EDITORIAL – The injustice of open-ended police bail

Anyone who values personal freedom and the swift execution of justice should be deeply concerned by today’s front page story: A Compass investigation reveals that 99 people in the Cayman Islands were being held on pre-charge bail at the end of 2017, including 14 people who had been living under a cloud of suspicion – and without judicial oversight – for more than a year.

Although none had been formally charged with any crime, police suspected them to have been involved in crimes as minor as traffic infractions, or as grave as conspiracy to murder. During their tenure on police bail, they have no way of knowing when – or even if – they would be given an opportunity to clear their names, or be called into court to account for their misdeeds.

We accept that “police bail” can be a useful tool for law enforcement in the early stages of criminal investigation. It is a means for officers to prevent suspects from disappearing while they collect evidence needed to bring a formal charge.

But with no judicial oversight, and no end in sight, police bail gives investigators potentially unchecked power to monitor or restrict the movement of private individuals – including foreign nationals, whose passports may be seized, forcing them to remain on island, often without employment, and sometimes separated from family members overseas. A cloud of suspicion hovers over these citizens while postponing their opportunity to prove their innocence. It delays (and can even deny) adjudication and punishment for those who can indeed be proven guilty of their crimes.

If it is true that people operate by incentive (and we believe it is), current rules governing police bail in Cayman are calibrated poorly. Rather than encouraging swift and thorough criminal investigation, the status quo allows police to keep suspects on a string – indefinitely.

Local attorney Amelia Fosuhene, who favors stronger restrictions on police bail, said: “A time limit would focus the police to do their jobs and to do it efficiently.”

Sounds logical.

Last year, U.K. lawmakers voted to curtail significantly the use of police bail to a maximum of 28 days before requiring approval of senior officers or a court. In the interests of personal freedom and public safety, Cayman’s lawmakers should consider following (or at least studying) our sovereign’s lead.

The good news is that our law enforcement leaders appear to agree on a potential shift in this public policy.

Police Commissioner Derek Byrne said a review of the procedures would be “timely,” while Director of Public Prosecutions Cheryll Richards said her office is reviewing the U.K.’s reforms and will work with police to make recommendations for possible changes in Cayman.

Several attorneys interviewed by the Compass said they supported limiting the use of police bail.

As criminal defense lawyer Lee Halliday-Davis 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.”

Clearly, the time has come to limit and clarify the time Cayman’s residents can be forced to spend on police bail – or at least to have their case heard before a judge.

4 COMMENTS

  1. I agree 100% that people should be bought to trial far more quickly.
    I am thinking in particular of that home invasion where the wife was tied up and threatened with rape about a year ago.
    People were arrested, released on bail (perhaps to intimidate witnesses or commit more crimes ) and we have heard nothing since.

  2. I remember the 2007 case referred to in your main story. If my recollection is correct the man was only finally charged just as the habeas corpus writ was going for the final judgment. The assumption has to be that he was only charged because RCIPS realised they were going to lose in court.

    What I don’t understand is why these cases aren’t simply being treated as a breach of the person’s human rights. As lawyers in the UK and Europe have discovered, there’s plenty of money to be made from human rights claims so it is a bit surprising to find the legal profession here dragging their proverbial heels on this. It makes an interesting contrast to the recent round of litigation that seems to have finally kicked the Permanent Residency process into action.

    Article 6 of ECHR (Right to Fair Trial) includes a “reasonable time” requirement that has successfully been argued in a number of cases. In simple terms the accused has got to be charged and brought to court within a reasonable period.

    Article 3 prohibits “inhuman or degrading treatment or punishment”, which misuse of police bail could well be described as.

    Article 5 (Right to Liberty and Security) might also come into play here and that includes clear provision for financial compensation if a court found police bail was being abused.

    Article 8 protects a person’s “private and family life”, which lengthy detention without charge or trial often involves.

    RCIPS isn’t controlled by CIG; it’s headed by the Governor who is a UK civil servant who at the end of day takes responsibility for everything that happens on ‘their watch’. In her departing message Helen Kilpatrick referred back to her introductory speech in which she had committed to ‘well and truly serve the people of the Cayman Islands’. I suspect all the people currently languishing on indefinite police bail while their cases gather dust on someone’s desk might feel that she hasn’t done a particularly good job here. The police bail issue was active and well documented when she arrived four-and-a half years and not only has nothing changed since but it actually seems to have got worse.

    • While the RCIPS is under the watch of the Governor, the law on bail is in the control of the legislature, so let’s not blame the blameless in this Mr Williams.

      That said, you make a number of good points with regards human rights and it is these issues that brought about a change in the law in the U.K. to limit police bail. Now, if the investigation takes or is likely to take more than w8 days, the suspect is released without any conditions but ‘under investigation’. If, whilst ‘under investigation’ they intimidate witnesses or commit more crime, then they can be dealt with for those.

      The danger is that certain investigations do take a long time. Toxicology test can take months as do Firensi Firearm tests. These are ones where, in the U.K., the person can be charged pending this evidence coming in (see CPS threshold test which applies only where the offence is so serious, it is desirable that the suspect remains in custody)

      All that said, the majority of the cases are because the officer in the case is either under pressure dealing with too many cases or they are slow/lazy. This needs to be addressed by RCIPS management.

  3. I can see the point and concern of attorneys who represent persons who are released on police bail and who want closure but there is another part of this. What of the victims who have suffered violence at the hands of some of these people? They have suffered injury and in some cases great harm and yet their assailants walk about free to harm others or to harm them again. It must be devastating to watch people carry on with their lives and pay no penalty or restitution for their vicious actions.
    I agree there should be less use of police bail and more cases where people are actually charged and the case brought to court. At the very least these people should be held in custody until they are arraigned and charged and in certain cases, like murder or attempted murder, rape, there should be no bail.
    Cayman is becoming a very dangerous place and that is being noted in tourism circles. The fact that we Cayman lets so many perpetrators out and about freely is a concern. I sincerely hope this practice is discontinued for the safety of all good people who live here and who visit here.

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