They are seeking a ruling that a clause in the Bail Law effectively denies defendants charged with a range of offenses, including drug possession, arson, and burglary as well as murder, the right to a fair bail hearing and is therefore incompatible with the Bill of Rights.
Such a ruling could pave the way for Borden’s defense team to make a new application for him be released on bail, his attorney Nick Hoffman argued. He has been remanded in custody since August 2012 awaiting trial in connection with the West Bay shooting of Robert Mackford Bush in 2011.
The ruling would also set a precedent that could lead to a flood of new bail applications from defendants currently in prison waiting to be tried.
Borden, who has pled not guilty, was not present for Friday’s constitutional hearing in front of Chief Justice Anthony Smellie and the particulars of his specific predicament were not discussed.
Mr. Hoffman focused on the broader legal point of whether exemptions from entitlement to bail, listed in the disputed clause of the Bail Law, denied some defendants freedoms guaranteed by the European Court of Human Rights and the Cayman Islands Bill of Rights.
He said the right to liberty was such an entrenched and fundamental human right, that it could only be removed in specific circumstances, even when a crime was suspected.
The seriousness of the offense, he said, was not in and of itself sufficient reason to deprive a suspect of his right to be considered innocent until proven guilty and therefore his presumed right to bail.
He said the practical effect of the disputed clause, 17 (ii) of the Bail Law, was to shift the burden of responsibility away from the prosecution, which is ordinarily tasked with proving certain specific grounds, such as flight-risk or a threat of further offenses being committed, before bail can be denied.
Mr. Hoffman accepted that the clause did not mean a blanket denial of bail for all defendants charged with the listed offenses. But he said it effectively placed the burden of proof, unfairly, with the accused and affected the discretion of the court to make a reasoned judgment on the facts before depriving a person of their liberty.
“It is my submission that the removal of the entitlement to bail is contrary to the law of this land as specified in the Constitution,” he said.
Crown prosecutors disagreed, pointing to legal precedent in Cayman for restricting bail for certain offenses, such as for drugs. They said it was legal and constitutional for the legislature to impose bail restrictions provided that the onus of proof remains on prosecutors and judicial oversight is preserved, which they said is the situation under existing law. They also said the offenses listed in the Bail Law were simply factors for the judge to take into account when deciding if grounds for refusing bail exist, and were not necessarily in and of themselves grounds for refusing bail.
Mr. Hoffman said criminal suspects were guaranteed the right to be brought promptly before a court and tried within a reasonable time frame.
He said the list of offenses covered by the disputed clause were not restricted to serious cases and included burglary and drug possession as well as murder. The list essentially ensured different treatment for people charged with different offenses, he added.
“There is no justification in law for this different treatment. Everyone, no matter who they are or with what they are charged, is entitled to bail.”
The coming into force of the Constitution changed the legal landscape, protecting people from the “arbitrary use of executive power to rescind the right to liberty.”
He added: “I can’t emphasize strongly enough how the courts must emphatically guard this right.”
Much of the complex and lengthy debate centered on previous legal interpretations of this and similar clauses in other jurisdictions and whether the clause does, in practice, restrict the discretion of the court to grant or deny bail to certain defendants.
The chief justice discussed with attorneys from both sides what would be the practical effect of declaring the Bail Law to be incompatible with the Constitution and what remedies he had the power to give an individual wronged under the law; for example, they discussed if he could immediately free the individual who had been denied bail under an unconstitutional law, or if the individual’s detainment would continue even the law were declared unconstitutional.
“The declaration by itself is not worth much,” the chief justice said.
Caymanian Compass reporter Patrick Brendel contributed to this story.