R v Whorms

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 28 April 2008
• Court: Grand Court (Cayman Islands)
• Date: 28 April 2008

Grand Court

(Smellie, C.J.)

R.

and

WHORMS

R.

and

CLARKE

Ms. N. Moore, Crown Counsel, for the Crown;

N. Dixey for both applicants.

Cases cited:

(1) Black-Clawson Intl. Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G., [1975] A.C. 591; [1975] 2 W.L.R. 513; [1975] 1 All E.R. 810; [1975] 2 Lloyd”s Rep. 11; (1975), 119 Sol. Jo. 221, dicta of Lord Simon of Glaisdale applied.

(2) Caballero v. United KingdomHRC(2000), 30 E.H.R.R. 643, applied.

(3) Ebanks (A.G.) v. R., 2007 CILR 403, referred to.

(4) Grant v. John A. Cumber Primary School (Principal), 2001 CILR 78, referred to.

(5) Ilijkov v. Bulgaria, E.C.H.R., July 26th, 2001, Application No. 33977/96, applied.

(6) R. (O) v. Harrow Crown Court, [2007] 1 A.C. 249; [2006] 3 W.L.R. 195; [2006] 3 All E.R. 1157; [2007] Crim. L.R. 63; [2007] 1 Cr. App. R. 130; [2006] H.R.L.R. 35, applied.

(7) SBC v. United KingdomHRC(2001), 34 E.H.R.R. 619, referred to.

Legislation construed:

Bail Law (2007 Revision), s.17: The relevant terms of this section are set out at para. 1.

s.18: The relevant terms of this section are set out at para. 2.

European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4th, 1950; Treaty Series 71 (1953)), art. 5(3): The relevant terms of this paragraph are set out at para. 9.

Criminal procedure-bail-entitlement to bail-presumption in favour of bail in Bail Law (2007 Revision), s.18 inapplicable to offences listed under s.17(2), but bail not prohibited or evidential burden shifted-onus remains on prosecution to show bail should not be granted-judicial discretion to grant bail for offences listed, considering factors in Bail Law, s.19, especially risk to public

Human rights-applicability of European Convention on Human Rights-significance for domestic law-bail-judicial discretion to grant bail for offences listed under Bail Law (2007 Revision), s.17(2), accords with European Convention on Human Rights, art. 5(3), which may guide interpretation of domestic legislation though not incorporated into domestic law

The applicants were both arrested in relation to firearms offences and applied for bail while in custody awaiting trial.

W was arrested upon being apprehended in a car with two others. A loaded firearm bearing his DNA was found under his seat in the car, together with certain items suggesting the three were involved in some kind of criminal enterprise. C was alleged to have been involved in a fight, during which he used a firearm to ‘pistol whip’ his victim.

Both applied for bail, although s.17(2) of the Bail Law (2007 Revision), when read in light of the long title to the 2005 amending Law, appeared to disentitle to bail those accused or convicted of firearms offences.

The applicants submitted that (a) s.17(2) did not impose a complete prohibition on bail in cases involving those offences listed; (b) it did not reverse the evidential burden, shifting the onus on to the defendant to satisfy the court that bail should be granted; it remained with the prosecution to satisfy the court that bail should not be granted; (c) the long title of the amending Law, which included the phrase ‘non-bailable,’ could not, in this case, be used as a definitive guide to the interpretation of s.17(2), and to infer from that phrase a complete prohibition of bail for those offences listed in that section, and a reversal of the evidential burden, would be incorrect; (d) to construe s.17(2) in such a way would be contrary to the European Convention on Human Rights, which might

serve as a guide to the construction of domestic legislation in the event of doubt as to its meaning, even though not yet incorporated into domestic law; and (e) art. 5(3) of the European Convention entitled those awaiting trial to the exercise of judicial power in respect to bail and such discretion should be exercised here, having regard to certain factors, including the rights of the applicant and the danger to the public; in the case of the first applicant, his established family ties in the Cayman Islands suggested that he was unlikely to abscond should bail be granted, and certain bail conditions would reduce the risk of his re-offending; and the case against the second applicant was weak and there was therefore a danger that, should he be found not guilty, he would have been unnecessarily imprisoned for a significant period of time, should bail not be granted.

The Crown submitted in reply that (a) s.17(2) denied the presumptive entitlement to bail granted by s.18, by effectively prohibiting the grant of bail in cases involving the offences listed, and also shifting on to the defendant the onus to satisfy the court that bail should be granted; (b) this construction was supported by the inclusion of the phrase ‘non-bailable’ in the long title of the 2005 amending Law, especially when read in conjunction with the words ‘not entitled to bail’ in s.17(2), as the long title of a Law could often serve as a guide to the interpretation of particular provisions of that Law; (c) although international treaties, such as the European Convention on Human Rights, might often serve as a guide to the construction of domestic legislation, this particular Convention had not yet been incorporated into domestic law, and therefore the Cayman Islands had no obligation to conform to its provisions; and (d) in any case, should the court exercise its judicial discretion pursuant to art. 5(3) of the Convention, bail should not be granted as there was a strong likelihood that both applicants would either re-offend or abscond, posing a danger to public safety which out-weighed the risk to them of unnecessary imprisonment for a significant period of time pending their trials, which were scheduled soon enough to reduce that risk.

Held, dismissing the applications:

(1) The applications for bail would be dismissed. Although the proper construction of s.17(2) of the Bail Law (2007 Revision) was to deny the presumptive entitlement to bail conferred by s.18, it did not imply a complete prohibition on bail in cases involving those offences listed. Similarly, it did not shift the onus of satisfying the court that bail should be granted to the defendant-the onus remained on the prosecution to show that bail should not be granted. To infer such a prohibition from the words of the long title of the amending Law (which could not always be regarded as a definitive guide to the interpretation of particular provisions), would have resulted in a drastic change from the law prior to the amendment, not intended by the legislature. In addition, such a construction, including a reversal of the evidential burden, would have been contrary to the European Convention on Human Rights, which could serve as a guide to the construction of domestic legislation in the event of doubt

as to its meaning, even though not yet incorporated into domestic law. Section 17(2)...