Judge notes growing challenges in criminal cases

(CNS): A Cayman Islands Grand Court judge has raised a number of issues faced by criminal courts in small jurisdictions with juries and witness protection. Speaking at a joint symposium of the Judicial Education Institute of the Eastern Caribbean Supreme Court and the Organisation of Eastern Caribbean State Bar Association, Justice Charles Quin said that with the rise of violent crime, balancing the rights of defendants was more difficult for small jurisdictions like Cayman than larger countries as they try to address problems of scared witnesses and jury selection. Justice Quin explored developments in criminal practice, such as judge alone trials and the controversial Witness Anonymity Order.

With growing pressure for solutions to violent crime in Britain, the House of Lords delivered a landmark ruling in 2008 that declared that the use of anonymous evidence was not in all circumstances incompatible with the European Conventions of Human Rights. This led to the introduction of a law allowing people to testify against a defendant without their identity being revealed to the defence.

Justice Quin said Cayman, like the UK, opted to abolish the common law right that a defendant in criminal proceedings can confront his accusers directly and introduced Witness Anonymity Orders. The orders are a practical alternative to the difficulties presented to the Cayman legal system of a witness protection scheme but they have raised controversies. Devon Anglin was recently convicted of the nightclub slaying of Carlos Webster based on two anonymous witnesses who gave evidence via a voice altered video link, where the witnesses were in silhouette.

However, Justice Quin emphasised the need for caution and pointed out that a judge who allows an anonymity order should not be the trial judge in that case. "An anonymity order should be regarded as a special measure of lastpracticable recourse,” he said, echoing the comments of the Lord Chief Justice of England & Wales.

He stressed the importance of a judge being careful about how an anonymity order would affect adefendant’s right to a fair trial and to give clear directions to juries where an anonymous witness has given evidence.

“The defendant's ability to advance his case and to undermine that of the prosecution is rendered unequal in some respects,” he warned. “There is also the possibility that a jury upon being instructed that a witness is to give evidence anonymously may assume that the defendant is of bad and dangerous character. The trial judge must give a strong direction to ensure that the jury does not make any assumptions adverse to the defendant or favourable to the anonymous witness,” he said.

Justice Quin spoke about judge alone trials and pointed out that several countries in the region had abandoned the right to trial by jury. But although Cayman had the option of judge alone trials, it was always an election by the defendant. He said trial by jury was the “jewel in the crown” or “the cornerstone of justice” and movements away all stemmed from the 1973 Northern Ireland Emergency Provision Act arising from the civil unrest and the potential impact on juror intimidation.

Justice Quin said that in 2003 England & Wales for the first time provided for trial on indictment without a jury in two different sets of circumstances – fraud trials and jury tampering. The provision relating to fraud trials was never used and was later repealed.  In Cayman, however, it is the defendants who often elect a judge alone trial at the 11th hour when they see who is on the jury that has been selected to try them because the community is so small.

“Although The Criminal Procedure Code (of Cayman) states that the defendant should give at least 21 days’ notice, what frequently occurs is that the defendant comes into court, he has a studious review of the jury panel, you then see him enter into deep discussion with his attorney and an application is then made for a judge alone trial,” the judge said.

“What happens in the Cayman Islands is, I am sure, very likely to happen in all smaller islands and smaller communities; the defendant sees one or more people on the jury panel who he did not expect to see and who he did not want to see. The court is faced with a late application, but I have always found to be fair to the defendant is the overriding consideration and consequently I have never refused an application for a judge alone trial,” Justice Quin added.

See Justice Quin's presentation below.