Legal cries foul over FOI
(CNS): The publication of a freedom of information request by a local attorney in the local press, which revealed that the legal department has failed to prosecute more than forty criminal cases of over the last five years, has drawn the wrath of the Solicitor General’s Office. The FOI made by Peter Polack shows that, as a result of the statute of limitations, a list of crimes, of which no details were given, have never been prosecuted because the authorities did not take the cases to court within the six month deadline from the time the alleged offences were reported. On Friday afternoon the legal department denied having control over the time files take to come from the police.
The facts of the FOI were published as the lead article in Friday’s edition of The Caymanian Compass. The solicitor general accused the paper of “bringing the Cayman Islands system of justice into disrepute” in the story, which was based on the details of what is now a public document.
The FOI was actually granted by the RCIPS as opposed to the legal department because, Polack told CNS, it appeared that the legal department did not have the records on any of these non-prosecuted cases, despite being the body responsible. The police gave Pollack a list of dates indicating 43 unprosecuted criminal cases and two traffic offences, all of which had run out of time.
Pollack said he believed it was incompetence that had resulted in these cases being irreversibly jeopardized and someone should resign. “Perhaps what is of greater concern is the deafening silence in the legislature on the matter of oversight and audit of the legal department,” he added.
In the Compass article the RCIPS explained that cases are statute-barred when officers are unable to complete their investigation and bring charges within the stipulated period time-frame.
“There are many reasons why an officer may be unable to complete the case within the permitted time, for example, being unable to trace witnesses who have left the jurisdiction,” the police spokesperson said.
The Compass said it had attempted to contact the Solicitor General’s Office before the article appeared to establish whose responsibility prosecuting these offences is, but the office did not respond by press time.
Solicitor General Cheryll Richards then released a critical statement late on Friday afternoon suggesting that the article was a misrepresentation of the facts and that the process of prosecution requires a comprehensive criminal file to be submitted to the legal department.
“From time to time, the department has been compelled to advise the RCIPS that the matter cannot proceed because the time prescribed by law, within which charges can statutorily be laid, has elapsed,” the solicitor general stated. “When a submitted file is statute barred, a public prosecutor would advise the investigator of this legal position. It would be irresponsible and contrary to the law not to.”
The office said the legal department doesn’t have control over when a file is submitted for review after a complaint has been made to the RCIPS or an investigation conducted. “The time frame for completion of investigations is a matter for the police. We agree with the RCIPS spokesperson that there are many reasons which may be outside of the control of the police as to why an investigating officer may be unable to complete an investigation before the time period has elapsed,” the SG stated.
She also stated that the legal department “obviously could not properly have a record of files which have not been submitted for review,” hence why the RCIPS responded to the FOI, but the office said it remained puzzled why the legal department and the prosecution system had been misrepresented in the article.
FOI Repsonse – Statute Barred Cases, last five years
Statute Barred Cases In The Last Five Year Period, Dates Of Cases
Category: FOI
The problem here lies with the RCIP. The RCIP is responsible for putting a file about an investigation together and sending it to the legal department for a ruling. But, the problem is that those who are responsible at the lowest level for the files dont know what they are doing and have no guidance. About 80 to 90% if not 100% of summary matters are done by uniform constables. The sergeants who are supposed to guide the constables dont have a clue about the law, they cannot themselves do proper investigations and therefore cannot properly guide their subordinates.
I was a police officer in the RCIP and in my 7 years there, I saw one sergeant who ever guided his junior officers and directed them in the investigation. He even gave us a date on which to carry out his instructions and resubmit the file to him. That was to ensure the investigation was done properly and on time. I never saw anyone else do it in my time. That officer has gone on to be an attorney at law.
They are still a few good officers left in the RCIP who know the work, but if they dont promote people who know the work and can teach junior officers, legal department’s job will get harder and statute barred files may only be the tip of the iceberg.
I personally blame the Minister for Tourism – he has as much control at law of the RCIP as the Attorney General.
Get it into your heads, the AG and SG are not allowed at law to get involved in a matter until they receive a file. In fact if they did, the defence would probably apply to have the charges dismissed as an abuse of process or exceeding their legal powers – not to mention corruption.
The police lay the charges not the Legal department. It is the laying of the charges that commences their role as prosecutors. If the charges are laid out of time, that is the end of the matter.
But hey, why let the truth get in the way of a good story. If, however, there is going to be blame for someone who has no legal control, let’s spread it around and include the Minister for Tourism.
Hey Pete, WELL DONE & thanks!
Without proper independent oversight of both the RCIP and legal department we cannot truly know where the problems are.
for example, lets for a moment pretend that a friend of someone in the legal dept has been arrested, the police provide the file to legal; the legal dept drag their feet on reviewing the file and send it back for more information from RCIP. We can easily see where this could go on to the point where the case cannot be prosecuted because it is time barred.
it can also happen the other way around where the police deliberately drag their feet on getting evidence and statements and the file is delayed to Legal who then cannot prosecute.
It is only by having an independent oversight agency that this type ofcorruption (if there is any) can be exposed or better yet halted in the first instance.
The public need to know whether these cases as now made known by FOI, are as a result of incompetence, lack of resources, corruption, or all the above. This agency must be part of our good governance efforts and each of these 50 cases should be looked at in detail.
the other thing that is always important to keep an eye on, and that is to ensure there is no collusion between the legal dept and the judiciary. Of course this is also possible in any jurisdction both on a department level but also at the individual level.
It is of paramount importance that this independent oversight body is established and begin this critical good governance work without delay. it is essential (anywhere in the world) that every agency of govt have an independent oversight agency.
The Auditor General’s remit (largely financial) would unlikely expose this type of potential corruption and i am not sure whether the Complaints Commissioner would have any real jurisdiction over this type of investigation.
What is worrying about this whole saga is how people who plainly know nothing about a subject feel qualified to make sweeping accusations.
The staff of the Legal Department are not infallible. Officers of the RCIPS are not infallible.So, even if some of these cases went statute-barred due to errors, human error is expected.
Every year, the RCIPS send around 1000-1300 criminal cases to Legal, and many, many more traffic cases are prosecuted. In that context, the 43 criminal cases going stale amounts to less than 1% of the total. Additionally, those 43 cases will be at the minor end of the scale, as they are cases which can only be tried in the Summary Court.
"Every year, the RCIPS send around 1000-1300 criminal cases to Legal, and many, many more traffic cases are prosecuted. In that context, the 43 criminal cases going stale amounts to less than 1% of the total".
You seem to be mathematically challenged. 43 is 3.3% of 1,300, and 4.3% of 1,000. If I messed up 4% of the time in my job I would be in serious trouble.
You seem to have problems with reading.
43 cases went statute barred in five years. In that time, RCIPS sent (lets be generous) 5000 files to Legal. 50 cases would be 1% so (and stop me if this is getting too complicated) 43 would be… less than 1%!
The legal house of the Cayman Islands is burninjg down and you are arguing wither it was caused by matches or a lighter.
There is a problem with the legal system, cases are treated differently and that is wrong and the public is mistrustful as he!! .
You can argue that it is burning down, but this isn’t the cause, or indeed evidence of the fire. 43 cases being cocked up (if they even are cocked up) out of 5,000 isn’t evidence of anything.
Ask 100 members of the public about the condition of the legal system and I would be suprised if 25% respond with confidence in that system to operate professionally and achieve a reasonable conviction rate.
If you consider that to be a successfully operating legal system then I disagree.
And you respond so what?
And I say without confidence of a conviction many people with information will choose to not come forward thus further weakening a flawed system.
This news story simply confirms what everyone in the country already knew, that the legal system is broken.
When one looks at the legal system one can only wonder what needs to happen to improve the conviction rate and the level of professionalism.
It is time that those who comment on this page understood the procedure. Police receive complaint. Police then are under a duty to investigate. Police rarely ask for legal assistance from legal department but investigate their own way. Police present, what they think is a complete file, to the legal department. Legal department apply the Crown Prosecution Service of England and Wales test to the evidence presented; ie is there sufficient evidence to offer a realistic prospect of conviction, and then advise charge or no charge or for the SIO to get further evidence and come back. Having worked at the AGs department I have personal experience of officers delivering files which were statute barred. I would complain to the police officers senior officer and nothing would get done. In fact I became the villain. Hated by police officers for kicking their backsides. I recall one particular case involvng a very serious sexual offence . The officer concerned had done nothing on the case since receiving the witness statement from the victim in 9 months. I castigated the officer and then got told off by that officer’s supervising officer!!! That officer has since been promoted!! Before you blame legal make sure you understand the procedures and legal tests involved.
Thanks for sharing!
Not sure what you mean Dennie by "thanks for sharing!"
The Role of the Governor:
———————–
"Appointed by Her Majesty’s Government, the governor presides over the Cabinet, whose advice must be taken except in matters of defence, external affairs, internal security, the police and the civil service.
Under the Constitution, the governor promotes good governance and acts in the best interests of the Cayman Islands “so far as such interests are consistent with the interests of the United Kingdom.”
The governor may also go against Cabinet’s advice if he or she considers it against the public’s interest. In cases of urgency this may be done without prior approval from London, but such action must be immediately reported to the secretary of state. The governor is also not required to consult on matters too unimportant to require this, or if it would be prejudicial to the national interest, though such actions must be reported to Cabinet.
The governor also appoints members of the judiciary and oversees the civil service."
——————–
More pressure must be brought upon this office to bring our Islands back, with the responsibilities this office has we hear nothing from it, with all the crime we the people are suffering with, where is the governor, silent. "Governor you are not on holiday, get out of bed and put yourself where the people can see and hear you and do your job, GET OUR ISLANDS BACK ON TRACK!
So, lets get this straight now. Is it correct that when government departments/entities ask RCIPS to investigate cases and they fail to do so within six months for presentation to the Legal Dept for a ruling for possible prosecution the cases fall away under the Statute of Limitations? If that is so, basically the RCIPS can cause many valid cases to fold because of inaction. Wow!
I’m afraid that from my own experience the vast majority of statute barred cases will bebecause of police incompetance. Sure there will always be a few such cases for legitamate reasons (offenders leavng the islands, etc etc). It does not help that a large number of officers, including middle management dont even understand the law. The police have 6 months from the time of the first report (NOT the time of the offence), and only the most minor cases are subject to the statute of limitations.
I worked for the RCIP for a number of years and saw first hand a number of cases fail to be prosecuted in time. I was assaulted on duty and while the assault fortunately didnt result in major injury (black eye, broken nose etc etc) it was sufficient to justif a charge of ABH, the offender was arrested that day. As i was the victim i was not responsible for the investigation for obvious reasons and it was passed to an "experienced detective". I completed my statement and thought no more of the matter and waited for the court case, from time to time contacting the officer in the case to find out what was happening.After about 8 months he finally responded to tell me the case was statue barred! The most suprising thing is that ABH cannot be statute barred because of the relative seriousness of the crime (the maximum sentence is over a certain limit which means it is not subject to the statute of limitations). Even when i pointed this out the officer simply did not understand and person who assaulted me never faced charges.
Sadly i have also seen many similar cases, including where members of the Legal Dept didnt understand the same law. However i should say that over the last few years things started to improve considerably, however the commisioner has an uphill battle as the result of past failings in recruitment and years of laziness been tolerated at all ranks.
The charging standards recommended by the CPS indicate an undisplaced fracture of the nose is deemed to be common assault – this is subject to a six month time limit for bringing charges as it is summary only – consequently, I would opine, your case had the correct charging standards applied to it and was therefore statute barred. It is unfortunate for you but ABH is far too often charged here when the appropriate standard is common assault.
Monday 1230
You can "opine" whatever you like, did i say it was undisplaced (it was very much displaced)? Did i also not mention the black eye, associated brusing and swelling along with other similar injuries ? (fitting the extensive / multiple bruising definition under Section 47 also ), obviously this is not even taking into account the possibility of other charges – assault with intent to resist arrest etc.
In any event, the email i received from the "experienced detective" specifically said that a charge of ABH was statute barred, there was no attempt at justifying the inaction by claiming the injury did not support anything other than common assault.
I have personally dealt with scores of assaults in over 20 years, and am fully familiar with the CPS charging standards thanks, trust me the injury easily justified a charge of ABH And even IF it was a "common assault" the offender was arrested the day of the assault, interviewed the same day and all witness statements obtained (mine and sole independant witness) within 24hrs, so absolutely no excuse for failing to lay a charge within 6 months. The offender was local and to my knowledge was in and out of custody numerous times in the following few months, and was on bail with reporting conditions for other offences – so not exactly hard to locate.
The sort of "excuse mentality" that you displayed is one of the reasons the RCIP is in such a sorry state.
Scuze the public for being A LOT skeptical of the Solicitor General’s tardy response. Legal Services and the RCIP are plagued by a culture of mismanagement, inefficiency, and the usual nonesense that affects most government agencies (ie. lack of common sense; ego trips; etc.) Ultimately, both are to blame for this mess and confusion.
the comments to this article just goes to highlight the level of ignorance that prevails in this country.
Perhaps those who inspite of the statement of the solicitor general still believe that these files are under her control should read the criminal procedure code which statutorily bars such cases from being procecuted.
As far as i know, the police investigate crimes and the legal department decides what charges should be pursued. If the files come to the legal department late what should they do, wave their wand and turn back time?
And since when has the Attorney General been able to boss around the Commissioner of Police.
But alas, i am sure my observation wil not make a difference, as ignorance is bliss.
no they shouldn’t wave their wand. They should just keep quiet, maintain the status quo and keep their work load to a minimum. That’s what every average human should do under any circumstance.
If the RCIP and the Legal Department were competent, they would work out a professional relationship whereby the law could be administered in a timely fashion.
I am sure that some people find the disconnect between these two entities very convenient, indeed.
The AG is not on island long enough to boss anyone around. Have you tried reaching him or Cheryl? PLEASE!
The bottom line is they must be better communication between the 2 departments. Police seldom know the law and their piddle investigation means the file will get to legal fairly quickly.
In fact, the police/legal DO NOT need to carry out a proper investigation in order to arrest and lay charges. I know this from personal experience and that’s a fact; not an opinion. They have often laid arrested, laid charges and then investigated 1 week before trial. Sadly, they also have the power to drop the case at any point which means the lives of the accused can be disrupted and name called in question based on little.
That being the reality of this situation there is really NO NEED for delays to occur and for them to run afoul of the limitation period.
Straight Talk!
“bringing the Cayman Islands system of justice into disrepute”
Both the Legal Department and the RCIP do a very good job of the above quote.
I believe that the "Cayman Islands System of Justice" is actually a "system of legality" that usurps justice. The reasons? A lethal combination of incompentance and corruption; please refer to the recent article on the hit-and-run death that occurred last summer and was not reported by the police until October. These guys and gals use legality to avoid justice.
You would think that a "Christian" country could do a better job.
You would? Why?
more incompetence from cig and the civil service…..governor taylor where are you?
We need to unite Caymanians,and paper Caymanians like me and Permit holders if you love this Island BUT in Peace. I did not come by pain n’or plane. I came by sailboat,
I am starting to smell a set up to fail here that go beyond our political situation and I ain’t defending anybody. think about it for a minute…..Guns appear by the bucket full all of a sudden from you know where ( hint at least 2 places). Robberies that don’t make sense. First our Justices, now this: RCIP,Civil service, cgi and more. Thank God our financial services got their act quickloy,thank to all of you who I am certain,MR. Travis and too many to mention advised our Premier when he was holding the bull by the horn while the UK govt. threatened us because they are even more messed out then we are. Events in T&C islands are starting to smell howefully stong here at time (could be an answer to your question). I said before on the air with Dwayne ; History is repeating itself. Either we get a bad rap first with all the crazy crimes, decolonisation or take over.I can’t get thrown off the island for my legal naturalisation of 25 years, they can pick on my kids , or shoot me. Well editor please keep my name on this one I have no more demons and I really got saved today. No jokes. As I said before many know the truth but they can’t talk or sign their name and I don’t blame them but if WE THE PEOPLE don’t start to get together and gain the trust of those who know and those who are not afraid to say who we are; OUR FUTURE GENERATIONS ARE IN DANGER. Thank you Mr. Pollack and FOI.And another thing apart from my friend Alden I think Mr. Bush moved swiftly to deal with that to get us off the was it Grey or Black list of Islands competing againts our very mother country on money laundering.Have you tried to open an account lately Anyone who comes to me with information I promise you that with my friends that are smart Caymanian lawyer that have as much to loose as you and I.We will get the ball rolling. CNS I beg you to print this all and leave my name alone. I would hate to have to send this to the newspaper. I do promess to stop writing here and you’ll problably be glad of that and this without disrespect to anyone but in the name of our future generation. I really have enough and I hurt when I see older Caymanians that sacrificed so much in the past for us and they cant even buy food to eat. I now rest my case and await,Michel
Sad that the legal dept. has to be exposed but it is what it is! I personally love FOI … enough dirk coming to the forefront now!
This is a very good example of what our Govt. is good at. First do mostly nothing….then go to the ends of earth to blame others (instead of taking responsibiliy) when someone dares question them.
All the while spouting politically correct self serving phrases like "Good Governance, Transparancy and Accountability".
Increase me budget nah man!….need more resources yah know….some new cars, boats, radios, blackberries, security detail and now a helicopter too :))
What a mess!!!
That is XXXXX I knew a lady who was going to the police station for more than 6 months on a foolish charge until they finally told her we dont need you to come back any more, there wi ll be no charges.
The job of the Police is to sift the dirt and inspect every particle, then file a report on its findings with the Legal Department who in turn will decide if there are any prosecutable elements among the sifted material.
Until the Police files their report, the Legal department has nothing to analyse and rule on.
There are time constraints placed on almost everything that the Police investigates, and if the Police is unable to submit their file within a timely manner so that the Legal Department can analyse and rule then the cases will become time barred.
The Legal mind that exposed those shortcomings to the media is well aware of how the system works and would do Justice himself by explaining the proceedures to the Public in a manner that those without a Legal mind can comprehend. I am not even legally inclined, but I do know how the system works and can very well understand why the Head of the Legal department has come out in defense of that department, so, not everything that becomes exposed is really as dirty as it sometimes appears.
The people at the Legal department are really hard working people who do their best with what is available to them and needs to be encouraged rather than criticised for every little thing that is most often twisted to look and sound other than what it really is.
The recent charging of a Politician is a prime example of how the system works. That case had to sifted through for several months before charges could be brought.
Pass the buck Cheryll! Truth be known, she’s probably correct. Deficiencies in competencies obviously exist in both Departments.