A Cayman Islands Grand Court justice ruled Wednesday that a police prisoner detained for a total of six days, five hours and 30 minutes was unlawfully held for a portion of that time.
Moreover, the written judgment of Justice Alex Henderson states that a specific section of the Cayman Islands Police Law, 2010, appears to be in conflict with the 2009 Constitution Order’s Bill of Rights.
According to a statement released by the court on Thursday: “This is the first case in which the court has given a judgment where it has been argued that a statutory provision contravenes the protections in the [Cayman Islands] Bill of Rights.”
The issue essentially involves the length of time that a person can be held in custody under arrest before they are taken to court.
In the specific case, a suspect wanted on drugs-related allegations and who also was wanted for questioning in connection with a Royal Cayman Islands Police Service murder investigation was arrested at Owen Roberts International Airport on 10 January.
He was detained for 72 hours as is permitted under the Police Law and was then detained for a further period of 24 hours on the authority of an RCIPS chief inspector.
“Section 65(4) [of the Police Law] permits the continued detention of a suspect for a further 24 hours after the initial 72-hour period has passed, provided a police officer of the rank of chief inspector or above has authorised it,” Mr. Henderson’s ruling states. “There is no obvious explanation for why the authorisation is to be given by a police officer rather than a court.
“Section 65(4) of the Police Law, 2010, is not compatible with section 5(5) of the Bill of Rights.” That section of the Bill of Rights states that any person arrested or detained “shall be brought promptly before a court”. In addition, the Police Law allows officers to go before a court and ask that a suspect be detained for up to a further four days – for a grand total of eight, prior to charges being filed – if sufficient reasons are given and approved by the magistrate hearing the case.
However, in the case referenced by Justice Henderson, the application to hold the suspect in the drugs/murder investigation was made to the court by police without the arrested suspect or his attorney being present for the hearing.
“I am satisfied [that these police applications made by police to the court] must be made in the presence of the person who has been arrested and detained and that any further detention authorised by an order obtained ex parte [meaning with only one party present] is unlawful,” the judge wrote in his decision. “It follows that [the suspect’s] detention from 9.15am on 14 January onwards was unlawful …”
However, if the suspect in this case had appeared before the court for the detention hearing and the magistrate ruled that he should be held for additional time, that would be considered in line with the Constitution’s Bill of Rights.
Under the Cayman Islands Constitution, judges have no power to “strike down” laws or sections of laws on their own. It is the legislature that has the ultimate responsibility to determine what changes are required.
Mr. Henderson said the provisions in the Police Law remain in force pending consideration by the Legislative Assembly. The assembly has been dissolved ahead of the 22 May general election.
In giving his ruling, Justice Henderson looked at other jurisdictions and determined how long they allow individuals to be detained following arrest.
In the UK, the “general rule” is a person who has been arrested by police may not be held longer than 24 hours, but an officer of appropriate rank can authorise the detention for up to 36 hours in certain cases.
In Canada, a person not released on bail must be brought before a court “without unreasonable delay” – usually within 24 hours.
Australia provides for an “initial period of detention” of just four hours, which can be extended by a magistrate a further 20 hours. In fact, Mr. Henderson points out that the earlier Standing Order No. 22 [superseded by the Police Law] stated that anyone in police custody must be brought before a magistrate within 72 hours.
“It therefore appears that in earlier times, no need for a period in excess of 72 hours was perceived,” Mr. Henderson wrote.
One thing that could help speed the process, Mr. Henderson suggests, is arranging for judicial officers to be available to hear court cases on statutory holidays – preventing the need to hold police prisoners over the course of a long weekend, for instance.