Cops first to violate rights

| 19/04/2013

(CNS): A local judge has found that the human rights of a criminal suspect who was held for over six days in police custody in January of this year were breached when the RCIPS failed to produce the prisoner at a court hearing to extend his detention. Canute Nairne has been given an order by Justice Alex Henderson that his rights were violated, facilitating a further hearing for his claim for compensation. In the first human rights case in Cayman where a judgment has been delivered, the RCIPS has become the first government agency to breach the Bill of Rights and leave the public purse to pick up the compensation tab. 

Although Nairne’s custody was lawful to begin with, when the investigating officer applied to the chief magistrate, in accordance with the police law, to extend the period to hold him, the prisoner, who was arrested on a drugs charge at Owen Roberts airport and who was also a suspect in a murder investigation, should have been brought to court.

Justice Henderson found that the man’s continued detention without charge, based on the order made by the court in his absence, was unlawful.

According to the police law, in order for officers to keep a suspect longer than four days without charge to continue an investigation, they must apply to the courts for the detention to be prolonged up to a maximum of eight days. The Bill of Rights also gives everyone who has been arrested the right to be brought promptly before a court.

In his ruling set out below, the judge found that Nairne was notbrought promptly and his rights had been breached. He therefore made an order confirming that and paving the way for Nairne, who was eventually released without charge, to make a claim against CIG.

The judge also found that the 2010 Police Law is in conflict with the Bill of Rights, which came into effect last November. The judgment, which has been published on the court website, sets out the facts in which Nairne was a suspect, wanted in connection with drug crimes and was also for questioning in connection with a murder investigation.

At first he was detained for three days, as is allowed, as officers questioned him. A senior officer extended that time lawfully for another 24 hours. Henderson explained that section 65(4) [of the Police Law allows for that continued detention but it raises human rights questions.

“There is no obvious explanation for why the authorisation is to be given by a police officer rather than a court," he said. “Section 65(4) of the Police Law, 2010, is not compatible with section 5(5) of the Bill of Rights.” The Bill of Rights states that anyone who has been arrested or detained “shall be brought promptly before a court” and the Police Law allows officers alone to apply to the court for detention to be extended for a maximum of eight days before a suspect is charged, provided there is good reason.

Justice Henderson said that, as the application to hold the suspect in the investigation was made to the court without Nairne or even his attorney being there, his further detention was unlawful.

Despite claims by local authorities that all of Cayman’s legislation has been scrutinized in order to make it compatible, one of the most crucial pieces of legislation appears not to be. Henderson said that the provisions in the Police Law need to be reconsidered by the Legislative Assembly.

Anticipating future problems with other prisoners needing to be held longer and the need to bring them promptly before a court, Henderson suggested judicial officers need to be made available to hear court cases on statutory holidays.

See judgment here

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  1. Anonymous says:

    Firstly, before anything else is spoken, facts need to be given correctly. It  was not a murder investigation, nor was that what the arrest was for. ALSO the "arrest on a drug charge is incorrect because you can not be arrested on a charge if you have not been charged for that. (Suspicion and charge are two COMPLETELY different words and is vital in the court of law – In legal standing the facts need to be correct. So if CNS is not sure then don't assume. 

    There was no arrest made on the said person for anything to do with murder. I suggest they take that out. Other than that- This is the first time something like this has happened in Cayman and everyone deserves fairness, the judge's ruling is just and it is only the beginning. 


  2. Anonymous says:

    In one case Henderson has done more for human rights than the human rights commission. What exactly is the point of that “commission” any way? Just another joke that leaves none of us laughing.

  3. Anonymous says:

    Come on.

    This guy wasn't hung upside down by his toenails.

    He was held by the police for about 2 days beyond what the Human Rights law says he can be held.

    He was a foreign national in custody on suspicion of drug dealing and murder, not littering.

    it so happened there was not enough evidence to bring a case, but the police would not have arrested him for nothing. They must have had some suspicions.

    The human rights law should be amended in the case of serious crimes.

    • Diogenes says:

      I see.  So as long as you allege the offence is serious, you can then ignore human rights?  And if you are a policeman with "suspicions" you can lock someone up without access to the court? And of course without any recourse if it turns out that there was no evidence, or only evidence of a lesser crime.  Under your thinking they could lock up litterers if they wanted to – they would just have to assert that they "suspected" them of something serious.  Stop and think before you post.  You are a thin hair away from the thinking that if the police arrest someone they must be guilty.  

    • Anonymous says:

      If the laws are constantly amended to suit every case then there would be no need for laws – they should have made sure they had proper evidence supporting their suspicions instead of arresting then concluding there is not sufficient evidence – the police need to learn and understand the laws of these islands!!

  4. Greg Ebanks says:

    Bias reporting lack of intelligence!

    Anyone with a modicum of intelligence will know that it was not 'the cops' who were first to 'violate rights'.  As one correspondent has already outlined, the 'cops' upheld the law of this land… the Police Law 2010.  As the report says 'A senior officer extended that time lawfully for another 24 hours.' Key word, 'lawfully'.  

    This law was written by us, the people of this land and accepted as law by us, the people of this land in a democratic process.

    It is only now after Judicial Review that a certain section of the Police Law has been deemed incompatable with the Bill of Rights.  We, the people of this land, will now have to re write that section.

    Don't blame the cops, blame ourselves. No doubt more incompatability with our laws and the Bill of Rights to come…. we wrote them.

  5. Calico Jack says:

    Perhaps the question that ought to be asked is; At what point were the Police Command team advised that there were conflicts in the law?  My sources tell me that these discrepancies were highlighted to them and the DPP way back in 2010. There are more to come in due course, one only needs to take a good look at the 'new' traffic law to see more problems on the horizon.

  6. Anonymous says:

    When something Like this happens this reflects on the leadership in charge rcip! Carelessness & those who are not capable of handling their jobs should step aside for those who are able to! The law need to change carelessness that causes the cig $ needto foot the bill out of their pockets!


    • Anonymous says:

      The police applied to the Chief Magistrate – but didn’t bring the suspect before him. Shouldn’t the Chief Magistrste have know better!

  7. Anonymous says:

    This story has been reported unfairly. It would suggest that the police contravened the law. This is not the case. The police complied with the Police Law. This has been found to be incompatible with the Bill of Rights. This is for the legislators to amend. The police comply with the police law. This will have to amended to make it compatible with the Bill of Rights. This is exactly the same as The Human Rights Act in the UK, when elements of the Police and Criminal Evidence Act were found to be incompatible, there were lots of lawsuits until PACE was amended. The Police comply with the law that governs them. Here it is the Police Law. As a footnote there will undoubtedly be more challenges to the Police Law and many other laws, this does not mean law enforcement agencies are acting illegally, it just means the laws that govern them need to be amended to be Bill of Rights compliant.

    • Anonymous says:

      Speaking of PACE – long overdue for implementation here in Cayman (despite those both in and out of the force who claim it is).

    • Anonymous says:

      Sort of half right, if you read the judgment it seems that “in chambers” was being read as meaning, a hearing without the arrested person present, and that is not right,” in chambers” does not mean that. So it looks as if police were using “in chambers” as meaning not giving the arrested person the chance to challenge his or her detention…. That made the detention unlawful from that point on….It seems only a subsection of the law was declared incompatible, not the whole of the law. So only a small section needs changing according to the judge.

    • Anonymous says:

      The Attorney General boasted to everyone that his staff had done a thorough review and all the laws of the land were compliant with the Constitution. Pathetic.

  8. harsh reality says:

    This is just the beginning! I hope Henderson makes the payouts as hefty as the 1.2 million he received! Good Job Judge! Its high time the RCIPS eat a little humble pie!

  9. Anonymous says:

    Want to see how smart them police is?  Try giving them a statement!! 1/2 of them can't even read of write so how do we  expect them to know about human rights?

    • Anonymous says:

      Having had personal experience of this myself, I totally agree with you here.  When I read my own statement after the policeman had finished, I was thinking he'd given me someone else's – seriously!

  10. Anonymous says:

    How is it that with all this incompetence in government, the judiciary and the police, we, the people get to pick up the tab?

    It's bloody disgraceful.

    I hope we are not about to elect another bunch of politicians that are going to treat their positions as carte blanche to loose the strings of the public purse?

    Sorry, I forgot. They made a pledge.

    Yes, just like the ones before them and the ones before them ad nauseam. I am tired of stinking politicians, out-of-control police and inconsistent, biased judiciary.

    You have made so many laws, you don't know your a##es from a hole in the ground and then you bill us, so you can pay your exorbitant salaries as you lurch from one costly mistake to another.

    We are tired of excessive regulation. Can we have our basic freedoms back please?

    • Diogenes says:

      Like the basic freedom for the police to charge you, release you on bail, or get a judge to agree that you can be kept in custody, within a reasonable period of time  😉

    • The Justice League says:

      Where you find the laws most numerous, there you will find also the greatest injustice.

  11. Anonymous says:

    We need to sttop hiring any old riiff raff who shows up with big biceps and a hardened face and ensure that they are all aware of the laws and understand the meaning of the laws and who can read and write a proper statement, some don’t even know proper english in order to write a statement – most are just here for the pay and all the perks that come along with being employed with the RCIPS – no wonder the public has no respect for many of them! Hire properly trained and knowledgeaable individuals. I’m sick of people coming in just to scrape every penny they can!

    • Anonymous says:

      They need to learn to take proper statements too.  I recently acted as a witness to a crime and when the policeman handed me my statement to read over, I didn't even recognise it.  It contained so many inaccuracies and errors, indicated that I knew the offender by name (whichI didn't), and the version of events in the statement was nothing like the version of events I gave.  Even though I went to great lengths to correct this, the boy who was the victim is the one now being taken to court for defending himself against a madman – and the policemen let the madman walk free without charge because (they said) "there is nothing we can do about him".

      Great state of affairs.

      As for violation of rights, as a Brit in Cayman, I am horrified to learn that this is supposed to be an English policing system – because its NOTHING like it – bears hardly any resemblence at all.

  12. Anonymous says:

    I agree with Judge Henderson, but I can't miss the irony of his "false" arrest and then ruling against the RCIPS.

  13. Anonymous says:

    Are we surprised? These boys dont know the laws very well, much less HOW to do their jobs very well.

    • Anonymous says:

      Aren't they the same officers that Baines stated,  were the best officers, therefore the caymanians didn't stand a chance to be hired.

      He and the officers need to be shown the door.

      • Rorschach says:

        He goes back and forth depending on what his mood and needs are…one week the RCIPS is full of the best officers you can find..the next week their all illiterate and couldn't find their backsides with a search warrant and a flashlight..

      • Anonymous says:

        Then what? wait for the rush just like the Ritz job fair?

        If i remember rightly, three turned up looking for work and I expect one of those thought there was free food to be had!


  14. Anonymous says:

    At least one person in the legal system system appears to understand the true principles of Rule of Law.

    Government in general fails to follow and enforce laws uniformly.


  15. To: CoP Baines says:

    As Commissioner of Police, you need to get his act together. We are not living in the old nineteenth century days. The police service should be a professional organization where bullying, favoritism, and violation of rights has no place.  

    • Anonymous says:

      Same should apply in any workplace which, in many, it does not!

      • Anonymous says:

        And lets not even start to talk about the government – even further behind in the dark ages than anyone else!

  16. Anonymous says:

    Are we surprised RCIPS got caught out doing this? I'm just waiting for some of the cases to come to court where ex-pats have been held indefinitely on 'police bail' without being charged of any crime and had their passports confisctated. In many of those cases the excuse for what was effectively unlawful detention came down to 'RCIPS continuing investigations' but in fact the paperwork was just gathering dust on someone's desk.

  17. Anonymous says:

    That cockup isn't necessarily the police's fault; they followed the law on the statute books.  It is now for the legislators to ensure all laws are compatible with each other.


    • Anonymous says:

      A voice of reason..Thank you.!

    • Anonymous says:

      you are absolutely correct!  Lets be very clear about this, this is exactly the sort of thing that happened in the UK when their Human Rights Act was first introduced.  It almost brought the country to its knees.  They too were ill equipped for the HR when it was first introduced and even now it has made a mockery of fairness and the judicial system.  serious criminals have applied to stay in the UK on the basis of a child fathered in the UK and one for which they are not paying child support or even spending time with, but under the HR they apply not to be deported on the guise of Right to Family life.  The stories are horrendous and i doubt many would say that the BOR has worked in the UK.  Fair statutes were the right way to go.  Now common sense has gone out the window and we will join the UK in their plight.

  18. Annonymous!!! says:

    Only proves what we the public have been saying about the RCIP. Not all should be under the same umbrella, however some of them think that the badge allows them to take advantage of Joe public and they will go to lengths to get evidence that are tainted with no evidence of truth.

    Sorry but I have witnessed their unfair treating.

  19. Anonymous says:

    I see this as a good thing. The lines are clear now and everyone knows the rules. RCIPs now has to ensure it complies to avoid potentially costly cases again.

  20. Anonymous says:

    and who is in charge of the cops? how stupid are we…

    • Truth says:

      And who was the ones who voted in the biggest fools of all time to lead the whole mess?