BoR drives change to police power of detention

(CNS): Two legal challenges to the detention of suspects bypolice that saw the RCIPS falling foul of the Bill of Rights have resulted in major amendments to part of the Police Law (2010), which is scheduled to come before legislators when they meet later this month. The new bill will prevent police from detaining suspects arrested without a warrant for more than three days without the intervention of the courts. It will also require the arresting officers to justify and show evidence for detaining anyone they have in custody. The change makes the law more compatible with Cayman’s Bill of Rights, which requires that people who have been arrested on suspicion of a crime are brought promptly before the courts.

The law currently empowers police to detain suspects for up to 72 hours from the time of arrest when there is insufficient evidence to charge the person but where detention is necessary to complete an investigation. But it also allows a chief inspector or higher ranking officer to extend the detention for an additional 25-hour period before going to court.

However, in the case of Canute Nairne the courts found that the detention of the suspect for the fourth day was incompatible with the constitutional requirement of promptness in bringing detainees before the court.

In another case, which related to men arrested on suspicion of the Little Cayman robbery at the end of 2013, a local attorney drove the release of the suspects when he filed a writ of habeas corpus. As a result of what is understood to be a lack of evidence, the police released the men without the need for the legal hearing as it seems they were not in a position to legally justify continuing to hold the suspects.

With the courts finding in Nairne's favour and the obvious difficulty for the police in justifying the detention in the Little Cayman case, the incompatibility between the police law and the Constitution came into stark focus. As a result, under the Constitution, legislators must move quickly to alter the legislation to bring it in line with the Bill of Rights, which as part of the Constitution is a higher law. Therefore, the power to add on the additional day of custody by a senior officer will be repealed.

The amendments will also address and clarify the procedures police must follow when taking anyone into custody without a warrant. Custody officers will now be required to make periodic inquiries regarding the detention of suspects and allow the detained person to make oral representations regarding that detention. The custody sergeant must then record those representations and the grounds for the suspect's continued detention. The amendments also clarify how suspects who are in hospital or who require medical attention during their arrest should be treated.

James Stenning, the local attorney who filed the habeas corpus writ in the Little Cayman case, said he welcomed the proposed revisions to the Police Law (2010) but lamented the missed chance to modernise the legislation even further.

“The amendments appear to attempt to contribute to ensuring that the state, which includes the RCIPS as an agent of the same, is in compliance with our Constitution’s Bill of Rights. This observed, I fear the real impact of any amendments to the police law may well be lost … until law enforcement agencies appreciate the necessity at a senior management level to invest in ensuring observance of these proposed changes to the law, as well as residents' legal rights generally,” he said.

Stenning said the proposed changes were a step forward but Cayman had missed the opportunity to adopt the majority of the Police and Criminal Evidence Act 1984, known as “PACE” within the UK, as Cayman’s police law.

“In my mind, including some of my colleagues, the rhetorical question remains: why are we reinventing the wheel?” Stenning asked. “Many of our local police officers, prosecutors and defence attorneys are familiar with PACE. There is a plethora of case law available to aid its interpretation and application in numerous, and sometimes novel, circumstances. If PACE were adopted as our police law, it would allow us to avoid, or at least reduce, the expense (often on the limited Legal Aid budget) of re-arguing points that have already been determined over the last 30 years.”

He also said that the adoption of PACE would ensure less declarations of incompatibility with the Constitution’s Bill of Rights, given that potential issues are highly likely to have been encountered and addressed by the UK courts already, as PACE’s compatibility has been considered against the UK’s Human Rights Act 1998 over the past 16 years.

The changes to the law will not prevent the police from detaining genuine suspects but it will ensure that every step of the way the detention is properly justified and recorded and that the courts are involved at the earliest opportunity to confirm the legality of any arrest.