CJ finds bail law lines up with human rights

(CNS): A murder suspect who has been in jail on remand for almost 18 months has failed in his bid to have the bail law declared incompatible with the Bill of Rights and the Constitution. In a ruling delivered on Christmas Eve following a judicial review that was heard in September, Chief Justice Anthony Smellie found that the law did not clash with a person’s rights to liberty enshrined in the constitution. Brian Borden, who is due to stand trial on Monday for the murder of Robert Mackford Bush, had argued via his attorney, Nick Hoffman, that the bail law was disproportionate because of the presumptive denial of bail for murder suspects, and many others under Cayman Islands Law, claiming it breached human rights.

While the law does remove the entitlement to bail of people charged with a long list of offences it does not prevent them from applying and demonstrating why they should not be held on remand.

The Chief Justice Anthony Smellie, dismissed the application and said that, “notwithstanding the purported disentitlement to bail expressed in section 17(2),” it should “appropriately be read down to make it compliant with the Bill of Rights requirement of prompt and continuing judicial oversight, when the court will be entitled to account of all relevant considerations pointing for and against the grant of bail for any of the listed offenses.”

He added that any lack of clarity or ambiguity was neither disproportionate nor arbitrary and
“not incompatible with the Bill of Rights.”

Given that the hearing and subsequent ruling came relatively late in the day for Borden who will begin his trial on 20 January the case has implications for other inmates held on remand for murder or various other serious offences.

Althoughthe law does not mandate that murder suspects must be on remand it is almost unheard of for the courts to release anyone on bail who is charged with killing another individual. Regardless of the standard of evidence or circumstances surrounding the case or the allegation, in each and every bail application the crown simply argues that the mandatory penalty of a whole life sentence for any person convicted of murder here makes them a significant flight risk and the courts rarely if ever disagree.

Hoffman had argued that the bail law denied certain defendants the right to be considered innocent until proven guilty. By listing offences where bail should be denied until the defendant could prove why they should be let out, the law was disproportionate because it already sets out the reasons why people should be denied bail in the interests of justice regardless of the crime.

When people apply for bail the crown can argue legitimately that someone should not be bailed for various reasons whatever offence they have been accused of they can point to overwhelming evidence, a genuine flight risk of a foreign national, the danger they will commit another crime or interfere with witnesses among other statutory reasons. Hoffman submitted that there was no need for the law to add to that list with specific offences which was essentially overkill.