The Drug Court Bill 2006
The HRC respects the motivation behind, and supports the establishment of, a Drug Court in the Cayman Islands. The principal reason for this position is the demonstrable reduction in repeat offending, evidenced in most other jurisdictions that have adopted Drug Courts. At the same time, however, the HRC also endorses the view submitted by Human Rights Watch to the United Nations General Assembly, in a special session devoted to the fight against narcotic drugs, which affirms that:
“All national and international drug control strategies must be designed and implemented within the framework of full respect for universally recognised fundamental rights.”
The HRC is conscious that the Drug Court concept is generally premised on distinguishing the Drug Court from the ordinary criminal justice system and that this is an important contributory factor in the successes that have been attributed to Drug Courts. That said; the HRC does not believe that this can ever justify any potential reduction of the guarantees encompassed by the right to a fair trial, which are contained in Article 14 of the United Nations’ International Covenant on Civil and Political Rights and Article 6 of the European Convention on Human Rights.
Clause 6(3), which provides that “the procedure of the Drug Court shall not be vitiated by reason of any failure to observe the relevant rules of evidence”, therefore worried the HRC. If rules of evidence, which are encompassed by the right to a fair trial, are ignored and the Drug Court utilises its power to impose sanctions similar to a criminal court, as provided for in clause 14(2), this could potentially give rise to human rights concerns.
Similar questions arise in respect of clause 16(2), which precludes appeal from the Drug Court against any decision to impose conditions pursuant to clause 13(2), 14 or 15; and clause 25(2)(c), which exempts approved treatment providers from being compelled to disclose information or to produce any document that contains this information. Conceivably, either of these provisions could result in a trial that did not comply with the guarantees contained in the right to a fair trial (which would usually include a right of appeal and a right to disclosure) and accordingly, might be reconsidered in the light of this potential. This would be particularly pertinent where the denial of an appeal, under clause 16(2), related to a decision that took away a person’s liberty, invaded their privacy, or resulted in the deprivation of property. All of these are fundamental human rights and all could be impacted by decisions taken under clause 13(2), 14 or 15.
Clause 12(4), clause 13(6) and clause 19(6) also seek to prohibit appeals from the Drug Court and whilst the HRC is aware that the whole point of the Drug Court is that the drug offender works with the authorities, thereby negating any desire for an appeal, there may be circumstances where the actions were so unreasonable that the drug offender ought to have some means of recourse. Retuning to the ordinary criminal justice system may be disadvantageous; so in certain limited circumstances, there perhaps ought to be some remedy within the Drug Court process. The HRC also notes that judicial review would still be available and would provide an avenue of recourse where it is a summary court that is sitting as the Drug Court. This would not, however, be available where it is the Grand Court that is sitting as the Drug Court. In order to eliminate this difficulty, a limited right of appeal on strict grounds might be preferable.
Clause 7(4) would permit the Duty Counsel, who has been appointed for the drug offender, to “represent the drug offender whether or not the drug offender consents to the appointment.” However, the right to a fair trial, as provided for in Article 6(3)(c) of the European Convention on Human Rights, provides for defence in person or through legal assistance on one’s own choosing. As such, if representation was imposed on a drug offender under clause 7(4), this too could give rise to a breach of the right to a fair trial. Existing arrangements already allow for the appointment of an amicus, which is in line with the right to a fair trial as generally applied, and there would appear to be no justifiable and proportionate reason for departing from that practice in the Drug Court.
Clause 18(3) provides that a drug offender will be taken to have failed to comply with the prescribed treatment programme if he is charged before a court with a number of identified offences. This would appear to conflict with the fundamental presumption of innocence principle and may also therefore infringe the right to a fair trial.
Last Updated: 2007-01-11