Witness protection raises legal questions

The Cayman Islands has been operating a witness protection program for the past several years without the backing of formal legislation, a recent review by the Human Rights Commission claims.  

Cayman’s Justice Protection Bill was passed by legislators in 2008 and formally gazetted – made public – on Sept. 15, 2008.  

The Human Rights Commission claims in its report that successive governors failed to assent to the legislation. However, those statements are incorrect, according to Governor Helen Kilpatrick’s office.  

Mrs. Kilpatrick’s chief of staff told the Caymanian Compass that Attorney General Samuel Bulgin said former governor Stuart Jack assented to the bill in late 2008.  

Though contacted for a reply several times over the past week, the Human Rights Commission had not clarified the matter by press time Monday.  

Following a review of the issue in 2013, the commission noted it found no “evidence of immediate concern” regarding the 2009 Constitution Order’s bill of rights and witness protection issues.  

However, it found that the appropriate legislation was needed to “create a legal framework that increases protection, assistance and support services for victims and other witnesses of criminal and civil matters in the Cayman Islands.”  

Although it was not pointed out in the HRC evaluation, the Caymanian Compass is aware of at least one situation involving a witness protection case that was of concern to United Kingdom prisons inspectors who visited the territory in 2012-2013.  

The U.K. study revealed information regarding the holding facilities used for suspects before they entered the court system. One of the issues with the holding cells identified problems with a protected witness.  

“At the time of the inspection, there was a protected witness being held [in an area separate from the main George Town police station custody cells], who had been in isolation for over a month,” the U.K. report read. “The door to his cell was left open so that he could also use the corridor, but his cell and corridor were dark with no natural light.  

“He had no way of telling what time of day it was, had not been outside for several weeks and was clearly depressed.” 

A new police holding facility, comprised of modular units in the Fairbanks area of George Town, is expected to open shortly, according to officials.  

The bill 

Whether or not the bill was assented to, a number of sections in the Justice Protection Bill, 2008, have never been brought into force.  

The bill sought to develop three separate entities, one led by the attorney general’s office and two directed by the police commissioner, which would determine whether witnesses and their associates would be protected in return for their cooperation at trial. 

The bill sets out circumstances under which protected witnesses could be placed in safe houses, guarded by law enforcement personnel, and also provides for the creation of separate identities for individuals under the protection of the state. 

Under the 2008 version of the witness protection bill, police and Crown prosecutors must consider each case to determine whether the individual qualifies for the protection program. Participants must be considered a vital and reliable witness in the criminal case they’re testifying in, and cannot be shown to be a risk to the community where they live. 

In certain cases, government could be required to provide housing, relocation costs and “reasonable living expenses” for prospective witnesses and their family, including finding employment and healthcare. 

Witnesses in the program would have to sign a memorandum of understanding with the Cayman Islands Justice Protection Administrative Centre, one of the entities created by the bill, in order to participate. The proposal also requires them to provide extensive personal background data, including criminal history, property and sources of income. 

Not all criminal cases would qualify for witness protection measures in the bill. 

“Those which may require protective measures for witnesses included cases involving criminal damage, drugs, firearms, hijacking, money laundering, domestic violence, piracy, sex offences, and terrorism,” according to the text.