HRC queries jury removal

| 16/07/2010

(CNS): Following the recent revelations that the government proposes to remove the right to trial by jury for all firearms related offences, the Human Rights Commission has also sent its concerns to the Attorney General’s Office. In a letter, which is available on the commission’s new website, the HRC writes that the jury trial is a fundamental right. Richard Coles, chair of the commission, further points out that as the law will make the judge alone trial mandatory in these cases, the prosecution will be under no obligation to demonstrate the danger of jury tampering. He also noted that when these trials were introduced in Northern Ireland they were severely criticised.

“The total power and authority of the judge alone to make decisions on the case at hand where the defendant has not chosen to be tried this way may raised questions regarding the individual’s right to a fair trial,” Coles, a former attorney general, wrote in the letter to the AG.

The HRC chair does not entirely condemn a move that has raised significant concerns throughout the legal community and those concerned about the gradual erosion of civil rights. Coles says there is an element of proportionality in the changes to the law provided assurances can be given of the judge’s discretion to minimise the potential for a breach of human rights.

However, the chair reminds the attorney general that the imposition of judge alone trials in other places raised significant concerns about human rights. “Where ‘judge alone’ trials have taken place in the past, in other jurisdictions (e.g. Northern Ireland) their use was severely criticised,” Coles wrote.

The full letter can be seen on the HRC’s newly launched website, which, the chair says, marks a step forward in the Commission’s work. “While fulfilling our public education mandate, the launch also provides a primary avenue to stay connected with the public," he said.

Although the Bill of Rights does not come into force until 2012, the commission is still tasked with advising government on new and amended legislation to ensure the country’s laws do not breach human rights.

The website also offers access to the commission‘s policies and procedures, minutes of its meetings, responses to public and media enquiries and copies of correspondence with government officials. It also explains the different types of human rights infringements, complaints and breaches that will be heard by the HRC, as well as procedures for filing such complaints. In future, the HRC will regularly update the website to expand its educational material and a major focus will be an interactive educational section intended for youngsters.

"We hope that the website will become a major source for learning about the Commission and the Bill of Rights and we will appreciate feedback on the content," Coles added.

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Comments (19)

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  1. John Evans says:

    As pointed out above ECHR does not guarantee the defendant the right to a jury trial.

    What ECHR requires is a public hearing before an independant and impartial tribunal within a reasonable time. That latter requirement already being abused on a regular basis, often because of problems finding juries.

    The question being raised is whether or not a Cayman jury can be ‘independant and impartial’ and that’s the issue that needs to be addressed.

    It may even be that the current jury selection system in Cayman, which I understand excludes more than half the adult population of the islands, is in itself a  breach of a defendant’s human rights but the HRC don’t seem to want to go down that road.

    There’s also the issue of whether a flawed jury system might be breaching the human rights of members of the public by letting violent criminals free to re-offend.

     

    • Dennie Warren Jr. says:

      Our right to a jury predate any Constitution Order, but clearly there are some among us and in the UK who have been planning to deprive us of our right to a jury of our peers.  However, that right is non-negotiable.

      Yes, a ‘Cayman jury’ can be impartial.  The ‘Cayman jury’ system excludes persons without the right to vote in the General elections, and rightly so, because their decisions have the force of law.

      The police and the crown prosecution need to get their act together.

  2. Ex Caymanian & Not by Choice says:

    XXXXX

    HRC is a joke by the way, all of the blogging about dictaorship and mismanagement of public funds and they are only concerned about the removal of jurors in gun cases??? the courts will do what Jamacia did put the guns in the gangsters hands, and as for the gun amnesty if the police really wanted the guns off the street why would they have announced that the guns recieved would be tested for any criminal activities, if you committed any type of crime or knew someone who did and used a firearm in the process of commiting that crime would you still turn in the gun, knowing it would be checked for crimes, NO!!! so that was a hidden message to the underworld gun slingers don’t bother turn in any guns, and if it was a real amnesty if they had checked for use of the guns in any crimes how would they prosecute the triggerman?????  

    I wish the foreign people and there fake XXX degrees would just haul their XXXX back where the came from and clean up the own countries mess, and stop taking Caymanians for uneducated Natives,

    we nah fo fool ya nah!!! 

  3. Diplock-docus says:

    The HRC is not a protector of rights in Cayman.  It has turned a blind eye to many many breaches of the European Convention in Cayman.  Rather the HRC is appointed by Mac to be a soft-ish review process to keep externally observers happy.  It will tinker at the edges, it will achieve nothing of significance.

  4. Anonymous says:

    There seems to be something broken in the criminal justice system and what would be helpful is for there to be common agreement that there is a problem and then everyone work together for a solution for the betterment of the country.

    It doesn’t work when the guilty go free or the innocent are unfairly pinished, although I would suspect the former is much more common than the later.

  5. Anonymous again! says:

    Firstly the judge alone trials have mainly been critisized by the paramilitaries and those who saw a criminal trial as an game for a guilty defendant.  The whole system was reviewed in  "Replacement Arrangements for the Diplock court System – A consultation paper August 2006" in which Lord Carlisle reviewed the very issues which are discussed and the Diplock courts themselves were seen as sound.  He said in his advice dated April 2006 that "there is justified agreement that the qualityof judgment in the Diplock courts is very high.  Stastics show at least as high an acquittal rate in the single judge courts as in jury trial".  He also went on to indicate that in his view there were cases that could be dealt with without juries and throughout his advice he referred to and clearly had the HRA in mind.  

    The European Convention does NOT guarantee a right to jury trial.  Article 6 indicates a defendant is entitled to a trial within a reasonable time before an impartial tribunal.  Is the HRC suggesting that a Grand Court Judge is not going to be impartial?  Is anyone suggesting for a second that France or Germany (which have civil law systems and judge who enquire into offences) are not HR compatable?

    This is the just usual rhetoric which is only looking at one side.   Sadly the AG will never come out and actually explain what, if any, legal reasoning there is behind the proposals and so only one side of the argument will be publicized. 

    The United Kindom which has the Human Rights Act in force has seen fit to impliment section 44 of the  Criminal Justice Act 2003 and has had its first trial without a jury – these provisions have been scrutinised for their HR compliance.  There have been judge alone trials in fraud cases for years.  Is that a breach of HR? 

    This argument ran in the military for a very long time – indeed it went all the way the the European Court that the tribunal – not being a jury of a military man’s peers (rather a board of 3 or 5 officers) was a breach of his Magna Carta rights.  The European court were unimpressed. Poor old corporal smith who commits a gbh in Germany can only be tried by a board of 3 or 5 officers – no jury there- no breach of his human rights. 

    If Mr Coles is really concerned about Human Rights may I suggest that he makes the following suggestions relating to criminal matters which will have a much further reaching effect;

    FREE legal advice at a police station and a duty roster of all attorneys on the island Custody time limits for trials and committals

    Special measures and witness care for victims of offences

    Reducing the time that a suspect can be held in custody without charge to be in line with the UK

    Bring in proper disclosure schedules for the police and train them in the use of them.  Make it an offence to withhold or dispose of unused material in cases

    implementing the provisions of PACE – it protects suspects,individuals and the police

    Proper complaints and discipline system like the IPCC for the police as the current system is like a black hole

    A system whereby legal aid lawyers are remunerated at a rate the is commensurate with CURRENT rates of pay for attorneys along with a system by which they are actually paid so that more attorneys are attracted to doing the work.  Whilst this is likley to be unpopular I ask those who are about to blog about it to do your research properly before deriding this.  Few lawyers do criminal work on this island precisely because of the problems mentioned.  Those that do are paid at rates which were set many years ago and hence the actual value of that paid is not the same as it was before it was set. Add to that the fact that the annual practising certificate for an attorney has gone from $300 to $2000 ie over 600 percent increase with no increase in fees.  No wonder so few do criminal work.

      Just a few thoughts…

     

    • Anonymous says:

      A very thoughtful, helpful contribution to the issue under debate.It didn’t bash foreigners or condescend to Caymanians so maybe it wont get the attention it deserves but I would like the poster to know there are some of us out here who are sensible and concerned about issues such as this. And, to be fair, Richard Coles is one of these so the if he is "really concerned" comment is uncalled for.

  6. Maybe says:

    The HRC should be querying the failure to provide state education on a non-discriminatory basis in unquestionable breach of the ECHR. 

    • Anonymous says:

      Please stick to the point – your old tired trick to bring up another issue fails!

      Wideeyed

    • Anonymous says:

      The HRC would not go to the ECHR because it will be aware that this is provided for in Section 14 of the Constitution which comes into effect in 2 1/2 years.

      You do understand, don’t you, that this will increase our levels of taxation?

      • Legal Beagle says:

        The right already exists and is being breached regardless of the Constitution.  Read Ali v. Lord Grey School. I put basic rights of children over greed.

        • Anonymous says:

          Now you are being an ass. The issue has nothing to do with "greed". No court, including the European court, is going to disregard the provisions of the Constitution because of what Ali v. Lord Grey School says.

          You are almost certainly among those who are screaming about govt.. increasing taxes. You are a part of the problem why govt. is in the position it is today. We keep demanding more and more free services and are then shocked when govt’s revenue base is inadequate to fund it. And worse you are making it at a time when the govt. is dire economic straits.

          And since you are almost certainly an expat once you have finished bankrupting the country with your demands no doubt you will leave Caymanians holding the bag.     

          • Legal Beagle says:

            See my post above.  The Constitution is irrelevant as the claim would be against the Foreign Secretary for authorising legislation which fails to comply with ECHR obligations.

            And as for your opinion "no court", appeared much in the English high court have you?  No, I thought not. 

            • Anonymous says:

              The Constitution would not be irrelevant. If tested, section 20 of the Constitution will be found to be perfectly compatible with the ECHR.

              Very telling that you did not deny the rest of my post.

              • Legal Beagle says:

                I only responded to the legal issue you raised not the rather childish flaming.

                • Anonymous says:

                  There is nothing childish about being concerned about overall welfare of the country. You on the other hand are just looking about what you can extract from the country while you can.

      • Rumpole says:

        Such a deliberate delay will not help someone who is being denied that right now – 2 1/2 years is a long time in a child’s education.

        • Anonymous says:

          The children are all already receiving an education.

          An appeal to the European court would not of course mean that it was implemented any faster than in 2 1/2 years. 

          The Constitution rightly recognizes that free education for every child must be qualified according to available resources. Clearly, already the govt. cannot balance the budget, and this will add to that.    

          • Legal Beagle says:

            1) All children living here have the same right to state education on a non-discriminatory basis.

            2) There is no need to go to the European Court or even a Cayman Court.  A declaration of incompatibility and a damages claim against the FCO in England under the HRA could sort it out in 3 months.

            3) The Constitution is irrelevant as it is subordinated to the higher obligations the UK government owes under the ECHR and the HRA. 

            4) There is no restriction of budgetary resources in this right, and in a region of a contracting state that charges no taxation there is no way that that argument would carry any force anyway.