CPS: Cayman Islands Report Review makes many recommendations for improvement with comments from local lawyer
The report is the outcome of the secondment of the Criminal Justice Advisor from the UK Crown Prosecution Service to the Cayman Islands in January of this year. The aim of the deployment was to identify and deliver sustainable solutions and improvements leading to a more efficient and effective criminal justice system.
Claire Wetton, an expert from the crown prosecution service in the United Kingdom spent three months in the Cayman Islands. Wetton’s brief was to improve the capacity of public prosecutions in general especially regarding serious cases such as financial crime, money laundering, asset recovery and drug trafficking
To download CPS Cayman Islands Report go to: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/456588/1508261_Criminal_Justice_Adviser_Project_Summary.pdf
Executive Summary [From CPS Cayman Islands Report]
Introduction
At the request of Her Excellency, the Governor, Helen Kilpatrick, CPS International Division were asked to second a senior lawyer to work with the DPP of the Cayman Islands (CI), to address specific areas within the criminal justice system. Claire Wetton was deployed to work as a Criminal Justice Adviser (CJA) for three months.
The CI is a British Overseas territory (OT) with a large financial services sector and the fifth largest banking centre in the world.
The improvement in prosecutorial capacity generally but particularly that relating to serious financial crime, money laundering, asset recovery and drug trafficking is of benefit to the government of the CI and the UK. Criminal activity that poses a threat to UK interests and has the potential to have an adverse impact on the financial service industry needs to be addressed effectively.
The aim of the deployment was to identify and deliver sustainable solutions and improvements leading to a more efficient and effective criminal justice system within the (CI). The objective was to enable more effective prosecutions of serious organised crime by improving investigations, prosecution delivery and judicial capacity including giving mentoring advice and expert guidance to advance professional standards.
The deployment identified that there is scope to increase and improve coordinated working within the criminal justice system particularly between the Police service and the Office of the DPP. The CJA provided guidance and practical solutions to improve existing systems and to develop new processes.
In summary, these included:
The establishment of a Criminal Justice Board providing strategic oversight, direction is a significant development in creating an environment where discussions about performance within the justice sector and reform can take place.
The adoption and implementation of proactive, purposeful case management systems as advised by the CJA within the police, prosecution and courts has the potential to reduce delay, improve access to justice for victims and witnesses and assist considerably in the prosecution of serious organised crime and financial crime.
The use of sentencing guidelines and the development of policies on diversion and out of court disposals will lead to better management of resources and increased public confidence in the justice system.
The progress made during the deployment and the changes implemented have already demonstrated the potential of focussed activity aimed at bringing about at systemic reforms. Collective effort and ownership is of course needed to make these sustainable and maximise the impact in the longer term. Recommendations designed to assist with this are set out below.
Summary of recommendations for future intervention
Implementation of new structure for the Criminal Justice Board.
Full implementation of the Manual of Guidance including monitoring and training for the police.
Implementation of an electronic case management system to enable more reliable collection of performance data, the ODPP would benefit from a digital case management system that could interface with the police and the court.
Development of sentencing guidelines to ensure consistency and transparency.
Implementation of the Criminal Procedure Practice Direction and case management forms to streamline and expedite the prosecution process, identifying issues for the court to decide.
Development of a diversion policy/restorative justice options or other out of court disposals such as cautioning for offences that would receive a nominal or financial penalty.
Review the summon system to consider warning officers by email; this will require a legislative change.
Establish a witness care unit which could be staffed by volunteers and ensure that separate waiting areas are available in those cases where the witnesses are vulnerable and require additional support. Consider using the video link facility at the Family Support Unit for witnesses to give evidence in court (in particular child witnesses) to provide a familiar and safe environment to ensure best evidence is obtained.
Amend the traffic ticket process (as implemented in Turks and Caicos).
Implement a handover system at the police station to ensure that the investigation continues when the officer in the case is not present.
At least two Crown Counsel assigned solely to the summary court. (Pending this taking place the CJA recommends that each Crown Counsel remain in the summary court/grand court for a minimum of six months, to enable cases to conclude and minimise duplication of work).
At least two Crown Counsel specialise in each subject area to ensure adequate specialisms and succession planning.
Crown Counsel to draft charges and a database of charges to be compiled that can be copied and pasted to reduce the number of charges which are incorrectly drafted at Court. Once the file is received after the charge, the charge sheet should be checked and certified by counsel who provided the ruling.
END
Report of Criminal Justice Advisor to the Cayman Islands
The Governor’s Office has published the report of Criminal Justice Advisor (CJA), Claire Wetton, who was seconded from the UK Crown Prosecution Service (CPS) to the Cayman Islands for three months between January and April 2015.
The aim of the deployment was to identify and deliver sustainable solutions and improvements leading to a more efficient and effective criminal justice system. This involved working with the RCIPS, the Office of the Director of Public Prosecutions (ODPP) and the Courts to improve existing systems and develop new processes.
Her Excellency the Governor said;
“I welcome this report and was very pleased to support the project which I believe will help reduce criminality in the Cayman Islands through a more efficient criminal justice system. The report describes the practical changes which have been made and recommends further areas for work. The deployment is an excellent example of cross government working and professionalism between the RCIPS, the Office of the DPP and the Courts who embraced the aims and objectives of this project. I particularly look forward to seeing the positive effects of the Practice Direction come into play.”
The Director of Public Prosecutions, Ms Cheryl Richards said:
“We welcome this report, and are grateful for the assistance provided by the CJA during her time in Cayman and the establishment of procedures in the Summary Court. We have already begun to work with colleagues in the RCIPS, the Courts and the Ministry of Home Affairs to consider the recommendations and explore how best they can be progressed. We particularly welcome the Practice Direction, which has potential for the most far reaching change in the justice system.”
The report can be accessed at: https://www.gov.uk/government/publications/report-of-criminal-justice-advisor-to-the-cayman-islands
The Practice Direction (05/2015) can be accessed at: https://www.judicial.ky/courts/practice-directions-judicial-admin
Official responses to the summary of recommendations for future intervention
- Implementation of new structure for the Criminal Justice Board.
The CJA facilitated the implementation of the new Criminal Justice Board (CJB) during her placement. The CJB has met twice since that time and is scheduled to have quarterly meetings going forward. The CJB provides a good format for court users to exchange views and explore new ideas to improve the court experience for all.
- Full implementation of the Manual of Guidance including monitoring and training for the police.
The opening of the new RCIPS custody suites will progress the implementation of this recommendation as there will be a new file management team providing better standards on timing and a single point of contact, thus improving file quality.
- Implementation of an electronic case management system to enable more reliable collection of performance data, the ODPP would benefit from a digital case management system that could interface with the police and the court.
Presently the Court system, JEMS, is used to interface with the Police and the Court. This system can also be used to generate statistical data regarding the output of each Court on a monthly or quarterly basis and has been used by the Office of the DPP to determine the disposal rate of cases in the Summary Court.
4. Development of sentencing guidelines to ensure consistency and transparency.
Justice Quin is currently chairing a group which is working on sentencing guidelines. A draft of guidelines relating to general sentencing principles and providing specific guidelines on robbery and burglary sentencing is under review and is expected to be published later this year.
- Implementation of the Criminal Procedure Practice Direction and case management forms to streamline and expedite the prosecution process, identifying issues for the court to decide.
The Practice Direction is expected to make a significant impact on improving court processes and has been published by the Chief Justice, with a commencement date of 1 September.
- Development of a diversion policy/ restorative justice options or other out of court disposals such as cautioning for offences that would receive a nominal or financial penalty.
This recommendation is supported by the Ministry of Home affairs (MHA) and will require legislative change. MHA is currently exploring such out of court options with a view to making a recommendation to Cabinet on the implementation of a cautioning system including recommendations on a comprehensive diversion policy. In addition, the enactment of the Alternative Sentencing Law will also support this initiative.
Restorative Justice initiatives have proven successful in many jurisdictions and MHA will also support a wider multi-disciplinary working group to design a pilot programme and implement & monitor the same.
- Review the witness summons system to consider warning officers by email; this may require a legislative change.
The Attorney General’s office is currently reviewing whether this recommendation will require a change to the Criminal Procedure Code, and how best we can take this forward.
- Establish a witness care unit which could be staffed by volunteers and ensure that separate waiting areas are available in those cases where the witnesses are vulnerable and require additional support. Consider using the video link facility at the Family Support Unit for witnesses to give evidence in court (in particular child witnesses) to provide a familiar and safe environment to ensure best evidence is obtained.
The RCIPS Family Support Unit currently utilise the video link facility as the default method for hearing evidence from child and other vulnerable witnesses. There is limited space available in the Court to ensure witnesses are separated from defendants, although every effort is made to separate vulnerable witnesses from defendants. It is hoped that the planned new court building will provide a facility to satisfy this recommendation fully.
- Amend the traffic ticket process (as implemented in Turks and Caicos).
The Police Commissioner has undertaken to discuss this recommendation with his colleagues in the Turks and Caicos Islands.
- Implement a handover system at the police station to ensure that the investigation continues when the officer in the case is not present.
The RCIPS will take forward this recommendation.
- At least two Crown Counsel assigned solely to the summary court. (Pending this taking place the CJA recommends that each Crown Counsel remain in the summary court/grand court for a minimum of six months, to enable cases to conclude and minimise duplication of work).
This recommendation has been discussed by the ODPP prior to the arrival of the CJA. Currently, staff employed by the ODPP are employed on the basis that they will appear in both Courts and they therefore have a legitimate expectation that they will undertake Grand Court work. However this recommendation is now in effect for new staff and a new Crown Counsel appointed in August has been assigned primarily to the Summary Court.
- At least two Crown Counsel specialise in each subject area to ensure adequate specialism’s and succession planning.
The ODPP has had such a policy in place for several years now with Counsel being rotated between specialist areas from the start of each year in order for Counsel to be well rounded, as well as to ensure succession planning. However in areas in which there is lesser volume and in which less specialist knowledge is required, only one Crown Counsel is assigned.
- Crown Counsel to draft charges and a database of charges to be compiled that can be copied and pasted to reduce the number of charges which are incorrectly drafted at Court. Once the file is received after the charge, the charge sheet should be checked and certified by counsel who provided the ruling.
A database of draft charges was created specifically for the RCIPS by the ODPP in 2013. The use of the database has been varied and changes are required to ensure its efficient use. The recommendation to copy and paste charges will be taken forward and the recommendation for Counsel to check charges has always been in effect.
END
iNews Cayman spoke to local attorney Peter Polack for his reaction to the CPS and these are his comments regarding some of the recommendations. NOTE: Polack’s comments are underlined and in italics. He has highlighted criticisms from Claire Wetton in CAPS.
In the year 2013, 2504 matters including traffic were submitted for prosecution. In the year 2014, 2759 matters including traffic were submitted for prosecution. Unfortunately, there is no facility to break the figures down further at the ODPP.
No figures have been given for pending Summary Court cases or recommendations for review and discontinuance of old cases as the Courts will never catch up as thousands of cases are passed from year to year.
Project Objectives
Case management/trial issues including evidence gathering, advocacy and drafting in the summary Court
The police and prosecution face a number of issues in relation to evidential file build and case management, with both agencies often working in silos. This impacts the court process and causes delay and adjournments. The CJA identified that robust charging is needed and front loading 2 the file build prior to charge, so that the prosecution are in a position to proceed with the case once at court, reducing the need for an adjournment for key evidence to be obtained. This would allow the case to progress at the first/second hearing.
There were two types of files arriving at the ODDP, advice (ruling) files and charged traffic cases.
THE CAYMAN ISLANDS LEGISLATION STATES THAT IN ANY CASE WHERE THERE HAS BEEN AN ARREST MUST BE AUTHORISED BY THE ODPP FOR EITHER NO FURTHER ACTION OR CHARGE. THE ONLY INSTANCE WHEN THE POLICE CAN MAKE THE DECISION THAT NO FURTHER ACTION IS TO BE TAKEN IS WHERE THERE HAS BEEN NO ARREST MADE. The RCIPS can issue traffic tickets to summons defendants to court, in cases such as speeding, using a mobile telephone and parking tickets.
This is incorrect.
- Law says DPP to rule only on matters where arrest and person on bail or in custody.
- Omits third category where persons simply released.
- Omits category where person released and given letter by COP /RCIPS
Information to be sent to the Director of Public Prosecutions for a determination
- (1) Where 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 information or evidence as has been obtained in the case.
(2) The Director of Public Prosecutions shall decide whether the person should be charged with an offence.
See also
Out of court disposals
The Police are not able to authorise charges apart from traffic ticket cases. All charges are authorised by the ODPP and currently the choice is charge or no further action, ALTHOUGH THERE IS THE OPTION OF AN INFORMAL WARNING SYSTEM.
Case management
The CJA reviewed a number of police files and ascertained that there is NO STANDARD FILE FORMAT AND THERE IS NO GATEKEEPING (SUPERVISION) OF THE FILE, with files often submitted to the ODPP without any supervisor endorsement or consideration of charge/evidence. This causes delay as files often have to be returned as evidence is missing, building in further delay.
The Minister of Home Affairs, the Chief Officer for the Portfolio and the COP must answer this criticism that amounts to a grave management failure.
Case management
The CJA recommended that cases are discontinued where evidence is missing and re-charged when the evidence is available, taking those cases out of the system which block the Courts.
It will not be possible to re-charge if it is a C and possibly B category offence if six months have elapsed from arrest as limitation period will apply.
Case management
The CJA also recommend that Crown Counsel should select the correct charge at the outset, only charging appropriate offences and avoiding overcharging.
This suggests there has been a practice over the years of overcharging and there should be a review of these cases to assess compensation for Defendants.
See costs award R v Bernardo October 2014
Traffic Cases
There remains a significant issue in relation to the quality of traffic files submitted to the ODPP. The CJA was advised that the quality of the evidential files has reduced since the traffic unit (which was a successful unit) was disbanded. There is the necessary expertise within the RCIPS, however there is no longer a centralised traffic unit and this has a significant effect on the quality of the files delivered to the ODPP. Traffic prosecutions are a significant proportion of cases heard in the summary court and the quality of the files continue to be a reason for adjournments. I DO NOT KNOW WHY THE TRAFFIC UNIT WAS DISBANDED AND THIS MAY HAVE BEEN DONE FOR GOOD REASONS, BUT IF IT WERE POSSIBLE TO ASSESS THE EFFECT THIS HAS HAD ON FILE QUALITY, CONSIDERATION COULD BE GIVEN TO WHETHER IT NEEDS TO BE RE-ESTABLISHED IN SOME FORMAT.
The Minister of Home Affairs, the Chief Officer for the Portfolio and the COP must answer this criticism that amounts to a grave management failure.
Witness preparation/witness care
The ODPP has a policy in relation to victims and witnesses. However, there is little by way of witness care at the court and the police do not have a witness care unit.
The DPP and the COP must answer this criticism that amounts to a grave management failure.
Witness preparation/witness care
The police also agreed to provide twelve months witness availability on a new form to assist the court/ODPP when fixing trial dates. THE PRESENT SYSTEM MEANS THERE ARE MANY OCCASIONS WHERE TRIAL DATES ARE SET WITHOUT KNOWING WITNESSES AVAILABILITY, DUE TO HAVING NO INFORMATION AVAILABLE TO CROWN COUNSEL. THIS RESULTED IN MANY ADJOURNED AND SOME FAILED CASES
The DPP and the COP must answer this criticism that amounts to a grave management failure.
Page 8 Para 6
Disclosure in the absence of defence case statements
THERE IS NO CONSISTENCY IN THE WAY UNUSED MATERIAL IS DEALT WITH FOR VOLUME CRIME AND THERE IS CONCERN THAT UNUSED MATERIAL MAY EXIST WITHOUT IT BEING DRAWN TO THE ATTENTION OF THE ODPP OR THE DEFENCE. THE POLICE DO NOT ROUTINELY PROVIDE A LIST OF UNUSED MATERIAL TO THE ODPP. An additional form was designed for inclusion in the new forms (Annex H), which specifically addressed unused material. The CJA, police and Crown Counsel developed this form. In relation to serious crime, the system works well and the police work closely with the ODPP to ensure that unused material is dealt with properly. The UK MG series of unused material schedules are used in serious crime cases.
The DPP and the COP must answer this criticism that amounts to a grave management failure. There should be a historical review of cases where there was a failure to provide unused material to determine possible re-trial or conviction dismissal.
Review of Police and Prosecutor working
The relationship between Prosecutors and Police is of the utmost importance.
In respect of volume crime, there was a lack of joint working, with inconsistent working practices and timeliness on both sides. There is a lack of detailed understanding of what each side does. There are silo working practices and often the RCIPS are not given feedback on cases, most importantly when milestones are reached such as a not guilty plea, triggering the need for a full file, where charges are discontinued and where trial dates are vacated and witnesses are not de-warned.
The DPP and the COP must answer this criticism that amounts to a grave management failure.
Efficient and timely presentations in the summary court
The CJA recommends that the ODPP are robust WHEN RULING ON FILES, WITH CASES NOT BEING CHARGED UNLESS THE FULL CODE TEST CAN BE APPLIED, in those cases where the defendant is suitable for bail. This will avoid the re-working of files and the file build should be front loaded prior to authorising charge. Where evidence is missing it should be requested prior to charge and monitored, this should be chased up and by the SCM.
THE CJA RECOMMENDS THAT CASES THAT ARE SUBJECT TO NUMEROUS ADJOURNMENTS SHOULD BE DISCONTINUED AT AN EARLY STAGE AND RECHARGED WHEN THE MISSING EVIDENCE IS AVAILABLE, REDUCING THE RESOURCES USED TO REPAIR CASES.
The CJA designed an adverse outcome form (Annex F) where cases have been discontinued or lost at half time, to ascertain why cases fail, enabling
The DPP and the COP must answer this criticism that amounts to a grave management failure.
Out of court disposals
The Police are not able to authorise charges apart from traffic ticket cases. All charges are authorised by the ODPP and currently the choice is charge or no further action, although there is the option of an informal warning system. There is no formal system for out of court disposals. As result THERE ARE A NUMBER OF CASES THAT ARE FLOWING THROUGH THE COURT PROCESS AND WHICH ULTIMATELY RESULT IN A LOW LEVEL DISPOSAL.
This has been a recurring and public criticism for several years.
The DPP must answer this criticism that amounts to a grave management failure.
Out of court disposals
As result there are a number of cases that are flowing through the court process and WHICH ULTIMATELY RESULT IN A LOW LEVEL DISPOSAL. This has the following impact:
(a) Some defendants are remanded in custody (due to inability to meet bail conditions)
(b) The police have to provide a file.
(c) The ODPP has to review the file.
(d) There is a court hearing.
(e) There may be an additional sentence hearing.
An out of court disposal system would reduce the above. Additionally, there is evidence to suggest that an out of court disposal system can improve public confidence and reduce re-offending.
The CJA suggested an alternative disposal for low level offending that would result in a nominal penalty. This would require legislation and there may be already similar legislation in one of the overseas territories that could provide a model for the Cayman Islands. This would in turn reduce the burden on the courts.
This has been a recurring and public criticism for several years with similar unimplemented recommendations. Again, an immediate and comprehensive review of pending cases is recommended.
The DPP must answer this criticism that amounts to a grave management failure.
Disclosure –
The disclosure of unused materials is not uniformly undertaken. The Police service do not fully appreciate their duties and responsibilities at common law.
The COP must answer this criticism that amounts to a grave management failure.
Out of court disposals
At present there are two options for case disposal; Prosecution or no further action. This leads to minor cases being charged, and people unnecessarily acquire criminal records which damage their future, employability and ability to travel overseas. It also increases the volume of cases through the Police, ODPP, and Courts which could have been dealt with in another way.
Recommendation:
(a) An out of court disposal scheme should be implemented. The use of cautions, conditional cautions (e.g. payment of compensation for minor criminal damage matters and youth cautions. These disposals could be recorded on appropriate registers.
THIS HAS BEEN A RECURRING AND PUBLIC CRITICISM FOR SEVERAL YEARS WITH SIMILAR UNIMPLEMENTED RECOMMENDATIONS. AGAIN, AN IMMEDIATE AND COMPREHENSIVE REVIEW OF PENDING CASES IS RECOMMENDED.
The DPP must answer this criticism that amounts to a grave management failure.
Performance Monitoring
Crown Counsel receive performance appraisals annually. There is no structured performance data or advocacy monitoring. The quality of the files delivered to the ODPP is not monitored and feedback to the police is limited.
This has been a recurring and public criticism for several years with similar unimplemented recommendations. Again, an immediate and comprehensive review of pending cases is recommended.
The DPP must answer this criticism that amounts to a grave management failure.
Remands
There are no time scales or monitoring of those accused on remand. It is a financial drain on the public purse and, for those who are innocent, a considerable extended restriction of their liberty.
This has been a recurring and public criticism for several years with similar unimplemented recommendations. Again, an immediate and comprehensive review of pending cases is recommended.
The Minister of Home Affairs, the Chief Officer for the Portfolio and the COP must answer this criticism that amounts to a grave management failure.
Court Liaison
The Magistrates Court lists at present are a mix of first hearings, sentencing with reports and trials. This leads to delay, adjournments and late starts for trials causing a number of cases to go part heard.7 Sentencing often runs over several hearings. Court listing arrangements need to be changed to enable court business to be dealt with more efficiently and to better meet the needs of victims and witnesses.
The Attorney-General, the Chief Officer for the Portfolio and the Court Administrator must answer this criticism that amounts to a grave management failure.
General Comments
- The report recommendations will require a wholesale revamping of police case management requiring significant new resources , hiring of specialized legal and administrative staff with support facilities likely to run into multiples of millions.
- The report recommendations will require a wholesale revamping of DPP case management requiring significant new resources , hiring of specialized legal and administrative staff with support facilities likely to run into multiples of millions.
- The report amounts to serious criticism of the DPP and COP highlighting dereliction of their tasked duties with wholesale management failures over an extended period of time. The report failed to recommend new leadership.
- Report failed to recommend establishment of a body similar to the Crown Prosecution Service Inspectorate.
- Overall an almost comprehensive report which seeks to expand on many issues and similar solutions in the public arena.
- These recommendations many of which are not entirely new will require implementation by new and determined leadership in the Portfolio of Judicial Affairs and the RCIPS or face the Cayman model of regularly ignoring reports and recommendations. The Public has a right to value for money for expensive archaic and non-performing official who have failed in their duties.
The Summary Court Practice Direction 5/2015
This requires at no.11 for conclusion of Summary cases in 9 months for those in custody and 12 months for those and bail.
There should be an immediate review of pending Summary Court cases to discontinue those in significant breach of theses time limits.
(vii) What other material, if any, that person intends to make available to the Court in the presentation of the case; and
(viii) Whether that party intends to raise any point of law that could affect the conduct of the trialor ancillary application; and
10.1.4 May limit:
(i) The examination, cross-examination or re-examination of a witness; and
(ii) The duration of any stage of the hearing.
10.1.5. The Case Management Form issued with this Practice Directions shall be completed (in the case of a represented defendant} by the Defence and Prosecution counsel and in the case of an unrepresented defendant by the presiding Magistrate with the assistance of the Prosecution Counsel.
- TIME LIMITS
Note: The directions in this Part set down the maximum time-limits within which it is desirable that every case should be disposed of. Every effort must still be made to dispose of cases as soon as reasonably practicable, which in some cases will result in a substantially quicker disposal. The directions in this part do not apply to proceedings which are before the Drug Treatment Court or other diversionary programmes.
Timeframe for the completion of proceedings: summary matters
11.1 (i) Every matter to be tried before the Summary Court should aim to be concluded within a period not exceeding 12 months from the date of the First Hearing.
(ii) In the event of conviction, the defendant should be sentenced by the Court before which he was convicted within a period not exceeding 56 days from the date of conviction, save only in the case of exceptional circumstances.
Custody Cases
11.2 In the event that a defendant is remanded to custody, his trial shall be concluded:
(i) In the case of a matter triable in the Summary Court, within a period not exceeding 9 months, unless there are exceptional circumstances, from the date of the first hearing.
