Right to silence lost

| 14/09/2010

(CNS): The long held right for someone who is arrested to remain silent without incriminating themselves has been lost. Although serious concerns have been raised in the community, the controversial Police Bill, which includes the change, is shortly to become law. In future, remaining silent or speaking can all be used against an individual who falls foul of law enforcement and is arrested .The attorney general defended the clause which will enable prosecutors to point a jury (at trial) towards an adverse inference or a negative reason for a person’s silence at arrest, saying it was not new and had been in place in the UK since 1994. (Photo Dennie Warren Jr) 

The Police Bill 2010, which repeals the police law of 2006, covers a wide spectrum of police and criminal related issues, from the powers of the police commissioner and the process of complaints about the police to the rights of those arrested. The bill contains a number of controversial clauses, the most contentious of which is the introduction of clause 148. When a person fails to mention something which could be important later on in the case when it comes to court, a jury may “draw such inferences from the failure that may appear proper”, the clause reveals.
 
Defending the removal of the right to silence without incrimination, Sam Bulgin said this particular right was nowhere to be found in the European Convention on Human Rights. He said people may feel it is traditional but it was not in that convention.
 
He pointed out that, even with the clause, people would still not be compelled to testify or to speak, but he said there were times when it was reasonable for a person to answer a question or explain themselves. Now if they did not when it was clear they should, an adverse inference could be made during the trial. In other words, a jury could conclude a defendant did not say anything because he was hiding something, which implies guilt.
 
“We are living in changing times and traditions have to be tweaked,” Bulgin told the Legislative Assembly when he tabled the bill on Friday afternoon. He said the way things were done forty or sixty years ago were no longer appropriate in a modern democratic society and he said as far back as 1994 the UK had put this in place.
 
The AG also anticipated comments by the opposition and in particular Alden McLaughlin, whom, he said, had agreed with the need to change legislation when he was in office but now, sitting on the opposition bench, had the luxury of adopting populist sentiment.
 
The opposition did raise a number of concerns about the bill but they were not alone.  The Criminal Defence Bar Association had offered its comments regarding the problems associated with the introduction of an adverse inference in April of this year in a letter to the solicitor general.
 
With no legal aid available to those arrested in Cayman until they are charged and taken to court, most suspects have no legal representation at the arrest, detention and interview stages. In order for this to be implemented fairly, the defence bar said that legal advise would now have to be freely available to all those who are arrested and detained before being questioned.
 
The defence lawyers also raised a number of other issues about the potential problems of disclosure to the suspect before questioning and the need to train local officers about the implications of not disclosing information to defendants about the reason for their arrest before they ask questions.
 
The introduction of a right to draw adverse inference will also require a change to the Cayman Islands Constitution. The leader of the opposition, making his reply to the tabling of the bill on Monday afternoon, pointed out that at present the Constitution clearly states in section 5 (3) that a person has a right to remain silence and there is no follow on saying that if they do stay silent then it can be used against them.  Kurt Tibbetts told the AG that if the law was passed it would be unconstitutional.
 
Alden McLaughlin, who could not be in the House to debate the bill because of family commitments, told CNS this weekend that he had serious reservations about Clause 148. When the AG said McLaughlin was taking the populist position in opposing the proposed erosion of the right to silence, he suggested that he had had a different position when in Cabinet, but McLaughlin emphatically denied this was the case.
 
“In this assertion the AG has been disingenuous and I challenge him to provide one example of how my views on this issue have changed over the years," McLaughlin said. “In one of my very first major speeches in the House, in July 2001, I set out my objections to the erosion of the age-old right to silence.  That was when then AG, David Ballantyne attempted to introduce provisions similar to those now being proposed by Sam Bulgin.”

He said that not only had his views not changed but, given the attitude of the current government to legal aid, his concerns are greater now than were 9 years ago.

 
“The provisionscontained in the Police Bill will allow the court to draw adverse inferences from an accused’s failure to assist the police with their case by remaining silent. This is a fundamental departure from the common law position and is based on the UK Criminal Justice and Public Order Act of 1994. It is worth noting that that statute has been the subject of much criticism and concern in the UK,” McLaughlin added.

He said the change in the law would lead to serious consequences, which have been highlighted by a number of legal experts. The former cabinet minister also pointed out that, while the UK has had similar provisions operating for the past decade and a half, there are significant practical obstacles to introducing the adverse inferences provisions to Cayman law.

“Firstly, legal aid is not available to suspects until they are charged and taken to court. Therefore persons arrested, detained or interviewed at the police station may have adverse inferences drawn from their failure to answer questions without having had the benefit of independent legal advice as to theconsequences of remaining silent,” he said, agreeing with the criminal defence bar but going further when he pointed out the attitude of the current government to legal aid.

 
“Another potential problem is what happens when an attorney who is present at the interview of a defendant is required to give evidence at the trial regarding the advice given to the defendant at the police station in order to avoid an adverse inference being drawn against his client,” McLaughlin said.
 
“This situation frequently occurs in England and Wales but in that jurisdiction the solicitor at the police station is distinct from the barrister at trial. Here in Cayman, the attorney who had appeared at the police station would most likely also be the trial attorney and so would potentially be forced to become a witness in his own case, and thus may find himself unable to continue to act as the trial attorney.”

Go to police bill

Print Friendly, PDF & Email

Category: Headline News

Comments (80)

Trackback URL | Comments RSS Feed

  1. Culture Vulture says:

    The most obvious thing is that a great great many people on this site derive almost all their points of reference from America or American TV, which is not relevant to the issue at hand.

    This law does not abolish the right of silence.  it preserves it.  However it does adjust, in a very minor way, the sources of valid inferences a jury can rely upon to consider that someone is guilty beyond all reasonable doubt.

  2. Anonymous says:

    FROM THE COMPASS:

    "You have the right to remain silent, but in certain circumstances that silence can be used against you in a court of law.

    You have the right to consult an attorney within 24 hours of your arrest, but no one really has to tell you about that right.

    Police will have the ability to detain and take physical samples from certain individuals who are in the vicinity of crime scenes – without making a formal arrest – for the purposes of ruling them out as potential suspects. "

    It is just not the fact that if we do not speak we could be making ourselves look guilty, the Police do not have to inform you of anything by law, do not tell you that you can speak to an attorney and can arrest you for almost anything.

    All of this in theory should make our Law Enforcement process strong and with teeth. But here is where that theory wobbles. the Police are wearing dentures and are comparable to a senile old person wearing pampers and going to fight Mike Tyson! My point being, they are not capable nor should they be charged with such authority that requires thinking, let alone real criticle thinking skills as they are barley able to get dressed in the morning with the exception of a few and Mr. Baines who can dress nice.

    The whole thing of it is that we have a legal process in place that is failing, everyone is nervous. Our Police cannot give Legal enough in terms of work product  to get convictions. They are trying to make a steak dinner from cheap hamburger meat and that does not cut it in most cases. So what is being done, take away blocks in a process that has kept innocent people out of jail/prison. I do not buy the point that an innocent person could not be harmed by this. I am not a lawyer but anyone with an common-sense can see that this is not in the best interest of the citizenship.

    To sum it up, the Police can arrest you for jay-walking or something of the like, if you are near a crime scene, they can take samples, and then question you, without an attorney but you do not know you needed one, and if you say nothing you could be made to look guilty – all in between the Constables time that he has use to get to the college to take his basic learning course to learn how to read and write that Mr. Baines has helped get going……this sounds great don’t you think?

  3. Rim Tidley says:

    I am not a lawyer, and I have never played one on TV. However, I am a Caymanian and I watch US TV.

    For my fellow Caymanians who never bothered to read their own Constitution, and the expatriates who are unwilling to admit that they watch Law and Order, I will lay out the facts.

    The US has a Constitution. Attached to that Constitution is a Bill of Rights (adopted in 1791, some years after the Constitution) which includes a Fifth Amendment that protects witnesses from incriminating themselves. This is their right to remain silent. This was affirmed in the US Supreme Court in 1966 in Arizona vs Miranda which we now hear on Law and Order as "You have the right to remain silent…etc".

    The Cayman Islands have a Constitution adopted in 2009. Attached to that Constitution is a Bill of Rights which will come into effect in 2012. In that Bill of Rights is the right to remain silent.

    http://www.constitution.gov.ky/portal/page?_pageid=1961,4660153&_dad=portal&_schema=PORTAL

    What our Legislative Assembly has just passed is a law that states we, unlike Miranda, do not have to be told of our rights. This is essentially what the fuss is all about.

  4. Anonymous says:

    Here we go. The situation is this. We are not in the US nor in the UK. Our law is however based on UK law, whether we like it or not. This is also not TV or a movie, but with the way the RCIP conducts itself, it could play as a great comedy.

    It is a huge mistake to take away a safeguard that is in place, regardless if it was put in there as a safeguard, it functions as one. We have a legal Enforcment branch  that is comparable to the Special Olympics and I mean no dis-respect to the handicapped, but it is beyond a reasonable persons comprehension how with the Police Service in such shambles with employees that cannot read or write, cannot be armed as they will hurt themselves or others, cannot in general function as a Police Agency, be allowed to draw conclusions from someone not talking during an interview.

    I am anti-crime and take those animals that are harming us to a prison and really keep them away from our community, however there needs to be a process before we send these apes back to the jungle. A better part of the criminals are not educated to the High School level, so it would be safe to say that they could be rail-roaded. DO THE TIME FOR THE CRIME YOU COMMIT, or worse with this in place you may do time for something you never did!  I know a lot of the Police are not educated to the High School level, but that does not make it an even playing field. There needs to be a balance in the legal process, and with emphasis, it is needed greater with our Police Service and Legal Department, as let us face it, they are no legal eagles and are eating so much crow it must be toxic.

    To make the job easier of Police and lawyers at the expense of sending some people to Prison for crimes they have not committed or have not been really proven to have committed is not a community most want to live in. Here is a thought, instead of changing laws, have the Police and the Legal Department, do real Law Enforcement work, dot your I’s and cross your T’s. and you will see real criminals off the street.

  5. Durrrr says:

    what a fuss about nothing. if someone is arrested and says to the police ‘I would like to speak to an attorney before answering any questions’, what possible inferences can be drawn from that? the answer of course is none.

     

    if, having taken legal advice, the suspect continues to refuse to answer questions, why shouldn’t the Court consider the accused’s refusal to talk? Such a refusal will of course only form part of the case against him anyway.

     

    • Anonymous says:

      You have to think of the legal implications. Put yourself in the shoes of a suspect. You just happen to be on the scene where a robbery has just been committed. the officer thinks you fit the description of the suspect. He says to you "from the description given by 911, I suspect that you committed this robbery." For whatever reason, be it nervousness or other reasons you don’t reply to the Officer. You are arrested and is subsequently charged, even though deep down you have not committed the offence.

      The judge, in a" judge only trial", or the jury in a "judge and jury trial", can draw an inference from your silence. This could be favorable or unfavorable against you. something along the line of: "Mr. Brazel when the officer spoke to you at the scene you said nothing" He can then draw an inference from your silence i.e. he may conclude that you had something to hide and use that or instruct the jury on that , which along with other evidence may result in your conviction. When in fact Our Constitution which is a Superior Law to the Police Law protects the "right to silence". By the way, anyone of us can be caught up in a situation of suspicion and suspicion is just that , not evidence in itself. I am concern about this. provision.

      • anonymous says:

        Does anyone recall that the releveant section of the Constitution was also slightly amended at the last round of talks in the UK, following a last minute proposal by the attorney general ?

         

        It might be worth checking what was changed at the last minute.

  6. Anonymous says:

    Whatever rights are retained, diminished or lost under this Bill will not necessarily be evident to an arrestee because the Bill does not make it mandatory for the arresting officer to make such rights known. So unloess and arrestee has the presence of mind under the circumstances to ask specifically, he/she will never know what rights are entitled.

    That, among many, is a fundamental flaw in this Bill.

     

  7. Anonymous says:

    The concept of right to silence is not specifically mentioned in the European Convention on Human Rights but the European Court of Human Rights has held that

    the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6

    • Anonymous says:

      And the right to silence and the privilege against self-incrimination remain. What changes is that a judge is now allowed to say to a jury ‘When Mr Bloggs was asked if he had ever owned this gun, he remained silent. What the jury must consider is why Mr Bloggs remained silent, and if it is possible that he was refusing to incriminate himself by adopting a stance of silence.’ You can still keep your mouth shut and refuse to say anything at all throughout a trial, but now a Jury, instead of having to ignore such an ocurrence, are allowed to ask themselves ‘Why would that person remain silent?’

      What’s the problem with that? Laws do too much to protect criminals, this will even the balance a little.

  8. Anonymous says:

    Well maybe if we all wore our badge on our sleeve we would have nothing to hide

  9. Anonymous says:

    For those of you who are interested in the the reasons for this right:

    http://www.youtube.com/watch?v=i8z7NC5sgik

     It is informative…

  10. Mike D says:

    So it go, but we still got our right to party and we will fight for it!

  11. O'Really says:

    The right to remain silent may not be enshrined in the ECHR, but I’m fairly sure the right to be presumed innocent untilproven guilty is. Maybe it’s just me, but proven and inferred are a long way apart in my book.

    And what about a situation where silence does indeed hide guilt, but not guilt attaching to the offence of which the individual is accused? I don’t know, maybe something like cheating on your spouse at the time a crime was committed, but being unwilling to provide details of a genuine alibi because of the consequences for one’s marriage. Whilst you may deserve to be taken to the cleaners by your spouse, you do not deserve to go to jail.

     

    • florence-Goring-Nozza says:

      THE RIGHT TO REMAIN SILENT IS AN INDIVIDUAL RIGHT

      The most recent announcement regarding the Right to Remain Silent being taken away from the accused in these islands is a bit troubling.

      Miranda Rights

      Cayman Islands lawmakers and my self has realized the importance of at the Miranda Rights that protects the rights of the innocent, the accused, and that section relating to the accusedhad been provided in the Constitution recently approved nowits being taken away.

      The chipping away of the positive aspects of the Bill of Rights and the Constitution has a long lasting affect on the lives and future of our youth and our society as a whole, it would not hurt if lawmakers insist that these aspects already engrafted into the constitution remain and the language carefully drafted after the US Miranda Law outlined as follows:

      You have the right to remain silent; anything you say can, and will be used against you in a court of law. You have the right to an attorney. If you desire an attorney and cannot afford one, an attorney will be obtained for you before police questioning.

      Anyone who has watched a TV police drama has heard this speech, or one similar to it. Every day, police throughout the United States recite these words of warning to suspects before formally questioning them for specific crimes. The "You have a right to remain silent” speech is known as the Miranda Warning, because its legal requirements were established in groundbreaking US Supreme Court case Miranda vs Arizona. In that case, the court ruled that the statements made by the person accused of a crime, could not be used as evidence at his or her trial unless the accused "voluntarily, knowingly, and intelligently" waived the constitutional right to remain silent. It was a revolutionary and highly controversial decision. Until that time, the right to remain silent had been thought to apply only to trials. The Fifth Amendment to the US Constitution guaranteed criminal defendants the right not to testify against themselves in a court of law. In Miranda, however, the Supreme Court extended the right to remain silent beyond the courtroom to the police interrogation room.

      The US Supreme Court had a major impact on law enforcement, creating a new procedure protecting the rights of the accused that have often fallen victim to police interrogation.

      What is the Miranda Rights really saying? The exact wording of the "Miranda Rights" statement is not specified in the Supreme Court’s historic decision. Instead, law enforcement agencies have created a basic set of simple statements that can be read to accused persons prior to any questioning.

      Here are paraphrased examples of the basic "Miranda Rights" statements, along with related excerpts from the Supreme Court’s decision.

      1. You have the right to remain silent.

      The Court: "At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent."

      2. Anything you say can be used against you in a court of law.

      The Court: "The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court."

      3. You have the right to have an attorney present now and during any future questioning.

      The Court: "…the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today… [Accordingly] we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today."

      4. If you cannot afford an attorney, one will be appointed to you free of charge if you wish.

      The Court: "In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent, a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one.

      The Court continues by declaring what the police must do if the person being interrogated indicates that he or she does want a lawyer.

      "If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent."

      But, you can be arrested without being read your Miranda Rights.

      The Miranda Rights do not protect you from being arrested, only from incriminating yourself during questioning. All police need to legally arrest a person is "probable cause"; an adequate reason based on facts and events to believe the person has committed a crime. Police are required to "read him his [Miranda Rights]" only before interrogating a suspect. While failure to do so may cause any subsequent statements to be thrown out of court, the arrest may still be legal and valid.

      Also, without reading the Miranda Rights, police are allowed to ask routine questions like name, address, date of birth, and social security number necessary to establishing a person’s identity. Police can also administer alcohol and drug tests without warning, but persons being tested may refuse to answer questions during the tests. Source: Court TV Legal Survival Guide

      As A Caymanian I am concerned that removing the Right To Remain Silent will violate the rights of the accused while empowering the police for corruption and forced confessions that may not necessarily be true.

      Despite the rise in crime and the need to apprehend individuals in an effort to make our country safe, robbing Peter to pay Paul is not the way to go. The RCIP have their rights but so does the accused.

      We must be careful, when making these serious decisions and the AG must get it right this time, I’m not sure he has. This recent report of a change to our constitution is very troubling.

      To date there has been way too much tampering with out constitution. This is very dangerous, and if we continue to allow this there will be more chipping away of our rights andprivileges until we have nothing left, and we find ourselves living under a dictatorship regime of “Absolute Power”

      Note: the danger in this right being taken away that individuals could be targets of political vendetta or otherwise, and this is recent move of removal of that right is an apparent effort to strip the citizen of his individual right and privilege.

      Florence Goring-Nozza.
       

      • Pauly Cicero says:

        Point to a Cayman or UK law, do not rely on US law or US TV lawyers. If one gets into trouble in Cayman you will be in for a rude awakening if you rely on US law. They are often similar but not necessarily the same. Miranda does not apply and is not binding outside of the US.

        • anonymous says:

          Shortsighted one,

          The lady is not saying that the US laws are binding here in the Cayman Islands but anyone with any insight would agree that the US Miranda  law does work and with reliable DNA testing could very well save the Freedom of an individual that is accused of a murder or other serious crime that HE OR SHE DID NOT COMMIT.

          The lesson learned here is that good juris prudence means adapting laws and principals that have been tested and proven to work well in other jurisdictions. The UK has not done a very good job of solving crimes and their systems do not work..  You obviously know very little about the law for if you did you would be aware that pretty much every case tried in court  challenged by the defense based on the circumstances surrounding similar cases of similar nature, regardless of the jurisdiction, US or the UK. When it comes to the law all accounts regardless of jurisdiction are taken into consideration. in passing judgment..

          Ms.Florence, thank you. Very good article.  Thanks for the research.

          • Anonymous says:

            The doctrine of "Stare Decisis" means that: in the hierachy of courts, the inferior courts must follow the the decision of the higher courts in the hierachy.

            Where Cayman Court System is concerned ,the bottom of the pyramid is th Magistrate Court,the Grand Court, next Cayman Islands Court of Appeal,  finally, the Judicial Committee of the Privy Council in UK which is the final Court of Appeal. Lower courts are  bound by the higher courts by the "doctrine of binding precedent". Any decisions of a court outside the hierachy are not binding. They are "pursuasive authorities" only. which means that the superior courts in our court hierachy "may" adopt them (not "shall")if they have relevance to the matter under consideration by the Court.  lets say a decision by the US Supereme Court, its binding in the US, not in the Commonwealth, or UK or its territories. Similarly a decisions of the Canadian Supereme Court or decisions in Australia or New Zealand and other Countries eg South Africa  are "persuasuve authorities". Of course ,of a Commonwealth Court such as the aforementioned Courts(Commonwealth) that allow final appeal to the to the UK Privy Council  that will be binding on all courts that accept the Privy Council astheir final Court of Appeal i.e.that the Privy Council has decided the particular  appeal.the long and short of it is: that our courts don’t have to accept or be bound by a US court’s decision. Once the hghest Court accept the rulling of another jurisdiction and incorporates it in its decsion, then, and only then, it becomes a "binding precedent" and has to be followed by the lower courts in the hierachy.

      • Pending says:

        To bad we are not in the US.

        Down here they call it a Police Caution.

      • Anonymous says:

        Florence,

        All of that time and energy you just spent on explaining the US legal system/Miranda rights which has ABSOLUTELY NO application to what is happening in the Cayman Islands – except by way of comparison. We fall under the English Legal System – not the US.

        Thanks for the lesson the US rights tho. If I ever get pulled over while shopping in Miami I will be that much more ready for the police! 🙂

        • Vietnam says:

          Why get personal, this is a legal issue. I disagree with you.

          Here’s the proof Here is a case of shooting the messenger in the foot again. A dose of Cayman crabmania again. This was a brilliant article. Obviously Ms.Goring-Nozza was focusing on the point that accused innocent persons would suffer because of not being made aware of his or her rights while in custody. Don’t try to deliberately mislead others who need to understand the important point she is making ! That being the accused ‘s right to remain silent and right to an attorney is in jeopardy. Yes it is in the law BUT THE POLICE FROM HERE ON WILL NOT TELL THE ACCUSED OF HIS CIVIL RIGHTS AND LIBERTY. That’s the problem with the law. I see no flaw with her article I think this is just a petty jealous personal attack. Why would you try to mislead people, she’s basically saying the same thing as Mr Alden McLaughlin, MLA!

          Since you are obviously shortsighted here’s what you should know. I think I can see more clearly than the both of you.

          The lady is not saying that the US laws are binding here in the Cayman Islands but anyone with any insight would agree that the US Miranda law does work and with reliable DNA testing together with well trained law enforcement could very well save the Freedom of an individual that is accused of a murder or other serious crime that HE OR SHE DID NOT COMMIT.

          Why would you let the Attorney General go free while you beat up a messenger that is telling you the truth? Point your finger at him! And your premier who is behind it I’m sure.

          The lesson learned here is that good jurist prudence means adapting laws and principles that have been tested and proven to work well in other jurisdictions. The UK has not done a very good job of solving crimes and their systems do not work.. You obviously know very little about the law for if you did you would be aware that pretty much every case tried in court challenged by the defense based on the circumstances surrounding similar cases of similar nature, regardless of the jurisdiction, US or the UK. When it comes to the law all accounts regardless of jurisdiction are taken into consideration. in passing judgment..

          In evaluating Ms. Goring-Nozza’s recent letter and explanation of the Right to Remain silent. Her stage approach contains a number of conceptual good aspects of the US Miranda Law. Some of you deliberately ignore, it maybe because you are not really teachable? Or just want to get personal.

          It is evident that Ms. Florence Goring Nozza’s reference to the US Miranda Law is an exemplary effort for our Judicial systems for consideration in adoption of moral perspective to help explain this state of affairs. Her reference to the Miranda Law is an example to be looked at through the eyes of the wise and prudent legal pundits. The rule so it will be argued, protects the legitimacy of trial deliberation by FORBIDDING RELIANCE ON AN ASSUMPTION BY THE POLICE, THE PROSECUTION, AND THE JURY THAT DISRESPECTS THEMORAL AUTONOMY OF THE PERSON WHOSE CONDUCT IS BEING JUDGED! and could very well be ‘INNOCENT" This moral objection can arise in civil cases; but it arises more frequently and usually with greater force in criminal proceedings. While there is a need to reserve some judicial power to disallow proof of similar incidents in the civil context, there is usually less reason for the exercise of that power in civil cases than at criminal trials.
          Good article and research Ms. Goring-Nozza. Thank you for taking the time.

  12. Anonymous says:

    Anyone with nothing to hide should simply speak the truth. If they don’t have a police record then they should not be so worried. If they do have a police record and are innocent , they may worrythey will be labeled the wrong guy but then all the more reason for that person being questioned to be "helpful". Human rights don’t protect law abiding citizens to the extent that they protect the criminals. Common sense prevails and we need to start using it. If you don’t want to be mistaken for the wrong guy then don’t behave in an unsocial manner (gangsta vibe) Have respect for the police. If they ask a question then answer and be helpful. Speak when they ask you a question, don’t mumble, sit up straight and be a real person. If it is not you maybe you can be helpful. If you are trying to protect someone or not be a rat and you have information you do not wish to disclose, then you must be willing to chance being labelled the wrong guy. If you get a bum rap consider it your punishment for obstructing justice. If you have information and fear retribution then I make reference to the kid in West Bay who reportedly had information on the Ming murder. He didn’t talk to the police but that didn’t do him any good did it. Seems you would be better able to sleep at night if the person you were afraid of was serving life for murder and not out on the street. 

    It’s like fighting a war. It’s not a good idea to mistake yourself for the enemy. Don’t dress is the wrong uniform or one that could be mistaken for the wrong uniform. Be clear which side you are on and be helpful. If you don’t want to be helpful then you are part of the problem. I guess the key here is common sense on the part of police everyone and judicial system everyone is worried about and I agree but but I’d rather take a chance on that vs. the current situation wouldn’t you? You can’t have your cake and it too. Which way do you prefer to have it? Like it is…as it will only get worse or do you want it to get better. There are a lot of things I don’t like about about the government but this isn’t one of them.

    • Pending says:

      Clearly the issue of legal aid would not apply to you then.

      • anonymous says:

        Congratulations 15:30 and l5:47 undoubtedly you both know what you are talking about and your comprehensive arguments in rebuttal to the AG’s mistake or deliberate action makes a lot of sense and you are of course right on target. Under the present regime this comes as no surprise, anything to screw the people.

        14:20 something is very wrong with your understanding. However there a few participants in this forum that are well aware this is a serious and dangerous step in the wrong direction. In reality Its actually  60 years backwards.

        It is yet to be seen whether those big mouths criticizing or their offspring will need the representation of an attorney  and then denied that right because they are unaware of it in the first place. But then again some people would prefer to remain dumb and unlearned at the mercy of the RCIP who they  place all their confidence in because they are all born again and every case from hereon for  the 14:20 type of people will rule in them favor of the police and not the accused.. So they must suffer their own consequences. However destruction never comes without warning and a haughty spirit before a fall.

        So long.

    • Anonymous says:

      I do not know what cassava basket you just fell out of yesterday, but your batch must have had a goodly portion of naivety genes.

      Your childlike faith in the judicial system is admirable but far too simplistic for the real world.  Refer to the cases involving Justice Henderson and Burman Scott if you need  an education regarding the fairness of the judicial system. Had either one of them been just an average Joe with no legal experience and lacking funds to hire competent counsel, they would probably still be facing prosecution right now, not because of guilt but because of flaws in the system you place in such lofty esteem.

      In certain cases exercising the (now lost) right to remain silent is the right course, regardless of guilt. For example: If you have any familiarity with accounts of criminal investigations and prosecutions in western democracies than you would be familiar with instances where an experienced interrogator, sorely wanting to "make a case", elicited very incriminating statements from a quite guiltless suspect. Depending on circumstances, speaking the truth is sometimes not in one’s best interest either: In some cases the line of questioning uncovered half the truth but the interrogator, not wanting the full truth to come out left certain exonerating factors out of the line of questioning. 

      You say "Seems you would be better able to sleep at night if the person you were afraid of was serving life for murder and not out on the street."  In the context of gang-related crime, unless the entire gang and their supporters were incarcerated for life, I would decidedly not have any reason to be sleeping any better. And therein lies the dilemma.

      You seem to have overlooked that here in theCayman Islands we lack a viable witness protection programme. In other larger countries such a programme is an effective resource to gain the cooperation of a witness who feels threatened by assisting the prosecution. In many cases involving very high-profile serious crimes, accomplices have been willing to cooperate in exchange for immunity or a reduced sentence, coupled with placement in a witness protection programme.

      I do not engage in criminal behaviour, however, should I be detained as a suspect for a crime, I would most certainly remain silent at least until my attorney was present and would not try to "be helpful" as that is also a tool an experienced interrogator can use to unfair advantage if his motives are not honourable.

      If there never was and never will be any corruption or serious flaws in the judicial system then I might agree with you, however that type of good and totally trustworthy and righteous legal system lives only in the storybook world of your imagination.

      In short, I think we have lost a very important right and I am not silly enough to believe that it will make any significant difference in the effective prosecution of criminals or the reduction of crime in these islands. What we have done is to take another step down the slippery slope of erosion of human rights and that disturbs me far more than the prospect of being the victim of a crime in these islands.

  13. Law and Disorder says:

    On what basis is there a right to avoid self-incrimination?  How does it help society?  As long at the police aren’t pulling out fingernails so as to obtain questionable confessions, there is no reason to let the criminals have a special right to undermine the administration of justice.

    Cop: Where were you on the night of the robbery?

    Innocent Person: I have an alibi.  I was with my mistress smoking crack and watching porn. (See – still innocent.)

    Criminal A: You got me, I’m your man. (Judge then has mercy due to confession.)

    Criminal B: Bite me, I ain’t telling you nothing!  (Clear sign of guilt.  this person needs to be in prison for an extra long time.)

    Cop: Can I borrow your DVD?

     

    Think about it: How does a right to avoid self-incrimination help society?  Really?

  14. Anonymous says:

    Are there actually people refusing to speak to the police? Based on what one sees in the news, everyone is telling some sort of story when questioned, so all this ranting seems pretty hypothetical.

  15. Anonymous says:

     Why are they getting ride of the Miranda rights? that is so dumb!

    • Rorschach says:

      Sorry, but there were never any "Miranda Rights" EVER in Cayman…closest you ever came to that was Judges Rules…

      • anonymous says:

        OK Smart Alex and Smart Alexes wouldn’t it  be nice if the people of the Cayman Islands call for Miranda Rights or similar rights here in the Cayman Islands?Alden McLaughlin your Elected Lawyer for George Town is capable of spearheading this for you if he so desires or cares for the people that much.Obviously he does NOT.

        Instead of stupidly arguing a point we already know that it is a US law, does it make sense to you to PRESS FOR THE SAME RIGHTS HERE IN THE CAYMAN  ISLANDS so that you can at least have a FAIR TRIAL?

        OR  would you prefer the RCIP to make assumptions about you while under arrest and you or your loved ones spend the rest of your life in prison for LIFE for a murder or murders YOU AS AN INNOCENTLY ACCUSED PERSON ‘REALLY’ DID NOT COMMIT?

         

    • Anonymous says:

      NB and FYI: The Miranda case, involving a suspect’s rights during police interviews, was a case in the USA. "Miranda rights" have no applicability outside the U.S. and its jurisdiction.

      We did have the equivalent of such rights until this travesty was inflicted on our so-called democracy.

      I fully agree with you that dissolving the right to remain silent is verrryyyy dumb!

  16. Anonymous says:

    I suppose the next amendment will allow the prosecutors to direct juries to an adverse inference to questions the police FORGOT to ask.

    But for now the adverse inference from a refusal to answer should increase the conviction rate. Here is how I see it working:

    AT THE POLICE STATION

    Police Officer: "Sir, can you tell us why you beat your wife?"

    Poor Basterd: "I did not beat my wife".

    Police Officer: "Sir, you are not understanding the question. You can tell us WHY you beat your wife, or you can remain silent".

    IN THE COURT ROOM

    Prosecutor: "Ladies and gentlemen of the jury, you should know that when Poor Basterd was asked why he beat his wife, he choose to remain silent".

  17. Anonymous says:

    Just another nail in our coffin of freedom,couple clause 148 with an ileterate ,incompetent Police Service, lack of legal aid and the powers that be hope to get a conviction,the AG should be ashamed of himself for the way he is conducting himself.In reality all we will have is a larger mess.

  18. Joe Average says:

    One more reason we have decided to remain "Anonymous" when making comments. 

    Look at the United States:  many despicable things have taken place and many rights disappeared under of the guise of "law and order" and "fighting terrorism."

  19. Anonymous says:

    As Caymanians have all ready given up the right to honest, and moral government it follows that they only have the rights that have not been taken away yet.  Get used to it Cayman.  It will only get worse not better.

  20. Anonymous says:

    Yes, this provision has existed in the UK for a number of years. But in the UK, there is a right to free, independent legal advice at the police station before you are interviewed. In Cayman, there is no such right at all as legal aid does not pay for a lawyer to advise you at the police station, no matter how serious the charge. So, will a wealthier suspect ultimately get a fairer trial than someone who cannot pay to speak to a lawyer at the police station? Once again, the AG ‘cherry picks’ provisions from the UK which are favourable to the prosecution without also importing the crucial safeguards that exist there as the quid pro quo of such inroads into the right to silence. Also, despite promises, the universal tape recording of police interviews is still not in place in Cayman, and the police simply handwrite a ‘transcript’ of proceedings. Worse case scenario? The police record of interview is inaccurate (deliberately or not), the suspect cannot afford a lawyer properly to advise him or her and they decide to exercise their right to silence, the matter proceeds to trial and the jury is invited to hold the suspect’s silence against him or her when the interview doesn’t even completely and accurately describe what was said. Justice? Methinks not.

    • anonymous says:

      Once again!

      We hardly ever hear from the AG. I was not sure he was still employed.

      I have one question, the governor is replaced, the Police commissioner, why is it that this man is still being paid to not perform?

  21. whistling duck says:

    There should be freedom to speak and freedom not to speak!

  22. Anonymous says:

    CNS -This is the worst piece of reporting I have seen in Cayman for a long time, and the worst I have ever seen from CNS. The right to silence is not being lost at all. Everybody will have that right.  It just means that a jury will now know that the questions were asked and the accused decided to make no reply.  The jury can make of that what they will. In the past when people refused to answer questions the fact that the questions were even asked was withheld from the jury.

    • Anonymous says:

      You must be from the legal department. Either that or you don’t understand the issue.

    • Anonymous says:

      If you attacha negative inference to a right you might as well take the right away because people will potentially be punished if they exercise that right! What’s the problem with saying the right has been eroded or at best severly limited?

    • Rorschach says:

      "It just means that a jury will now know that the questions were asked and the accused decided to make no reply.  The jury can make of that what they will. In the past when people refused to answer questions the fact that the questions were even asked was withheld from the jury."

        Not sure where you got that piece of information from but I can assure you that the procedure for Interviewing a suspect in the RCIPS consists of making a contemperaneous notation of EVERY question asked AND the answer given, even if it is simply, "No Comment".  These "Interview" notes are completely admissable in court and are often read out by the officer conducting the interview to the judge or jury…

  23. Legal Beagle says:

    There are many real human rights issues worth worrying about in Cayman but this is not one of them.  This is a storm in a tea cup.  The proposed law is only about evidential inferences that can be drawn from a failure to answer police questions.  The law does not force people to give evidence against their will or anything like that.  It reflects the law in the UK for some time and while there were protests and predictions of gross injustice at the time, these predictions have simply not borne out.

    • Anonymous says:

      So the UDP (an the AG) have worn out the "it’s all Kurts fault" excuse and returned to the 2003 status grant excuse "the UK made us do it". Show leadership and scrap this oppressve law.

    • Pending says:

      And everytime someone does not answer a question or answers "no comment, they will say he is guilty and hiding something.

      Please tell us how that doesn’t matter.

  24. Slippery Slope says:

    Ah, the slippery slope has began. This law surely will not stand the challenge in court. Hidden witnesses, now you must say something or incriminate yourself. What’s next? The comments will be interesting.

  25. Anonymous says:

    Oh my God. Are they crazy!

  26. Anonymous says:

    It has been used in the UK for years now, and allows the police to offer the suspect the opportunity to respond to obvious questions about where they were, evidence that indicates actions they committed or similar.  It is reasonable for a society to expect someone to explain what they were doing, and not to remain silent without some form of comment.  This is about justice – what about the human rights of the VICTIM – why should someone accused have all the rights?  The VICTIMS have a right to justice, and this is about the accused not saving everything up until months later at trial, and then ambushing the prosecution when time may well prevent proper investigation.  And it is not always for the accused benefit to say nothing (certainly not in the victims interest) at the time when explanations can be properly investigated.

    This gives the public some expectation that someone accused has the opportunity to answer allegations at a time when proper follow up enquiries can be made.  The VICTIM’s have rights as well! 

    • Anonymous says:

      You don’t watch Law and Order do you? There’s something called "discovery" for a trail – each side has to hand over ALL evidence in advance so that the other side has adequate time to review and investigate. You can’t bring anything up in a trial that the other side has not been privy to (especially if it was intentionally withheld), or at the very least the judge calls a recess and allows the other side time to respond.

      • Pauly Cicero says:

        Don’t place your life in the hands of a one hour tv show based on the US legal system. Read your constitution, statutes, and precedents.

      • Anonymous says:

        You lost the point here.  An accused still does not have to answer the questions raised during the investigation without this clause – or inference drawn.  The accused can wait until the day of the court hearing itself to answer the question – the defence do not have to provide anything as regards answers for the prosecutions likely line of questioning – and then they provide the answer months after the event when it cannot be investigated.

        All the thumbs down just about puts the victims place in all this.

      • Law and Disorder says:

        Logic says:

        Discovery applies in civil actions, not criminal matters. 

        Police interrogations happen in criminal mattters, not civil actions.

        Ergo, your argument falls foul of the fallacy of the red herring.

         

        More logic says:

        If people have nothing to hide they should not hesitate to provide a full statement to the police, and in fact it really is morally obligatory that they do so. 

        Otherwise they are supporting the ongoing crime wave and the criminals doing the crimes.  The only reason they might choose to do that is because they are guilty either of this crime or of interfering with the administration of justice generally, so by their silence they confess to that guilt.  The jury needs to know about that, so that they can be punished for not helping the police suppress crime. 

        If they weren’t guilty, they should have talked to the police, ergo they are guilty and all that goes with that: their evidence at trial should be either suspected as false or just rejected out of hand, and the jury should start from the position that they are guilty and go from there.

        If they are guilty they should just confess to the police and save the trouble of being found guilty at trial anyway.

        Now there’s some argument for you.

      • Voice of Reason says:

         I love people who quote US legal television dramas as the law. 

        Duh!!!!!!!!

        Try UK law. Clue’s in the flag and the constitution. There’s a good lad.

        Plus – it’s television drama…. give us all strength……

    • Anonymous says:

      ‘It is reasonable for a society to expect someone to explain what they were doing, and not to remain silent without some form of comment.’

      I do not agree with your statement.  I would not expect to explain what I was doing if I had not done anything wrong and it should not be ‘expected’.

    • Pending says:

      "Time prevents proper investgation"

      Please ellaborate further of this. In the Cayman Islands Courts, you have ample time to gather all the evidence you can get. If you are charged with a crime in Cayman and you elcet trial, it is normally 1-2yrs  before trial dates are even set for the most minor of offences, like smoking a spliff. If the prosecution cannot get there act together then it is not the accused’s fault.

      You would also want to compare the UK’s legislation on this with what has been "picked" to bolster the Police Bill as it is clear that it only suits one side while leaving out crucial rights for the accused.

      An inference of silence in an interrogation does not mean that the suspect is guilty. In Cayman, legal aid is not afforded during the police interview process, so does that mean the person is guilty if they choose not to speak, due to the fact that they cannot afford an attorney?

      This may cause a number of problems, not least the possibility of people who are innocent being sent to prison because they chose not to speak due to a lack of legal representation when being questioned.

  27. Anonymous says:

    This in spirit is great and would help convict people  of crimes. Here is the problem – with Moe, Larry and Curly the ones charged with investigating and questioning the people accused of crimes, we have a problem.

    The right not to self incrimination is one that most citizens do not want to give up. If someone is scared or does not have an attorney advising them, they may just the same keep quiet and have done nothing wrong. The Police are trying to trick people to expose flaws in statement that an accused gives in order to probe if they are in fact guilty – they should do this, it is part of investigating and there is nothing wrong with it, however with the RCIP, with the current track record of thier performance, this is very, very, scarey that this will belaw. They cannot get convictions as it is, many have been arrested but never charged with a crime and were not GUILTY. So what does this do, make the RCIP’s job easier, to draw a conclusion of one being the "one" that committed a crime, just by the fact that they did not answer a question or two, which may in fact be true, but what if because someone is scared or the Police asked a stupid question and drew the conclusion that you were guilty? They are not above doing this as the work product overall of the RCIP is poor at best. They have proven incompetent and unable at securing convictions in most cases. They have admitted to being poorly educated and unable to function in general. How can we take away a safe guard in the legal process with them at the wheel?

    • A Concerned Young Caymanian Father says:

      The problem, which many who are in favor of this bill/law are either not recognizing or are just plain ignorant of, is that it goes against everything…including a person’s "constitutional rights". An individual has the right to remain silent, as anything he/she says can and WILL BE used AGAINST you in the court of law. So, what that means is that if an officer perceives that you’ve answered him/her inappropriately you can face further charges.

      C’mon, Cayman! WAKE UP AND DO SOMETHING!!! This is wrong to the fullest extent and NEEDS TO BE STOPPED!!

      • Pauly Cicero says:

        That’s the US constitution. What does the UK constitution/statute say?

  28. Anonymous says:

    This must be stopped at all cost. This is the most shocking turn thus far from Mac & party.

  29. Samuel says:

    What???!!! There are important reasons for that Right!  

    The right to silence is the right to avoid self-incrimination or the right to remain silent when questioned by someone whose judgment is already bent on seeing you as the accused person. It is one of the most important safeguard of protecting locals against arbitrary actions of the government.

    Who would want someone else to incriminate them for a crime they did not commit?

  30. Anonymous says:

    Only criminals should have a problem with this change in the law. Honest individuals should have nothing to hide.

  31. Anonymous says:

    Our elected representatives seem to have forgotten that "we" elected them to champion the wishes of the majority.

    Does this change have the backing of the majority of the people? Leaders, be very careful this may return to bite you when it is applied to you.

    • anonymous says:

      Applies to them?

      Well don’t you think they feel they are above the law and order! Look at their behavior?

  32. Jingo Jango says:

    I really shouldn’t be shocked anymore. But this is shocking. From the AG no less. Shameful and disgusting. 

  33. John Evans says:

    I’m not sure that this has made much difference to the way trials are conducted in the UK over the past 15-odd years. Although the police may pretend it’s not the case, defendants still have the right to remain silent until they have legal representation.

    About the only area I’m aware of that causes concern is the fact that if an accused person says anything (even, "no comment," or, "no answer") it can be taken as an indication of guilt.

    Rule 1. When cautioned ask for a lawyer.

    Rule 2. Make sure you have the lawyer present during questioning.

    Rule 3. If you don’t want to reply to police questions – stay silent.

     

    • Pending says:

      4. If you can’t afford an attorney during questioning, because legal aid does not apply to you or you have no friends as attorneys to come and represent you, then your silence or answers of "no comment" will be used by both the police and prosecution as guilt to the charges they have put against you.

      See any problem there?

      Imagine a person is innocent, does not want to answer questions without an attorney present, and the police officer is hell bent in charging you because he has no other leads…

  34. Anonymous says:

     I’m speechless and I’m not guilty of anything.

    • Anonymous says:

      I am too speechless, unbelievable.  I am certainly not guilty of anything…and this is scary for me.

  35. Anonymous says:

    This is appalling.  Say goodbye to Human Rights in the Cayman Islands.  Our lawmakers should be ashamed of themselves.

    • Anonymous says:

      But instead they are very very proud of themselves.  The fact that the country is going downhill fast is no concern for those who are making out like bandits and all their friends have jobs.Your lawmakers.  Is that a job ONLY Caymanians can have?

  36. Anonymous says:

    Under this Government we will soon lose the right to any trial at all, much less a fair one.

    Where is the Human Rights Commission on this matter? Where is the Governor in respect of it appearing to be unconstitutional? Are they all on vacation and Dartland left to the whims and fancies of McDaddy Bush and his Band of Blind, Deaf & Dumb Followers?

    When will this all stop?

    • Anonymous says:

      Too much criminals something has to be done.

    • Pauly Cicero says:

      We were too busy fighting against gay marriage when this should have been addressed. Most of these rights that we are citing are in the US constitution or bill of rights and there may not necessarily be a UK equivalent. We cried down the HRC to ensure that gays and suspected criminals were stripped of any rights but we neglected to secure important rights for ourselves. Not the government’s fault, not the Governor’s fault, not the HRC’s fault, not unconstitutional. Now we are seeing that an erosion of rights for any sector of society is an erosion of rights for all.

      • Anonymous says:

        Thought you would have agreed with LB on this as well. Finally you can see that the issue is about rights not one’s personal agenda, no matter how idealistic. It is the same with self-defence and firearm ownership.

        You should be able to speak but not forced to. You should be able to own a firearm but not forced to

  37. au revoir says:

    What a mess.  How about removing Bulgin and his motley crew of Incompetents from office instead??

  38. A REALIST says:

    "The AG also anticipated comments by the opposition and in particular Alden McLaughlin whom he said had agreed with the need to change legislation when he was in office but now sitting on the opposition bench had the luxury of adopting populist sentiment."

    Is this what the Cayman Islands Attorney General has come to? Making accusatory remarks at the opposition? Isn’t this man supposed to be impartial. Makes one suspicious about what his motives could have been for sitting on his behind when the issue of the election challenge was mooted. He should remember that in a few years he may need to advise that same "opposition" and should conduct himself in a way which will allow him to have a civil relationship with them should that come to pass. We do not need any more civil servants sitting on their behinds on full salary, in an extreme case.

    In any event, the laws are being tilted so far in favour of the state which has unlimited resources that it will soon be impossible for any accused to not be found guilty. But considering the legal department have been embarressed in court by persons accused of dog-napping, that may be his only recourse.