Archive for November 20th, 2013
Bank robbery case stalls
(CNS): The trial of three men and the sentencing of a fourth over their alleged part in a conspiracy to rob a branch of Scotia Bank in George Town last May has stalled as a result of a number of significant problems relating to the disclosure of documents to the defendants and other legal issues. Although the crown laid out its broad case against James McLean, Christopher Myles and Kevin Bowen on Wednesday, the case was quickly stalled due to some major issues that threaten the crown’s case against the men. The trial was adjourned until Friday, when lawyers will be making various legal arguments before Justice Alex Henderson, who is presiding over the case without a jury.
The three men are accused of conspiracy in connection with the daylight bank heist, in which masked robbers made off with an undisclosed sum, but they are not accused of robbery or possession of imitation firearms.
The hold-up happened at the bank located in Cardinal Avenue in downtown George Town on a busy cruise ship day. The masked men, two of whom were armed with what appeared to be guns, entered the bank at around 11:45am on 3 May 2012. The robbers threatened staff and customers before making off with an amount of cash that has never been disclosed.
Director of Public Prosecutions Cheryl Richards, QC, told the court that David Parchment, the fourth man who has pleaded guilty to accessory charges in relation to the case, is the crown’s key witness and his testimony forms the basis of the case against the other three men, but there is no other corroborating evidence.
Richards said the case hangs entirely on Parchment’s account. The co-conspirator alleges that the three other defendants offered him money to borrow his car for a job. Parchment claims that he agreed but he never knew what that job was until he saw the picture of his car in the local media outside the bank.
Parchment’s car was caught on film by a cruise ship tourist, who handed the picture to the local police. It also showed one of the masked robbers getting into the getaway car as the men fled the bank with the money, which does not appear to have been recovered. Although the robbers appeared to have changed the licence plates during the commission of the crime, they overlooked the road fee sticker, which displayed the car's correct license plate, tracing it to Parchment.
Although he had at first told police his car had been stolen, during an interview a few months later he was said to have told the police that McLean, Myles and Bowen had paid him $1,600 after the robbery for the use of his car. Despite being promised $4,000, Parchment claimed he was given a lower cut as the men said they did not get as much as they had hoped but they reassured him that they had wiped the car clean.
Having pleaded guilty and expected to give evidence for the crown against the other three, Parchment’s sentencing hearing was postponed until Monday as the court heard that it is common practice to wait until a defendant who becomes a prosecuting witness completes his evidence before sentence is passed for his part in the offence.
HRC: Life sentences must end
(CNS): The Human Rights Commission has warned that government needs to tackle the issue of mandatory life sentences for murder without the chance of parole before it is challenged in court and it is forced to adopt an inappropriate model for Cayman. In a new report the HRC makes it clear that the concept of whole life sentences with no chance of release runs contrary to Cayman’s own Bill of Rights as well as the European Convention. However, government has appeared reluctant to tackle the issue, which the HRC and its predecessor, the Human Rights Committee, warned would need to be addressed once Cayman adopted a bill of rights and as a result of findings by the European Court of Human Rights.
The publication of the HRC report, entitled "Whole-Life Sentences — The Impact of Human Rights and the Need for a New Model", comes in the wake of a petition filed in the Grand Court last month challenging a life sentence handed down to 22-year-old Tareek Ricketts, who was recently convicted of the murder of Jackson Rainford in a fatal shooting, which the crown had painted as a jealousy killing.
Ricketts, like all of those convicted in a Cayman court of murdering another person, regardless of the circumstances or number of people killed, was given a mandatory life sentence with no chance of parole. Unless Ricketts can mount a successful appeal against his conviction, as the law currently stands, his only chance of ever leaving prison alive is in the hands of the governor.
However, the concept of the mandatory life sentence falls foul of section 3 of the Cayman Islands 2009 Constitution’s Bill of Rights, which is now in force, and section 3 of the European Convention on Human Rights, which deals with an individual’s right not to be subjected to torture, inhuman and degrading treatment or punishment.
The HRC said that when a defendant’s continued imprisonment could no longer be justified under any legitimate penal rationales, there is a violation of an individual’s right and has warned that government needs to change the law to introduce a tariff system that will allow a judge to determine the minimum time a convicted killer serves behind bars before he will be released.
Although this does not signal a date of release, it gives a prisoner the chance to go before a board and allow them to review the circumstances of the case after the prescribed tariff. When there is still a danger to the community or other reasons for keeping the prisoner behind bars, then the sentence can continue but there is a constant goal for an inmate to work towards a possible release date and a motivation for rehabilitation.
The report notes that on the surface ‘life without parole’ as a sentence for murder seems to be a logical punishment, but the HRC points to evidence to doubt the efficacy of using such principles of distributive punishment.
“The HRC is concerned that a lack of willingness by the legislature to grapple with this serious and sensitive issue will lead to the Cayman Islands being forced to adopt a system from another jurisdiction,” the report warns, which it said would undermine the chance to tailor a tariff and parole system to Cayman’s unique circumstances.
“The HRC has reached out to the past and current government in an effort to bring attention to the fact that the Cayman Islands is at a point in time whereby, although limited, a window of opportunity is still available to find an appropriate balance and construct a human-rights-compliant life sentence tariff system that protects the rights and freedoms of the community while protecting the inherent dignity of the individual in accordance with the BoR,” the report notes.
CNS has contacted the premier’s office and government officials in the Home Affairs Ministry to find out where government is with the issue but has not yet received a response.
Removing the mandatory whole life sentence is unlikely to draw wide support from the community, and is in fact more than likely to draw condemnation, which makes it a sticky issue for politicians who depend on the voting populace for their jobs. In addition, with several members of legislature still lamenting the removal of the death penalty, the tariff issue is not one that government will find easy to steer through the legislative process.
However, if the courts find in Ricketts’ favour, that the mandatory sentence he faces is incompatible with the Bill of Rights, which many local experts believe is extremely likely, the issue of resolution will be placed in the hands of lawmakers to remedy. The HRC also notes that all 19 of Cayman’s ‘lifers’, one of whom is serving a life sentence for multiple rapes but not murder, are entitled to challenge the whole life sentence in the courts
In addition, while the benefits of introducing tariffs may not be immediately apparent to the wider populace, there are many sensible, as well as human and moral reasons for introducing them.
The current sentence gives no room for the opportunity or incentive for redemption or rehabilitation, nor does it offer the courts any flexibility, when it is obvious that not all murder cases are the same.
“Perhaps the strongest objection to mandatory whole-life sentencing is that it is ablunt sentencing tool, which applies the same sentence to all offenders who have committed the same crime without due regard to the principle of proportionality,” the report from the HRC notes.
It also reminds legislators and the community that Cayman, as a party to the European Convention on Human Rights and a country with a Bill of Rights built on that convention, can ill-afford to ignore the reality that whole life sentencing is, by all indications, violating people's fundamental human rights. With what it describes as an “increasing overlap between punishment and human rights concerns”, the HRC states that Cayman must progressively reform the existing life sentence with the support of evidence-led policies and legislation that facilitate human rights compliance, as it is currently in conflict.
The commission states that tariffs empower judges to proportionately respond to the circumstances of each particular murder conviction when handing down a sentence. The concept of a minimum term allows a sentencing judge to consider the broad circumstances of the particular murder and recognises that not all murders are the same.
In addition, a tariff system would allow some leniency for those that admit their guilt and avoid the need for trial. At present, no one charged with murder ever pleads guilty because there is absolutely nothing to be gained in doing so and everything to be lost.
It would also give the prison authorities a carrot and a stick to encourage inmates serving life to do their time without further trouble. A recent example that the authorities face is the sixth escape of Steve Manderson. Without any chance of ever being released there is no incentive for Manderson to give up his jail breaks. Since the normal punishment of adding time to a sentence is impossible for a lifer, there is little that the authorities can do to manage such prisoners other than keep them in high security conditions at all times.
The issue will be a challenge for government regardless. Changing the law will not be popular with voters but not changing the law could lead to costly law suits before the UK is likely to impose a tariff system without any input from local legislators. The HRC points out that sooner or later this issue must be addressed.
Ethics board still waiting to be taken seriously
(CNS): The seventh report of the Commission for Standards in Public Life, made public on Monday when it was tabled in the Legislative Assembly some three months after it was written, demonstrates that the ethics watchdog is still struggling to be taken seriously. Despite the many concerns raised since its formation in early 2010, very few of the commission’s recommendations have been acted upon and it is still waiting on the necessary legislation to give it teeth and the power to deliver on its constitutional mandate. The report also reveals significant concerns about the continued problems on public authority boards and the failure of member to be held accountable or reveal their potential conflicts of interest.
Ironically, late delivery of its reports to the LA and ultimately the public is the first issue dealt with in the commission’s report. It points out that during the period before it was written the ethics board had repeated the request that its reports are, as required by the constitutional mandate, laid before the Legislative Assembly as soon as possible. Despite the commitments made by the authorities concerned that the reports would be submitted on a timely basis, this report still took more than threemonths to be presented and made public.
“During the previous reporting session the Commission was concerned by the amount of time it was taking for its reports to be tabled in the Legislative Assembly,” the report noted. “The Commission maintains the view that there is no reason why the reports should not be submitted directly to the Legislative Assembly.”
In an effort to speed up their publication the commission said it took steps to obtain the advice of the attorney general and met with the former speaker of the House about the necessity for the reports to go to the deputy governor and then to Cabinet before they went before the Legislative Assembly.
However, these efforts appear to have been in vain as the report, which was only made public this week, is now more than three months old.
As well as concerns over the delay in the report’s public circulation, the commission is still waiting for the law, which it highlighted as a priority in 2010 with the publication of its first ever report. Now, well over three years later, the draft bill has only just reached the LA and is open for public scrutiny. The final draft had been submitted to the deputy governor almost twelve months ago and put before the minority PNA government following the fall of the UDP administration. However, it did not make it through the ministerial meetings and was deferred a number of times. It is not clear of it was rejected by the five ministers at the time or whether it was simply not discussed.
As a result, the proposed law languished as the country was sucked up into the election campaign. Following the PPM's election to office however, the bill has since been steered through Cabinet and is expected to be debated in January. The commission said it was encouraged by the approach of the newly elected government and its commitment to enact the legislation.
“Since taking office, the new administration has indicated a strong willingness to ensure the SPL Bill is passed into law,” the report states.
Among the many other issues that the commission raises in this latest report, many of which have been repeatedly raised in previous reports — and apparently repeatedly ignored — is the pressing need to deal with the boards of government companies and statutory authorities, where at best conflicts of interests and at worst actual corruption have been repeatedly highlighted by the local media and the auditor general, but nothing has been done.
“The Commission strongly believes that requiring all persons in public life to declare their interests and to take appropriate steps, such as not participating in the discussion or decision making process and leaving the meeting during such conflicts, when a conflict arises will bring much needed transparency to the real and perceived conflicts of interest that are present currently on a number of boards and committees,” the report reveals. It goes on to express further concern that board members must be properly appointed and "must be held accountable for their actions and decisions".
The commission said it remained committed to its ongoing efforts to establish procedures for appointing members to public authorities, and the terms of such appointments.
The commission states that the register of interest for boards should show current or future conflicts of interests and the declarations should become public documents.
See full report below and proposed bill
Community urged to help stamp out corruption
(CNS): In its annual report for the fiscal year 2012-2013 the Anti-Corruption Commission (ACC) is calling on the people to help by reporting wrongdoing and taking a stand against corruption. ACC Chair David Baines, the RCIPS Commissioner of Police, states that corruption exists at all levels and fighting the complexities associated with this type of crime requires ownership of the problem by a cross-section of the community. The report reveals that since its establishment the commission has so far only achieved one conviction, which was against an RCIPS civilian staffer who gave out information from a database. However, at the end of the last fiscal year there were 19 active cases and two people awaiting trial in the Grand Court.
Although the report gives no details regarding the cases it is investigating or any information about the 31 complaints it has received, it reveals that twelve letters were served for the production of warrants during the last fiscal year and that 82 interviews were conducted, with 14 reports being filed with the legal department.
Looking ahead, the report indicates that the commission has a difficult job in securing convictions and highlights the increasingly complex approaches required to intervene and prevent corruption but points to the need for public authorities to do their part.
“The ACC will continue to actively do their part to receive and investigate allegations of corruption in line with the Anti-Corruption Law (2008,” the reports states. “In combination with the Commission’s efforts, however, the ACC calls on public authorities to demonstrate their stance against corruption by taking a committed interest in the implementation of strategies, including greater internal controls, staff training, and the building-up of an organisational culture marked by professionalism, integrity, and ethically-sound decision-making."
New budget cycle to start with SPS
(CNS): Legislators will be back in the country’s parliament Thursday for the delivery of the government’s Strategic Policy Statement, signalling the start of the new budget cycle. Although government passed its full budget just a month ago, the process for financing the running of the Cayman Islands for 2014/15 begins with the presentation of the SPS, as required by the Public Management and Finance Law (PMFL), which outlines the administration’s goals for the next fiscal year. Premier Alden McLaughlin has stated on a number of occasions that the preparation of the budget process dominates the government’s fiscal year to such an extent that it would be better to preparea four-year spending plan.
Both the governor, Helen Kilpatrick, and the overseas territories minister, Mark Simmonds, when he was here in Cayman earlier this month, have said that they are not opposed to the concept of a four-year budget.
As government has to look ahead when planning its fiscal policy beyond the boundaries of the year it is working in, a budget cycle that covers the full term of an administration would free government officials to concentrate on delivering the policies and improving the state of public finances.
Although the idea appears to have support from the UK, there has been no indication yet from the PPM administration if it intends to amend the PMFL so that it can deliver a budget next spring that would carry the government through to the next election.
Government is expecting to end the 2013/14 fiscal year in June with a more than $100 million surplus and McLaughlin will be basing the statement for the next year on that coming to fruition.
The surplus will also play a part in shaping the policies for the PPM’s second year in office. The statement will also provide an opportunity for the premier to give some indication of how the public purse currently stands as government approaches the halfway mark for the fiscal year.
Top student turns to robbery
(CNS): A 21-year-old man who was once a top student and the best achieving male in the school when he attended George Hicks admitted robbing a Bodden Town pawn shop last year with a modified flare-gun when he appeared in court for sentencing on Tuesday. Aaron McLaughlin, who, the court heard, had never committed any crime before, had gained ten GCSEs at school and had been an upright member of the community until he committed the robbery at Cashwiz in May 2012. For his first offence McLaughlin opted for a particularly serious crime; he entered the store wearing a black mask over his face, gloves and carrying an imitation handgun and stole over $600 and a gold ring.
Revealing the facts of the crime before Justice Charles Quin, crown counsel Candia James said that after threatening and terrifying the male and female staff in the store at the time, McLaughlin fled with the stolen goods in a bag.
Immediately after the robber left, a member of staff called the police and a patrol car soon spotted a suspect not far from the scene. Sweating profusely and looking like the man described by the victims of the robbery, McLaughlin was asked by the police to stop and speak with them. However, he took off running. The police gave chase and the officers cornered him in a condo parking lot, where he threatened one of the officers with the handgun.
“I will shoot you, I will shoot you,” he reportedly said to the officer.
Although it was later discovered to be a modified flare gun, which firearms experts confirmed was not capable of firing without exploding in any would-be gunman’s hands, at the time the unarmed officer had no idea that it was not real.
The prosecuting attorney said the officer was frightened for his life and put his hands in the air and begged the gunman not to shoot. At the same time the police helicopter came on scene overhead and McLaughlin reportedly threw away the gun and took off again. But this time the female police officer from the patrol car jumped him and tackled the robber to the ground. He was arrested and the money, jewellery and firearm were recovered.
He was later charged, and following a long delay while both defence and the crown waited on expert testimony regarding the imitation firearm, in September this year McLaughlin pleaded guilty to the crime.
As he pleaded his client’s case, Clyde Allen said that McLaughlin had been an outstanding student when he was at school, winning awards for academic prowess as well as being an outstanding athlete. But something happened to him in the few years after leaving school to the time he committed the robbery, when he was still only 20 years old. Allen also noted that prior to the robbery McLaughlin had been inexplicably fired on by an unknown gunman.
Having heard submissions from both attorneys and clarifying that McLaughlin was comfortable with his plea after a social enquiry report had implied he may have had reservations, Justice Quin said that he would take time to consider the circumstances and deliver his sentence ruling on 2 December, as he remanded McLaughlin back into custody.