HRC queries anonymity law

| 29/03/2010

Cayman Islands News, Grand Cayman Island headline news, Cayman Human Rights Commission(CNS): The chair of the newly formed Human Rights Commission has written to the government raising concerns about the recent implementation of the witness anonymity law, which will allow people to give evidence without revealing their identity to both the police and the courts. Richard Coles, a former Cayman Islands attorney general, told CNS that the HRC was not shown the bill before it went to the Legislative Assembly and there are a number of questions about it which may not only pose a threat to the rights of defendants but that it could also be unconstitutional.

Coles explained that the commission has sent a letter to the Deputy Governor’s Office pointing out a number of issues about the Criminal Evidence (Witness Anonymity) Law 2010 which could cause problems with regard to the success of the legislation. Coles noted that in general the right to cross examine a witness is a fundamental right of anyone being prosecuted but the commission recognises that exceptional circumstances call for exceptional measures. However, the HRC chair said the commission would be observing further erosion of rights that go the heart of a fair trial.

“We have two specific concerns about this particular piece of legislation,” Coles said, explaining that in section 2 the crimes to which the law may apply are set out as well as a clause indicating that the Governor in Cabinet may add to that list of offences without referring the bill back to the elected members of the Legislative Assembly for amendment.  The list of offences is already considerably longer than the law it is modelled on in the UK, and this clause would enable the list to grow without input from the people’s representatives.

The chair noted that this essentially meant the elected arm of government had enabled the executive arm to change a primary piece of law without debate. “To my knowledge this is the first time the Legislative Assembly has delegated such authority to the Cabinet,” he added.

Coles explained that while Cabinet is normally responsible for subsidiary legislation or regulations, it is the Legislative Assembly that would amend the primary law and that in this case the separation of powers have been blurred. He said that this was a bad precedent to set and could also leave the legislation open to challenge. With a defendant’s rights already threatened, although understandable in exceptional circumstances, Cole noted any further erosion would be of significant concern.

The second issue that has caused Coles and his colleagues on the commission concern is that the law may not work as well as the authorities have intended, quite simply because the witnesses will not be entirely anonymous as their identities will be revealed to juries.

“Given the size of the Cayman Islands, how much comfort could a witness take if the jury will know who they are?” Cole asked. “It will be quite an issue to convince a witness that they do have genuine anonymity when they are known to the jury.” He suggested that this deficiency in the law may very well prevent the legislation from achieving its main goal.

“The HRC is as concerned about crime as everyone in the Cayman Islands, but had we been able to see the legislation before it made its way to the Legislative Assembly we may have been able to advise government on some of these potential problems,” Cole added.

He noted that while there was a need to address the current escalation of crime through changes in legislation and new ideas, “Good ideas need some thought,” and said the HRC was willing and able to assist in the thought.

With a number of laws in Cayman already needing to be addressed to make them compatible with the bill of rights, which will take effect in Cayman in November 2012, Coles said that the HRC has asked government to ensure that on all future legislation the commission is given the opportunity to look at it so it can at least advise government on any potential human rights abuses before new laws are enacted.

Check CNS throughout this week for more from Richard Coles on the HRC’s future plans, education campaigns, its current powers under the constitution, its future role once the Bill of Rights is implemented and its position on various other topical issues.

Category: Headline News

Comments (19)

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  1. Nicola Moore says:

    I have not read the posts on this thread however I am compelled to respond to the suggestion that the anonymity provisions are not HR compliant.  The legislation is in line with the Criminal Justice and Coroners Act 2009 in the UK.  This was a re-enactment and expansion of the Witness Anonymity Act 2008.  These provisions were brought into force following a surge in gang violence in the UK and corresponding issues which arise here to securing evidence upon which to base a prosecution in cases where witnesses may be intimidated by reason of the gang element of the case.  The suggestion by Mr Coles, with which I respectfully disagree, is that there is a right to cross-examine the witnesses.  In the UK with the advent of the Criminal Justice Act 2003, there is an increasing ability to introduce both hearsay and in that way evidence which cannot be challenged by way of cross examination.  The very recent decision of the Supreme Court of England and Wales (as the HL is now called) in Horncastle (see http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Crim/2009/964.html&query=Horncastle&method=boolean) means that I would beg to differ from this proposition.  Remember of course that the UK is bound by a Human Rights Act which is far wider reaching than the somewhat watered down version of the ECHR which Cayman has chosen to adopt.  One only has to practice in the UK – which I have done extensively – to know that the rights of the Defendant in England at trial are significantly more eroded than they are here and England has the Human Rights Act 1988 in force with all its rights an privileges.  For example there is the adverse inference from silence in interview, silence at trial, defence statements and mandatory defence disclosure, the bad character provisions, special measures for witnesses, transfer for trial provisions etc etc.  Often it is forgotten that the Article 6 right to a fair trial includes fairness to the prosecution and the victims of crime.  I accept however that defendants here are incarcerated much longer at the police station and although they have a right to legal advice that often means nothing because it is a right but only if they can pay or get a lawyer to go free of charge – however they can simply sit in interview and say nothing so really legal advice may add nothing to the mix. 

    The anonymity provisions have been challenged unsuccessfully in the UK throug the courts in the course of a number of criminal trials.  It is worthy of note that in the first year of the provisions in the UK there were 328 applications for witness anonymity.    Of course the case of R v Davis might suggest that there were EC arguments against the provisions however the House of Lords in the case of R v Davis also accepted that legislative amendment would not preclude the use of such provisions, they simply declined to stretch the common law that far (although it is fair to say there were many cases before Davis which accepted this proposition that the right to confront witnesses is not absolute – see for example Grant v The Queen [2007] 1 AC 1

    This is a most interesting topic for debate and it remains to be seen whether the appropriate practice direction of the Lord Chief Justice of England and Wales is adopted to marry hand in hand with the legislation here.  The most important aspect to this legislation is not the law itself, rather it is the disclosure regime in relation to unused material which must surely be re-visited if the practice is to be HR compliant.  I look forward to the next chapter.

  2. Rufus B. Saye says:

    Constitutions and Human Rights codes are extremely inconvenient because they force you to consider other viewpoints (and/or consider those holding them as human…).

    So yes, as inconvenient as the HRC might be, mindless dismissal of their thoughtful arguments as unimportant is (to be consistent) a reflection of the unimportance of the ones doing the criticism…

    Or to use a Biblical reference, seems that the ones protesting Human Rights more closely resemble the Pharisees…

  3. Joe Average says:

    I think what Coles is saying is:  "please, please, please DON’T bring anymore legislation forward.. without consulting some legal authority.  With some knowledge."  Whether that is the HRC is irrelevant because someone with a legal opinion has to check it, or as he is pointing out it’s a waste of effort.  This has become too familiar and too much like Blind Man’s Bluff!  You can’t make up laws on the fly.  And I wish someone in government would realize this simple procedurebefore they opt for another sound byte.  Get your ducks in a row. Think….then act.

  4. Anon247 says:

    The HRC is about the only decent thing to come about in the Cayman Islands in the past five years. They are looking out for the common man and trying to keep human rights here on some sort of par with the developed world. But they are up against it with a dictatorialgovernment and all kinds of narrow minded souls trying to suppress them.

    And I mean "decent" in all contexts, but especially that of respectable, worthy, proper. The HRC and its supporters are decent people. 

    This legislation looks riddled with flaws. One wonders how it can be workable.

  5. Anonymous says:

    The law was a no-brainer and dead at inception as anyone who knows anything about human rights knows.

    It was a signal that the judicial system in the Cayman Islands is broken but this law was not the answer.

    When criminals are given bail for the most serious crimes and when in Northward they have use of their cell phones to keep in contact with their fellow gang members there seems to be a problem.

    One day for God’s sake a prisoner from Northward called the local radio talk show and discussed crime in Cayman. He explained that he was a victim of circumstance in his own incarceration.

    Stop the drug and alcohol use at Northward and take away the cell phones but would that violate their human rights?

  6. Anonymous says:

    Coles?? Has he turned up now in our HRC writing on OUR behalf? we Caymanians are real fools. Only Caymanians should be on these commissions…I know he asked and got status when he was AG – they all do it seems……as I said we Caymanians are fools.

  7. Anonymous says:

    Have another drink, dude.

    • Isabella Reyes Flores says:

      No, I believe you need to have two drinks.

    • Anonymous says:

      Is that the best you can do? You are like all the rest of the sheep that blindly stumble through this life in darkness ridiculing anyone who dare suggest that you are not the master of your own destiny.

      Well, you are not, so get over it.

    • Anonymous says:

      And just in case you are still full of your deluded self, I suggest you have a read of this.

      http://www.dailymail.co.uk/news/article-1262243/Rapist-facing-deportation-allowed-stay-UK-married.html

      Cayman would do well to stay well clear of the United Nations.

      • ??? says:

        The UK decision did not turn on anything to do with the United Nations or even the ECHR.  You may have found a link to the story, you either did not read it or could not understand it.

        • Anonymous says:

          You may be the one with the shallow mind. The EU dictates the laws for the UK to follow ESPECIALLY with these so-called Human Rights issues and the EU is certainly subservient to the United Nations in these matters. You really need to get your head out of the ground and wake up. Study the origin of the UN from its inception as League of Nations. It was a control thing then and it is a control thing now.

          Perhaps you are a paid up member?

          How can you be so naiive?

          Have you read Cayman’s impending Hazard Management Law?

          http://www.caymanprepared.ky

          Start on page 10. Come back when you educate yourself a little more.

          • Pit Bull says:

            Just because you are obviously paranoid does not mean the aren’t out to get you . . . .Now just listen to Glenn Beck, subscribe to your Militia Monthly and know that UN now knows where you live.

    • Anonymous says:

      What he was trying to say is that the love for money (the devil) makes the world round not love for one another (God). 

      Who do you think wants us to remain in this rat race life of pursuing money and material things? Both the big corporations and the devil (if you believe that he exists).  They are one and the same.

      I believe that, humans being human, people will want their every desire and incling to be justified and viewed as society as acceptable as a right as in "I have the RIGHT to (Insert Anything viewed as Obscene now)".  This trend will continue until we are drowning in our own "rights".  Who will save us then?  The UN?? Dont bet your life on it.

      While i do agree that humans need rights, a convicted murderer should not be considered human and one that kills innocent people should have their rights revoked in the most extreme way ie: capital punishment.  I bet if capital punishment were reinstated in Cayman, alot of these "Bad Man" gunmen would be in Church.

  8. Anonymous says:

    The HRC is a tool of the United Nations to allow them unrestricted access to the legislation of the Cayman Islands.

    Some say good, some say bad, but be forewarned that the United Nations are owned by international bankers who are owned by the elite, who are owned by the devil.

    No man can serve God and money.

    • mlnhh says:

      It’s a conspiracy I say!!!

    • Anonymous says:

      The very basis of Britsh jurisprudence is that the accused has the right to know his acccusers. This law will be overturned in a higher court as so it should be. Much blood, heartbreak and tears  through a millenium of time was shed for this principal.

    • Anonymous says:

      Are you Dan Brown in disguise?