Judges missing in phone taps

| 17/08/2011

(CNS): The leader of the opposition has raised concerns that the judiciary is missing from the recently introduced phone tapping regulations and that too much power has been given to a “committee of two” over a very serious and sensitive issue. Alden McLaughlin said he understands the need for law enforcement agencies to listen to phone conversations in the fight against crime and that there needs to be a lawful way to achieve this. However, he said, history indicates that putting the decision in the hands of two representatives of the UK government with no judicial oversight may not be in the best interests of the people of the Cayman Islands.

“It is necessary to have proper checks and balances,” the PPM leader stated. "I am uncomfortable with this cosy committee of two. I believe there needs to be judicial oversight.”

The regulations, which came in to force on Monday following their approval by Cabinet, state that only the governor can sign the warrants which will allow law enforcement officials to tap private phones during investigations. In addition, the application to the governor can only be made by the commissioner of police.

Although the information gathered during a phone tap cannot be used in court as evidence, the commissioner of police can make a request to gather intelligence via a phone tap during a criminal investigation, to avert immediate threats to human life, for issues relating to national security, in connection with ‘mutual assistance’ andto safeguard the economic well-being of the country – which may not necessarily involve criminal activity.

McLaughlin queried why the power for such a sensitive issue had been concentrated in the hands of the governor and the commissioner of police only. He noted that even the collector of customs and the chief immigration officer are not included and they will be forced to go through the commissioner to get the governor’s approval for their own departments' investigations.

“I can’t accept that the chief immigration officer and the collector of customs should be shut out of this process. Why do they have to go to the commissioner?” he asked, noting that the power had been given to direct representatives of the UK government.

Given the experiences in Cayman over the last decade, McLaughlin said, this made him distinctly uncomfortable. He said he did not have a great deal of confidence in the way the UK always used its authority over the jurisdiction. “I do not have any issues with the current governor but it is the problem of what he may be requested to do on behalf of the FCO and how the responsibility for the well being of the islands held by the governor can come into conflict with the wishes of his appointees,” the opposition leader added.

He said it would have been prudent when Cabinet defined the regulations to have more checks and balances to address the perceptions and concerns by having judicial oversight. McLaughlin pointed out that to have the power concentrated in the executive and not the judiciary heightened concerns, especially in the wake of the Euro bank scandal, the David Ballantyne spying issue and more recently the UK police investigations, Operations Tempura and Cealt. 

While the audit committee would offer some oversight, he pointed out that this would take place after the fact and would be unable to prevent abuse by the authorities, only question it later. He further raised the question of who the “overseas ICT expert” would be on that committee.

The opposition leader said the phone tapping question had a long history and it had caused problems when the ICTA law was revised in 2003 in order to facilitate telecommunication liberalisation. While all of the elected members of parliament had at the time wanted the judiciary to be able to sign wire tapping warrants and that made that part of the law, the governor had refused to sign the bill.

As a result, the UDP administration allowed the bill to go forward with a clause allowing the governor to sign warrants. However, the regulations were never completed, not least because the technology had moved beyond the capabilities  of the polie at the time to successfully intercept phone calls and messages. However, having now acquired the technology, the need for a lawful framework to govern covert listening was required.

Speculation that officials are already engaging in the practice as a result of current undercover operations involving overseas law enforcement agencies has also been denied. The governor’s office recently responded to queries from CNS stating that the governor "is not aware of any police officers from the UK or any other jurisdiction being in the Cayman Islands at present or having been in the Cayman Islands recently other than those who are regular members of the RCIPS.”

Last week the acting commissioner of police also denied that the police have already been using phone tapping and covert interception techniques.

McLaughlin stressed his support for law enforcement officials to have access to telecommunications in criminal investigations and said there would be many occasions when it was justified. However, he pointed out that it is a “serious invasion of privacy” and at the very minimum it should have some judicial oversight and such authority should be very carefully exercised. 

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  1. Anonymous says:

    Why then, 8:32, did McLaughlin, as a litigator who understands these issues very well, not seek to amend the law during his 4 years in office? Or why di he not seek to put in place regulations to regulate how the authority of the Governor should be exercised? Tell me please.

    • Anonymous says:

      You have clearly lost the plot. The Law says what it says because the FCO overruled our local LA and amended the Bill to say "the Governor" rather than "a Judge of the Grand Court" and the Governor assented to it. No Bill becomes law until the Governor assents to it. Obviously in that context there is no scope for the LA to amend the Law to change it back.  

  2. Anonymous says:

    McKeeva should hand phone-tapping over to the churches. Why should Catholic priests be the only ones to hear "confessions"?

  3. Anonymous says:

    .Big Brother is watching and listening

  4. Anonymous says:

    If you listened to the Leader of the Opposition's detailed account this morning on Rooster of what transpired in 2003 with the ICTA law, it is clearly not correct to say that "the UDP administration allowed the bill to go forward with a clause allowing the governor to sign warrants". According to him, the bill was sent back to the LA by the then Governor and recommited to the Committee Stage. No amendment was made. The UK subsequently exercised its power and amended the bill replacing Judge with Governor, and the then-Governor assented to it.

    It is common knowledge that this law has been in place for 8 years now. Both political parties have had the opportunity to seek to change it.

    It is also common knowledge that regulations can only 'regulate' what legislation (a law) allows. Regulations cant give to someone else what a law gives to me. In this case, the law allows the Governor to approve warrants. Both parties had the opportunity to put regulations in place to 'regulate' how the Governor exercises this authority.

    All of this talk about whether it should be the Governor or a Judge is a bunch of rubbish if you ask me, I'm just happy to see that the regulations have been put in place at last. But I'm also saddened to see that people can't keep their mouth shut when they don't have anything worthwhile to add. 

    • Anonymous says:

      "All of this talk about whether it should be the Governor or a Judge is a bunch of rubbish if you ask me".

      Thankfully no one is asking you. You take that view because you simply do not understand the issues. A judge is better placed to weigh the relevant issues including the individual's right to privacy under the ECHR and whether the particular tapping is necessary in a democratic society. Judges are accustomed to weighing these matters in the issuance of search warrants. The purpose of having different branches of govt. is so that one can act as a check on the other. In our case it is solely the executive branch involved. Rather like the civil servant JP in Operation Tempura the Governor is likely to sign whatever the Police Commissioner puts before him. As a litigator, McLaughlin understands these issues very well.

      This is an issue which is debated in every country where the matter of wire-tapping has arisen. In Canada, Australia and the U.S. warrants for wiretapping are issued by judges rather than a member of the executive branch.     

  5. Anonymous says:

    Assuming that wiretapping has been going on for some time, could someone say under what law was it  previously being done and who would have had the authority to give the green light for it to take place?

    Thanks CNS/posters!

    • Anonymous says:

      Probably on an ad hoc basis using whatever facilities were available.

      There's an assumption in some of the posts that any previous phone/internet interception has been conducted by the RCIPS themselves – I doubt that's the case. Private security firms and consultants have far better access to the equipment needed so it was probably contracted out to a private company in the same way the polygraph tests were.

  6. Anonymous says:

    Alden is my friend, but what he is saying I don't buy.  Firstly, it is the Police that is doing the tapping.  Secondly, a check and balance is in place, whether one choses the Court or one chooses the Governor.  I say leave the court out of the matter, as they are the final arbitrators.  How can you have them being the arbitrator, if they were first privy to the process and the information?  I say the most logical fit is the current one – the RCIP conducting the operation with the permission of the Governor.  Remember, the criminals are not playiing by any rules and they are running rampant in Cayman.  Give the RCIP the tools and a simplified and easily accessible process to get the job done.  Forget politics, power and who wants to be in control for once and just do what is in the country's best interest. 

    • Libertarian says:

      It would be nice if the Commissioner and Governor had to get approval from certain number of MLA's before they can have the Police invade someone's privacy. At least, the MLA's are "elected" by the people here, and not "appointed" like the Governor by British people elsewhere, estranged to these islands. The previous draconian acts that the UK has demonstrated towards the Overseas Territories, are reasons why Alden should never sit down and remain silent, nor any Caymanian politician for that matter.

      • Anonymous says:

        What a great idea, are you referring to the same politicians that dial in favours for constituents and relatives to frustrate justice or are you referring to the politicians that show up in court to influence juries during trials? how about changing your handle to detached from reality?

        • Libertarian says:

          For God's sake don't take my comment so seriously!  By now, everyone should know that this should not be in the hands of the Governor. Perhaps we can include Justices and Pastors as well… 😉

  7. Anonymous says:

    After what Tempura tried to do to a member of the judiciary and the subsequent fall out are you surprised the judges are being locked out of this?

    If a judge was involved the Governor and CoP would be forced to work within the law rather than just issuing warrants on some whim of a senior investigating officer trying to make a name for himself.


  8. Anonymous Addy says:

    Guess this means we are going to know what Big Mac orders from Dominos – because in terms of National Security – he seems to be the BIGGEST threat (get it?!)

    But seriously, while this may be a necessary step to slow the rise in crime  – it needs to be governed properly, and not only by the 'Amazing' COP and whoever our latest Governor is…

  9. Anonymous says:

    We would love to see this used to initiate investigations against our local rifff raff and banditry, but we should not be so naive to believe that these resources could not be deployed against more lucrative intelligence targets:

    ie. Apart from an obvious shortage of human resources, what would stop the Governor from beefing up his staff/equipment, and say, tapping the incoming lines of all of the insurance, private client and SPV lawyers, directors, and trust officers and building business intelligence files for sale/exchange to other nations – even if those clients were 100% tax compliant in their home jurisdiction, the privacy of their affairs might be compromised via some unrelated intrigueing file and they would never know.  Would those clients be willing to stick around to accept that new fishing risk when dealing with Cayman?  

    There is an international witch hunt well underway by many "thinktanks" and the traditional offshore world is in their sights.  The intelligence loophole can be used in many ways, and not necessarily in fellowship or for the betterment and longevity of Cayman Islands business.  

    • Libertarian says:

      Big rats love the big cheese!  No care in the world for clients privacies and the reputation of our offshore financial industry. No care in the world for the inhabitants of these islands and their economy. The thought of it, my friend, is truly disturbing.

  10. Anonymous says:

    Govenor vs Judges

    Honestly speaking I have more confidence in the Govenor than I do in the judges of Cayman. XXXX

    • Anonymous says:

      That's a very cheap thing to say.  Cayman has the best judiciary for 2,000 miles in any direction.

  11. Anonymous says:

    Why are we just hearing from Alden now? The law has already been passed by Meglomaniac Mac and his drones.

    This is potentially a serious problem.

  12. Libertarian says:

    Let us not forget about the money-laundering fiasco,relating to managers of a company termed Eurobank in 2002/03. A serious obstruction of justice upset our entire judiciary system when an agent by the covert name of John Doe for the British government, ordered the head of Cayman's Financial Reporting Unit of the Royal Cayman Islands Police service, namely, Mr. Brian Gibbs to shred valuable evidence brought against the managers of Eurobank.

    John Doe feared the leakaged of secret names and addresses of whistleblowers vital to the UK spying-network, situated in Cayman Islands and other offshore tax havens. He therefore instructed the RCIP officer, Mr Gibbs to bug telephone lines at the Cayman Island's Court House and in the office of the Chief Justice of Cayman, Anthony Smellie.  Gibbs denied the allegations that came directly from our Chief Justice, a 20-page judgment about the Eurobank case.

    There is no suggestion that the managers of the Eurobank case were connected to terrorist organisations, but the news was damaging to Cayman's reputation in being a trustworthy financial offshore center. The company and the managers were acquitted when the case collapsed, and millions of dollars were awarded to those who got off on the case. The Attorney General and Brian Gibbs soon after left the Cayman Islands.

    Both UDP and PPM; especially, McKeeva Bush, should know the details of this case well, and know seriousness of the passage of this ICTA law.

  13. Anonymous says:

    Tell them Brother McLaughlin!!! We already have plenty problems and unsolved crimes, if you are going to tap phones at least have the legal power to use the information. Plus we have too many power hungry people doing crazy things here, this surely needs some judicial oversight!!