Cayman’s top cop is advocating a major change in the way the ‘burden of proof’ is applied in court with regard to firearms possession cases.
Expanding and clarifying comments made on the subject by Governor Duncan Taylor last month, Police Commissioner David Baines said Friday that what’s being reviewed with the attorney general’s office now is essentially a “reversal” in the burden of proof for people found in possession of unlicensed guns in their homes or vehicles.
“The burden of proof is now for us to demonstrate possession of that individual of that gun,” Mr. Baines said. “That will be changed. If you are found to have a gun in your car or a gun under your bed without any reasonable excuse … it is deemed to be in your possession and under your control.
“That’s the change in the burden of proof issue that we’ve been discussing.”
The change proposed would obviously apply only to unlicensed firearms. It is legal in Cayman for private citizens to possess a firearm if the proper licence and safety procedures are maintained.
A clear example of the current legal proof requirements came in a 2010 not guilty verdict against four men charged in connection with unlicensed firearms that were found in the attic of a West Bay home.
On 7 April, 2008, police found two shotguns in the apartment rented by a 41-year-old West Bay man. Keith Brian Orrett was charged with possessing both firearms because Crown prosecutors alleged he had them knowingly in his home.
Orrett had admitted knowledge of one of the guns. He said he saw one of his co-accused handling the weapon, but he did not do anything about it because he was afraid for his safety and that of his children.
Brian Emmanuel Borden and Keith Rohan Montaque were charged with possession of the Remington shotgun that was found in the attic. Bjorn Connery Ebanks and Montaque were charged with possession of the Beretta shotgun.
All three men were present in the apartment when the police found the guns and their DNA profiles linked them to one or, in Montaque’s case, both of the firearms, according to prosecutors.
In his directions to jurors, Justice Charles Quin said they had to consider the case for and against each defendant separately on each count. All were eventually found not guilty.
“The commentary [from the court case] was ‘could [we] demonstrate that the guns that were in the room were directly in possession or control of the people downstairs?’” Mr. Baines said. “[What is being proposed now] is a change in presumption. [Suspects] have to account for why it’s not in their possession. It would be automatically assumed it was, unless they could prove otherwise.”
Mr. Baines said he believed there is an “appetite” for this legislative change after meeting with local lawmakers several times on crime-related issues over the past few weeks.
“The attorney general is now drafting recommendations … and I hope very much that will go before the Legislative Assembly,” he said.
Another issue that has arisen in discussions over how police should deal with Cayman’s gun crime is whether officers would be allowed to conduct ‘warrant-less’ searches for firearms inside private homes.
Cayman’s Misuse of Drugs Law already permits local police to search homes for illegal drugs based on ‘reasonable suspicion’ – without applying to a court or a justice of the peace for a search warrant. However, that same ability is not granted to officers under the Firearms Law.
Previous police commissioners, including Stuart Kernohan, often pushed lawmakers to make the change, but Mr. Baines said Friday he wasn’t quite ready to go down that road yet.
“If an officer is aware that a person is in possession of a firearm and there’s direct evidence of it, they’re in pursuit … there’s nothing that stops them,” the commissioner said. “Different issue this [referring to warrant-less searches] … This is about ‘is it credible information or intelligence that would allow officers to go up and tell you we’re going in your house to search’. It would really help policing, but where does that fit in the balance of rights?
“So, I expect that to be a subject of considerably more debate.”