Suspect killer in HR fight

(CNS): A West Bay man accused of murder, who has been on remand for over a year, has challenged his incarceration as unconstitutional. Local attorney Nick Hoffman, who is representing Brian Borden, is arguing that the bail law, which removes the presumptive entitlement to bail for a number of offences, is a basic breach of the fundamental human right to freedom and that Borden should be allowed to argue his case for bail on the circumstances of his case and not on the basis of the charge. Although remand in murder cases is not mandatory, it has for years been treated as such and it is exceptionally rare, with no records produced in the hearing where a defendant facing a murder rap was released on bail.

Borden is accusedof shooting Robert Mackford Bush in a gangster killing in West Bay in September 2011. However, the evidence against the West Bay man is understood to be relatively limited and based mostly on the testimony of one key witness who has been convicted of a gun related crime and who remains a controversial crown witness in other major cases as well.

Borden, who has been in jail for 13 months, was charged almost a year after the crime, which triggered a spate of targeted tit-for-tat gangster violence that lasted a week in which another four young men were shot dead and a fourth seriously wounded. 

Hoffman argued Friday before Chief Justice Anthony Smellie that because entitlement to bail had been removed for certain offences, the burden of proof, which should lie with the crown to demonstrate one of a list of legitimate grounds for refusing bail, was removed. As the law elevates the actual crime as a ground for refusing bail, this makes the argument against remand very difficult, leading to an almost automatic jailing for murder and undermining the fundamental principle of the presumption of innocence for any defendant.

In Borden’s case the circumstances are even more of a human rights concern because his trial has been postponed due to issues relating to the crown’s case. As a result, Borden will be incarcerated for seventeen months before he will have an opportunity to make his case against the charges.

However, representing government and the attorney general, Solicitor General Jacqueline Wilson argued that the there was nothing unconstitutional about the law. She said the burden had not been removed from the crown and, as with all bail applications, those from defendants facing murder charges would be argued in the same way based on the grounds for retaining someone on remand. These would be the main reasons accepted universally in democracies, such as the flight risk, interference with witnesses, potential to re-offend and the length of sentence, which in the case of murder is mandatory life.

Hoffman pressed the point, however, that Cayman’s law elevated the charge itself to a reason, which is not universally accepted, to bar someone who was presumed innocent until convicted the entitlement to liberty without a proper hearing.

In most remand hearings for murder the crown barely has to raise any argument at all to be certain of remanding the defendant, and Hoffman said that this could not be compatible with either Cayman’s Bill of Rights or the European Convention on Human Rights, to which the country is a signatory.

Hoffman is now awaiting a declaration from the chief justice that the bail law is incompatible with the Bill of Rights, but even if he wins Borden is unlikely to be automatically released and he will still need to argue at a bail hearing that there is no risk to the community by his client being released until his trial.

If Hoffman wins the case, it could see a surge of new bail applications from a number of remand prisoners who are facing very serious charges and who remained incarcerated at HMP Northward's high security unit.