Cayman’s anti-gang laws have never been used by prosecutors

Prosecutors have never used any of Cayman’s anti-gang laws in the more than 12 years since they were introduced.

Under provisions added to the Penal Code in 2011, membership of a gang is a crime punishable by up to 20 years in prison.

The anti-gang section also lists related offences including criminal activity in association with a gang and possession of a firearm or bulletproof vest in association with a gang, and gives police powers to disperse groups or demand individuals remove concealing clothing if they suspect gang activity.

But despite ongoing gang-related crime – most notably in the 25 Feb. shooting of seven spectators at Ed Bush Stadium during a football match, for which police have still not charged a suspect – no one has ever been prosecuted for gang membership, the Office of the Director of Public Prosecutions has confirmed.

During a press conference in the aftermath of the shooting, Premier Juliana O’Connor-Connolly referred to applicable laws, said, “We do have legislation in … it’s $500,000 maximum or 20 years, for gang membership.

“And we will be having those discussions, with the attorney general, with the commissioner of police, that if that is not sufficient or there is further assistance needed to test the membership of gangs, to see where this legislation meets what it’s intended to meet. We’re not going to shy away from that.”

The three arrests made since the shooting have been on suspicion of attempted murder and suspicion of possessing an unlicensed firearm, but no reference has been made to gang membership.

Legal experts questioned whether the legislation is properly framed given the nature of Cayman’s small gang subculture, whether there was the right supporting legislation on the books, and whether police were using the right tools to be able to support such prosecutions.

The amendment to the Penal Code, passed in December 2011, defines gang membership, as “any group, association or other body consisting of three or more persons, whether formally or informally organised, having as one of its primary activities the commission of a serious offence; and any or all of the members of which engage in or have, within the preceding three years, engaged in the commission of a series of serious offences”.

Criminal defence attorney Jonathon Hughes of Samson Law, who hails from Northern Ireland, said, “In other jurisdictions, you’ve got proscribed organisations. 

“The police and prosecutors don’t have to establish what the IRA [Irish Republican Army] or certain loyalist paramilitary groups are.

“You have a search warrant and you go into a house for a gun and you find a balaclava and a flag, you can prosecute. 

“But here you’d have to, first of all, establish that a gang exists, before you can prosecute someone for being a member of it.

“That’s just very difficult, particularly in the absence of a piece of legislation by Parliament.

“Without legislation, prosecutors would have to do all that groundwork themselves – and then you have the question of who from the street is going to come forward and testify about the existence and membership of a gang?”

He also asked whether the framing of the legislation is relevant to Cayman’s gang culture.

Section 231 of the Penal Code defines gang membership or identity as follows:

“For the purposes of this section, subject to evidence to the contrary, persons shall be deemed to be in the same group, association or other body, whether formally or informally organised, where those persons — (a) have similar tattoos or other body markings; (b) have a similar style of dress; or (c) use similar symbols, signs, codes or mannerisms as a means of identifying themselves with the group, association or other body.”

“What does the legislation say? Tattoos, similar dress, symbols,” Hughes said.

“Well this isn’t exactly South America where these guys are tatted up, and that’s one of the reasons why the law hasn’t been used.

“In the olden days, you did sometimes see guys with tattoos, initials of what you might call gangs, but they always end up before the courts on something else anyway.”

He pointed out that prosecutors were unlikely to reach for complex gang legislation if they had easier options which would also put dangerous criminals behind bars.

“From a prosecutorial point of view, ask yourself, what’s the easiest offence to prosecute?

“It’s much easier to try someone for having a gun or committing murder than to establish they’re a member of a gang.

“Murder carries life, having a gun carries 20 years, so you’re going to put them away anyway without having to prove gang membership,” Hughes said.

His colleague, Oliver Grimwood, made a related point, looking at the definitions of gang membership under the law.

“Say you could establish a person is a gang member, and they’re participating or contributing in the activities, and the activities must be commission of serious offences,” he said. 

“And you know the people they’re doing it with have been convicted in the last three years of committing serious offences.

“Well, it would be very rare circumstances that you could establish all of that against Mr X – but could not establish he was committing a predicate offence – for instance conspiracy to supply drugs, possession of a firearm. That’s going to be incredibly rare.

“Here, distributing hard drugs, he’d be looking at 15 years anyway as a starting point. If you’re looking at that, and that level of sentencing, why would you add gang membership?

“It might be an extra charge to add to an indictment containing substantive offences, but I’d imagine we’d never see a charge where that were the only charge.”

He also questioned whether Royal Cayman Islands Police Service methods are conducive to successful prosecutions under the anti-gang laws.

Taking one example, he explained that in the UK police conducting stop-and-search will note the identifying IMEI number of a suspect’s cellphone.

Drug phone lines, used by dealers to sell to users, are run from a SIM card which is moved from handset to handset depending on which member of a gang is controlling the line on a given night.

So when, during some future stop, police find the SIM itself, they can discover which handsets it has been used in, and based on their records of handsets identified during stops-and-searches, can arrest and charge other gang members whose phones have hosted the SIM card, Grimwood pointed out.

“If this legislation is to be utilised, it will require the police to start to have a much more data-driven approach to policing, to have a system where they can cross-reference teams working together. But you get the impression that it is very pocketed,” he said.

“They might have informal intelligence – but that’s street gossip; that’s what most intelligence is.

“Documented intelligence which can go from being an investigatory tool to an evidentiary one which could form part of a court case, that’s a different thing.

“The legislation may be perfectly fine, but it only works if you put the right inputs in. You can have a great car but if you’re not going to put gas in, it’s just a piece of metal.”

The RCIPS declined to comment for this article. The director of public prosecutions was not available for comment.