Secret witness law challenged

| 16/06/2010

Cayman Islands News, Grand Cayman Island headline news(CNS): In the first use of the new law designed to protect the identity of witnesses who say they are in fear of coming forward, questions have been raised about how the prosecution has used an anonymity order and that no regulations have been passed to direct the correct use of  the new Criminal Evidence (Witness Anonymity) Law. Having already been criticised from a human rights aspect for the possibility that the law will deny defendants the right to a fair trial, three criminal defence attorneys have now challenged its proposed use in a preliminary enquiry against their clients facing a murder charge, criticising how it is being applied.

The lawyers appeared in Grand Court last Friday (11 June) to argue the order made in Summary Court by Chief Magistrate Margaret Ramsay, saying it had been applied inappropriately by the crown to make a case against their clients with no other evidence. Nicola Moore from Priestleys led the argument for the appeal, which was supported by her colleague Lee Freeman and Ben Tonner from Samson and McGrath.
Moore told the court that in the first instance of its kind the law was already being inappropriately used. She pointed out that, as yet, there are no regulations or guidelines for the legislation. “The order has been been made incorrectly,” she told Justice Charles Quinn, who was hearing the appeal, and pointed out that in the absence of local regulations the crown should have followed the processes used in the UK, which aside from New Zealand is the only other place in the Commonwealth where such a law exists.
The law was passed here in March of this year with some urgency following the spike in serious crime and without consultation with the local criminal defence community. Attorney General Samuel Bulgin, who brought the bill to the Legislative Assembly, said it did protect the rights of the accused as well as the anonymity of witnesses.
The AG had said it should only be used in cases of genuine fear and that there would be safeguards in the law to ensure the accuracy and credibility of witness testimony and that the rights of the accused to confront their accuser would not be undermined.
The law states that consideration must be given to the general right of a defendant in criminal proceedings to know the identity of a witness, as well as the credibility of the witness. At the time of its passage Bulgin said government had received assistance from the Ministry of Justice in the UK and he hoped it had been drafted in a clear and concise form, covering the key areas and protecting the fundamental right to a fair trial.
Making her case against the first ever order, Moore said that it had not been used properly. The court had to balance the right of the defendant to a fair trial with the witness’ right to life, safety and protection of property, which she said had not happened in this case as the processes with regard to this anonymity order were wholly inadequate.
She pointed out that, according to the new law, anonymous witnesses could only be used against people if the police had other evidence to support the case and a defendant cannot be convicted on the testimony of an anonymous witness alone. In this instance the defence had not been disclosed with any other evidence against their clients. Furthermore, the disclosure of the anonymous witness statements, which were referred to by celebrity names, had also been disclosed very late, one only that very morning. She also said that in the statements it was apparent that neither witness had actually witnessed the crime. Moore also told Justice Quin that the defence had not been allowed to make their case when the order was being made.
In normal circumstances defence counsel can expect certain information about the witnesses such as their criminal convictions. However, Moore pointed out that no such information had been provided by the crown. She explained that witnesses with criminal convictions may have reasons to accuse someone of a crime they did not commit and to make things up about others for reasons of their own.
Both Leeman and Tonner backed Moore and emphasised the fact that procedure was highly irregular and all three asked for the order to be overturned before the anticipated preliminary enquiry due to take place today (Wednesday 16 June).
Kirsty-Ann Gunn defending the appeal against the order on behalf of the crown argued that the Grand Court did not have the jurisdiction to hear the appeal at that point as it was too early in the process. She said the Grand Court does not hear appeals from those dissatisfied with what has happened in Summary Court.
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  1. anonymous says:

    We all share your enlightened sentiments that we need this Law of anonimity. BUT can you in all honesty deny the fact that This place called beloved Isle Cayman, that is a very small country with small and close communities , people talk too much and too much banking business, police business, courthouse business, and government house business is on the street.

    The police go home and tell their family details of all arrests each day. His children are friends with the criminals and the cases are compromised!!

    Need I mention the Medical Records business that hits the streets before the ears of the poor patient from the hospital ?. People on the street knows more about an individuals medical records that the family or the patient himself!

    Is it because we are safe or is it because we are at HIGH RISK FOR LEAKS BECAUSE OF BIG MOUTH CIVIL SERVANTS WITH DIAHREHA AT THE MOUTH?!

    Feel free to use yur own perogative ‘AT YOUR OWN RISK" to trust these people.

    Read my lips  " I DONT"

  2. Dennie Warren Jr. says:

    Britain Apologizes for 1972 Bloody Sunday Massacre

    "The British government today published a longawaited damning report on the 1972 Bloody Sunday massacre in Northern Ireland, blaming British soldiers for the “unjustified and unjustifiable” killing of 14 “innocent” civilians."

    Read More: http://www.aolnews.com/world/article/britain-apologizes-for-1972-bloody-sunday-massacre-in-northern-ireland/19516821

    • Kgirl says:

      As for this. I dont feel this is the case in Cayman and has anything to do with the Witness Protection bill. If I have overlooked your point please do explain.

      Gone are the days in Cayman when father’s accompany their spouse with child anywhere. I am referring to the so called wanna be thugs here since the link you have posted is referrering to thugs and dons. The one’s here certainly dont even fall in a “don” catagory because they kill the innocent children and they don’t take care of their children much less loan someone else child money to go to school.

      So I am kind of confused as to what this link has to do with the Witness topic.

      The police here offer no means of protection for one if they were to come forward and speak up. When sentences are being passed their is no guarantee that the judge takes this into consideration either. It’s like they are saying give us a case let us get some stripes off of it and to hell with you after.

      Yes I think if one puts his self or herself in a situation where they can be suspects in a serious crime then tough luck. They caused that on themselves. Who can argue a fair trial for these types of people? They deserve no fair trial in my eyes.

      Yes many of us here in Cayman want to see Cayman get back at least a little bit in order. I am aware not sure how many of you believe the fact but these are the end times and things will happen. That is life. Cayman is not going to be what it once was so I am not going to sit here and blame the RCIPS, Premier, parents, churches, etc for everything that happens. But I will blame them for not doing what they are able to do.

      There is a reason why you (RCIPS, Judges, Premier, churches, parents, etc) are in the positions you are in becauseyou all were given gifts by the Almighty. Used them to do what is right. I do believe at the end when judgement comes for all that we all will be held accountable for how we used our gifts.

  3. anonymous says:

    This law is important and is used worldwide.

    However, the political climate in this country will frame and victimize anyone who gets in their way.  How do we know whether one of the vindictive candidates or L.A. members will target people from the opposite side, label, frame them and snare them into a legal trap?  Cayman’s legal and police system is too full of family related RCIP police and the big mouth people at the judiciary is another case to deal with. 

    NONE OF THEM CAN BE TRUSTED TO KEEP THEIR MOUTH’S SHUT WHERE A PERSON’S IDENTITY IS CONCERNED.

    THE WHOLE MATTER  NEEDS TO BE HANDLED OVER SEAS TO GIVE THE WITNESS A CHANCE TO LIVE!

    NOT A CHANCE YA!

  4. marketon says:

    The Witness Anonymity Law is still a good law. It has its purpose in protecting people from harm.  I just hope they improve on this law – scrapping it would be a blunder

    • Concerned Citizen says:

      I do hope this law is pased.  Cayman community is too small, and because of what is taking place on this Island, People will see and will not talk for fear.

      To many unsolved mysteries just because people are afraid to talk. 

      Pass that Law.  ASAP.

      CNS Note: it is already passed

  5. Anonymous says:

    Good – as it should be! All of those amendments that were pushed through because the police can’t do their job efficiently fly in the face of human rights and should have never been allowed. They are very dangerious to the process of justice!

    Do let me know when the "negative inference from the right to remain silent" is also challenged.

    Our legislators should really try to do better. Yes, we are all afraid of the criminals and we want them captured but it has to be done the right way and you cannot circumvent a person’s rights to make that happen. Otherwise, every good citizen is at risk!

  6. whodatis says:

    Let us embark upon this academic debate while the brutish, uneducated and thoughtless gunmen continue to rob, attack, maim and kill our fellow citizens.

    I look at it this way:

    Western, "civilized" society has developed to a point where great emphasis is placed upon individual human rights and protections. We have an extensive list of national, regional and in fact international entities that are supposedly committed to the preservation of the rule of law, internationally agreed guidelines for declarations of war, identification of war crimes and crimes against humanity etc.

    However, at the end of the day – every now and then we drop bombs, fire shots, obliterate cities and arm ourselves with nuclear weapons of mass destruction – because we know there always comes a point in time when words will not do.

    Why exactly this fundamental principle cannot be more frequently applied within our criminal / court justice system is beyond me.

    Just recently a young man that I know walked away from court as free as a bird. He was "accused" and charged with a very serious crime.

    His "alleged" victim was present in court complete with physical injuries consistent with the alleged offense; the victim was directly connected to a known enemy of the accused; the offense took place in broad daylight with a host of witnesses present; the victim became physically ill during cross-examination due to what can reasonably be assumed to be fear; the victim then proceeded to claim a severe and sudden memory lapse in regards to the criminal event in question.

    Case dismissed.

    I only hope that the next victim is not a loved one of the opponents of this proposed modification in our legislation – or even they themselves.

    Try as we may, mere words, theory and intellectual debate can NOT defend society from the simple yet overwhelming negative realities of life. Far too many of us have convinced ourselves otherwise.

    E.g. Do we not see the many wars currently raging and being promised all around the world at this very moment?

    (I can think of 4 individuals in Cayman right now who I can sincerely declare, with every fiber of my being, that I give not one rat’s a$$ as to whether or not their human rights have been violated (which by the way will inevitably have been determined by other fallible human beings). Said individuals serve no purpose other than to bring negativity, death, and destruction upon our society. If only I could be granted a day’s amnesty – I would take care of necessary business myself.)

    The bottom line is that as we bicker, discuss and split hairs over these issues – they are plotting and executing their crimes against oft innocent members of society. Say what you say, but this makes no sense whatsoever. Well, other than certain "academic" individuals getting off on themselves "winning" the futile intellectual battle it doesn’t.