Arrest and Charge in the Cayman Islands: Police powers and the rights of the accused

This short note is designed to provide the reader with a simple overview of what happens when a person is arrested for a criminal offence in the Cayman Islands.  It covers, in outline, the powers of the Royal Cayman Islands Police Service (RCIPS) to arrest, detain and interview a suspect. It also summarizes the accused person’s right to legal representation and bail.

For urgent advice and representation please contact Samson & McGrath: 1 (345) 623 2740 / 1 (345) 949 2740 during office hours or 1 (345) 916 3828, 526 2745, 526 2741 out of hours.

Contents

1.       Power to arrest

2.       Information on arrest

3.       Right to a phone call

4.       Right to legal advice

5.       Power to detain

6.       Power to interview and the accused’s right to silence

7.       Right to bail

8.       Charging decision

Power to arrest

Under the Police Law (2014 Revision), a police officer may arrest without a warrant anyone whom he has reasonable grounds to suspect of committing a criminal offence.

Right to be informed

When a person is arrested, he has a right to be informed that he is under arrest and of the nature of the offence for which he is being arrested. This should take place at the time of his arrest or as soon as practicable thereafter.

Right to a phone call

Where a person has been arrested and is being held in custody in a police station or other premises, he does not have a right to a phone call. He shall, whomever, be entitled to have a friend, relative or other person notified of his arrest and detention.

A delay of this right may be authorized in certain circumstances, for example, where an officer has reasonable grounds for believing that if the named person is informed of the arrest this will hamper the police investigation.

Right to legal advice

A lawyer’s role in the police station is to protect and advance the legal rights of his or her client. These rights include the (modified) right to silence and the right to bail, both of which are discussed below.

A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult an attorney-at-law privately at any time. This should occur as soon as practicable. Again, a short delay (no longer than 24 hours) is permitted in certain specified circumstances.

Power to detain

A suspect who has been arrested must be taken to a police station as soon as practicable after his arrest. That person shall be brought to the custody officer who shall enquire into the case.

Upon the completion of the enquiry, if there are no reasonable grounds for believing that the person has committed an offence he shall be released forthwith.

If, upon the completion of the inquiry there are reasonable grounds for believing that the person arrested has committed an offence, but there is insufficient evidence to charge the suspect immediately, the custody officer may authorise the suspect to be kept in the police station in order to allow the investigators to secure further evidence or to obtain such evidence by questioning the suspect in interview.

There are strict time limits on the periods for which a suspect may be detained without being charged. Generally, this will be no more than 48 hours but this time period may be extended under certain specified circumstances.

Power to interview and the right to silence

It is common that an arrested person will be detained until he has been questioned by means of a recorded interview under caution.

A police officer shall, prior to the interview of an arrested person inform that person that he has the right to remain silent but that, if he exercises his right to remain silent, inferences may be drawn from his silence. The words of the caution are:

"You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."

The lawyer who is representing the suspect will need to consider several factors in advising his client whether to answer questions, for example:

·         The sufficiency of the disclosure (if any) provided by the police.

·         The strength of the evidence against the accused person.

·         Whether the accused is medically fit for an interview.

For example, if the investigating officer refuses to make any disclosure or discloses an insufficient amount of information, the attorney may conclude that he cannot advise his client in a sufficiently informed manner. He may therefore advise his client to answer "no comment".

Right to bail

Before charge, the suspect may be released on police bail, for example, to enable the continuation of the investigation.

There used to operate in the Cayman Islands a presumption that all defendants had a prima facie right to bail subject to subject to various exceptions such as where a police officer is satisfied that the person, if released on bail, would fail to surrender to custody, commit an offence while on bail or interfere with witnesses.

The position changed in 2005 with the introduction of a modified right to bail for persons arrested for specified, serious offences. The law now states that a person accused of certain scheduled offences (such as serious offences of violence, drug trafficking or dishonesty) is no longer entitled to bail. Instead, a person accused of such offences will only be granted bail in exceptional circumstances. This is a complicated area of law and specialist advice should be sought.

Charging decision

Whether a person is released on bail or detained in custody, a police officer involved in the investigation of the offence shall, as soon as is practicable, send to the Director of Public Prosecutions all such evidence as has been obtained in the case. The Director of Public Prosecutions shall decide whether the person should be charged with an offence.

If there is sufficient evidence, the suspect will be charged. He or she will then either be released on bail to appear before the summary court on a later date or remanded in police custody until he or she can be brought before the summary court.

Samson & McGrath

Samson & McGrath is the leading criminal law firm in the Cayman Islands. For urgent advice and representation please contact Samson & McGrath: 1 (345) 623 2740 / 1 (345) 949 2740 during office hours or 1 (345) 916 3828, 526 2745, 526 2741 out of hours.