The Grand Court has upheld a police decision not to return a passport to a Canadian man being investigated following a fatal collision, after he asked for his bail conditions to be varied so he can visit sick relatives back home.
The decision, which came by way of a judicial review held behind closed doors in Justice Marlene Carter’s chambers, has highlighted the lack of checks and balances for people who find themselves arrested but not charged, and placed on police bail pending the outcome of investigations.
In Cayman, people arrested on suspicion of an offence can be granted bail through the Police Act, depending on the nature of the allegation and the strength of the initial investigation.
In lesser offences that would be tried in Summary Court, police have up to six months to formally charge a person. For more serious offences, which would go to the Grand Court, there is no time limit.
If those arrested on lesser offences are eventually charged, they then make their first appearance in Summary Court, where bail can be regranted, but this time in accordance with the Bail Act.
In cases where the Summary Court refuses bail, defendants have the option to appeal the decision to the Grand Court. This established system provides defendants with clarity and a means to challenge the conditions on which they were granted or refused bail.
But the grey area that has left the courts concerned is the lack of a formal process outside of a judicial review to challenge the discretionary powers of police when they grant bail to a person who has not been charged.
In this instance, the applicant for judicial review was a 36-year-old Canadian national who lives in West Bay. According to police, he was the driver of a vehicle involved in an early-morning collision in which a cyclist was killed. Within minutes of the incident, he allegedly fled the scene but was arrested a short distance away.
Although he was arrested, he has not been charged. Therefore, Cayman Compass is not publishing his name at this time. A court-imposed directive prevents the Compass from releasing the identity of the victim.
The only condition of the man’s bail was that he surrender his passport to police, to prevent him from leaving the jurisdiction until investigations have concluded.
When granting bail, the law allows police to impose conditions such as confiscating a person’s passports, imposing curfews and, in rare cases, fitting suspects with ankle monitors.
Although custody limitations are clearly spelled out in the law, some matters can see individuals on police bail for years.
In December 2022, an open records request published in a Compass special report revealed that as of October that year, 102 individuals were on police bail without having been charged.
The most extreme example involved a 29-year-old woman arrested in February 2020 on suspicion of obtaining a money transfer by deception. Almost three years later, she was still on pre-charge bail.
More than a dozen people were also on bail without charge for longer than a year. A 45-year-old man, arrested for theft in July 2020, and a 49-year-old man accused of obtaining property by deception in November of that same year were among those still waiting to hear if they will ever face criminal charges.
In the current judicial review, the Canadian man applied for a bail variation one month after surrendering his passport.
In a letter to the police, he requested a temporary variation to allow him to return to Canada to visit his grandmother who had suffered a stroke, and to tend to his father who had also been taken ill.
In his letter, he told police he was willing to pay a $5,000 bond and have a Caymanian stand surety for him.
In a follow-up letter a month later, he told police that, in addition to his sick relatives, he needed the variation to his bail condition so he could speak with potential investors in the US.
However, police declined the bail-variation request, stating that they considered the amount of the cash bond and surety was not high enough, and did not believe the suspect would surrender himself to custody if given the chance to leave the Cayman Islands.
After the RCIPS refused to vary his bail conditions, the man filed a judicial review on the grounds that his relatives were sick, that police had not properly considered his request and therefore had acted irrationally.
When dismissing the judicial review on all three grounds, Carter noted that her task was not to assess the merits of the police refusal to return the passport, but to find out whether the police had responded per the law, and demonstrated that they had considered the matter, and had provided their response in writing.
“Given the nature of the matter under consideration, the lack of ties of the Applicant to the island and the nature and amount of the surety and cash bond that was offered, I do not find that the decision to refuse a variation to the sole condition of bail was disproportionate in all the circumstances,” wrote Carter.
Judicial concerns
But although the judge sided with police on their call to refuse to return the suspect’s passport, she noted her concerns about the lack of redress in both the Police Act and the Bail Act.
“Neither of these… contain provisions that allow for redress for a person who has been arrested on suspicion of having committed an offence and bailed with conditions before charge,” wrote Carter, who also noted that, in this instance, the applicant’s liberty to travel outside the jurisdiction was curbed by the police decisions.
She added, “There is no ready access/redress within the court system for those not detained but whose liberty has been effectively curtailed… It is of concern that a person arrested only upon suspicion of having committed an offence, and bailed before being charged for an offence, must make an application, such as [this] one, to the Grand Court in order to test or determine the reasonableness or proportionality of the imposition of conditions which curtail his liberty.”
Carter’s judgment did not provide any suggestions or calls for remedies that could introduce another layer of checks and balances for persons who are arrested but not charged.
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