The Bill of Rights section 5(5) of the Cayman Islands Constitution Order 2009 the Grand court rules Order 77A in a Petition by Brian Emmanuel Borden in Open Court
| Jurisdiction | Cayman Islands |
| Judge | Chief Justice |
| Judgment Date | 24 December 2013 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO: G0209 OF 2013 |
| Date | 24 December 2013 |
THE HON. CHIEF JUSTICE
Nick Hoffman of Priestley's for the Petitioner
Jacqueline Wilson, Solicitor General, and Jennifer Catran, for the Attorney General, Respondent.
The petitioner is in custody awaiting trial on an indictment alleging the offences of murder and unlawful possession of a firearm. His applications for bail pending trial have been refused, including most latterly by Acting Justice Carol Beswick by a ruling delivered on 13 th September 2012. 1
By this petition he seeks to challenge not only that ruling but also the provisions of the Bail Law (2010 Revision) (“the Law”) pursuant to which the ruling was decided. His challenge goes to the constitutionality of the Law, asserting that its provisions are incompatible with the Bill of Rights contained in the Cayman Islands Constitution Order 2009 (the ‘Bill of Rights’ and the ‘Constitution’, respectively).
He seeks a declaration of incompatibility in the terms allowed by sections 23 and 25 of the Constitution 2.
In the course of the arguments — ably presented on both sides — it was agreed and is plainly correct that — the Constitution being the supreme law of the Islands — all laws enacted by the Legislature (‘primary legislation’ as defined by section 28 of the Constitution) must comply and not be incompatible with the Constitution 3.
That principle is of course, implicit in section 23 (1) and section 25 of the Constitution — those which are cited by the petitioner 4— where they provide:
‘23. If in any legal proceedings primary legislation is found to be incompatible with this Part, the court must make a declaration recording that the legislation is incompatible with the relevant section of the Bill of Rights and the nature of that incompatibility.
25. In any case where the incompatibility of primary or subordinate legislation with the Bill of Rights is unclear or ambiguous, such legislation must, so far as it is possible to do so, be read and given effect in a way which is compatible with the rights set out in this Part’.
Henderson J. of this court has declared in terms which are applicable that 5:
‘This section [25] ensures that the court will strive to align an impugned legislative provision with what the Legislature may reasonably be taken to have intended and by this process of ‘reading down’ will seek to avoid a formal declaration of incompatibility but the obligation imposed by section 25 arises only in ‘unclear or ambiguous’ cases. Since the section appears in the Bill of Rights it has the effect of elevating both the rule of construction itself and the limitation upon it to constitutional status. Clear cases of incompatibility are to be left to the Legislature for correction.’
He also advised 6 against ‘wholesale reading down’ which may result in the law ‘bearing little resemblance to the law that Parliament passed’ a circumstance which would, instead of indicating the suitability of reading down, give rise to the inference that the law is simply incompatible and should be so declared, leaving it to the legislative branch of government to bring it into line with the constitutional guarantees of the Bill of Rights.
The alleged incompatibility of the Bail Law with the Bill of Rights is said to be in its interference with the right to liberty of the petitioner — being a person who is charged but not yet convicted — by its removal of his presumptive entitlement to bail. Mr Hoffman argues that section 17(2) of the Bail Law operates impermissibly to shift the legal burden of proof to defendants to establish that bail should be granted and so is incompatible with the entitlement to bail which is implicit in the constitutional rights of liberty of the person and the presumption of innocence.
The relevant provisions of the Bail Law (including the impugned section 17(2)) are the following:
‘Part III — Right of Accused Persons and Others to Bail.
(1) Subject to subsection (2), a person is entitled to bail under this Part if he has been-
(2)A person accused or convicted of any of the following offences is not entitled to bail [Emphasis Added] [Note: I set out fully the list of offences as its extensive nature is itself the subject of challenge:]
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(a) accused of an offence but not convicted of the offence;
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(b) convicted of an offence and the case has been adjourned by the court to enable inquiries or a report to be made to assist the court to deal with him for the offence; or
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(c) convicted of an offence under the Misuse of Drugs Law (2010 Revision) and is appearing or has been brought before a court under section 54 or 57 of that Law.
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(a) murder;
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(b) manslaughter;
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(c) rape, or any other offence of a sexual nature against a person punishable by imprisonment for four years or more;
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(d) arson;
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(e) wounding or causing grievous bodily harm;
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(f) wounding or inflicting grievous bodily harm;
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(g) burglary;
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(h) robbery;
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(i) extortion;
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(j) kidnapping;
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(k) abduction;
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(l) wrongful confinement;
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(m) bomb hoax;
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(n) aiding a prisoner to escape;
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(o) any offence against the Firearms Law (2008 Revision) punishable by imprisonment for four years or more;
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(p) any offence against the Misuse of Drugs Law (2010 Revision) (other than the offence of consuming) punishable by imprisonment for four years or more;
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(q) any offence against the Terrorism Law (2009 Revision) punishable by imprisonment for four years or more;
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(r) conspiracy to commit any of the offences listed in paragraphs (a) to (q);
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(s) any attempt to commit any of the offences listed in paragraphs (a) to (q).
A court or police officer shall grant bail to a person who is entitled to bail under this Part unless-
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(a) the court or police officer is satisfied the person, if released on bail, would-
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(i) fail to surrender to custody;
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(ii) commit an offence while on bail; or
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(iii) interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or another person
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(b) the court or police officer is satisfied the person should remain in custody for his protection or welfare; or
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(c) in case of a person referred to in section 17 (1)(b), it appears to the court that it would be impracticable to complete the inquiries or make the report without keeping the person in custody.
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A court or police officer, in order to come to a conclusion for the purpose of section 18, may take into consideration (amongst other things):
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(a) the nature and seriousness of the offence (and the probable method of dealing with the defendant or offender);
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(b) the character, antecedents, associations and community ties of the defendant or offender;
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(c) the defendant's or offender's record as respect the fulfilment of his obligations under previous grants of bail (whether granted under this Law or otherwise); and
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(d) in the case of a person referred to in section 17 (1) (a), the strength of the evidence of the defendant having committed the offence’.
The applicant being a person who is charged and awaiting trial, the foregoing provisions of section 17(1) would recognise and mandate his presumptive entitlement to bail but for the provisions of section 17(2), which provide that he ‘is not entitled to bail’, being a person accused of offences which are listed in that subsection. Otherwise, the petitioner would be immediately entitled to bail subject only to the five exceptions identified in section 18; exceptions which have come to be regarded by the modern case law (to be discussed herein) as defining categorically the bases upon which bail may be denied.
Prior to the introduction of section 17(2) of the Bail Law 7, the grant of bail was governed by sections 17(1) and 18; by predecessor statutory provisions or by practice established at common law — all of which reflected the longstanding principles flowing from the writ of habeas corpus, the Habeas Corpus Act 1679 and the Bill of Rights 1689 — that:
‘the proper test of whether bail should be granted or refused, is whether it is probable that the defendant will appear to stand his trial, and that bail shall not be withheld merely as a punishment. The suspect's remaining at large is the rule; his detention merely on grounds of suspicion is the exception
and, even if detention is justified, if he is not put on his trial within a reasonable time, he has to be released’. 8
In Hurnam 9, the Privy Council recognized that these requirements were necessary to ensure compliance with section 5 of the Mauritius Constitution which, like the Cayman Bill of Rights, is derived from Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms10 (‘the ECHR’).
It is therefore acknowledged by the Solicitor General that, were section 17(2) to be construed as a statutory prohibition on the grant of bail by the court for any of the listed offences by reference — as section 17 (2) implies —simply to the gravity of those offences, section 17(2) would be incompatible with the Constitution as it would infringe the fundamental rights to liberty of the person and the presumption of innocence, long established at common law and which are now protected by the Bill of Rights itself.
A trilogy of highly authoritative cases respectively from the European Court of Human Rights (‘the ECtHR’), the Privy Council and the House of Lords (as it then was) provide support for that proposition. Indeed, those important...
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