Clogged courts create human rights concerns

The backlog of court cases in the Cayman Islands has led to scores of innocent people being locked away with no trial date in sight, according to defence attorney Jonathon Hughes.

“We are talking about people here who have not been convicted of anything, and one of the most fundamental principles of law is that someone is innocent until proven guilty,” said Hughes. “So, you have innocent people who haven’t been convicted of any offence sitting in prison.”

He said one of his former clients was imprisoned for eight months before prosecutors, on the morning the trial was scheduled to begin, offered no evidence.

“Eight months for nothing. It wasn’t even that he was acquitted, the prosecution just dropped the case,” said Hughes. “For the people reading this, that could be you. You could be the person who someone makes an allegation against and the police come to your door based on the allegation, and eight months of your life is just gone.

“It is a really serious issue.”

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The mounting backlog
During the recent Grand Court opening ceremony, Chief Justice Anthony Smellie lamented the continued backlog of cases, which he blamed on a lack of courtrooms. In his speech, Smellie said 1,689 charges before the Summary Court are pending trial, having been brought forward from 2020, while 88 Grand Court indictments were carried forward from 2020 to 2021.

“Of the 88 pending cases, 22 of them involve defendants who have been in prison while awaiting trial,” said Smellie. “In one case, the worst example, the defendant [Judith Douglas] has been in custody since 2017, although she is awaiting a retrial.

“Of the others, four have been in custody pending trial since 2019 and all of the remaining 17 have been in custody since 2020, three since early January 2020.”

Hughes has been practising law in Cayman since 2016 and spends his time primarily between the Grand Court and Summary Court. He recently took over Douglas’ case and told the Cayman Compass some of the allegations against her go back to 2010, which significantly impacts her constitutionally protected right to have a fair trial.

“The danger is you have [witnesses] who have to come to court and recount what they know about what they saw, what they heard [and] what they remember,” he said. “Just think about what you were doing 10 years ago and how well you remember that, and to think that someone’s liberty is hanging on the balance of what you say, based on your recollection of something that happened 10 years ago.

“So, there are really good reasons why trials should happen quickly.”

While the Summary Court normally deals with a large volume of minor offences – such as traffic violations, thefts of small value, and possession of small quantities of drugs – it also deals with more serious offences, such as unlicensed firearms, drug trafficking, and even child abuse.

A constitutional catastrophe in the making
The Bill of Rights, as set out in Cayman’s Constitution, says every person has “the right to be free” unless the detention is lawful. But even when a person is detained lawfully, the Bill of Rights states that each individual is entitled to “quick access to judicial proceedings”, and “trial within a reasonable time, or release from detention pending trial”.

The acquisition of the former Scotiabank building in George Town was supposed to add two courtrooms, thereby speeding up the trial process.

“I was told that although the outfitting of the building for the two courtrooms will involve only internal works, this project cannot begin until summer this year,” said Smellie at the court opening. “I am sure you will all agree that this is unacceptable, faced, as we are, with the prospect of denying persons their constitutional right to a timely trial.”

Hughes warns people being held in detention pending the outcome of a delayed trial could end up serving an actual prison sentence without ever being convicted.

“It makes a mockery of the system if somebody is in prison for as long as or longer than they would be if they were found guilty and punished,” said Hughes.

He added, “So, you have lawyers out here that have cases that are ready to go, and you have clients begging to be tried, and you have judges that want to try them, but the cases can’t get on and that’s where the frustration starts to bubble up in the system.”

Courtroom shortage
There are eight courtrooms scattered across three buildings in Grand Cayman, including three in the main courthouse and four across the street in Kirk House, with Constitution Hall, formerly Town Hall, being used as well.

While eight courtrooms might sound sufficient, Hughes said they are not purpose built and don’t always meet the needs of the cases at hand.

“I had a trial before Christmas. It was due to be heard in one of the smaller courtrooms. We couldn’t have it because the room had flooded,” said Hughes. “We are in little rooms that don’t have the proper facilities. That case [was put] off for months, and that was a possession with intention to supply a large amount of drugs. That case just got knocked off into the future.”

Cayman’s judiciary is a tiered system, consisting of Summary Court, Grand Court and the Court of Appeal. They are pitted against each other to secure the limited resources when all three courts are sitting, meaning the cases before the lower courts are less likely to be heard.

“…[E]ach year, the magistrates find themselves in the unenviable and often embarrassing situation of having to vie against the Grand Court and, when it is in session, against the Court of Appeal as well, for courtrooms, with the inevitable result that the Summary criminal cases are relegated in a manner that is equality antithetical to any notion of timely justice,” said Smellie.

Only one courtroom is suitable to handle jury trials, so when that is the venue of a high-profile trial, the courtroom cannot be used for other matters, sometimes for months. This, in turn, delays all other jury trials.

The cure that makes matters worse
One way to unclog the system is not to charge people who are accused of minor offences. That was the intention behind the Adult Cautions Law, which gives the police commissioner, through his officers, the power to issue someone with a caution or fine. It prevents the matter from escalating to the courts.

However, Hughes said, the Adult Caution Law instead may serve as an incentive for people to choose to go to court.

“At present, the law says that if you consent to receiving a caution, you will then have a caution record that is kept with the police, and there [are] certain circumstances in which that record must be disclosed, and can operate in the same way as a criminal conviction,” said Hughes.

He said the person who chooses to go to court, for a minor offence, and complies with the court’s requests, could ask for no conviction to be recorded – and in many circumstances the request is granted.

“You would have done better than if you had received the caution,” said Hughes. “So it almost incentivises people to go in front of the courts.”

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  1. Procastrination is rampant in Govt, this could be largely avoided if one individual was given responsibility for projects such as this, and held accountable. Until we get accountability in the Civil Service there will be no improvement.