until accompanying regulations are set down and approved by
The commission noted that it has
not seen copies of these regulations.
“It is imperative that these
regulations and rules are examined to ensure that they are in compliance with
the Bill of Rights and the international human rights treaties that are extended
to the Cayman Islands,” Mr. Coles wrote. He said a code of practice for police
officers should be in place that would set out safeguards for police to observe
in relation to these additional powers “including questioning an accused who
wished to remain silent”.
“The HRC has not received a
response from government to our comments and suggestions, nor have they
indicated whether any of our comments and/or suggestions been incorporated into
the law which recently passed.”