The
Cayman Islands
Human Rights Commission
___________________________________________
promoting, protecting and preserving human rights
Mrs. Kathryn Dinspel-Powell
Deputy Chief Officer (Corrections & Rehabilitation Division)
Ministry of Home Affairs
5th Floor, Government Administration Building
P.O. Box 111
Grand Cayman KY1-9000
CAYMAN ISLANDS
22 February 2016
Via E-mail: [email protected]
Dear Mrs. Dinspel-Powell,
Thank you for your email of 30 November 2015 offering the Human Rights Commission (“the
Commission”) the opportunity to review the Draft Rehabilitation of Offenders Bill, 2015 for compliance with
the Bill of Rights. The Commission is also grateful to the Honourable Members of Caucus for their proactive
attitude towards the review of this Bill.
It is clear that a significant amount of work that has been put into the drafting and reviews of this Bill but the
Commission would submit the following comments for consideration.
1. Definitions – S.2
a. ‘Conviction’
This definition refers to s.36 of the Penal Code (2013 Revision) (security to return for
sentencing). The term used in the Penal Code is actually ‘Security for coming up for judgment’
and the Commission would suggest using this term in the Draft Bill for consistency.
The Commission also queries where this falls in Schedule 1 as it is unclear. Is it intended to fall
within the provisions of point 12?
b. ‘Expungement’
The Commission notes, and agrees with Caucus’ suggestion that this term should be defined.
c. ‘Sentence’
It is unclear whether the current definition is intended to cover a situation where a magistrate
exercises his or her powers under section 41 of the Penal Code or section 75 of the Criminal
Procedure Code (2014 Revision) not to record a conviction and discharge an offender. Such a
person is generally understood not be ‘sentenced’ at all. However, point 12 of Schedule 1
makes specific provision for dealing with absolute and conditional discharges. Is it the intention
of the Bill to have a rehabilitation period for a discharged non-convicted discharged person
(particularly one discharged absolutely)?
2. Application of this Law – S.3
S.3(1)(c) should read “…during the Court’s pleasure” as opposed to “…during the Governor’s
pleasure” to reflect the requirement of sentencing by the judiciary as opposed to the executive.
(See the judgment of the Court of Appeal in Hydes v R, [2007] CILR 152.)
3. Functions of the Board – S.5(1)(a)
The Commission notes, and agrees with Caucus’ request to clarify this subsection. Spent convictions
should not have to be expunged by decision of the Board. The Board’s time would be more
productively spent considering the cases of those who are not eligible to have their conviction
deemed spent based on the length of their sentence (those sentenced to 36 months’ imprisonment
or more).
4. Effect of Rehabilitation in General – S.6
Similarly, convictions for which the rehabilitation period has expired should become spent
automatically. We reiterate the concerns articulated above. To require the Board to consider each
one is an unnecessary use of their time.
5. Effect of Rehabilitation in Judicial Proceedings – S.7
S.7(2) refers to
“…any stage in any proceedings before a judicial authority in the Islands (not being proceedings
to which, by virtue of subsection (1)(e), section 6 does not apply, or proceedings to which
section 13 applies)…”
To what is this referring? Subsection 1(e) of what section? Section 12 seems likely, although it does
not contain a ss.1(e) but does contain an (e), this should be clarified.
6. Unauthorised Disclosure of Spent Convictions – S.16
This section has implications for data protection and may need to be reconsidered when the Data
Protection Law is finalised.
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7. Schedule 1 - Points 1 & 2
Why is there the same period of rehabilitation for a conviction of under 6 months as a conviction of
6-36 months (7 years)? In the current law it is 7 years and 10 years respectively.
8. Schedule 1 - points 1 – 3
The Bill now adds in different timeframes for juveniles as opposed to adults, however, the
Commission understands that offences committed by juveniles currently don’t appear on a person’s
police record (this may explain why there were not referred to in the previous schedule), their
inclusion now appears to place young people in a worse position than before. Is this intentional?
9. Schedule 1 - Points 5 & 6
i. How long is required to pass before offenders can apply to the Board for expungement of their
record having been convicted of a term exceeding 36 months?
ii. What is the procedure once the convicted person applies to the Board?
iii. What informs the Board’s decision?
iv. What is the test(s) to be applied?
10. Schedule 1 - Point 10
Is it intended that the Bill now apply to Driving under the Influence (“DUI”) convictions? The
Commission understands that under the current law a DUI conviction would not appear on a police
record. Will this change? What is the intended status of such ‘traffic’ offences?
11. Schedule 1 – Point 12
As indicated above, a rehabilitation period for an absolute discharge seems somewhat
contradictory.
12. Schedule 1 - Point 14
a. This is section is confusing. The Commission understands that people who are found insane at
the time of trial are not tried. They are, effectively, sectioned not sentenced. If they cease to be
insane at a later date, they can be tried and, if found guilty, they are sentenced. At this point,
the same periods of rehabilitation should apply as in the rest of the Bill.
b. The current version of the Criminal Procedure Code is the 2014 Revision.
13. Schedule 2 – Part 1
Is this list exhaustive enough? Has consideration been given to those persons who are in the process
of adopting children, applying for firearms, or applying to become a taxi driver or tour operator?
14. Schedule 2 – Part 2
Again, is this list exhaustive enough? The list specifies Juvenile Correctional Centers – should adult
ones also be included?
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15. Schedule 3 – Section 1
a. It is noted that the Board has the potential to be a comprised of a majority of public servants. Is
this intentional?
b. Subsection b(iii) refers to a minister of religion. The other defined classes of appointee listed
have specific qualifications or experience which would make them (by virtue of those attributes)
particularly suited to a position on the Board. Whilst a minister of religion may have these
qualities (and therefore be eligible to be appointed) they would not be by virtue of his/her
status as such. This section should be reconsidered.
16. General Comments
The Commission notes that one of the key objectives in drafting the Bill was to re-write the law in
simple terms, so that it could easily be understood by those most likely to be impacted by its
provisions, the overwhelming majority of whom will not be legally-qualified. Whilst aware of how
difficult it is to draft legislation, with regret the Commission is of the opinion that the Draft Bill has
failed in this objective. By way of example section 11, dealing with multiple sentences, reads:
“11.(1) Where more than one sentence is imposed in respect of a conviction (whether or not in
the same proceedings), then, subject to subsections (2), (3), (4) and (5), if the periods applying
to those sentences under section 10 and Schedule 1 differ, the rehabilitation period applying to
the conviction shall be the longer or the longest of those periods.
(2) Without limiting subsection (1), where a person was placed on probation and after the end
of the rehabilitation period applying to the conviction the person is dealt with, in consequence
of a breach of probation, for the offence for which the probation order was made, then, if the
rehabilitation period applying to the conviction under subsection (1) (taking into account any
sentence imposed when he is so dealt with) ends later than the rehabilitation period previously
applying to the conviction (a) the person shall be treated for the purposes of this Law as not having become a
rehabilitated person in respect of that conviction; and
(b) the conviction shall, in relation to any period falling before the end of the new
rehabilitation period, be treated as not having become spent.
(3) Subject to subsection (4), where, during the rehabilitation period applying to a conviction (a) the person convicted is convicted of a further offence; and
(b) the sentence imposed for the later conviction is not excluded from rehabilitation under
this Law,
if the rehabilitation period applying under this section to either of the convictions
would end earlier than the period so applying in relation to the other, the rehabilitation
period which would have ended earlier shall be extended so as to end at the same time as
the other rehabilitation period.
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(4) Where the rehabilitation period applying to a conviction is the rehabilitation period applying
under Schedule 1, item 13, the rehabilitation period applying to another conviction shall
not, by virtue of subsection (3), be extended by reference to that period; but if any other
sentence is imposed in respect of the first-mentioned conviction for which a rehabilitation
period is prescribed by any other provision of this Law, the rehabilitation period applicable
to another conviction shall, where appropriate, be extended under subsection (3) (a) by reference to the rehabilitation period applying in accordance with Schedule 1 to that
sentence; or
(b) where more than one such sentence is imposed, by reference to the longer or longest of
the periods so applicable to those sentences,
as if the period in question were the rehabilitation period applicable to the firstmentioned conviction.
(5) For the purposes of subsection (4)(a), there shall be disregarded –
(a) a conviction in the Islands of an offence which is not triable upon indictment; and
(b) a conviction by a court outside the Islands for an offence in respect of conduct which, if
it had taken place in the Islands, would not have constituted an offence under a Law in
force in the Islands.”
The Commission would urge those tasked with drafting the Bill to consider whether this, and other
sections of the Bill, can be re-drafted in a more ‘reader-friendly’ manner.
Conclusion
This review should not be considered as a substitute for legal advice but the Commission would
encourage further review of the Draft Bill to consider the concerns outlined above. The Commission is
grateful to the Ministry for the opportunity to comment on the Draft Bill. If you have any questions
regarding our comments above, or we can be of any further assistance, please do not hesitate to contact
us.
Yours sincerely,
James Austin-Smith
Chairman
Human Rights Commission
…………………………………………………………………………………………………………………………………………………………………………………
nd
2 Floor Artemis House, George Town, Grand Cayman
P.O. Box 391 │ Grand Cayman KY1-1106 │ CAYMAN ISLANDS
Telephone: 1.345.244.3685 Facsimile: 1.345.945.8649
Website: www.humanrightscommission.ky
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