Judge: Summary Court may address Bill of Rights issues

Questions arose during trial of man married to a Caymanian and charged with overstaying

 

The Summary Court has the authority to deal with Bill of Rights issues, a Grand Court judge has confirmed. 

Justice Timothy Owen dismissed a petition filed by attorney Dennis Brady on behalf of an expatriate married to a Caymanian and charged with overstaying. The petition alleged that immigration officials had breached the defendant’s rights under Cayman’s Bill of Rights that came into effect in November 2013. 

Specific rights included the right to a fair trial, respect for a person’s private and family life, freedom of movement, and non-discrimination. 

Justice Owen set out his reasons for dismissing the petition last week and cited two Privy Council cases in a 27-page decision. He said, “No doubt, in future cases, and with the benefit of this judgment, a similar sequence of events will not occur and the smooth course of criminal justice can be maintained.”  

The judge directed that the petitioner’s Summary Court trial, which had been adjourned, should resume as soon as reasonably practical. 

Mr. Brady welcomed the judgment, saying it clarified how certain Bill of Rights issues should be dealt with. 

In this case, his client was a citizen of Ghana who married a Caymanian woman in June 2012. As a result, he was the beneficiary of a Residency and Employment Rights Certificate. 

In his summary of the background to the charge, Justice Owen said it appeared that serious difficulties quickly developed in the marriage. Five months after the wedding, the wife wrote a letter to the chief immigration officer saying “my husband has proven that this is a ‘marriage of convenience’ and I am desperately asking all privileges be revoked as this marriage has no hope of reconciliation.” 

The Caymanian Status and Permanent Residency Board wrote to the husband in December 2012, informing him that they were minded to revoke his certificate. The husband replied in January 2013, outlining his version of events. The following month, the board revoked the certificate and the husband lodged an appeal with the Immigration Appeal Tribunal. 

The same day, his attorney wrote to the chief immigration officer seeking an extension of the right to work pending the appeal. 

The husband said he visited the Immigration Department and was given a “Working by Operation of Law” application form to complete. When he attempted to submit it, an official refused to accept it, telling him he had no right to remain on the island and he should depart immediately.  

In April 2013, he was arrested for overstaying. His trial began in September 2013 before Magistrate Valdis Foldats. 

Justice Owen said what happened during the trial was agreed between the crown and defense. As Mr. Brady was cross-examining the officer, who was said to have refused the husband’s Working by Operation of Law application, the magistrate became concerned that the line of questioning engaged issues under the Cayman Islands Constitution Order 2009. 

The magistrate took the initiative to adjourn the trial so that Mr. Brady might “consider his options.” 

Mr. Brady explained in the Grand Court hearing that he, in effect, deferred to the magistrate’s concern and the decision to pursue a petition to the Grand Court was taken without any debate in the Summary Court. Justice Owen said he regarded this as unfortunate.  

He said it was significant in his view that the magistrate did not make any findings of fact nor did he identify any issue as to the interpretation of the Bill of Rights on which the opinion of the Grand Court was sought. 

Section 26 (1) of the Bill of Rights states: “Any person may apply to the Grand Court to claim that government has breached or threatened his or her rights and freedoms under the Bill of Rights and the Grand Court shall determine such an application fairly and within a reasonable time.” 

However, Justice Owen pointed out, this did not mean that a Summary Court is incapable of resolving Bill of Rights issues that arise within its ordinary criminal jurisdiction. 

The only restriction on the Summary Court is spelled out in the next sub-section: If any issue arises “as to the interpretation of the Bill of Rights,” the court shall refer the question to the Grand Court if it is, in its opinion, necessary for the issue to be determined. 

Justice Owen said this means that the Summary Court is not competent to rule on the interpretation of the Bill of Rights itself. But in the matter before him, no issue of interpretation had been identified.  

The hearing took place on Aug. 19. Counsel appearing for the chief immigration officer and attorney general were Reshma Sharma and Jenny Catran. 

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