Revamped firearms bill seeks ‘burden of proof’ reversal

A draft Firearms (Amendment) Bill that sets additional penalties for possessing a homemade firearm and for “handling” a firearm or bullet-proof vest has been made available for public comment.

The proposal, which contains some slight revisions to a similar plan released two years ago, still contains provisions for warrant-less firearms searches by police based on “reasonable suspicion” and seeks to reverse the “burden of proof” in firearms possession cases.

A warrant-less search provision currently exists in the Cayman Islands for instances where police suspect illegal drugs are being kept in a home, car or are being held by the individual.

According to the Firearms (Amendment) Bill, 2013: “If a constable or customs officer has reasonable cause to suspect that any person is in possession of a firearm or bullet-proof vest in contravention of this law he may, without warrant, detain and search such person and whether or not any person is detained or searched may, without warrant, break open and search any premises, vehicle, vessel, or thing whatsoever in which he has reasonable cause to suspect that any such firearm or bullet proof vest may be concealed.”

The wording is the exact same as that contained in the 2011 proposed amendments to the Firearms Law, but those never received final legislative approval.

In addition to the warrant-less search provision, the amendment bill would allow individuals to be detained by police on suspicion of violating the Firearms Law, or any other criminal offence involving the use of a firearm, for up to 20 total days without criminal charges being filed.

The application to detain a firearms suspect must be made by an officer the rank of at least chief inspector and must satisfy the Summary Court that “there are reasonable grounds for believing that the continued detention of the person … is justified,” according to the law.

“Justified” means that the detention of the person is necessary to secure or preserve evidence in the criminal case or to allow police officers enough time to secure the results of forensic tests.

If an initial 10-day warrant of detention approved by the court expires, the person must either be charged or released. If the person is released, he or she cannot be arrested for the same offense unless new evidence is brought to light in the case.

A Summary Court can extend the original 10-day warrant “for such period as the summary court thinks fit”, but not for more than an additional 10 days for the same offense – 20 days in all without a criminal charge is the maximum time under the proposed revision to the Firearms Law. The 2011 revision had set that maximum time limit at 20 days.

In addition to the changes proposed for police searches and length of detention, the bill also sets out the circumstances in which the legal “burden of proof” would rest on the suspect in firearms cases, rather than on the crown. The issue was discussed by Police Commissioner David Baines in 2011.

Mr. Baines said at the time what was being reviewed with the attorney general’s office was 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.”

According to the Firearms [Amendment] Bill, 2013, “where it is proved beyond a reasonable doubt” that the person had possession of a firearm or bullet-proof vest, imported anything containing a firearm or bullet-proof vest, or supplied anyone with such an item then “it shall be presumed, until the contrary is proved” that the individual knew of the firearm or vest being present in the location it was found.

The changes proposed in the amendment bill would obviously apply only to unlicensed firearms. It is legal in Cayman for private citizens to possess a firearm if the proper license and safety procedures are maintained.

The amendment bill also adds the offense, punishable by up to 10 years in prison, for possession of home-made firearms or “handling”parts used to make firearms. A 10-year sentence can also be given for handling a proper firearm or bullet proof vest without lawful authority.

“Handling” is defined in the bill as “[a person] is in any way concerned with removing, carrying, harboring, keeping or concealing that firearm, bullet-proof vest or thing [used to make a firearm], or anything concerning that firearm or bullet-proof vest … or [the person] deals in any manner with that firearm, bullet-proof vest or thing [used to make a firearm].”

The proposal … contains provisions for warrant-less firearms searches by police based on “reasonable suspicion” and seeks to reverse the “burden of proof” in firearms possession cases.

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3 COMMENTS

  1. I attended Catholic schools for 16 years total. This law and the firearms law in general sounds like something we had in grammar school. The nuns punished us for impure thoughts which they could determine just by looking at us in classroom. Certainly warantless searches sounds very similar.

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  2. Looks like another human rights nightmare unfolding here.

    In the UK proposed legislation has to pass careful vetting to ensure it complies with ECHR and the Human Rights Act. In the Cayman Islands it appears you just throw it together over a few beers and hope for the best.

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