Vanderwerff v Royal Cayman Islands Police
| Jurisdiction | Cayman Islands |
| Judge | (Henderson, J.) |
| Judgment Date | 01 June 2007 |
| Date | 01 June 2007 |
| Court | Grand Court (Cayman Islands) |
(Henderson, J.)
J. Stenning for the plaintiff;
G. Keightley for the Crown.
(1) Associated Provncl. Picture Houses Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223; [1947] 2 All E.R. 680; [1948] L.J.R. 190; (1947), 177 L.T. 641; 63 T.L.R. 623; 45 L.G.R. 635; 112 J.P. 55; 92 Sol. Jo. 26, referred to.
(2) Cartwright v. Prison Superintendent, [2004] 1 W.L.R. 902; [2004] UKPC 10, referred to.
(3) Eleko v. Nigeria (Officer administering Govt.), [1931] A.C. 662; [1931] All E.R. Rep. 44, applied.
(4) Ghani v. Jones, [1970] 1 Q.B. 693; [1969] 3 All E.R. 1700; (1969), 134 J.P. 166; 113 Sol. Jo. 854, referred to.
(5) Greene v. Home Secy., [1942] A.C. 284, distinguished.
(6) Holgate-Mohammed v. Duke, [1984] A.C. 437; [1984] 1 All E.R. 1054; [1984] Crim. L.R. 418; (1984), 79 Cr. App. R. 120; 128 Sol. Jo. 244, applied.
(7) Liversidge v. Anderson, [1942] A.C. 206; [1941] 3 All E.R. 338, distinguished.
(8) Nazary v. R., 2001 CILR 371, followed.
(9) R. v Brixton Prison (Governor), ex p. Ahsan, [1969] 2 Q.B. 222; [1969] 2 All E.R. 347; (1968), 133 J.P. 407; 112 Sol. Jo. 422, followed.
(10) R. v. Home Secy., ex p. Launder (No. 2), [1998] Q.B. 994; [1998] C.O.D. 301; (1998), 95 (11) L.S. Gaz. 36, followed.
(11) Tan Te Lam v. Tai A Chau Detention Centre (Superintendent), [1996] 4 All E.R. 256, followed.
(12) Young v. Gordon, 1994–95 CILR 445, referred to.
Bail Law (2006 Revision), s.7: The relevant terms of this section are set out at para. 8.
Police Law (2006 Revision), s.36: The relevant terms of this section are set out at para. 6.
s.37: The relevant terms of this section are set out at para. 6.
Administrative Law-habeas corpus-scope of enquiry-court to determine objectively whether police officer has reasonable grounds to detain suspect-insufficient that officer subjectively believes, in good faith, that suspect committed offence
Criminal Procedure-bail-bail before charge-suspect released on bail but required to surrender passport only to be detained in Cayman Islands for reasonable time-reasonableness depends on (i) nature and seriousness of allegations; (ii) time required to investigate them; (iii) difficulty in extraditing suspect if he returns home; (iv) extent of his ties to Cayman Islands; and (v) difficulty and expense in his remaining against his will
The plaintiff, who was held on police bail without charge on condition that he remain in the Cayman Islands, applied for a writ of habeas corpus.
The plaintiff was a Canadian citizen who had been living and working in the Cayman Islands. He was accused of theft by his employer and arrested at the airport, under s.36(a) of the Police Law (2006 Revision), while attempting to return to Canada. A police officer informed him that although he was under investigation, he would not yet be formally charged and he was released on bail for a week on condition that he surrender his passport. The plaintiff alleged that this restriction on his liberty was not lawful and applied for a writ of habeas corpus.
The plaintiff submitted that (a) the court should enquire into the nature and strength of the evidence obtained by the defendant to determine, objectively, whether the police officer had reasonable grounds to believe that he had committed theft; and (b) he could only be held on bail without charge for a reasonable time.
The defendant submitted in reply that (a) under the Bail Law, s.7, an arresting officer could impose such conditions as necessary to ensure the suspect surrendered to custody, and the court”s enquiry was limited to whether the police officer had formed a subjective belief, in good faith, that there were reasonable grounds for the arrest; and (b) as long as it continued to investigate the allegations in good faith, the plaintiff could be held indefinitely.
Held, ordering that the defendant file a further return to the writ:
(1) The defendant should provide sufficient evidence to enable the court to determine, objectively, whether the arresting officer had sufficient grounds to conclude that the plaintiff might have committed theft, and it would be required to file a further return to the writ within 10 days setting out the evidence relied upon. Although the plaintiff was not detained in the usual sense, the court could nevertheless enquire into the legality of the restriction on his liberty under a habeas corpus application. The presence of reasonable cause was a condition precedent to the officer”s power to make a lawful arrest without warrant under the Police Law, s.36(a), which was a question of fact that a court could determine, and therefore the court”s enquiry was not confined to the narrow question of whether the arresting officer had the required state of mind, but extended to the broader issue of whether the evidence in her possession amounted to reasonable grounds for arresting the defendant (para. 5; paras. 17–21).
(2) In the absence of any time limit in the legislation, an intention should be attributed to the legislature that the plaintiff could only be held in the Cayman Islands for a reasonable time, since holding his passport as a condition of bail was a restraint on his liberty and this power was to be construed restrictively. The defendant was therefore also required to file, within 10 days, a statement setting out its view, with reasons, of what constituted a reasonable time. In deciding what was reasonable, the court would consider, inter alia, (i) the nature and seriousness of the allegations; (ii) the period of time required to investigate them; (iii) the difficulty in extraditing the suspect, were he allowed to return home; (iv) the extent of his ties to the Cayman Islands; and (v) the difficulty and expense suffered by him in remaining here against his will (paras. 22–24; paras. 27–28).
1 HENDERSON, J.: How long may a foreigner who wishes to leave the country be detained in the Cayman Islands because he is under police investigation? To what extent may the court enquire into the strength of the evidence against him on a habeas corpus application? These important questions have been raised for the first time on the present application.
The facts
2 The plaintiff, Daniel Peter Frank Vanderwerff, is a Canadian citizen who has lived for some time in the Cayman Islands with his family. Until recently, he was employed here by K-Coast Construction Ltd. On April 28th, 2007, Mr. Vanderwerff was accused by his employer of misappropriating company funds in excess of US$230,000. His employment was terminated and the allegation was reported to the Financial Crime Unit of the Royal Cayman Islands Police...
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