Archive for November 22nd, 2013
Wiretaps still not audited
(CNS): The Human Rights Commission (HRC) has issued a warning that until government puts in place the necessary audit committee to oversee the interception of telecommunication messages by the police, the public cannot have confidence that the wiretapping and other message surveillance being carried out by the RCIPS is lawful or proportionate. In the wake of allegations by the opposition leader Thursday in the Legislative Assembly that his emails, messages and phone calls were unlawfully intercepted, the HRC has queried why, more than 18 months after it was assured government was setting up the required audit commission, it still hasn’t been done and none of the RCIPS electronic snooping has been reviewed.
“Until the Audit Committee is established, the public cannot be sufficiently assured that the surveillance equipment and circumstances underpinning each instance of telecommunication message interception is compliant with the ICTA legislation or established human rights standards intended to protect against unlawful, arbitrary, and unreasonable interceptions,” the HRC said in a new report released to the media on Friday.
The committee raises a number of concerns in regard to the ability of the RCIPS to intercept messages with just a warrant from the governor for what are supposedly only for very serious crimes without any oversight.
McKeeva Bush, who is facing a number of charges under the anti-corruption law, revealed that all of his communication had been intercepted and the police had got hold of his personal bank and finance details. Although he was stopped from going further by the speaker because his case is still in the courts, the issue illustrates the concerns being raised in the community about how much, who and why the RCIPS is intercepting messages. The claim has been made by the deputy police commissioner, the governor and most recently the UK's overseas territories minister, Mark Simmonds, that the police powers to monitor or intercept private calls and electronic messages were for only the most “serious of crime” or “terrorism”.
With the potential of serious intrusion into an individual’s private life, the HRC said it was absolutely necessary for oversight to safeguard people from unlawful intrusion. It said the creation of an Interception of Communications Audit Committee was essential. It was now of concern that, although required by the Information Communications Technology Authority Regulations, which have been in force since 2011, such a committee has not been established
The committee was supposed to conduct an audit of all interception equipment and data records at least once every six months to determine whether interceptions were conducted in accordance with the law's relevant regulations.
Without that committee, the HRC said, it was impossible for the general public to be assured that the use of interception and communications data was properly authorised as an investigative technique and government was interfering in people’s privacy.
“The CI Government is required to refrain from interfering with a number of ways in which a person may express themselves … with a person’s correspondence or other means of communication. In general this means that you have the right to voice opinions and express your views subject to the rights of other persons,” the HRC stated in the report.
The commission said it had warned the former governor, Duncan Taylor that telecommunication message interception carry the potential for human rights infringements and indicated that it considered the Audit Committee to be one of the most important checks and balances in the process.
“For this reason, the HRC stated in its letter to former Governor Taylor that the appointment of members to the Audit Committee by the Governor-in-Cabinet, as per s.17 of the ICTA Law (Interception of Telecommunication Messages Regulations), 2011, should be considered a priority by the government as a means to providing a necessary layer of oversight to the process of telecommunication interception by the police service," the report reveals.
“On 22 March, 2012 the Deputy Governor responded to the HRC confirming that the (then) Portfolio of Internal and External Affairs was in the final stages of identifying members of the Audit Committee and indicated that the matter would go before Cabinet within the next thirty (30) days.”
However, eighteen months later and after repeated enquiries there is no committee, and the HRC described the apparent lack of willingness by previous governments to establish an Interception of Communications Audit Committee as “disconcerting” and pressed the new government to act to create this necessary layer of oversight.
Speaking in the House on Thursday, Premier Alden McLaughlin, who raised his own concerns about the lack of judicial oversight on this surveillance, pointed out that when the UK want something in this regard there is little that the CIG can do, but he said that he would be setting up the audit committee at the earliest opportunity.
Moves begin to make fake guns illegal
(CNS):Government has begun a consultation period to make the Firearms Law stricter and to help the police and crown secure convictions in cases where people have a fake gun in their possession or where any kind of unlicensed firearm has been merely handled by a suspect. The police are also seeking to have the power to stop and search suspects, their cars or homes without a warrant, based on suspicion of possessing a firearm. The public consultation on the redrafting of the Firearms Law began Friday and the community has until 18 Dec.to comment and offer their input on the proposed legislative amendment, which could prove to have severe consequences for anyone who comes into contact with a gun or has a toy firearm in their possession, even if they have no intention of using it to commit a crime.
Despite his own reservations in the past about the tendency for the authorities to want to pass stiffer laws that erode certain freedoms rather than improving evidence gathering, Premier Alden McLaughlin, who is an attorney and now the home affairs minister, has called on the public to take part in this consultation. He said the changes were aimed at addressing what appears to be a recent increase in gun crime.
“We are trying to address recent trends that we have seen come through the system. Public input will help to ensure that the legislation is as effective as possible,” Alden McLaughlin said in a release announcing the public discussion period.
However, the government has attempted to legislate itself out of crime waves before to no avail. The imposition of a mandatory minimum sentence of ten years for possession of an unlicensed firearm appears to have had little effect on the use of guns in crime and the amount of weapons that still seem be in circulation.
Speaking in the Legislative Assembly in 2010, ahead of a number of legislative changes relating to the criminal justice system, McLaughlin pointed to an “emerging trend” in changes to legislation that appeared to be designed to strengthen the hand of the prosecution and give the crown a better chance at conviction.
“There has been a trend by the attorney general over the course of the past few years to continuously and consistently adjust and amend the various pieces of legislation or to create new provisions to constantly strengthen the hand of the prosecution in relation to its conduct,” McLaughlin said in a debate about amendments to the Court of Appeal Law, which provided for the state to appeal cases on wider issues than just on a point of law.
He said at the time that this trend of amending legislation to make it easier for the crown to get a conviction was very worrying to all lawyers and those who cared about civil liberties because loading the legal system in favour of the state could undermine Cayman’s system of justice and democracy.
Nevertheless, he is now backing the amendments to the law, which will see the possession of fake, modified or even real looking toy guns become illegal and make a mere passing touch of a firearm a crime, as well as giving police more powers of search without a warrant.
Under the current legislation having an imitation gun is not a crime unless the police can show that the person who has it intended to use it to commit an offence such as a robbery. As a result, in order to lay charges against those that have imitation weapons in their possession the police must be able to also demonstrate that the suspects were planning to use it in a crime. The proposed legislation removes that requirement and makes the possession of anything that looks like a real gun or that has been modified to operate like a firearm illegal and could result in ten years jail time even if no other crime has been committed.
In the wake of a number of failed cases brought by the crown where suspects have been linked to weapons through DNA but where there has been not enough evidence to secure a conviction of possession of an unlicensed firearm, the authorities are seeking to improve the crown’s chance at conviction by introducing the crime of handling. This will remove the requirement for the prosecution to prove in court that a suspect was in possession of the gun and care and control of the weapon in question.
With the amendment the prosecution would just have to prove that they had touched it. Upon conviction, if the authorities succeed in creating this new crime, a person could go to jail for up to ten years.
The draft bill also lays out far greater powers of detention and search for police and customs officers. The legislation proposes that if any law enforcement official has a reasonable cause to believe that a firearm or bullet-proof vest may be concealed, they can search the person, their bag, car or home without first securing a warrant.
A copy of the proposed law is posted below and it is also available on the government website and on the courts' website.
Anyone wishing to comment on the law should send their contribution to Tesia Scott tesia.scott@gov.ky, or c/o the Attorney General’s Chambers, Fifth Floor,Government Administration Building no later than 18 December 2013.
Vote in the CNS Polls:
Should possession of a fake gun be illegal without proof of intent to commit a crime?
Should handling a gun be a criminal offence without proof of intent to commit a crime?
NBF grants 3x$ scholarships
(CNS): Some students who received education grants from former premier McKeeva Bush’s controversial Nation Building Fund (NBF) were receiving three and a half times the maximum scholarship given to students through the normal procedure administered by the Education Council. Several of the students receiving annual grants of around $70k are related to UDP members, including the former political advisor to Bush, the party leader. Premier Alden McLaughlin reluctantly revealed more details in the Legislative Assembly on Thursday about the NBF as he wound up the debate on the Strategic Policy Statement (SPS) following criticisms from Bush regarding the PPM's plans to reduce the grants for the 2014 academic year in line with other scholarships.
During his long response to the SPS, which focused mostly on his concerns about what he called the neo-colonialism of the UK and their unlawful tapping of his phone, Bush, now the opposition leader, also accused McLaughlin of not wanting to help Caymanian students and of playing politics by pulling the scholarship funding from those who received the grants under the NBF.
However, the premier hit back and said that so far the PPM had been discreet about what had really gone on with the NBF scholarships because it involved young people but the opposition leader’s criticisms of the government’s decision to regularize the grants demanded that he reveal the truth. Despite efforts by Bush to stop him on a point of order, the speaker pointed out that there was no point of order and allowed the premier to continue with the revelations, which were supported by documentation.
“It would be hard to conceive of a more disastrous programme or disastrous set of circumstances surrounding these grants,” McLaughlin stated. “There was little in terms of a system and the premier was the person deciding who got the scholarships.”
Pointing out that the fund would be the subject of an auditor general’s report, he said the scholarships have been given to some students who are not attending any institutions; ones for colleges that didn’t even exist and some students were receiving grants from other government sources as well as the NBF. He pointed to at least four students who were getting over $70,000 per year, more than three times the $20,000 annual maximum given to students on Education Council scholarships.
McLaughlin said the decision on who got what was made entirely by the former premier, with no proper systems in place. When a committee was finally established, he said, there was no one on it with education experience, and Bush still made the decision. The premier also revealed that when a proper application form was eventually drawn up with criteria that capped the scholarships at $25,000 per year, he still allowed the children of political supporters to go way beyond that.
McLaughlin said the grants were decided on the basis of who was able to speak to Bush, the premier at the time, and pointed to many grants being given to people directly associated with the UDP.
The premier said government was not stopping the funding because of politics, even though they had been given out under political circumstances; it was to create a level playing field. He explained that the students were still receiving the amounts they had been promised during this academic year, but next Autumn the grants would be reduced to $20,000, as it was blatantly unfair that the daughter of a UDP supporter got $70,000 per year to go to high school while other students in Cayman were waiting to get anything at all.
“There are students that can’t get a scholarship at all under the regular programme because the scholarship they should have got has been spent on students who got them under the Nation Building Fund with no checks and balances,” he said. “It was a complete and utter shambles,” the premier added as he described what his government found when they began to examine what was going on. “The then premier operated this out of his back pocket.”
McLaughlin suggested that the opposition leader had no grounds to criticise the current government for trying to regularize and create some equality, and with more than $13 million in the current budget for scholarships, the administration could hardly be described as not wanting to help Caymanian students. He also pointed to his own vision and commitment to education, which he said he was still taking licks for.
The review of the NBF scholarship, the premier said, was about the "inequity inherent in this programme”, which has given a small number of students huge sums of money while disadvantaging others. “It should not be down to which party you support; it should be on merit.”
McLaughlin challenged Bush to present the evidence that this programme was fair and transparent and he was not politically involved in every single grant. The way the NBF grants were given, he said, was the best example of how to destroy a nation rather than build it because favouring people on the basis of support for a politician instead of merit was divisive.
“We are not insensitive that these are young people with drive and that’s why we are not cutting off funding, but it can’t be on a different basis and we can’t continue a system not based on merit but how well you knew the premier.”
Although Speaker of the House Juliana O'Connor-Connolly had prevented Bush from interrupting the premier, when he had finished she allowed Bush to make a short statement, in which he said there was a committee of three people from his office and that applications for the NBF grants were referred to his chief of staff.
He said his only involvement was the final approval. The goal, he said, was to help as many people as possible and there were circumstances where some students needed more funding than others. In those circumstances, Bush said, a decision was taken depending on the benefits that may follow for the country.