Prominent members of the Cayman Islands criminal justice community, including the police commissioner and director of public prosecutions, have acknowledged concerns about the use of “police bail” after it emerged that nearly 100 criminal suspects had restrictions placed on their freedom – many for more than a year – without facing any official charge or form of court oversight.
At the end of 2017, there were 99 people on police bail, according to the results of a Freedom of Information request filed by the Cayman Compass.
That list included 14 people who had been on bail without charge for more than a year, and five for more than two years. The longest any single individual had been on police bail is nearly three years, in the case of a 33-year-old man who was arrested on suspicion of theft in February 2015.
The variety of offenses suspected to have been committed by the 99 individuals in the data set spans the gamut of criminal activity, from minor traffic offenses and possession of ganja to serious wounding cases and conspiracy to murder.
Officers often place criminal suspects on this type of bail in the early stages of an investigation when there is not enough evidence to bring charges and start court proceedings.
But criminal defense lawyers believe it is being overused in Cayman, to the detriment of civil liberties.
Amelia Fosuhene of Brady Attorneys-At-Law said there was no justification for police and prosecutors not making a decision on charges swiftly.
She said clients were often kept waiting for a decision for several months, even in relatively simple cases, because police had simply not progressed on the investigation.
In the U.K., the law was changed last year to restrict the time anyone could be kept on police bail to a maximum of 28 days. That limit can be extended to three months by senior officers in particularly complex cases, but anything longer must be approved by the courts.
At the time, British Home Secretary Amber Rudd said, “Pre-charge bail is a useful and necessary tool, but in many cases it is being imposed on people for many months, or even years, without any judicial oversight – and that cannot be right.”
The Cayman Islands Bail Law (last revised in 2015) imposes no such restrictions, and the Police Law (last revised in 2017) indicates only that officers are required to send evidence files to the Director of Public Prosecutions for a decision “as soon as is practicable.”
Ms. Fosuhene believes the Cayman Islands should follow the U.K.’s lead and impose a set time limit.
She said suspects on police bail often faced serious restrictions on their liberty, sometimes for over a year, without any pressure on the investigating officers to produce evidence.
“I think we do need legislation (like the U.K.’s) that restricts the police power to leave people on bail indefinitely,” Ms. Fosuhene said. “The police have the power to give a curfew, they have the power to restrict you to an address, to take your passport, they can put an ankle monitor on you as part of your bail conditions.
“There is little regard for the impact it has on your life.”
She said in many cases, in her experience, there was little justification for long delays and clients were having bail extended simply because police had not got around to doing the work or had not turned up for the bail date.
“A lot of these are not long and complicated issues,” she said. “Why can’t the police have the same restrictions as the U.K.? A time limit would focus the police to do their jobs and to do it efficiently.”
In response to questions from the Cayman Compass, the Royal Cayman Islands Police Service released a brief statement from Commissioner Derek Byrne acknowledging that the system was overdue for review.
He said, “It is timely for police bail procedures to be reviewed in conjunction with colleagues at the Office of the Director of Public Prosecutions to ensure that the principles of natural justice and fair procedures are observed, and that the system is effective for both victims and offenders.”
Several defense lawyers that spoke to this newspaper indicated support for bail time limits.
Lee Halliday-Davis, a senior criminal defense lawyer, said, “If you have someone that wants to travel or start a new job, or to get on with their lives, it is hanging over their heads constantly. It means they can’t get on with their lives and it keeps them in limbo.”
She said when lawyers inquired about repeated bail extensions month after month, they were often told the case was awaiting a legal ruling from the Department of Public Prosecutions.
Director of Public Prosecutions Cheryll Richards said her department’s policy is to respond to investigating officers within 14 to 21 days of receiving evidence files, with an indication of whether the case is strong enough to pursue charges. She acknowledged that these responses sometimes included requests for officers to go back and obtain additional evidence.
She said urgent matters were dealt with on the day of submission.
Ms. Richards said her office is working with police to review the U.K. reforms in order to make recommendations around possible implementation in the Cayman Islands.
However, she said, the new U.K. system, which creates a presumption in favor of release from bail and sets clear time limits, may not provide all the answers.
“The impact of the changes in the U.K. is still being monitored by U.K. authorities in order to ensure that the appropriate balance is maintained and that bail continues to be imposed where it is necessary and proportionate,” she said.
She added that the time limits on police bail did not mean suspects were cleared of suspicion.
“While the reforms limit the length of time an individual can be on bail, they do not and were never intended to impose limits on the length of time an individual can spend under investigation,” she said.
Under the new U.K. system, she said, suspects could remain under suspicion indefinitely.
“The suspicion hangs over that individual and they never know whether or not they will be arrested again, whereas when they were released on pre-charge bail, there was a specific time when that person would come back to the police station. There was a limit to the uncertainty,” Ms. Richards said.
Ms. Halliday-Davis suggested that sort of uncertainty is already present in Cayman, with clients sometimes released after months on bail without any guarantee that they would not be rearrested.
“I have had clients on bail for over a year and it got to the point that they just discharged them from bail. There was never any termination for them in relation to the charge for them to know whether it is over or not,” she said.
“It just disappears into the ether.”