A shortage of electronic monitors risks causing more suspects to be held in custody as they await trial, putting additional pressure on Cayman’s overcrowded prison system, defense lawyers have warned.
The shortage also has implications for justice, with some defendants being treated differently to others, based on the availability of the monitors, some lawyers claim.
The monitors, which are strapped to a defendant’s ankle, allow officials in the Department of Public Safety Communications to ensure compliance with curfews and other bail conditions.
In one case earlier this month, Magistrate Valdis Foldats indicated he felt unable to place a suspect, charged with a series of burglaries from the Humane Society, on bail, because there was no monitor available. He said he would otherwise have granted bail. The man was remanded to the police detention center, which is being used as overspill for the prison. He was bailed several days later when a monitor became available, according to his lawyer.
Oliver Grimwood, the defense counsel in that case, said it was concerning that a lack of equipment could impact whether a defendant was held in custody or not. He said his firm was contemplating a judicial review of the decision and questioned whether the monitors had been adequately funded.
He said it was incumbent on government to either provide more tags or for the courts to manage their use to avoid defendants being treated differently.
“I would expect there to be some planning and some monitoring to see if we are reaching capacity,” he said. “Do we simply need more tags?”
He added that the issue had a knock-on effect for the prison. “When there is a legitimate concern of shortage of room at Her Majesty’s prison, this is contributing to the overcrowding,” he said.
Julian Lewis, head of the Department of Public Safety Communications, said the courts had asked for more monitors and a request for proposals would be going out to meet that need. In the interim, he said, his department could make tags available in special circumstances, even when the court was at its capacity.
He said there were a handful of spare tags on hand to replace damaged monitors that could be deployed in an emergency situation if the courts deemed it necessary. In those circumstances, he said, the spares would need to be quickly replaced and the court could manage its list to see who could be removed.
Mr. Lewis said the courts were allocated a set number of monitors. He said the Judicial Administration department was aware on a daily basis exactly how many monitors were available, and his office could provide compliance reports on all the offenders in the system, where necessary.
Electronic monitors were first introduced as a bail option in 2011 and their use has expanded slightly since then. Mr. Lewis said he believed the system was effective and the vast majority of offenders on monitors complied with the terms of their bail.
“I believe in the system because it helps people who don’t need to be in custody get the opportunity [to go out on bail] and they have remained compliant throughout their bail.
“The system works. The fact that we need more is being addressed. The question is how many more? How many do we want out in the community?” he said.
Defense Attorney Richard Barton said it was open to the courts to offer a variety of provisions for defendants on bail without going as far as deploying an electronic monitor. If there were a shortage of monitors, he said, the court could consider granting different conditions, such as regular reporting to a police station, although he does accept there may be limited circumstances where these conditions may be inadequate.
Mr. Grimwood said it could either be a case of getting new monitors or simply managing the use of the existing ones.
Amelia Fosuhene, another defense lawyer, said she had also encountered cases where monitors were not available. In most instances, she said, the court was prepared to consider other bail conditions.
She said there were other key issues that remained unaddressed in relation to electronic monitoring. She believes there is a need for a more formal system of calculating how time under a monitored curfew should count as “time served” towards an eventual prison sentence. The U.K., for example, counts each day under curfew as equivalent to half a day in prison.
Judges in Cayman have discretion when making that calculation. For example, Nicholas Tibbetts, who admitted to causing the death of a cyclist in a hit-and-run accident, was granted a one-day reduction in his sentence for every four days he had spent on an ankle monitor. The decision meant he was sentenced to three-and-a-half months in jail, rather than eight months. Had he been granted a half-day credit for each of the 596 days he spent on an ankle monitor, he would not have been jailed at all.
In that case, Justice Dame Linda Dobbs said it had been inappropriate to hold Mr. Tibbetts on a monitor for so long.
“This is a case where, in my judgment, a tag was not necessary,” she added, noting that Mr. Tibbetts had previous good character and strong family and community ties.
She urged the Department of Public Prosecutions to only seek electronic monitors when strictly necessary.
“There have been cases where the court has wished to impose an electronic tag only to find there are no electronic tags available. This needs to be carefully and judiciously handled,” she said.
Ms. Fosuhene, who was the defense lawyer in the Tibbetts case, said there should be a clear system of quantifying how time under monitored curfew was deducted from the final sentence. She said the courts could consider this as part of the equation when deciding whether to use monitors or not.