Mandatory remand HR test

(CNS): The legal team representing Brian Borden, who is accused of killing Robert Mackford Bush in September 2011 in a West Bay gang-related shooting, are testing the legality of their client’s continued remand in jail before his trial in accordance with the mandatory provision in the law, which they believe contradicts the bill of rights. A petition in the Grand Court filed by the local firm last month is not only seeking the release of their client on bail until the trial but also a decision from the court that the current bail law is incompatible with the country’s bill of rights. If successful, the decision could see the mandatory remand of all murder suspects overturned.

Borden (27) will not go to trial until January next year as a result of various legal issues concerning the case, which caused the matter to be persistently delayed. This means that by the time of the trial, if he is not released, the West Bay man will have been imprisoned without trial for more than 18 months because, despite the presumption of innocence, Cayman law mandates that anyone charge with murder must be placed on remand until trial.

According to a petition filed in the Grand Court by Priestleys, the firm representing Borden, who has been in jail since his arrest in August 2012, the defendant was refused bail because the current law states that a person accused of murder is not entitled to it.

However, the lawyers point to the Bill of Rights, Freedoms and Responsibilities, which stipulates in Article 5 that no one shallbe deprived by government of liberty and anyone who is arrested or detained on suspicion of a criminal offence and who is not released “shall be brought promptly before a court”, and if any person detained is not tried within a reasonable time he shall be released.

With Borden now set to serve one year and five months on remand unless he is given bail, the lawyers pressed the human rights case in the petition, submitting that section 17(2) of the Bail Law is incompatible with the Petitioner's Right to Liberty, as enshrined by Article 5(5) of the Bill of Rights.

The petition states that the mandatory remand of Borden “unlawfully interferes with the presumption of innocence by repealing the entitlement to judicial consideration of the grant of bail,” and is inconsistent with the jurisprudence on the European Convention. They also note that the current imprisonment of their client goes against the right that is at the heart of all political systems that purport to abide by the rule of law and protect individuals against arbitrary detention because he has never had a proper bail hearing.

The lawyers claim that the current law presents an arbitrary ground for refusing admittance to bail where the European Court of Human Rights has clearly recognised only five grounds for refusing bail.

These include: the risk of the defendant absconding; the risk of the defendant interfering with the course of justice; preventing crime; preserving public order; and the necessity of detention to protect the defendant.

The lawyers also argue that Borden’s detention is in breach and in violation of his Right to Liberty as enshrined by Article 5(5) of the Bill of Rights as it continues under a law which is incompatible with those rights.

Seeking a declaration that the bail law is incompatible with Article 23 and 5(5) of the Bill of Rights, the defence lawyers ask the court to find that the detention of Borden is unlawful and in violation of his Constitutional Right and that “his right to liberty cannot abrogated arbitrarily and must be subject to judicial discretion”.

The goal for the legal team is to have Borden’s bail hearing be considered on the merits of the evidence against their client, the circumstances of the case and his likelihood of jumping bail and not based on an arbitrary rule which applies to all cases without consideration of the circumstances of the case but merely based on the charges alleged.

Borden is accused of being one of two masked men who opened fire on 28-year-old Robert Mackford Bush as he sat in a car at the junction of Capt. Joe and Osbert Road and Birch Tree Hill Road on 13 September 2011. Borden was one of several men arrested in the wake of the five gang-related shootings which took place over a period of around ten days that month but he was released soon after. However, he was arrested again based on new evidence almost one year later.

Although earlier trial dates were set as a result of issues, which are understood to relate to the crown’s case, the trial has been postponed on a number of occasions.