Murder suspect loses human rights challenge

A murder suspect has lost his bid to be released on bail pending his trial.  

Lawyers acting for Brian Borden had challenged the presumptive denial of bail for murder suspects under Cayman Islands Law, claiming it breached human rights guaranteed under the constitution. 

Justice Anthony Smellie dismissed the application in a ruling last month. 

The decision, in practice, has little direct impact on Borden, who has spent 17 months in custody awaiting trial for the 2011 killing of Robert Mackford Bush, because his trial is scheduled to begin Monday. 

But it has implications for current and future defendants in custody and awaiting trial for a variety of offenses, including burglary, drug possession and arson, as well as murder.  

Borden’s lawyers had sought a declaration that the section of the Bail Law that prevents defendants suspected of these crimes, and others, from being entitled to bail is incompatible with the Cayman Islands Bill of Rights.  

Such a declaration would have allowed Borden, and potentially others accused of murder and other listed crimes, to make a new application to be released on bail pending trial. 

In a hearing in September 2013, Nick Hoffman, acting for Borden, who was funded by legal aid, said exemptions from entitlement to bail, listed in the disputed clause of the Bail Law, denied certain defendants the right to be considered innocent until proven guilty. 

He said the practical effect of the disputed clause, 17 (ii) of the Bail Law, shifts 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 does not mean a blanket denial of bail for all defendants charged with the listed offenses. But he said it effectively places the burden of proof, unfairly, with the accused, and affects the discretion of the court to make a reasoned judgment on the facts before depriving a person of their liberty. 

In a 19-page judgment, referencing previous legal interpretations of this and similar clauses in other jurisdictions, Justice Smellie suggested the law does not, in practice, restrict the discretion of the court to grant or deny bail to certain defendants. 

He ruled the clause is not incompatible with the rights to liberty enshrined in the constitution. 

Justice Smellie, in his ruling, said, “In summary, the Bail Law, notwithstanding the purported disentitlement to bail expressed in section 17(2), may and should appropriately be read down to make it compliant with the Bill of Rights requirement of prompt and continuing judicial oversight, when the court will be entitled to account of all relevant considerations pointing for and against the grant of bail for any of the listed offenses.  

“When so construed despite any lack of clarity or ambiguity, section 17(2) of the Bail Law is in and of itself neither disproportionate nor arbitrary, nor is it necessarily prone to being applied in that manner. It is, therefore, not incompatible with the Bill of Rights.” 

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