Re Nairne

• Jurisdiction: Cayman Islands
• Judge: (Henderson, J.)
• Judgment Date: 17 April 2013
• Court: Grand Court (Cayman Islands)
• Date: 17 April 2013

Grand Court, Civil Division

(Henderson, J.)

IN THE MATTER OF NAIRNE

G. Dilliway-Parry for the applicant;

Ms. L. Manson, Crown Counsel, for the Director of Public Prosecutions;

Ms. S. Bothwell, Senior Crown Counsel, for the Attorney General.

Cases cited:

(1) Aquilina v. MaltaHRC(1999), 29 EHRR 185; [1999] ECHR 25642/94, referred to.

(2) Att.-Gen. (The Gambia) v. Jobe, [1984] A.C. 689; [1984] 3 W.L.R. 174, followed.

(3) Brogan v. United KingdomHRC(1989), 11 EHRR 117; [1989] ECHR A 152-B, followed.

(4) de Freitas v. Agric. Ministry Perm. Secy., [1990] 1 A.C. 69; [1998] 3 W.L.R. 675, followed.

(5) Edwards v. Att.-Gen. for Canada, [1930] A.C. 124, followed.

(6) Freemantle v. Jamaica(2001), 7 IHRR 926; U.N. Doc. CCPR/C/68/D/625/1995, referred to.

(7) Home Affairs Min. v. FisherUNK(1991), 44 W.I.R. 107, followed.

(8) Koster v. The Netherlands, [1991] ECHR A 221, referred to.

(9) McKay v. United Kingdom, [2006] 10 ECHR 325; Application No. 543/03, referred to.

(10) Osborne v. Canada (Treasury Board)(1991), 82 D.L.R. (4th) 321; [1991] 2 S.C.R. 69, referred to.

(11) Reyes v. R., [2002] 2 A.C. 235; [2002] 2 W.L.R. 1034; [2002] 2 Cr. App. R. 16; [2002] UKPC 11, followed.

(12) State v. Makwanyane, 1995 (3) S.A. 391, referred to.

(13) TW v. Malta, [1999] ECHR 25644/94, referred to.

Legislation construed:

Police Law 2010, s.65: The relevant terms of this section are set out at para. 13.

Cayman Islands Constitution Order 2009 (S.I. 2009/1379), Schedule 2, Part 1 (Bill of Rights), s.5: The relevant terms of this section are set out at para. 14.

s.23(1): The relevant terms of this sub-section are set out at para. 15.

Constitutional Law-Bill of Rights-personal liberty-s.5(5) imposes positive obligation on police to bring suspect before court promptly-‘prompt’ requires presentation within 72 hours of arrest-presentation 96 hours after arrest not ‘prompt’ even if no judge normally sitting during that period-ex parte application not sufficient as suspect to be physically brought before court

Constitutional Law-Bill of Rights-personal liberty-power for senior officer to extend detention under Police Law 2010, s.65(4) incompatible with suspect”s right to be presented to court under Bill of Rights, s.5(5)-compatible interpretation not possible as substitution of magistrate for senior officer departure from legislature”s intention

The applicant applied for a writ of habeas corpus.

The applicant was arrested on suspicion of being concerned in the supply of cocaine. After he had been held for 3 days, his detention was extended by a Chief Inspector under the Police Law 2010, s.65(4) for 24 hours. His detention was further extended for up to 72 hours by the Chief Magistrate, who made the order under s.65(5)–(6) after an ex parte application by the investigating officer. At no point was the defendant charged or brought before a court. After the second extension was granted, the applicant applied to the Grand Court for a writ of habeas corpus and for a declaration that the Police Law 2010, s.65 was incompatible with the applicant”s right under the Bill of Rights, s.5(5) to be promptly brought before a court after being detained. The writ of habeas corpus was granted and the Commissioner of Police was ordered to produce the applicant on the next day, when the Grand Court ordered that he be released on bail (with conditions) after having been in custody for 6 days and 5½ hours.

The applicant submitted that, as the Police Law 2010, s.65(4) allowed for him to be detained for up to 4 days without an application to the court, it did not comply with the requirement that he be ‘brought promptly’ before a court under the Bill of Rights, s.5(5). Further, although s.65(5)–(6) required an application to a magistrate before the detention could be extended, s.5(5) required the applicant to be physically brought before a court. This requirement was incompatible with an ex parte application and so a declaration of incompatibility should be made.

The respondents submitted that a period of 4 days before being presented to a court would qualify as ‘prompt’ and therefore s.65(3)–(4) was compatible with the Bill of Rights, s.5(5). Although they accepted that a period longer than this would be in violation of s.5(5), s.65(5)–(6) did not specify that an application should be ex parte and so it was unclear whether it was incompatible with the Bill of Rights. The court was therefore required, under the Bill of Rights, s.25, to interpret it as precluding the bringing of an ex parte application.

Held, making the declaration:

(1) The Police Law 2010, s.65(5)–(6) would be interpreted as precluding an ex parte hearing and the applicant”s detention after the first 4 days had therefore been unlawful. Constitutional provisions were to be interpreted in a generous and purposive way so as to provide individuals with the full measure of the fundamental rights and freedoms provided and avoid a narrow and technical construction. The Bill of Rights, s.5(5) would therefore be interpreted as imposing a positive obligation on the police to present the applicant physically before a court. A mere application to the court concerning him would therefore not suffice, as an ex parte application would not be able to satisfy the requirements of s.5(5). As s.65(6) had not specified that the application should be heard ex parte, however, it was genuinely ambiguous whether the provision complied with s.5(5). The court was therefore required by the Bill of Rights, s.25 to read down the provision so that it complied with s.5(5) and s.65(6) would be read as requiring that the application be made ‘in the presence of the person in detention.’ As this requirement had not been complied with when the application to the Chief Magistrate was made, the extension which had been granted was unlawful (paras. 21–22; paras. 27–29).

(2) The Police Law 2010, s.65(3) was compatible with the Bill of Rights, s.5(5). Authorities from the European Court of Human Rights and various Commonwealth jurisdictions indicated that a detention period of up to 60 hours could be regarded as ‘prompt.’ Section 65(3) allowed for the applicant to be held for 72 hours without charge; this was the same as had previously been allowed by the RCIP before the Police Law 2010 had been enacted. Although this was longer than in larger jurisdictions, the size of Cayman meant that there were regularly periods of 64½ hours where no magistrates sat (i.e. between 5 p.m. on Fridays and 9.30 a.m. on Mondays), and it might not be possible to bring a suspect before a magistrate before this length of time had passed. Bringing a suspect before the court within 72 hours could therefore be regarded as ‘prompt’ (paras. 40–42).

(3) The Police Law 2010, s.65(4) did not require that the applicant be brought promptly before a court and the court would therefore make a declaration of incompatibility. Section 65(4) allowed for a suspect to be detained for up to 24 hours, after the initial 72 hours under s.65(3), if authorized by a Chief Inspector or a higher officer. There was no specific

justification, however, for the applicant to be held for this extended period without being presented to a court, notwithstanding that special arrangements would be required when a statutory holiday combined with a weekend to create a period of 96 hours when no magistrate would usually be sitting. As it was debatable whether a period of 4 days could be considered ‘prompt,’ s.65(4)”s compliance with s.5(5) was unclear. Under the Bill of Rights, s.25, it could be made compliant by substituting a magistrate for the authorizing office, but the legislature had deliberately given the role to a police officer-whose main interest would be the furtherance of an investigation and who did not have the attributes of a judicial officer-and it cannot have intended that s.65(4) would operate in this way. As s.25 of the Bill of Rights could not be used to read down legislation in such a way that it no longer resembled what the legislature must have intended to enact, such an interpretation was not possible and it would therefore be held that s.65(4) was incompatible with the Bill of Rights, s.5(5) (para. 23; paras. 43–46).

1 HENDERSON, J.: For how long may an arrested person be held in custody before being brought before a court? This question requires, for the first time in the Cayman Islands, a consideration of the compatibility of a statutory provision (s.65 of the Police Law 2010) with Part 1 of Schedule 2 to the Cayman Islands Constitution Order 2009 (‘the Bill of Rights’).

Facts

2 The facts are not in dispute.

3 The applicant, Canute Nairne, was arrested at the Owen Roberts International Airport on Grand Cayman at 10.10 a.m. on January 10th, 2013 on suspicion of being concerned in the supply of cocaine. That offence is created by s.3(1)(f) of the Misuse of Drugs Law (2010 Revision) and is one for which a person may be arrested without a warrant (s.5(1)). In fact, the police were conducting a murder investigation as well as a drug investigation.

4 Mr. Nairne was taken to the George Town police station, searched, photographed, and fingerprinted. A DNA sample was taken from him. At 11.50 a.m., he consulted an attorney by telephone. Around this time, Det. Insp. Adeniyi Oremule, the lead investigator, received information that Mr. Nairne had been asking other prisoners to contact a woman in Jamaica and ask that she destroy certain items which Det. Insp. Oremule considered of evidentiary value.

5 On January 11th, 2013, around 10.30 a.m., Mr. Nairne was allowed to consult his attorney. Police officers then interviewed Mr. Nairne for about 70 minutes before returning him to his cell. On the afternoon of January 12th, Mr. Nairne was interviewed again by police officers for about 80 minutes.

6 Chief Insp. Patrick Beersingh signed an authorization on January 13th, 2013, authorizing the further detention of...