Re Borden

JurisdictionCayman Islands
CourtGrand Court
Judge(Smellie, C.J.)
Judgment Date24 December 2013
Date24 December 2013
Grand Court, Civil Division

(Smellie, C.J.)

IN THE MATTER OF THE PETITON OF BORDEN

N. Hoffman for the petitioner;

Ms. J. Wilson, Solicitor General, and Ms. J. Catran, Crown Counsel, for the Attorney-General.

Cases cited:

(1) Att. Gen.”s Ref.(No. 2 of 2001), [2004] 2 A.C. 72; [2004] 1 All E.R 1049; [2003] UKHL 68, referred to.

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

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

(4) Hurnam v. State of Mauritius, [2006] 1 W.L.R. 857; [2005] UKPC 49, applied.

(5) McKay v. United KingdomHRC(2007), 44 E.H.R.R. 41, applied.

(6) Nairne, In re, 2013 (1) CILR 358, considered.

(7) Noordally v. Att. Gen., [1986] M.R. 204, referred to.

(8) Pélissier v. FranceHRC(2000), 30 E.H.R.R. 715, referred to.

(9) R. v. Morin, [1992] 1 SCR 771, referred to.

(10) R. v. Whorms, 2008 CILR 188, followed.

(11) R. (O.) v. Harrow Crown Ct., [2003] 1 W.L.R. 2756; [2003] EWHC 868 (Admin); on appeal, [2007] 1 A.C. 249; [2006] 3 W.L.R. 195; [2006] 3 All E.R. 1157; [2007] 1 Cr. App. R. 9; [2006] UKHL 42, followed.

(12) SBC v. United KingdomHRC(2002), 34 E.H.R.R. 21, considered.

(13) Saadi v. United KingdomHRC(2008), 47 E.H.R.R. 17, considered.

(14) Winterwerp v. NetherlandsHRC(1979), 2 E.H.R.R. 387, referred to.

Legislation construed:

Bail Law (2007 Revision), s.17: The relevant terms of this section are set out at para. 9.

s.18: The relevant terms of this section are set out at para. 9.

s.19: The relevant terms of this section are set out at para. 9.

Cayman Islands Constitution Order 2009 (S.I. 2009/1379), Schedule 2, Part I, s.5: The relevant terms of this section are set out at para. 16.

s.7(2): The relevant terms of this sub-section are set out at para.16.

s.23(1): The relevant terms of this sub-section are set out at para 5.

s.25: The relevant terms of this section are set out at para. 5.

s.26(1): The relevant terms of this sub-section are set out at para. 6.

European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 5th, 1950; Treaty Series 71 (1953)) (Cmnd. 8969), art. 5(3): The relevant terms of this paragraph are set out in the Schedule at the end of this judgment.

Criminal Procedure-bail-Bill of Rights-Bail Law, s.17(2) not incompatible with Bill of Rights-s.17(2) to be read down to conform with Bill of Rights as well as ECHR-principles from pre-Bill of Rights case law still authoritative and persuasive-(i) no prohibition on granting bail for listed offences implied by s.17(2); (ii) s.17(2) to be construed not to shift onus to defendant to satisfy court bail should be granted; (iii) existence of judicial discretion envisaged exceptional circumstances might be required for defendants accused of listed offences to be granted bail

Criminal Procedure-bail-Bill of Rights-Bail Law, s.17(2) not incompatible with Bill of Rights as can be administered in proportionate and rational manner and does not require judges to act in contravention of Bill of Rights or compel them to make arbitrary or disproportionate decisions by virtue of extensive list of offences

Criminal Procedure-bail-Bill of Rights-principles adopted for future guidance in ensuring bail hearings compatible with Bill of Rights

The petitioner sought a declaration, under s.23 and s.25 of the Constitution, that s.17(2) of the Bail Law was incompatible with the Bill of Rights.

The petitioner was in custody awaiting trial on an indictment alleging the offences of murder and unlawful possession of a firearm. His

application for bail was refused. He challenged both the ruling denying him release on bail and the provisions of the Bail Law (2012 Revision) under which that ruling had been made, on the basis that those provisions were incompatible with the Bill of Rights.

He submitted that (a) s.17(2) removed the presumptive entitlement to bail for defendants accused of offences listed in that section, thus impermissibly shifting on to the defendant the burden of proof as to whether bail should be granted, contrary to the constitutional right to liberty and a presumption of innocence; (b) the offending section removed the right of the accused to have his ongoing detention considered by a court by prohibiting the grant of bail in certain circumstances; (c) the case law which had held that the Law could be read down to be compatible with the European Convention on Human Rights was no longer authoritative as there was no direct assimilation between the notions of compatibility in the ECHR, which was not incorporated in domestic legislation, and in the Bill of Rights, which was enshrined in the Constitution. Further, that case law was premised at least in part on English cases, where certain previous convictions purportedly disqualified a defendant from being released on bail, whereas in the Cayman Law, the lesser justification of a serious present charge was used. In the light of the demanding standard required by the Bill of Rights, simple reading down was no longer possible and s.17(2) should be declared incompatible with it; (d) the reasoning in the previous case law was also inadequate in requiring ‘exceptional circumstances’ to justify the grant of bail in cases where the defendant was accused of one of the listed offences, as no such requirement was stated in the Law itself; and (e) that since s.24 of the Constitution rendered legislation incompatible with the Bill of Rights if a public official would be forced by that legislation to make a decision which was disproportionate or arbitrary, the expansive and random list of offences in s.17(2) did force judges to make decisions which were arbitrary and disproportionate.

The Crown submitted in reply that the pre-Bill of Rights case law was still applicable as the Bill of Rights and the ECHR shared a common legal heritage, and s.17(2) should be read down accordingly. The principles remained authoritative and persuasive that (i) s.17(2) could not properly be construed as implying a complete prohibition on the grant of bail in cases involving the offences listed; (ii) in order to be compatible with the ECHR, s.17(2) should be construed in such a way that it did not shift on to the defendant the onus of satisfying the court that bail should be granted; and (iii) the existence of a judicial discretion in granting bail meant that exceptional circumstances might be required before defendants in cases involving the listed offences were granted bail.

Held, dismissing the petition:

(1) Section 17(2) of the Bail Law was not incompatible with the Bill of Rights. The principles from the earlier, pre-Bill of Rights case law remained authoritative and persuasive after the enacting of the Bill of

Rights, namely that (i) s.17(2) did not imply a complete prohibition on the grant of bail in cases involving the offences listed; (ii) in order to be compatible with the ECHR, s.17(2) should be construed in such a way that it did not shift on to the defendant the onus of satisfying the court that bail should be granted; and (iii) the existence of a judicial discretion in granting bail envisaged that exceptional circumstances might be required before defendants in cases involving the listed offences were granted bail. The result was that s.17(2) should be read down so as to be in conformity with the Bill of Rights as it was read down to be in conformity with the ECHR. The discussion of ‘exceptional circumstances’ in the case law referred only to guidance on how the judicial discretion might be exercised in cases involving the offences listed; no fundamental difference of approach was required in cases involving the listed offences, and defendants accused of those offences remained entitled to the presumption of innocence with the legal (if not evidential) burden of establishing that bail was not justified remaining on the prosecution. The grant of bail remained the default position. The Law could be administered in a proportionate and rational manner and did not require judges to act in contravention of the Bill of Rights or compel them to make decisions which could be characterized as arbitrary or disproportionate by virtue of the extensive list of offences in s.17(2) (para. 36; paras. 38–48; paras. 54–64).

(2) The following principles should be adopted for future guidance: (i) it was imperative that a detained person be brought promptly before a judge in the days immediately following his arrest and little flexibility would be afforded in this regard-likewise, the first review had to be an automatic event and not dependent on an application from the detained person; (ii) the first hearing had to be capable of ordering the release of the detained person, hearing his submissions and reviewing the lawfulness and justification of the arrest and detention; (iii) the first hearing did not have to consider his release pending trial for reasons other than the lawfulness of the detention or the existence of reasonable suspicion that he had committed a criminal offence, but if the detention failed either of these two criteria then the judge was empowered to order his release; (iv) during the pre-trial period, there had to be a presumption in favour of release pending trial and detention was only justified where there was specific public interest which could outweigh the respect for individual liberty, such as a clear risk of re-offending; (v) since national judicial authorities were charged with ensuring that pre-trial detention did not exceed a reasonable time and were under an obligation to review the detention of persons pending trial, there was no fixed time-frame applicable to each case, but simply a need to keep unjustified deprivation of liberty to an acceptable minimum; and (vi) it was good practice and highly desirable that the judicial officer who conducted the first review of the lawfulness of detention also had the power to consider release on bail-but it could not be...

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