Dozens of crimes not prosecuted

Circumstances of each case not clear

Nearly four dozen Summary
Court/criminal procedure codes cases – including some alleged drug offences –
were not prosecuted between August 2005 and February 2010 because the statute
of limitations on those had expired.

The separate details of each case
were not specified in a Freedom of Information request seeking the release of
the records. Two of the cases involved traffic offences, while the rest were
criminal cases, the Caymanian Compass has learned.

The statute of limitations is a
legal guideline for Summary Court/criminal procedure cases which requires that
the cases be brought before the court within six months from the time
authorities become aware of the alleged offence.

The exact charge in each of the
cases that failed to make it to Summary Court was not specified.

It is unclear who is responsible
for the cases not being brought before the court. Typically, the Legal
Department – via the Solicitor General’s office – is responsible for all
criminal procedure code cases, while the police prosecute traffic offences.

Attorney Peter Polack made the
initial request for information to the Legal Department.

“The Legal Department pointed me in
the direction of the police, who have some systems in place for record keeping,
but ultimately the Legal Department is the body that has responsibility for
these offences,” Mr. Polack said. “Also, the fact that there have been no names
and corresponding charges published with the information is curious at best.”

Efforts to reach the Legal
Department for comment on the findings of Mr. Polack’s open records request
proved fruitless prior to the publication of this article on Friday.

“It is a particular brand of
incompetence that would see the prosecution of 45 offences irreversibly jeopardized
by mere effluxion of time. One can only hope that the person charged with
overseeing this bureaucratic debacle would resign and give some relief to the
people of the Cayman Islands,” said Mr. Polack.

“Perhaps what is of greater concern
is the deafening silence in the legislature on the matter of oversight and
audit of the Legal Department” he added. Mr. Polack noted that North Side MLA
Ezzard Miller has supported an audit of the Legal Department in the past.”

A statement from RCIPS spokesperson
Janet Dougall said: “There have been 45 cases statute-barred since 2005. A case
would be statute-barred if the investigating officer is unable to complete the
investigation within the stipulated period time-frame.

“There are many reasons why an
officer may be unable to complete the case within the permitted time, for
example, being unable to trace witnesses who have left the jurisdiction.”

Despite previous attempts to contact the Solicitor General’s office for response on this matter, the office only saw fit to issue the following statement after 6pm Friday evening in response to the Compass article: 

“The article in the Caymanian Compass of Friday, 22nd October 2010 titled: “Dozens of crimes not prosecuted” is a clear misrepresentation of facts bringing the Cayman Islands system of justice into disrepute.

“The Government Legal Department has responsibility for the prosecution of all matters before the several courts of the Islands, including traffic prosecutions from 1st July 2010 at the request of the police. Given this responsibility, the Department gives opinions regularly with regard to the laying of possible charges.

“To move forward, the process requires a comprehensive criminal file to be submitted. From time to time, the Department has been compelled to advise the RCIPS that the matter cannot proceed because the time prescribed by law, within which charges can statutorily be laid, has elapsed.

“The term “statute barred” refers to not complying with a statutory requirement for bringing certain charges. Some offences, usually summary only charges, are required to be laid at Court within six months of a competent complainant receiving evidence of the offence.

“When a submitted file is statute barred, a public prosecutor would advise the investigator of this legal position. It would be irresponsible and contrary to the law not to.

“The Legal Department does not, however, have any control over when a file is submitted for review after a complaint has been made to the RCIPS or an investigation conducted.

“The time frame for completion of investigations is a matter for the police. We agree with the RCIPS spokesperson that there are many reasons which may be outside of the control of the Police as to why an Investigating Officer may be unable to complete an investigation before the time period has elapsed.

“Once a file is submitted to the Department, the date it is received and relevant particulars are recorded in the Legal Registry System. We obviously could not properly have a record of files which have not been submitted to us for review. It would, in the circumstances, be entirely appropriate for the RCIPS, which has a record of every single complaint (whether or not it has been submitted to the Legal Department), to respond to a request for information or for such records.

“The RCIPS spokesperson’s statement carried in the article clearly outlines the position with statute barred cases. We are understandably quite puzzled as to why the unfortunate misrepresentation of the Legal Department and the prosecution system persist in the article.”

1 COMMENT

  1. I think Justice Smellie, the Legal Department Commissioner Baines, and the RCIP all have had enough problems on their plate already especially over the past two to three years.The Caymanian society is also now immune to these kinds of reports. Be reminded that NO HUMAN BEING IS PERFECT,not the investigating officers nor those working in Legal. These are common occurrences that comes with the territory! In my opinion, It would make more legal sense to me to cut your losses, start fresh, and stay on top of things from here on. Something can go wrong with a case at any time. Digging up these skeletons would probably cost tax payers a lot of money in a time where we can not afford it, moreover government would be setting itself up for a lot of law suits filed against them for unlawfully bringing cases against people where the statute of limitations has expired and the legal department has no further legal right to pursue such cases. So cut your losses and start fresh.
    Most importantly we have no more money to pay out of the public purse.

  2. Regrettably, what we have here is an indiscrimate use of Freedom of Information by the CayCompass who, having received the information, simply did not understand the material nor how insignificant it actually is. The use of ‘not specified’ and ‘unclear’ suggests to a judicious user of FOI that the newspaper didn’t understand the request let alone the result.
    To have less than 12 cases per year becoming Statute Barred is, in fact, a credit to the RCIPS. It is a simple fact of life that the population of the Islands changes from day to day if not hour by hour as people arrive and leave.
    Amongst those departing will be those who have outstanding suspicions against them who cannot be prevented from departing as they have not been charged because the full circumstances are not known.
    Likewise with key witnesses who may depart before the full extent of their contribution is obtained.
    I would urge the CayCompass to make effective use of the Freeedom of Information system and ensure that what they seek is both newsworthy and a contribution to freedom. By making requests that are at best naive and at worst frivolous, they provide ammunition for those who would deny the right to information.

  3. I thank the LD for this clarification of procedure, but can it just clear the air and explain why 45 cases have not been prosecuted? All that I read here is that the police say that the LD is responsible for the debacle and the LD mirrored the blame to the police.

    We are all aware that it is ultimately the LD who decides if there is enough evidence for a case to be taken before the courts in the first place so their press release appears more of a "don’t blame me approach" rather than just stating the facts regarding the cases, i.e. the reasons why they were allowed to expire.

    The information that I would like to see gleaned from this is: the names of those charged but not brought before the courts and the charges associated, in addition to the reason for each case expiring. I am sure that such a report will be very interesting.

    And if my government can build new fences and install security systems in houses that are independently owned in addition to purchasing new vehicles for the high and mighty in government without public consultation or notification, I have no reservations in conducting another enquiry in the hopes of uncovering further corruption.

    After all, it shouldn’t cost that much now as the information is already on hand and an office clerk should be able to copy the information in the files and collate it on to a spreadsheet. I doubt it’ll cost us more than a day’s work.

    Imagine, a Freedom of Information bill and you still can’t get proper information.

  4. It never ceases to amaze me how ‘a storm in a teacup’ is created over such routine, mundane issues in the Cayman Islands.

    If this headline had read ‘Dozens of ALLEGED crimes not prosecuted’ it might have been considered more accurate.

    What does bother me is the lack of general knowledge of the criminal justice system that creates such controversies over nothing.

    The police enforces the law, investigates alleged criminal offenses and brings charges to the courts on people ‘suspected’ of committing crimes.

    That is their only job.

    The Statutes of Limitataion exist to prevent a person to not be held under the shadow of having committed a crime when insufficient evidence exists to bring charges in a ‘timely’ manner.

    Only minor charges are protected by the Statute of Limitation, major crimes such as murder and rape have no time limits for charges to be brought.

    The Statute of Limitations is as much a part of the law as as any penal code that spells out what constitutes a crime.

    If these 45 cases fell under the Statute of Limitations it simply means that there was not sufficient evidence to prosecute these charges in a timely manner and the law says the charges MUST be dropped.

    What is so difficult about that for anyone to understand ?

  5. My apologies to all readers,

    This sentence should have read, ‘the Statute of Limitations exist to prevent people ‘from’ being held under the shadow of having committed a crime when insufficient evidence exists to bring charges in a ‘timely’ manner’.

    This seems to be a mischievous use of the Freedom of Information law brought up by a lawyer who knows very well and understands how the criminal justice system works.

    It would be a violation of those individuals rights and privacy if any record of their names or charges that have been dropped were to be made publicly available.

    This would constitute ‘trial by the public’ after the law has freed them from further prosecution under the Statute of Limitations.

    I wonder if people questioning this process would be so quick to pass judgement if it were them who had been charged with an offense which was later dropped because of the 6-month period stipulated in the Statute of Limitation having expired ?

    I guarantee you, they would heave a heavy sigh of relief and go their way, wishing to hear no more of the matter.

  6. Whatchmiwatchu – ‘The information that I would like to see gleaned from this is: the names of those charged but not brought before the courts and the charges associated, in addition to the reason for each case expiring. I am sure that such a report will be very interesting.’
    Clearly, this person does not understand which is hardly suprising considering the very poor standard of reporting here.
    The statute of limitations here is where NO ON IS CHRAGED or INFORMATION LAID FOR A SUMMONS TO BE TAKEN OUT. These are ‘alleged’ (and invariably, very minor) offences where, for one reason or another it was not possible to charge/summons within 6 months. As I explianed earlier, there a variety of reasons why that would be the case and none of them would suggest any impropriety on behalf of either the RCIPS or the LD. To have so few cases within a transient community such as Cayman is actually testament to the good work that they do.
    Perhaps the CayCompass will take the feedback that their indiscriminate use of FOI and their lack of understanding and clarity in reporting leaves many of your readers ill advised.
    In fact, is it not time CayCompass actually acknowledges their failures and commits to the judicious use of FOI in the future instead of using it as a means to create news where none exists

    Editor’s note: Reader here states – ‘These are ‘alleged’ (and invariably, very minor) offences where, for one reason or another it was not possible to charge/summons within 6 months.’
    If that is the case, it should be no problem for someone in the criminal justice system to explain, in each of the 45 cases, the specific reason why ‘it was not possible to charge/summons within 6 months’.
    If they cannot do so, we will leave it to readers to determine whose ‘failure’ it is.

  7. Firery,

    You are absolutely right about violating the privacy of those who have already been ‘exonerated’ by the Statute and that was a very unfair request of me to make, because rest assured, had it happened to me I would be the first one to parade the FOI office into court for some sort of defamation suit.

    But I still would like to know the rest of the information that can apply without violating anyone’s rights such as: the nature of the individual charges and the reason why it expired, i.e. police tardiness, LD tardiness, witness left island, accused left island, etc.

    Statistics like these should only help us get better by recognizing our shortcomings.

    Editor’s note: See our comments on the below post. We agree wholeheartedly with this comment. If there’s nothing to hide, why hide it? Surely this information can be released without naming the individuals involved…

  8. In reply to your editor’s note: I do not believe it is the role of any statutory authority to pander to the a mildly curious and mischevious press.
    The original FOI was badly planned and poorly executed and I am sure your thoughtful andintelligent readers will ask themselves the question why it was ever pursued in the first place.
    You know, as do I, that no murderers or rapists are free because of this and you should be grateful that the very small number of cases referred to (remember – on average 10 per year!) do not pose a threat to Caymanian life.
    So, having obtained the information originally requested perhaps you can now allow the RCIPS to get on with the job the residents and visitors expect of them without expecting them to provide further information to satisfy no discernible need other than your own.
    Please be assured that I fully support the proper use of Freedom of Information but am afraid that this example brings it into disrespect.

  9. To all who has posted and responded (including the Editor)

    And this response is to Tiger’s last post as well.

    A little clarity in the use of language clears up any misunderstaning.

    Excellent responses, IMHO.

    Its more than a reasonable request to ask for the statistics on these ‘statute barred’ cases.

    If you notice, Pastor Al, as head of the Constitutional Commission has responded by also agreeing with us and making it clear that he is now calling for just what we have asked for; immediate action on the implementation of the local legislation needed for the Bill of Rights to come into effect.

    We are all aware of what this current government is doing, or not doing, in this regards and why.

    With worthy people like yourselves leading the charge, the rights of the Caymanian people are in good hands.

    Albert Einstein once said, ‘evil only happpens when good people stand by and do nothing’.

    Keep up the good work; we’ll get there in the end.

  10. @ Beachbum: Please interpret this statement, issued by the SG/LD in the above article, in which the word "charges" is used more than once:

    "The term "statute barred" refers to not complying with a statutory requirement for bringing certain charges. Some offences, usually summary only charges, are required to be laid at Court within six months of a competent complainant receiving evidence of the offence."

    Based on this statement, and please correct me if I am wrong, I believe that I do have the right to say "charged", as part of the procedure mandates that from the date of the evidence being gathered in support of the complaint on that date to the first appearance in court is the statute (unless I have learnt that wrong all these years and interpreted the statement incorrectly additionally).

    In other words, and again correct me if I am wrong, the police can charge me on the first day of the complaint and submit the paper work to LD for review and approval all on the same day. It is then up to LD to do their own investigation of the paperwork submitted to ensure that the evidence supports the charge and that it is sufficient enough for a conviction. The court appearance must then be set for a date within the six-month period. For whatever reason that I do not get a court appearance date within that 6-month period, my CHARGES expire due to the statute.

    If I have this wrong, please provide whatever clarification is necessary, as this would greatly be appreciated.

    In the meantime, I’ll again voice my OTHER concern: the precise information on why these charges were allowed to expire.

    There may be other contributing factors to these cases expiring: do we have an officer in our employ who is being negligent in his/her duties repeatedly? Was the investigation procedure faulty why there was not enough evidence to get these cases into court in the statute period? Was/is there a staffing shortage during a particular period time that caused/es this to happen? I can think of a few more concerns that arose to mind while writing this, but I think I’ve made my point in how important this information has become.

    Mr. Polack has opened a Pandora’s Box. And I am glad that he did, because now we have something that we know we need to get fixed. Afterall, it is a bit pointless to have police and LD salaries invested to fighting crime, only to lose the conviction because of a timing issue.

    I have a country that is broke and paying handsome salaries to people to do a job. I want my money’s worth.

  11. Watchmiwatchu

    Your questions are addressed to someone else but maybe I can add some light on your queries….

    Technically, you’re correct but things do not always work that way and I’ll state a clear example from my own personal experience to prove this to you.

    If the police’s own investigative process shows that there is no foundation for charges to be laid, instead of immediately dropping the charges on which an individual was on ‘police bail’ for, they let the charges expire under the Statute of Limitations.

    Some years ago I was involved in situation that had a security guard at a nightclub attack me with a knife, an altercation that was total self defense and had this guard coming off much the loser in this conflict, without me resorting to the use of any type of weapon myself.

    This guard then attempted to use the criminal justice system to charge me with assault by providing false evidence and statements to the police.

    After 5 months of investigation (purposely) the police then charged and bailed me on his complaint, which had no evidential foundation, and then let the last month run out and all charges were dropped on ‘statute barred’ basis.

    The police are well in their right to do this;only cases that have a very good chance of a conviction are put forward to the LD for review to be prosecuted in court.

    Its the way the system works, mate; you can’t win them all.

    By the way, that same security guard later became a police officer himself….

    The system isn’t perfect and never will be; some things are better let go and move on.

    You get my drift ?

  12. Firery,

    Thanks for spelling my name right. And thanks for the enlightenment.

    I guess we would both be in agreement that by some means our system is faulty, regardless of from which department.

    I will say this though: in gathering of statistics, which decisions are often made from, it is necessary that information be recorded correctly. Which means that procedures should be carried out properly so that end results can be filed under proper tags for future reference.

    In your example, had that case not been allowed deliberately to expire, it would not have fallen in ‘statute barred’. Had it been ‘closed’ it would have fallen under ‘insufficient evidence’. And then the investigating officer could have conducted another investigation and charged the liar who wasted 6 months of your life with a false allegation hanging over your head.

    Had that happened the police recruitment officer would have known about your security guard, who mislead the police, provided false evidence, and could have possibly perverted the course of justice. Now, alarmingly, HE’S a police officer. How is he executing his duties? Fairly? Or is he now allowing cases to expire also?

    Again, thanks for your enlightenment and I am sorry to know that you had such an experience.

  13. Watchmiwatchu, perhaps I can help you here:
    under this legislation for minor, summary only offences, the authorities have a MAXIMUM of 6 months to bring charges or lay information for a summons.
    So, there is a suspcion that an offence has occurred or an allegation is made. From the moment the RCIPS raise their suspicions or the allegation is made the six month clock kicks in.
    The RCIPS are then required to charge or lay information (for a summons) as soon as they have evidence sufficient to take before a court.
    Now remember, once a person is charged (or information laid, etc.) the police CANNOT ask any questions of the suspect.
    So, let’s take a simple example:
    Person A is searched when the alight from a tender having arrived on a cruise ship. The officer finds a medicine bottle containing some tablets. The person is arrested and taken to George Town Police Station. When asked what the tablets are they say they are a home made herbal remedy for sea sickness. The tablets are taken to the hosipital where a pharmacist will look at them to see if they can identify them but s they are hand made they cannot.
    So, the tablets have to be sent away for analysis. At this point there is insufficient evidence to charge and the person is released. They go back to their cruise ship and leave the jurisdiction as there is no law under which they can be prevented from leaving.
    2 weeks later the lab test comes back and the tablets are found to be an illegal drug. Unless the suspect comes back within the 6 months, the offence becomes statute barred.
    I could give you other everyday examples which are quite understandable for a jurisdiction such as Cayman where people come and go.
    I hope this helps. Regrettably, your confusion is quite understandable and made worse by the headline and the coverage the Compass decided to give this. Perhaps you might ask what the Attorney (who clearly should know how insignificant this whole issue is) hoped to gain from this FOI and why the Compass have been sucked in.

    Editor’s note: Again, lets have an explanation of each and every one of these cases. If they are all as benign as the situation the reader describes, why not release information about the circumstances?

  14. Thank you for helping to eliminate my apparent ignorance, but I have in no way been mislead by the Caymanian Compass nor any other source of media.

    I have had two concerns in this whole fiasco, which fortunately, the editor has realised: what charges were allowed to expire and why?

    If these cases have expired just because of human error, then there should be no problem with the LD nor the RCIPS enlightening us with this information.

    And I would hate to hear that we have to submit a FOI request to get this information, considering that the country is now caught up in this discussion on this and other forums, which has opened the door for the LD/RCIPS to just print this information for clarity for all of us.

    Hopefully that information will also be untainted in any fashion and provided in a timely manner.

  15. Isn’t it quite sad that the Compass doesn’t know when to let go.
    I would suggest the RCIPS does release details (and waste their time doing so) if only just to show that injudicious use of FOI makes for extremely poor journalism.
    Perhaps, instead of using FOI indiscriminately, the Compass could actually go out and find some news?

  16. No disrespect to the Editor or Watchmiwatchu but I’m inclined to agree with Beachbum here…

    The bottom line is that in any legal system there is going to be that percentage of police charges that will simply not meet the standard for prosecution for a variety of reasons.

    The police are obligated to place a ‘suspicion’ charge on every case they find a reason to investigate until their investigation proves whether, in their opinion, a crime has actually been committed.

    A police charge of ‘suspicion of whatever crime is under investigation’ means absolutely nothing except that a person is under suspicion and ‘police bail’ until the investigation has been completed.

    I agree with Beachbum that this issue has been raised by this lawyer for some ulterior motive, given the unique circumstances that apply to the Cayman Islands.

    Asking for this information, which will be very time consuming and manpower costly to provide is the same as asking the police to give a reason for every case that they have investigated, found no crime had been committed and simply dropped.

    The Statute of Limitations is meant to give the police a 6 month window to investigate an alleged crime and make a decision to take a case forward for prosecution or not.

    The law says that a criminal investigation should not take any longer than 6 months in summary (magistrates court) cases or an individual’s right to timely justice has been violated.

    Has this lawyer lost too many cases to the Statute of Limitations and is losing money on having the police ‘bin’ too many of his cases ?

    This is the only reason I can think of that a defense lawyer would raise such an issue and have the major media house take up his cause with such an article.

    What useful purpose could be served to the public by having the RCIPS answer for every case they’ve dropped since 2005?

    This is a frivolous and irresponsible use of the Freedom of Information law, in my opinion because it is clear that this information is intended to be used for reasons that are personal and highly questionable.

  17. Good journalism is defined by not letting go. Not letting go until you find the answers to all your questions. If the Compass was to follow the below advice from Beachbum it would rightly be accused of failing in its duties. Bottom line: release all the information, let the chips fall where they may, and publish whatever findings you get no matter what they say. That’s how the free press works, folks. We’re glad Cayman is finally getting a taste of it.

  18. Somewhere in all this we got our wires crossed.

    I don’t recall this being a request by the Caymanian Compass or any other form of media to the FOI office that would constitute them consuming resources. I think this started with a request from a member of the public exercising his rights to ask a question under that law.

    And if he does have another motive for this request, I can’t help but believe that release of this information will help to clarify that, in one way or another.

    But what if he is privy to information that we are not and has used the FOI to bring it to our attention? What if he is aware of a misconduct within our legal system that he cannot outrightly say but is, in his own, way saying?

    One thing is certain: we won’t know what details surrounds this request until we get the requested information.

    And another thing is certain: I am not a person to give up. This is what has happened too often in our society that now has us all screaming about inefficiencies in our system; things were allowed to fall by the wayside for so long, because we took the nonchalant approach that someone would do something about it and it will all soon get better and go away.

    Let go? The LD and RCIPS heads need to let go of their amazing salaries or really start working for their money. And there is no greater cost to this country now to come up with those statistics than it cost to put a fence, floodlights and security around the premier’s personal – not government owned – residence, buy a new vehicle and whatever else other expenses that we will uncover through someone else submitting another request under the FOI Bill.

    ‘Let go’? I have no time to ‘let go’. Letting go will cause me to fall and it’s a long ways down from this limb that I am hanging on to. And that fall will be detrimental to me, my children, grandchildren and all the other generations to come that will be adversely affected if I do not begin now to hold the government accountable and make them operate in a fair and efficient manner.

    Thank you very much, Mr. Polack and Caymanian Compass for bringing this issue to the forefront and giving me the opportunity to have my concerns heard.

    Don’t unnah let go.

    Editor’s comment: Thanks for the support, and keep watching this space.

  19. Hey, no. Plase don’t let go. I am now absolutely fascinated by this.
    If less than 10 ‘satute barred’ cases per year are all you have to get excited about I applaud the Caymanian people for having such a wondereful society.
    Don’t let the fact the Premier bypassed normal procurement channels to get the loan required to keep the islands afloat (and took on the debt which caymanians will be paying for year).
    Don’t let the question marks over the procurement of CCTV get in your way.
    No, this is the story of the decade and I will indeed be watching this space – bring it on!

  20. Beachbum,

    Maintain your fascination. I going to maintain my right to hold the government accountable to ME! I can’t afford to start projects and drop them by the wayside without follow through and completion because something new has come up. That means that I will never complete any task and all things will be undone. That process, after all, is how government has managed to do business all along and one of the reasons they continue to have meetings to have meetings: because there is unfinished tasks at hand. MY boss would fire me for that type of performance.

    But here’s a suggestion: since we are all concerned about the issues of this country, let us work together, starting with me and you, to hold the government accountable to its people. Since I am caught up with trying to procure what underlying decisions may have been attributed to 10 cases per year (or nearly one per month) expiring, which could include having non-effective police officers and legal department employees on OUR payroll, who I hold responsible for OUR safety and security, you go ahead and start debate on the other topics. That way we have all bases covered. It’s called team work.

    But while we’re at the Premier breaking the laws, let me say this: Don’t worry, I have no intention of letting this get by. I have a grand child that I have to look after the best interest of.

    In the meantime, you go ahead and get the ball rolling for us. Don’t let my inaction get you down…I got your back, baby!

    Now go to it with all the intelligence and determination that you can muster. I will be right here. You know where to find me.

    And legal department also, so that they can send their correspondence to this and other media outlets to alleviate my anxieties about this topic:

    What charges were allowed to expire and why?

    But on the other hand, maybe I need to start writing to an authority higher than the Legal Department for those answers.

    Well, whatever it takes, that I shall do.

    Now, Beachbum, hit those forums and BE HEARD! Speak for me and you and know that I will support you in whatever sensible argument that you enter regarding those other topics.

    Your partner in a forums,
    Watchmiwatchu.

    PS: if we continue to pursue these issues from the perseverance angle the government will understand hopefully sooner than later that it can’t ignore its people because they continue to demand answers.

    If you see anyone from LD, please tell them that I still waiting for a reply. Oh, never mind…I just finished my letter to them asking them directly for this information. I’ll let you know when I submit it and what reply that I receive.

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