The case of a tourist arrested at the airport over an unpaid guesthouse bill has highlighted the fine line between civil and criminal disputes in the Cayman Islands.
While police insist their officers were pursuing a criminal complaint and not acting as de facto debt collectors when they jailed American tourist Fuambai Ahmadu in connection with the $233 bill, Ms. Ahmadu disputed the charge and said she considered the matter a civil dispute that should not have involved law enforcement.
The incident has raised questions about the gray area between civil and criminal matters and the scope of a police officer’s powers in mediating such disputes.
Rachel Specht of ARKA corporate and legal services, which lists private debt dispute resolution among its specialties, said the difference came down to criminal intent.
“Criminal behavior is where there is an intention to obtain a benefit without providing something in return. That is clearly where the criminal conduct lies.”
While someone who intentionally walks out on a hotel bill would be criminally liable, someone who withholds payment based on a dispute over quality of services, for example, would have to be pursued through the civil courts.
Exactly where the case of Ms. Ahamdu and the unpaid guesthouse bill falls on that spectrum is a matter of debate.
Under Cayman Islands law, it would be an offense for police to attempt to broker payment of a disputed debt in lieu of criminal charges. However, the Royal Cayman Islands Police Service insists that is not what happened in this case.
Though police acknowledge they are not ordinarily responsible for disputes involving unpaid debt, they say the circumstances in this case, as reported to them, went beyond a normal civil dispute and were rightly treated by the officer as a criminal investigation.
Police said in a statement at the time of the arrest last month that Ms. Ahmadu was offered the option to pay when she was arrested at the airport, and she declined.
She was allowed to leave Cayman two days later, having spent a night in the cells, after agreeing to pay up just prior to a hearing in Summary Court.
Charges of obtaining services by deception were withdrawn by the Department of Public Prosecutions on the morning of the hearing and an envelope of cash was handed over through her lawyer.
Ms. Ahamdu, who had spent the week in the Cayman Islands to watch her son play for Washington’s DC United in a youth soccer tournament, told the Compass outside court that she was stunned to be charged and jailed for what she viewed as a civil dispute.
She claims the owner of the home insisted she leave, two days into her agreed five-night stay, after she refused his request to pay the full bill in cash in advance. She said she wanted to pay by credit card or by cash at the end of the stay.
She believes the proprietor broke their contract, leaving her with the inconvenience and expense of finding a new place to stay. In those circumstances, she disputed that she should have to pay for the two days, but eventually handed over the cash to avoid prosecution.
Martin Richter, who was named in court as having made the complaint to police, declined to comment on the circumstances of the incident.
Police defend actions
Since the incident, the Compass has sought answers from the police over their involvement.
Questioned about why it was considered necessary for Ms. Ahmadu to spend the night in jail, rather than have her passport removed pending the court hearing, spokeswoman Jacqueline Carpenter said the decision was at the “discretion of the custody sergeant” and declined to comment further.
Asked why police had involved themselves at all in what could be viewed as a civil dispute, she said the circumstances, as reported, appeared to be more than a simple case of “bad debt.”
She said the police officer had responded in “good faith” to a complaint from a member of the public.
The fact that the Department of Public Prosecutions agreed to bring charges, before withdrawing them on the day of the case, is viewed by police as vindication of their decision to arrest. There is a higher burden of evidence involved for prosecutors in bringing charges than for police in making an arrest.
Police declined to put forward a senior officer to answer questions, but Ms. Carpenter said her responses had been coordinated with senior management.
“The officer who investigated the complaint was responding to an actual complaint from a member of the public and acted in good faith in doing so. Clearly since a charge was approved by Crown Counsel, there was basis for an arrest for a criminal offense,” Ms. Carpenter said.
“It is accepted, however, that matters arising purely out of a civil agreement are best dealt with by way of civil remedy,” she added.
Ms. Carpenter acknowledged that Ms. Ahmadu was offered the option to pay at the airport, but had declined, saying she had no money and did not believe she owed anything, despite confirming she had not paid for the two nights she stayed at the guesthouse.
The spokeswoman insisted police were not offering a deal to avoid charges when they offered her the chance to pay and would not have taken the money themselves on Mr. Richter’s behalf.
“As a matter of policy, we are not a debt collecting agency, and if Ms. Ahmadu had indeed chosen to pay at that time, it would have been inappropriate and against policy to accept payment on behalf of a third party. Arrangements with the complainant would have had to have been made.”
Legal gray area
Exactly how such disputes should be handled is a legal gray area.
Ms. Specht, of ARKA corporate and legal services, says it is all about intent.
“If you go into a hotel, spend the night and walk out without intending to pay, that is criminal conduct.
“The other side of the coin is where you believe you have not received what you were promised. There is no intention to obtain anything without reward, but you feel you haven’t been given what was agreed; for example, if it is full of mold and the roof is leaking, then that becomes a question of a private dispute between a hotel and a customer over what is legitimately owed.
“If you believe you haven’t got what you were promised and you refuse to pay, I don’t think you can be said to be intending to deprive someone of their property or services.”
Where two parties have different stories, she said, the line between criminal and civil could become blurred, as appears to have happened in this case.
“You can well understand how, in the initial stages of an investigation, it may not be immediately clear whether something is a civil dispute or a criminal act. It comes down to intent. If there is an intention to pay and you can’t agree what, if anything, you are going to pay because of a dispute over the services, then that is a civil issue.”
Ms. Specht said the circumstances of this case appeared to be more of a civil dispute.
“If it is a civil issue, then it is certainly not for the police to get involved. It is up to the two parties to bring procedures in a court. It would effectively be making the police debt collectors to involve them in a dispute like that.”
In criminal cases, she said, repaying the debt should be irrelevant to whether charges and prosecution were appropriate.
“It is strange for her to be kept in prison for a night and then for the charges to be dropped once the money is paid.
“If there is merit in the charges, then whether she paid or not would generally be irrelevant, other than as mitigation at sentencing.”
She said asking for payment and not proceeding with charges could be viewed as a practical compromise.
But, she added, “It sits uncomfortably with me because it seems to be using the police or criminal court as a means of recovering a debt in an instance where you have a dispute between two parties.”
In 2012, a theft case against Kerry Horek, a property manager accused of stealing more than $20,000 in rental payments, collapsed because a police officer was found to have acted inappropriately.
A magistrate ruled the officer committed the offense of “compounding” by attempting to obtain payment of the missing rental money for the benefit of the landlord by way of an agreement that Ms. Horek would not be prosecuted if she paid the money.
The Penal Code sets out this offense, including the description, “Whoever asks or attempts to obtain any benefit of any kind for himself or any other person upon any agreement or understanding that he will abstain from, discontinue or delay a prosecution, or will withhold any evidence, is guilty of an offense.”
In that case, the magistrate said, the police officer had taken an active, aggressive and partisan role.
“In essence, he was acting as an unregulated, private debt collector while clothed in the authority of a police officer – ‘pressuring’ the defendant to make payments under threat of arrest.
“The investigating officer’s actions, although perhaps unwitting (in the sense that he was unaware of the offense of compounding) were certainly unlawful, in essence, he facilitated the commission of an offense.
The ruling was upheld on appeal to the Grand Court.
“A situation in which a police officer decides to take the law into his hands by acting as a private debt collector for an aggrieved landlord, thereby placing pressure on an individual, who claims to be innocent of any crime, to repay an alleged debt under threat of arrest is intolerable.”
Police not debt collectors
In this incident, police have insisted the circumstances can be distinguished from the Horek case. In all such cases, legal experts say, the validity of comparisons would have to be determined through a more detailed examination of the evidence.
A police spokesperson said the two cases were distinct and suggested Ms. Ahamdu had accepted responsibility when she paid the money. Ms. Ahmadu told the Compass at the time that she paid the money so she could go home, and the proceedings involved no formal admission of guilt.
Ms. Carpenter added, “We don’t think that it is helpful to re-litigate this case in the media as Crown counsel was satisfied that an offense was properly made out. Ms. Ahmadu accepted responsibility when she appeared before the magistrate, who dismissed the charges after she agreed to pay the outstanding amount through her attorney.”
Ms. Carpenter said police did not involve themselves in debt collection and only intervened in cases where there appeared to be criminal conduct.
“It is important to note public expectations as we get numerous reports involving bad debt, most notably disputes between landlords and tenants, which members of the public expect us to investigate. Again, while these are treated strictly as civil matters, we will assist by ensuring that the disputes do not escalate into a breach of the peace.”
Amid the fallout from the arrest of Ms. Ahmadu, the Compass sought comment from some of Cayman’s leaders about the police actions and the impact of the incident on the tourist destination.
Tourism Minister Moses Kirkconnell gave his backing to the police, saying the fact that the woman involved was a tourist was “irrelevant.”
“Based on the circumstances of this case, the police responded to a report of a person who had received services and was apparently attempting to leave the jurisdiction without settling their bill. The Ministry has confidence in the RCIPS to take action in accordance with the law, having investigated and assessed the matter. The status or position of an individual in terms of whether he or she may be a resident or visitor, would be irrelevant as to whether the circumstances warrant an arrest.”
Governor Helen Kilpatrick declined to comment, saying it was an operational matter for the police.