Ganja user denied student visa to US

Court of Appeal rejects plea for ‘no conviction recorded’

Anthony Berry found out last week that he will not be able to continue his studies at a university in the United States. The Cayman Islands Court of Appeal on Thursday rejected his plea to overturn a Summary Court conviction entered on his record after he pleaded guilty to consuming ganja. 

He was fined $600 and convicted in December, 2010. 

Addressing the Court of Appeal, Attorney James Austin-Smith acknowledged that when Berry was appearing in the Summary Court, “He was a silly arrogant boy, but that’s not who he is now.” He said Berry had bettered himself, citing his 100 per cent attendance at class and 3.58 grade average.  

However, when Berry got off the plane in Texas to start his second semester, he was turned around by authorities there, Mr. Austin-Smith explained. The young man attempted to get his student visa re-granted, but was refused. He was told he would be permanently ineligible because of a controlled substance-related offence. 

 

No rehab  

Appeal court Justice Abdullah Conteh said he was concerned that Berry, while before the Summary Court, had refused to enter the Drug Rehabilitation Court programme. If he had done so, as a co-accused did, he would have been free and clear, the judge pointed out.  

The judges also referred to the sentencing notes of Magistrate Nova Hall. She had said that probation would normally have been the appropriate way to deal with Berry’s rehabilitation. However, the report prepared by the probation officer described him as nonchalant. It said he had missed appointments, did not show any remorse, and tested positive for ganja twice, including once just prior to sentence. 

The magistrate said she saw no effort by Berry to be rehabilitated and she found no basis for not recording a conviction.  

Court president Sir John Chadwick said Berry’s attitude toward ganja consumption was not uncommon among his generation and there was nothing before the court to suggest his attitude had changed. He continued, “The law is the law and you can’t decide at age 18 that it doesn’t apply to you because it’s a silly law anyway.” 

Berry did not have an attorney in Summary Court or in Grand Court when he first appealed. 

 

No error  

He tried to have the magistrate’s decision reversed, but Chief Justice Anthony Smellie said there appeared to be no error of principle in the way the magistrate dealt with the matter. The Criminal Procedure Code states that the court, having heard the prosecutor and the accused shall either convict the accused and pass sentence or shall acquit him, at its discretion, or may with or without recording a conviction make an order discharging the accused “if it is of the opinion that it is not expedient to inflict any punishment notwithstanding that it finds the charge against the accused is proved”. 

When Berry was before the Grand Court, he was already attending school in the US. The chief justice asked him why he was concerned about the conviction. Berry said the school did random drug screens; he also expressed concern about future employment. 

Justice Chadwick quoted the Grand Court decision when the Court of Appeal handed down its ruling. The chief justice said if he had been persuaded that Berry would experience the exceptional hardship of losing an educational opportunity in the US because of this conviction, he would have had a basis for interfering with the recording of a conviction, but that basis was not presented. The recording of a conviction did not make the sentence manifestly harsh and excessive, he concluded. 

 

Grounds limited  

The Court of Appeal Law limits the grounds on which a person may appeal a second time. The ground may be on a point of law or against sentence, but not on any question of fact. 

Mr. Austin-Smith had argued that Berry’s circumstances had changed and the change in visa status would have or might have led to a different conclusion in Grand Court if the chief justice had been aware of it.  

But Justice Chadwick pointed out that whether or not the conviction remain recorded, it was undeniable that Berry had been involved in a controlled drug-related offence, because he pleaded guilty. If there were no recorded conviction he would be able to complete a form on which he could properly answer no for “Have you been convicted…?” But he could not answer no for “Have you been involved…?” 

Plainly, the magistrate and the chief justice did not err in reaching the conclusions they did, the appeal court president said. Neither could it be said that it wasn’t on everybody’s mind that this problem might arise — that he might have trouble entering and remaining in the US because of this drug offence. 

Now the court was asked to interfere because this potential problem had become real. The president posed this question: if the conviction were struck off the record would the attitude of US authorities change? There was no basis for making that assumption, he said.  

The Cayman Islands Court of Appeal could not tell the US that Anthony Berry was not guilty of a controlled substance related offence in the circumstance that he had pleaded guilty. The court was being asked to provide him with a document he could take to persuade US authorities that the offence had not really happened and there had been no conviction. 

The three judges, including Sir Anthony Campbell, saw no basis upon which they should acceded to that request.  

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29 COMMENTS

  1. On reading this article, one gets the impression that this young man greatly contributed to his own situation by nor co-operating with the courts and a poor attitude.

    However, there will probably be some questions raised in some quarters regarding this consumption of drugs laws in the Cayman Islands, especially for marijuana.

    The question arises because in Europe, including England, drug consumption itself, is not a criminal offense, although, except in the Netherlands where marijuana can be had and smoked legally, drug possession is still a criminal offense but considered a minor offense if not in possession of large amounts that would qualify as trafficking; in Britain, police officers issue ‘on the-spot’ fixed penalty fines for possession for personal usage, which amount to the same as a traffic ticket.

    Another question arises for the laws in some US states that allows for medical marjuana usage to treat a number of illnessses and medical conditions, such as glacoma and cancer and AIDS patients because it keeps up their appetite and helps them to live a while longer.

    The question raised is, suppose someone visited another country where marijuana is not so demonized and criminalised as in Cayman, had a smoke, and then returned to Cayman and proved positive in a drug test.

    Is that person still charged under Cayman’s law, while not having consumed the drug in Cayman ?

    These and other issues will come under scrutiny soon, no doubts about it.

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  2. You raise some interesting points firery, but let’s look at this from an expat/Cayman point of view.

    You know what happens to expats on Cayman who are caught with drugs?

    They don’t stay expats on Cayman for long.

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  3. This is what i have to say about this.

    Yes, he was young and foolish but this happened 2 years ago and he has changed. Also, the rehab was not an option given to him so of coarse that makes it looks bad.
    However, this is a lesson to be learn, but not granting his visa back i believe to have been unfair, i think this whole thing was unfair. He is a young caymanian who wants to go and study and become a better person, and now this has slowed him down. There have been worse crimes than this and many have gotten away with it.

    Berry if you read this, ur life is not over and you will prove them wrong, and be a big influence on other young men.

    I’m Proud of you!

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  4. Olddiver

    You’ve missed the point totally.

    While I am no lawyer, I’ve lived long enough and had enough experience to know how important every single point of law is for a person facing or having a criminal conviction; the little things count very much.

    This young man was never charged or convicted of possession of marijuana.

    You’ve missed the point that ‘drug consumption’ is only a crime in the Cayman and no where else, that I’m aware of; I thought that I’d made the point quite clearly in my first post.

    Drug consumption as a seperate charge does not exist in the USA either and definitely not in England.

    What I’m saying here is that this young man has been punished by US immigration for earning a conviction for an offense that is not an offense in the USA; meaning, if a person gets caught with marijuana, or any other drug in their possession, they are not automatically tested for drugs in their system so that an additional charge of consumption can be laid as well.

    My other point is that many people in the USA will now have marijuana in their system as a perscribed medication, sanctioned by the laws of the state that allows it.

    What does the Cayman/expatriate situation have to do with any of this ?

    Anyone caught in drug possession in Cayman is gong to pick up a criminal conviction and suffer the consequences, be they Caymanian or expatriate.

    My point is that this criminal consumption law in Cayman is both highly hypocritical and petty.

    Ever since this law was enacted in Cayman years ago, it has unecessarily criminalized many people…

    With absolutely no proof that it has done anything to stop or even slow down drug consumption in Cayman.

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  5. One other small but relevant point.

    While I might consider this law totally ineffective and draconian, I’m in no way suggesting that it should be broken without any consideration of the consequences.

    We must abide by the law, whether we agree with it or not and this young man has learned this through a painful and costly process.

    Judge Nova Hall is known to be a fair judge who will work with people and she obviously did all that she could to help this young man avoid this conviction; he seems to have refused to help himself by refusing the rehab that was offered and not trurning up for his meetings.

    To now try to have the conviction removed after the fact because he has suffered dire consequences is a case of ‘too little, too late’.

    I would now hope that this set-back will not discourage this guy and have him revert to his former habits, or worse…as has been known have happened to others in the past.

    Hopefully, he will work hard to continue his studies and complete his degree.

    I, for one, certainly wish him all the best.

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  6. Catchandrelease

    We all know what US immigration law has become since 9/11…everything’s changed and even civil freedoms that Americans are used to at home are bing threatened.

    By all accounts, the USA is quickly becoming a police state; I’ve not visited the USA for 5 years or so now so I’m only going by what I read in the news.

    The recent shooting of this young black kid by some community ‘wanna-be police’ vigilante gives a good indication of how things seem to be though.

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  7. We all make silly mistakes as adolescents. It’s unfortunate that Berry did not go along with the rehab and probation. It would have helped his case a lot. Again, we make silly mistakes. Thank goodness most of us were given second and even third and fourth chances by adults who realized that children could change, and if given a chance, become productive members of society. The fact that Berry has made the big step to leave home and study at the university level tells me that he is making a positive change in his life. To deny him the ability to complete his education, earn his degree, and become a productive member of the Cayman society seems like a poor decision.

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  8. Firery, I don’t see what your comments have to do with the US denying visas to drug users. It’s been happening for the last 50 years at least and has nothing to do with 9/11. BTW, it’s nice here in the US, and it is starting to look like the vigilante was justified, in case you’re not keeping up with the latest news.

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  9. I have no doubt that this young man will overcome this trial and will end up in a better situation. There are good schools in other countries. He will be made stronger by this challenge.
    I disagree with Ezzard, this challenge will not destroy this young man’s life.

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  10. Firey, this man has proved, apparently repeatedly, that he has not in fact learned his lesson, as he failed the drug test immediately prior to sentencing.

    Rather, what this man is experiencing is cause and effect. If you participate in illegal activities, whether you agree with the law or not, you’re still held liable for the consequences. If one of those consequences is not being granted access to the US, for education or recreation, then so be it. Those were the consequences – probably the softest laid out to him.

    It isn’t as though the general public don’t know in advance what the basic repercussions of their illegal actions are going to be. If at that point they decide to continue in their endeavours, they do so in full disclosure. Their fates are their own.

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  11. The same offence resulting in 2 different outcomes is not a confusing issue though some argue so (and let’s not turn this into political Bull****).

    One offender abided by our court’s rulings and recommendations and is able to proceed with his life.
    The other did not; would not change his lifestyle and continued with the offence he was charged with….ganja use.
    How stupid is this when considering his educational and life goals?
    The outcome should have been more than obvious to a 3.58 (??) grade average student!

    Is life fair, yes to a degree, and it’s also based on the Choices one makes!!
    Choices were made; one right, one wrong.

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  12. How about everyone just move on!

    Those that knows him, knows better, those that don’t you don’t know what you’re talking about, just what you read. And what you read most of the time is not the full truth.

    Get a life and stop Judging! Who are you to judge??

    Thanks for those who support, and still believe in our young people. Everyone makes mistakes everyday, and knows better about alot of things. And i know most yall are just hypocrits.

    #This all i have to say about this topic.!!

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  13. The use of alcohol is even more deadly than a little ganja.

    When will we have a level playing field here.
    People are frequently killed because of a drunken driver behind he wheel. Alcohol should be banned and outlawed even ahead of ganja which is a herb used to treat cancer, asthma and other diseases.s
    Its time to change the law.
    Smoking cigarettes is also harmful it causes cancer.

    Its time to revisit the law about the use of ganja, I fear a drunken driver more than a ganja user.

    Courts, L.A.Premier, Governor, please get your act together and set the record straight.
    something is seriously wrong with the laws on your books.

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  14. Firery: Drug Consumption is illegal in other states – Singapore being the best example. Singapore is one of the safest and cleanest places on the planet because of what some would describe as Draconian drugs laws which include a mandatory death sentence for any person importing, exporting, or found in possession of drugs.
    And as a sovereign nation, the USA has a right to set whatever bar it wishes to in terms of who it allows and who it does not allow to enter the country. This has not come about since 9/11 but has been the policy of US Immigration for a number of years. The fact that certain states allow cannabis to be dispensed by doctors does not change the fact that the drug is covered by the relevant legislation which informs visa grants (Section 102 Controlled Substances Act).
    Each of us has to take responsibility for our actions regardless of under what circumstances those actions occurred. This young man broke the law, failed to engage with the courts in terms of his rehabilitation and now has to face the consequences.
    For the benefit of the ramblings of BaBa Boom: there is irrefutable evidence that cannabis use does have a significant effect on the reactions of drivers therefore both cannabis (and, of course, other drugs) should be on a par with alcohol in terms of driving. There are many things in the world that are dangerous and may, under certain conditions, cause harm, but we chose those matters we ban, those we allow and those we regulate based on history and culture.

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  15. Beachbum

    If you read all my comments, you’ll see that I’ve covered all your points.

    Yes, when we arbitrarily, or for specific reasons, choose to allow, to ban, and to legislate for…

    We are, essentially practising hypocrisy…

    But then again, we humans are all essentially, hypocrites; I have no problem with any of that.

    On that score, yourself, or anyone else, should have no problem if the Cayman Islands required criminal and drug test records for every single visitor from any and everywhere in the world…

    Including the USA and the UK…

    And banned anyone found to have consumed any type of illegal substance from entering the Cayman Islands.

    As we both know, not many UK or US citizens would get past Caymanian immigration authorities, if that were ever to be done.

    And, if pre-licensing drug tests were to be carried out on every drivers license candidate in the USA, UK and Cayman…not many would ever get a drivers license, now would they ?

    And certainly, you wouldn’t have a problem with that, now would you ?

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  16. It isn’t hypocrisy: A stand has been made but the US cannot remove its own citizens who use drugs, just prevent others coming in. Seems fair especially as everyone knows the rules – if you have been arrested or convicted of an offence it must be declared and a consular official will decide if you will be allowed a visa or not (remembering that the final decision on entry, regardless of a visa or not, is the immigration official at the point of entry.)

    I don’t think the Cayman Islands is planning any large scale testing of visitors although it reserves the right for some entering (prospective police officers, for example) but they do want visitors to be aware of the laws in relation to drug possession and consumption are and make sure the casual visitor knows the penalty if they transgress. The US don’t operate testing on entry but rely on the facts of any previous encounter with the criminal justice system elsewhere on which to base their decisions.

    As for testing pre licence…. don’t be daft! There are perfectly good tests for drugs that can test for current impairment – bit like the breath test equipment for alcohol.

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  17. Beachbum

    I’m sure that you realise that I know the US immigration rules and policies very well, and yes, they’ve been around for 50-odd years but were never this stringently enforced until after the George Bush/9-11 era…be that as it may, I don’t question any country’s right to enforce whatever immigration laws/policies that it chooses for entry of foreign nationals across its borders.

    You also realise that I have brought up these other scenarios tongue-in-cheek to point out the hypocrisy that exists on drug consumption laws across the jurisdictions in question in this young man’s case, whether you choose to accept this as hypocrisy or not.

    If the rule of drug consumption were applied evenly across the board, every single person travelling across these countries borders, the USA, UK and Cayman Islands would be quilty of the same crime that this young man has been found guilty of in Cayman and has been punished for by US immigration, were they to be tested and found to have consumed illegal substances.

    In the case of the UK, it is even more obvious; cannabis is smoked openly in the UK, even on the buses in the public transport system; the UK is one of Europe’s biggest consumer of drugs for social and personal use.

    My point is that it is entirely impractical to test or criminalise every single person using some sort of illegal substance and you have only bourne out that point by showing exactly where it would be impractical…

    On that score alone, to criminalise this Caymanian youth for smoking cannabis and not criminalise his peers in the UK for doing exactly the same thing is…

    Pure hypocrisy.

    I completely agree that this youth was given a chance to free himself of this conviction and didn’t take it so he must bear the brunt of the blame for his own situation but it does not change the fact that the disparity in the laws between the UK, US and Cayman Islands represents…pure hypocrisy.

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  18. I don’t see any need for drug testing for visitors to the Cayman Islands, but a few people here should keep in mind that an expat with drug offenses in their past wont be able to provide a clean police clearance, at least from places like the USA, Canada, or Great Britain.

    That expat would likely not receive a work permit and not be able to stay long term in the Cayman Islands.

    The young Mr. Berry faced exactly that situation in reverse, at the hands of a US Immigration official and I see nothing hypocritical about it. It’s simply the way the system works.

    By the way, that clean police clearance that expats must produce also helps to expose the self-serving lie that Caymanians like to tell themselves. Expats on Cayman are not responsible for crime in the islands, and they aren’t going to get involved either, if they want to continue living on Cayman.

    In my opinion, that’s just the way it should be.

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  19. No, I don’t see this as hypocrisy.

    While the US has the drugs laws it has it have every right to state, openly, publicly and clearly, that if you commit this type of offence then we will look very closely at you.

    That isn’t to say that you can never go the US. I suspect that had this young man admitted his guilt and worked with the authorities in terms of his rehabilitation he would not be studying at his chosen university.

    Let’s not forget that the US looks upon anyone who has ever been arrested, let alone convicted, for any offence as potentially unsuitable to visit their country.

    I simply do not have a problem with this and would like to see the UK and Cayman take a more robust view of people who wish to visit who have a criminal past and, where they commit crimes in that jurisdiction, get thrown out once they have served any sentence appropriate.

    In fact I would go further and say that if you have been convicted of any offence that in the UK / Cayman might carry a prison sentence then you should not be allowed to enter that jurisdiction until you can PROVE, either by the passage of time or the completion of some sort of rehabilitation process, that you are no longer a threat. And if you commit ANY offence in UK / Cayman which could be punishable by imprisonment (whether a sentence of imprisonment is imposed OR NOT) you should be deported from the UK / Cayman to either the place you came from or to your home state.

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  20. Weeelll…

    Beachbum, you’ve finally seen my point and, at least you’re honest about your views.

    Now, let’s get back to Cayman’s case for a minute and this has nothing to do with the young man being silly and probably ill-advised in the first instance of not accepting the mercy of Cayman’s court when it was first offered; very silly boy, you would agree.

    The hypocrisy is on Cayman’s side, as it usually is.

    Cayman’s society has always been quick to condemn and criminalise their own, at the expense of their own society’s advancement; its now come back to bite them firmly in the hindermost parts.

    Any conviction of any type has to be declared to US authorities upon application for a visa to the USA and even a traffic offense/ticket can now be used to deny a visa but…

    US citizens expect preferential treatment when visiting other jurisdictions, including the UK/Cayman.

    Take the ongoing debate about fingerprinting all/some visitors to Cayman; already the consensus is to exempt all tourists but that really means only tourists from the USA, the UK and Canada and Western Europe…and Cayman’s citizens will happily agree, in the name of tourism.

    They would make no consideration for loosening up these drug consumption laws so that their own citizens are evenly dealt with and not be victimised by US immigration authorities, while the USA has absolutely no hesitation in taking advantage of Cayman’s laws to do so.

    If a conviction for drug consumption does not exist in Cayman any at all, no record can be used to deny visa/entry to the USA; no person is going to declare drug use on any visa application voluntarily.

    Why do you think the USA and Britain has never enacted such silly laws as drug consumption for their own citizens at home ?

    Because they don’t intend to have their citizens victimized over a common practice that happens in their own countries; these are two of the world’s BIGGEST drug consumer countries.

    Britain might very well soon take a sterner stance on USA and other citizens visiting Britain, and, as a British citizen, I have absolutely no problem with that either.

    Truth be told, we both know that there are ways around this visa restriction for this young Caymanian; there is a special waiver for people with criminal records that the USA issues, once the person’s current history is clear of any further issues but it does take time to process and is limited in its scope for unrestricted travel.

    He can also apply to uni in Britian, get his British passport and travel free of any type of restriction to the UK to study…or live, if he so chooses.

    No, its definitely not the end of all his options.

    Its for him to now choose the next, best one.

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  21. When I was in College, I so happened to make a stupid mistake in the US and was charged with DUI, which is a felony in the US not like Cayman where it is only a traffic offence. When I went to Jamaica to get my visa renewed, it was a different process than just me renewing my student visa. At the US Embassy in Jamaica I had to go to one of their prefered doctors in Jamaica and get a drug test and a full medical to prove that I did not do ganga or had alcohol in my system from the night before. I did have to return to Cayman with out my visa, then return to jamaica one week later to get the results and revisit the Embassy.
    I was granted my Student Visa and have since returned for a visitors visa, which I now hold. I do not come from a prefered family in Cayman nor is my family rich. When I made my mistake I had to save and pay my own lawyer fees because my parents told me it was my choice to do something that stupid and this is a part of life, so now I am responsible for getting out of my mess. They always warned me about the consiquences of my action but their words only fell on deaf ears.
    I am no longer eligible to use my UK passort to enter the US on the waiver program but the US embassy have renewed my visas. I did pay the price and had to do the DUI programs and pay the fines in the US. Which was very costly to me. I have learnt much from that experience from college, and the stupid mistake I made the night it happened.
    There is TWO side to every story, I do not think the US is bias anyone when it comes to applying for a student visa in Jamaica when you are from Cayman, because as I have experienced, they are willing to work with. Who really knows if this student has gone back to Jamaica to the Embassy to try and renew the visa or if he did so, failed the drug test…They can test for ganga in your system for months after it is smoked.
    Once you have a felony even in Cayman, I do not think the Canadian Embassy will not accept you either as they and the US immigration work closely together. I have learnt that I now also need Visas to enter Canada and can no loner enter their with my British passort either.
    But I did the crime so I have to pay the price!

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  22. When I was in grammar school, and the class would be involved in writing some type of composition, the nun teacher from time to time would jump up from her desk, fly down the aisle and strike a student repeatedly with a wooden ruler. Her justification was that the student was having impure thoughts. Now till this day I could never understand how this clairvoyant witch in a black habit could be so insightful that she could read minds enough to punish those who were guilty of having impure thoughts.
    Its the same way, take a look at how much writing has taken place here just on the subject matter. Its the same way in court. Its always been a lifetime occupation of certain people to make laws and to punish people for alleged transgressions which change from time to time over the years. At this time ganja possession and smoking are foremost on many people’s minds therefore we have laws against it and intend to punish thoroughly those who don’t follow the rule. This poor fellow is a victim of a bureaucracy which thrives on tax revenue and court revenue and gentlemen’s agreements as to how and how much one should be punished.
    As far as America at this time, bide your time and watch the USA go downhill. Its now becoming a police state and enforcing its will over all including the Cayman Islands who give up their sovereign values for economic rewards. That’s why I support the nuclear ambition of the Islamic Republic of Iran, whose government thumbs its nose at Washington rather than those in Georgetown, who always stand by with a handkerchief to help at the slightest sneeze.

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  23. LottaBaloney

    That’s why I support the nuclear ambition of the Islamic Republic of Iran, whose government thumbs its nose at Washington rather than those in Georgetown, who always stand by with a handkerchief to help at the slightest sneeze.

    The above quote from your posted comments won’t find many sympathisers in Cayman, as you have already acknowledged.

    The information and knowledge on marijuana is out there for anyone who has the interest to seek it out; again, in Cayman, you will not find many who will for the very reasons that you have stated.

    This, in no way, excuses this young man’s actions but somehow makes them understandable, knowledge having increased generation by generation.

    This knowledge has changed the world’s perception of cannabis or hemp, as the plant was originally called many thousands of years ago when it was used for so many of life’s basics, including medicinal purposes, across the cultures of the world.

    It was the industrial complex in the USA that progressively made cannabis illegal from the late 1800s onwards so that their generic drug industry could grow, marijuana having been the home remedy of most Americans up until that time and remains so for many, many of the world’s people, regardless of the extent of legality or illegality in each country.

    This US industrial complex had to make most folk remedies illegal so that their chemically produced drugs could dominate the treatment of minor illnesses and conditions, and make them billions of profits.

    When you have a situation in which a Jamaican Rastafarian reggae performer has been banned from performing in the Cayman Islands for music denigrating the Pope but that same performer can sing his songs anywhere in Europe, the home of Catholicism…

    You know that there is very little hope that knowledge and enlightenment will ever be allowed to change the hearts and minds of the majority of people in the Cayman Islands.

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