Judge confirms right to free legal counsel

| 10/06/2014

(CNS): A Grand Court told a jury to acquit a woman accused of perverting the course of justice in a drug related case after he ruled that a police interview was inadmissible and the crown could offer no other evidence. Justice Alex Henderson made what could turn out to be a very important decision Friday, when he threw out the evidence and confirmed the right by anyone arrested by the police to free legal representation. Justice Henderson stated that legal counsel cannot depend on financial circumstances and any waiver had to be unequivocal. Itzel Anderson was found not guilty because her interview had taken place without a lawyer as she didn’t have the money to pay for one and was not told that she could have free advice.

Anderson’s defence attorney, Nick Dixey from Nelson’s, had argued last week, before his client’s trial was set to start, that criminal suspects must be informed by the police of their right to free legal representation before an interview, as he fought to get the evidence ruled inadmissible. Anderson had been charged with perverting the course of public justice in November last year after she was accused of trying to hide packets of cocaine from police making a search at her boyfriend’s house by throwing them in the bin.

When she was interviewed the police had told her she could have a lawyer, but she had no money so she agreed to talk with officers without a lawyer as they did not say she could have free access. It was on this interview alone that the police based their case and on which she was eventually charged. After the judge gave his ruling that her interview was inadmissible, the crown counsel on the case told the court she did not have any more evidence to proceed.

Justice Henderson said he would deliver his full ruling in writing because of the importance of the issue and also said the attorney general should amend the Criminal Procedure Code accordingly.

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Category: Crime

Comments (14)

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  1. Anonymous says:

    This decision must be appealed immediately as it could end up costing a fortune and, more importantly, allow many criminals to escape punishment.  The "rights" in question may be provided for, by interpretation only, in the US Constitution and in the UK by statue, but no statute or provision of the Cayman constitution provides for this "right".

  2. Anonymous says:
    The right to consult a solicitor privately at any time and the right to free and idependent legal advice is the law.  This right is also supplemented by the police codes.  This is nothing new and the public should endeavour to educate themselves about the law and their rigths.  You have access to the law, use it.
     
    The right under s. 58 Police and Criminal Evidence Act 1984 –  is the fundamental right to 
    free and independent legal advice. This includes consulting with the solicitor 
    either in person, on the phone, or in writing.
    • Anonymous says:

      Sorry we live in Cayman not the UK, PACE does not apply here, the Cayman Islands Police Law, 2010 does!

    • Anonymous says:

      PACE says nothing about free legal advice. Section 58 (1) says "A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time"

  3. Coconutz says:

    Another relatively simple case that was lost simply because the police refused to follow the rules.

    • Anonymous says:

      Because police have no basic training in criminal law and are incompetent of doing a professional job. 

  4. Anonymous says:

    Sounds like the person admitted enough to be charged but since she didn't have a lawyer to tell her that she didn't need to admit anything, what she admitted can't be used against her.

    We are creating a culture where, according to Henderson, you are free to do wrong and entitled to free legal advice to avoid your responsibility for doing wrong.

    Is there any doubt why our society is deteriorating daily?

  5. Anonymous says:

    Which laws states that, or where in the Constitution does it say that?

    • Anonymous says:

      Cayman Islands Constitution 2009 – Section 5 (4) and Section 7 (2) (d). Expect a lot more cases where RCIPS have been ignoring people's human rights – they seem to think they are a law unto themselves and it will take judges like Henderson to bring them into line.

      • Anonymous says:

        Somebody can't read and if they can, sure don't understand.  Here is what section 5 (4) say: "Any person who is arrested or detained shall have the right, at any stage and at his or her own expense, to retain and instruct without delay a legal practitioner of his or her own choice, and to hold private communication with him or her …."  the second part of this related to a person who has been charged with an offence and must be read with section 7 (2) (d).  Here is what they say: Section 7 (2) (d) "Everyone charged with a criminal offence has the following minimum rights – to defend himself or herself in person or through legal assistance of his or her own choosing or, if he or she has not sufficient means to pay for legal assistance and the interest of justice so require, through a legal representative at public expense through an established legal aid scheme as prescribed by law.

        I do hope the Crown plans to appeal this as I do believe that direction was wrong.

        • Anonymous says:

          What part do you think is wrong. The second section clearly sets out the availabiltiy of legal aid as a minimum right. The report says she did not avail of a lawyer because she had no money. That is enough to show thatshe was unaware of (all of) her rights. It is beholdent on the Police to ensure that the suspect is aware of and chooses – in full knowledge of those rights – whether or not to avail of them. They fail to do so at their peril – and did so here. As such the guidance appears spot on.

          While it appears unlikely from the report that the suspect was actually innocent, laws have to be applied uniformly and it would clearly be inequitable if somebody was convicte purely because they did not know their rights.

        • Anonymous says:

          Actually, the Judge is correct.

          The law was not being properly applied. It is not the fault of the police. It is simply the practice for many, many years. The courts, prosecution, legal fraternity and the police have been doing the wrong thing. What the judge is going to say, is that the law which requires public funding of the defence, or legal aid, should take effect earlier in the process. This means that if a person is being investigated for a legal aid offence, they are entitiled to legal aid by law (Constitution). It is not effective and defeats the purpose, if legal aid is not afforded until after the person appears in court, because they have already been subjected to the investigative process which is part of the justice system and which can severely impact their rights, long before they get to court and legal aid is eventually approved.

          Judge Henderson is right again!

           

  6. Anonymous says:

    Well I never heard such shit.  There are very few lawyers who offer advice for free and perhaps it would be good to hear who they should go to for free Legal Advice.  I'd also like to hear what authority he used to determine that they were entitled to free advice in Cayman when there is no Public Defender's office.