Unlimited police bail could face legal challenge

Criminal suspects kept on police bail, with significant restrictions on their freedom for extended periods of time, could seek judicial review or a declaration of wrongful imprisonment, according to two senior attorneys.

In 2007, James Stenning brought a test case to the Grand Court on behalf of Canadian citizen Daniel Vanderwerff, who was accused of stealing more than $200,000 from his employer.

The suspect had surrendered his passport as a condition of police bail and Mr. Stenning argued that his client, who lost his job as a result of the accusations, was being detained in the Cayman Islands unlawfully and against his will.

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Likening the situation to the imprisonment by the British of Napoleon on St. Helena, Mr. Stenning said his client was effectively being imprisoned in the Cayman Islands, where he was unable to work or be with his family, who had moved to Canada.

He filed a writ of habeas corpus, which requires the detained person to be brought before a judge and released unless lawful grounds are shown for their continued detention.

Ultimately, criminal charges were brought against Mr. Vanderwerff before the case proceeded to a final decision on the bail issue.

According to news reports at the time, he eventually left the island by air ambulance after being involved in an accident and never returned to face the charges.

Despite the unusual circumstances, his case remains significant as it is believed to be the only time the Cayman courts have addressed the issue of police bail

In his ruling, Justice Alexander Henderson accepted the principle that a police bail restriction that included the confiscation of a passport could be viewed as a form of imprisonment.

The judge commented that a suspect may only be held on police bail in the Cayman Islands for a “reasonable time.” He indicated that what was reasonable would depend on various factors, including the seriousness of the allegations and the difficulty and expense suffered by the suspect in remaining in Cayman against his will.

Mr. Stenning said suspects who had been on police bail for as long as three years would, depending on the circumstances of the case, have a very good chance of succeeding on a habeas corpus application.

“As far as I can recall, the learned judge in the Vanderwerff ruling indicated that police have to carry out their investigations into allegations within a reasonable amount of time. He was quite firm about that,” he said.

He cautioned that the barrier to this kind of application was expense and suggested U.K.-style time limits should be imposed by the legislature in the interests of fairness, without someone having to fund a costly legal challenge.

“It is great that we have these legal protections,” he said. “However, the reality is that our community still has only a limited ability to benefit from these rights if they do not have affordable access to attorneys, through a properly funded legal aid system – not to mention the equally important matter of also having an adequately funded judicial system with the facilities and resources to adjudicate on matters in a timely manner.”

Nicholas Dixey, another senior defense lawyer, said being placed on police bail is a restriction of liberty, as are bail requirements such as curfews or reporting to a detention center.

While generally such restrictions are lawful when imposed through the Bail Law, he said, police bail without charge cannot continue indefinitely, and an aggrieved suspect could seek judicial review of a decision to extend police bail beyond a reasonable amount of time.

He added, “Statutory limits in other jurisdictions can provide useful guidance on what is considered a ‘reasonable’ period, but it may take a judicial review here on the point to prompt a legislative amendment. The sort of provision one might expect in any amendment to the Police Law is a limit to the period of police bail without charge to, say, 28 days that may then be extended by application to a magistrate in chambers.”