Human rights case filed 
over pre-trial imprisonment

Suspect in 2011 murder seeking bail

A man charged in a September 2011 gang-related killing is seeking release on bail prior to his trial date, claiming in a lawsuit that his human rights are being violated.  

Lawyers filed a petition on 21 June on behalf of Brian Emmanuel Borden, accused in the 13 September, 2011 death of Robert Mackford Bush, stating that the Cayman Islands Bail Law (2010 Revision) is incompatible with the 2009 Constitution Order’s Bill of Rights.  

Borden appeared in Grand Court in September 2012 seeking to be released on bail prior to trial, but was denied. His initial trial date of 18 June, 2013 was pushed back to 20 January, 2014 due to other court-related scheduling issues.  

“Should [Borden] remain remanded in custody, he shall have been held for a period of one year and five months before his trial commences,” the petition filed by the Priestly’s law firm read.  

The petition asks the Grand Court to declare a section of the bail law incompatible with the bill of rights. In addition, it seeks a declaration that Borden’s detention was unlawful under the Constitution.  

“His right to liberty cannot [be] abrogated arbitrarily and must be subject to judicial discretion,” the petition stated.  

Cayman’s bail law, in section 17[2], specifically sets out that anyone accused or convicted or murder “is not entitled to bail”.  

Borden’s attorneys argued that the section does not imply a complete prohibition on bail in murder cases only that the suspect is not “entitled” to bail. In addition, it is argued that the prosecution must show why bail should not be granted, not the defendant.  

“A reversal of the evidential burden would have been contrary to the European Convention on Human Rights,” the petition stated.  

Article 5 of the Cayman Islands Constitution Order’s Bill of Rights states that any person who is arrested or detained on suspicion of having committed a criminal offence “shall be brought promptly before a court”. If any person arrested or detained is not tried within a reasonable time he or she shall … “be released either unconditionally or on reasonable conditions”, including bail.  

The petition claims that the decision to hold Borden until next year’s trial unlawfully interferes with the presumption of innocence in criminal cases and is inconsistent with previous rulings from European courts. It also states that the decision “unlawfully and irreconcilably” adds an arbitrary ground for refusing admittance to bail. 

The challenge is believed to be the first one filed under the new human rights regime to the period of detention for a serious crime like murder prior to trial on the merits of the case. However, at least one previous case before the courts has opined on holding a criminal suspect too long on police bail.  

A Cayman Islands Grand Court justice ruled in April 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 brought to court.  

The judge generally ruled that an individual not charged with a crime can only be held 72 hours before being brought before a judge.