Officers must go to court for additional time
Depending on what lawmakers decide, police will only be able to hold criminal suspects for 48 hours without criminal charges being filed, unless a court intervenes and extends the time those individuals may be held in custody.
Changes to the Police Law (2010 Revision) are proposed in amendments necessitated by a 2013 court ruling that found the Royal Cayman Islands Police Service had detained a drug suspect for too long before bringing him before a court.
The suspect in the case was held for six days, five hours and 30 minutes. Grand Court Justice Alex Henderson ruled that the man had been unlawfully detained for part of that time.
According to the Police (Amendment) Bill, 2014, a police custody officer – who cannot be directly involved in the criminal investigation that led to the arrest – can only authorize the detention of a person without criminal charges for up to 48 hours from the time of the arrest.
Under the bill, at the beginning of each shift at the police station, the police custody officer would be required to review the progress of the investigation against the jailed suspect and give the person the reasons for his detention if the person is not released.
The bill states that an RCIPS officer with a minimum rank of superintendent may authorize a prisoner’s detention without charge for up to 72 hours if the continued detention is needed to preserve evidence in the case, collect evidence or carry out investigations.
In that case, an application must be made to Summary Court for further detention of the person for “not more than 72 hours.”
“The application made [for further detention] shall be heard in the presence of the detained person,” according to the bill. The only exception to that rule would be if the presiding judge decides the detention hearing must be held in chambers [privately] “in the interest of justice.”
Justice Henderson’s written judgment from a 2013 case stated that a specific section of the Cayman Islands Police Law, 2010, was in conflict with the 2009 Constitution Order’s Bill of Rights.
The Cayman Islands court system confirmed the judge’s ruling was the first case involving a judgment where it was argued that an existing statutory provision contravened the protections contained in the bill of rights.
In that case, a suspect wanted on drugs-related allegations and who also was wanted for questioning in connection with an RCIPS murder investigation was arrested at Owen Roberts International Airport on Jan. 10, 2013.
He was detained for 72 hours as is permitted under the current Police Law and was then detained for a further 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 stated. “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 total of eight days, prior to charges being filed – if sufficient reasons are given and approved by the magistrate hearing the case.
In the case referenced by Justice Henderson, another issue arose with the application to hold the suspect in the drugs/murder investigation having been 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 9.15 a.m. on 14 January onwards was unlawful …”
Under the Cayman Islands Constitution, judges have no power to strike down laws or sections of laws on their own. The legislature has the ultimate responsibility to determine what changes are required.