November 29, 2021

A Review of Cayman Islands DPP Statement on the Pines

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Cayman-Law-Courts-300x188By Peter Polack

The recent and rare statement issued by the Office of the Director of Public Prosecutions (ODPP) came more in the form of an extract from the UK Crown Prosecution Service manual than a believable explanation to the public of the Cayman Islands.
The release raises more questions and provides few answers.
Some observations are:
1. The ODPP only issues a statement when there is significant public outrage and media pressure. It is not driven by a genuine effort to explain the inner workings of the ODPP but a continued pattern pioneered by the present Attorney-General and head of the Portfolio in obfuscation. The only recent light in this area was the UK justice expert report which should be carried to it’s proper conclusion with the termination of the non-performing leadership of the Portfolio of Legal Affairs.
2. The ODPP statement: this Office is duty bound to examine all the circumstances was not followed in at least one recent case where the ODPP expressed position to the Court was that all available evidence need not be reviewed before charging a person under S.82 of the Police Law.
3. The ODDP fails to apply their concept of unexplainable delays in a balanced manner. There is at least one prosecution involving an actual extradition of a non UK person for a similar offence dating back to 2008.
4. The ODDP regularly fails to apply their concept of discrepancies evidenced by their frequent and late withdrawal of charges sometimes on the first day of trial after many years have passed. One recent example of this is the Bernardo case which the ODPP exposed the Cayman Islands Government to liability for legal costs in a significant amount as a result of negligence never investigated or sanctioned. The government is content to allow this but insists that the civil service limit their salary expectations in circumstances where over a hundred earn more than CI$100,000.
5. The ODPP speaks to the conduct of the complainant but omits to mention that persons in a position of trust are pursued and punished more severely by the courts unless they are allowed to leave the island giving a neat excuse about extradition cost.
6. In the Privy Council benchmark case on prosecutorial excess of Randall in which the present Attorney-General was involved but not investigated the court stated: Where a consecutive sentence is imposed on default of payment, it is intrinsically unfair to make an order which may result in the imprisonment of the offender when he lacks the means to avoid that consequence. Similarly where persons are able to afford restitution avoid charges then a balance should apply to those who cannot. A young Caymanian bank teller was recently jailed for several months when he stole $800 to pay his CUC bill. He repaid the stolen money. This was a heartless prosecution by the ODPP.
7. The statement: the overall harm sustained by the complainant was adequately covered by the outrage expressed by the chairman of the Pines which was predictably ignored by the ODPP. As a person in a position of trust of a charitable organization now damaged by these revelations the bar for consideration in the public interest is a much higher although this was not mentioned in the ODPP statement.
8. The ODPP has spoken to the sufficiency or insufficiency of any evidence contained in the file in circumstances where they frequently charge persons and have them before the court for months and even years before withdrawing the charges. Sue Nicholson was lucky not to endure that ordeal. The ODPP and the Portfolio of Legal Affairs whose Chief Officer is the Solicitor-General Jacqueline Wilson prevent close examination of the ODPP record by either not keeping statistics or saying that it requires an excessive manual search. A neat trick if you want to avoid oversight or criticism that other government departments are subject to. The same device works if the Attorney-General wants to avoid disclosure on the frequency, dates and reasons for visiting the ODPP.
9. The potential for legal arguments arising from issues did not stop the Attorney-General from pursuing the case of Marius Voiculescu for possession of a half of a ganja spliff of 0.004 ounces of ganja in five (5) proceedings being; a Summary Court trial, two (2) Grand Court hearings and two (2) Court of Appeal hearings. These required 21 Summary Court hearings,7 Grand Court hearings and 4 CICA hearings. The Voiculescu case was only 1 of 6 appeals by the Legal department to the CICA in 2009.
10. The whereabouts of the accused has not stopped extraditions from Switzerland or Jamaica but mysteriously not from Canada or the UK.
11. The matter of the potential cost at public expense of any extradition should be revealed to the public in circumstances where the Attorney General retained outside counsel 27 times between 2011-2013 at a cost of almost CI$1,000,000 and $360,000 was spent on a case to decide on the retirement age of a Grand Court judge.
There are hard-working and modern members of the ODPP who should not be tarnished by the mindless meandering dinosaurs who need to step down now or be removed. The ODPP cannot be allowed to become judge and jury.
The government will be reminded of their inaction come election day 2017. To quote the persistent Steve McField: This is not democracy, this is hypocrisy.
Finally but not least the Caymanian public are reminded of the Book of Matthew:
Then Jesus spoke to the crowds and to His disciples, saying: The scribes and the Pharisees have seated themselves in the chair of Moses; therefore all that they tell you, do and observe, but do not do according to their deeds; for they say things and do not do them.
Woe to you, scribes and Pharisees, hypocrites! For you tithe mint and dill and cummin, and have neglected the weightier provisions of the law: justice and mercy and faithfulness; but these are the things you should have done without neglecting the others.

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