Corruption laws leave gap
(CNS): As neither the UK Bribery Act nor Cayman’s Anti-Corruption Law are retroactive, neither piece of legislation can assist the RCIPS in 'certain' investigations, the police commissioner revealed this week. David Baines said local police were faced with “some difficulties” regarding current corruption investigations because the local law started on 1 January 2010 and the UK law, which can apply in Cayman, was also not enforced until that year. Although the police commissioner did not spell out the difficulties or offer any specifics on the investigations he was referring to, he pointed out that despite having two powerful laws at their disposal, the authorities still faced problems with corruption convictions.
Speaking during the question and answer session of Wednesday's Chamber of Commerce 'Be Informed' presentation on the UK Bribery Act and its potential influence here in the Cayman Islands, the islands’ senior police officer said that because the Cayman legislation had not come into force until 2010 and had at the same time repealed previous legislation it had “created some real issues for us”, as the police can only deal with the offences after the date, unlike the UK where old legislation has been left in place to deal with previous offences.
“We have some fairly significant issues that had taken place earlier,” he said, adding that the UK act could have been a way to address them, but although it was modern and appropriate legislation it could not apply to earlier issues either, so there was a gap that needed to be addressed for Cayman-initiated investigations that deal with incidents or offences that occurred before 2010.
The UK bribery act has a long reach, covering anyone with close connections to the UK, including overseas territory subjects with British passports, but, like the Cayman law, it is not retroactive.
Talking about the future and the use Cayman’s own anti-corruption law, the commissioner said that it sanctioned a number of practices that were culturally endemic in the public sector, so training for civil servants was extremely important. He said that when public employees enter data bases now a warning comes up about how the information can be used or released and points to a liability for prosecution if it is misused.
Baines said the police and immigration departments were where the most potential harm could occur but a training document would go out shortly to every public officer.
He said that the Cayman law had envisage not only an anti-corruption commission but an investigative team as well, but no money had been provided for either.
“So I am limited by the number of police officers,” the commissioner said, noting that he could not yet create an independent unit and was using police officers to conduct investigations.
Category: Crime
The Governor might want to look at getting certain monies (and interest) paid into the public coffers as part of a civil suit. See Attorney General v. Reid for details.
Do the same rules apply if it is extortion by the public official versus a bribe given to the public official?
Everyone from a direct taxation country knows it is useless to deal with bribery and corruption without being able to follow the money trail which direct taxation provides. As Cayman will never have direct taxation unless forced it is a mute point. The financial mismanagement of the country might force this form of taxation and then will you see some Caymanians squirm.
David Baines is just making up excuses for poor police work. Are you saying corruption was not a crime before these laws came into effect?
Utter nonsense. Find the evidence and take it to the courts, that is what you are paid to do!
I suppose that makes whoever got paid tons of money to come up with this hair brain immune to justice as well. What a world we live in.
Cayman Islands POCA (Proceeds Of Crime Act) 2008 any use for the Police??
Hey Mr. Baines, can we not go to court for unauthorized use of someone else's property in an attempt to conclude a bribe?
Oh my God. There's no law against obvious wrongdoing in Cayman. What on earth are we going to DO people?
Fire the gowerment?
I suppose that's better than sending them to jail, considering the immeasurable (pun intended) good they have been for our country.
My 7 year old describes such things as “accidentally on purpose”.
If they did it on purpose it seems they are corrupt and are criminals themselves. They should be arrested and immediately removed from office. If they did it by accident they are incompetent and extremely negligent and should be immediately removed from office.
I don’t care which way this plays out but one way or another this Caymanian has had enough of the destruction of his society.
Here we go. Stage 1…..We are having difficulties……
Stage 2……….??
Final……We can not proceed because……..
RCIP…???
Governor…???
UK….??
I am just trying to figure out WHO is going to grow a pair and finally do what we all want done.
In the old days in Jamaica, housebreakers used to wear just a pair of “Speedos” and slather themselves in grease so that, even if you caught them in the act, they could “slip” away. This manipulation of Cayman’s corruption legislation looks like the “Statutory” equivalent of grease. IS NOBODY PREPARED TO CONFRONT THIS ISSUE AND, MORE IMPORTANTLY, THIS MAN.
Retroactive laws are an extreme rarity and usually not enforceable. Imagine having a law against the use of EBANKS as a surname retroactive to 1900 or a law against owning a two door vehicle in Cayman or a Law that political parties were banned and if you started one you go to jail. Or even worst yet a retroactive law requiring income tax from everyone over 18 years old beginning in 1970.
I would have been extremely surprized IF the law would be retroactive. Plus I am not even sure why this made the news as this UK law only deals with British citizens living in the OTs bribing or attempting to bribe an official in the UK from what I understand. Seems totally irrelevant unless someone left here and went to the UK to bribe some MP. Highly unlikely.
This is 'fluff news' at best.
Retroactive laws are not extremly rare, when you live in Cayman. Examples are, the Roll-over was made with a two year retroactive, the Dolphin park law was made retroactive. It depends on what and whom you want to protect.
Rollover was not retroactive.
The issue here is that the Anti Corruption Law repealed and replaced corruption offences in the Penal Code without the proper transitional provisions so that one may either be prosecuted under the Penal Code or under the Anti-Corruption Law. Transitional provisions are perfectly enforceable. It is rare for legislation to be botched in the way that it has been so that no prosecution may be brought under either law for an offence which was committed before the Anti-Corruption Law came into force.
Retroactive laws are not enforceable where they purport to criminalise wrongdoings after the event. That is not the issue here. The allegations if proven would have constituted a criminal offence at the time of commission.
Rubbish!
If this is the best the UK and Cayman's "Powers that be" can do to address Corruption, then they are useless!
This is not a legitimate response by David Baines. Soliting and/or accepting a bribe is a crime and a prosecution could result from a "certain" investigation" if there is the will. The Proceeds of Crime Law could and should be used here.
Perhaps the FCO would rather it all just goes away. That is certainly the implication of keeping so mum.
Baines should consult a lawyer if he's having difficulty figuring out whether bribes are illegal. This is not rocket science.
Mr Baines would have been stupid not to have gotten legal advice before making such a statemnet. So I believe he did get legal advice, and I believe that his statement is coorect. Folks it is time to come off the bandwaggon.
Trump and Spade and a new Fridge.
And you should consult an attorney if you are trying to figure out how long a "retroactive' law would last in the courts! About 10 seconds max. Now that's not rocket science.
The common law is not retroactive. It is, it was, and it is enough to convict if you want to.
Steve mcfield perhaps.
Rubbish. Attempting to modify public expectations in this way simply will not work. While the recent legislation is definitely flawed the main problem with obtaining corruption convictions is the lack of any will to bring prosecutions. There are many common law corruption related offenses that have existed throughout all relevant times. The Proceeds of Crime Law (2008) s.78 specifies that unlawful conduct in relation to that law is determined simply on the balance of probabilities not on proof beyond reasonable doubt. Grow a pair and get on with it.
From the Urban Dictionary:
This is utter rubbish!
Much of the corruption that happens here in Cayman has a financial element to it.
These crimes can be prosecuted under the Proceeds of Crime Law or in some cases under the Anti-Money Laundering legislation.
Baines is simply setting the stage for Mr. Taylor to announce that charges will not be brought in "certain investigations".
Anyone with half a brain would expect nothing else from the Caymanian government. Why would anyone here expect laws to be followed, enforced, or any investigation to actually be done with and successful? Has this EVER happened here? Everyone should stop pretending to be outraged then the leadership of the Cayman islands can stop pretending to care.
I am sure that the absence of money for the investigation of corruption while legislators ample funds for luxury travel and double-dip pensions is pure coincidence.
So Willy Woka will walk free.
Wow, how convenient!!
More excuses.
Ifyou really want to conduct the investigations Mr Baines there are plenty of alternatives available.
Try misfeanace, false accounting, fraud or even that good old standby conspiracy.
It always seems to be someone else's fault when the job doesn't get done.
Horse manure! horse manure! horse manure! XXXX
This is the most corrupt government since creation. The RCIP system is obviously corrupt. What kind of bogus announcement or press release is this? Baines do you really think we were born behind a cow behind?
If this is your way of saying that XXXX walks Free. say it in plain English, no need to blame the UK or their laws. Baines you really think Caymanians are stupid? This is just a prefabricated announcement to fit some special interest and we know who!
What law have you been using all along to convict people? Your own? Man stop the nonsense! I don't buy into your story at all. Obviously you dragged it out purposely to ensure nothing happened.
You're all a bunch of XXXXXXXXXXXXX's
XXXXX
I don't believe any of our politicians ON THEIR OWN are shrewd enough to have understood the ramifications of repealing prior applicable sections. We merely need to revise the law to make it retroactive or alternatively un-repeal those sections.
But isn't the Police Commissioner in charge of allocating his department's resources to those areas that need coverage? A bit lame to claim he has no funds for critical units when he is the guy that allocates the budget.
Was that gap deliberately done? Politicians and lawyers are smart people and to leave a gap like that tells me someone was being smart and protecting someone's a–. It's disgusting. But you know what, the same way one law was made and repealed, another one can be made and the same one that they messed up should be amended saying that it applied to all years prior to 2010, because it had replaced the law prior to that year. Now let's see which politicians are in favour of that.
But the legislation was allegedly vetted by lawyers, working for the FCO in the UK, before being passed by the LA.
Makes you wonder if it's only people in the Cayman Islands who are covering their backsides doesn't it?
Soyou are inferring that politicians and lawyers should be dunces instead?
I think not.