CIHRC Case 3 /07 ‘C’. ‘M’. ‘J’. ‘A’ and ‘B’

Final Report of the Cayman Islands Human Rights Committee

Reception of Complaint

1. Earlier this year, acting on information received from a member of the public, a representative of the Human Rights Committee (“HRC”) attended a series of hearings in the Youth Court. Following those hearings the matters arising were raised for discussion by the whole HRC. Significant human rights concerns were identified and the matter was formally accepted by the HRC. This Final Report was approved by the full HRC on the 13th November, 2007.

Nature of the Complaint

2. This Case concerns a number of young females who were facing criminal allegations in the Youth Court. ‘C’, the youngest, was 13 at the time and ‘J’, the oldest, was 16. All defendants had previously been placed in the Frances Bodden girls’ home and at least four of them were charged with breaching court imposed rehabilitation orders and it appears that all were charged with offences arising from an altercation with police officers at the home.
3. It is not possible, necessary, or desirable to go into a full history of each of the young people who are the subject of this Report. Indeed, although interviews were conducted with a number of the young people, this report is based entirely on facts made available and aired in Court. Although it is possible to deal with this matter in a factual vacuum, the HRC feel that it is perhaps useful to give the background, by way of example, of how one of the young females came to be before the Court and the result of the hearing in her case. The HRC is concerned that the public should be aware of the difficulties faced by all the agencies involved in arriving at the appropriate resolution of what are invariably complex cases with competing (and conflicting) priorities. This summary is deliberately lacking in detail so as to preserve the anonymity of the young person.

The Case of ‘C’

4. ‘C’ was aged 13 at the time she came before the Court. When she was 8, her mother died and since that time she has been brought up by her grandmother. As a result of behavioural difficulties at school she was placed in the Alternative Education Programme, where she was the only female. She refused to attend school and after that was sent to the Frances Bodden girls’ home. Social services and the Court wanted to refer her for a personality assessment but were unable to do so because she was too young. She was subsequently sent to Fairbanks Prison – an adult facility. When asked, ‘C’ stated that she didn’t feel safe at Frances Bodden. Allegations were made that the home had had to be “split down the middle into two camps.” When the Judge ordered ‘C’s return to the home, she began to cry and explained that “things happen that the staff don’t see.” By way of example, she told the court how other girls had burned photographs that she had kept of her mother.
5. ‘C’ and the three other young people who are the subject of this Report were all either returned to Fairbanks Prison on remand, or were given sentences of imprisonment which were to be served, or deemed served, there. None was legally represented at, or before, the hearings. As indicated, Fairbanks is an adult prison and does not have any specialist facilities for the detention or care of young people.

Legal Background

6. Where it is necessary for the HRC to assess the merits of any formal complaint, this will be undertaken with reference to the standards established in relevant international human rights treaties. In this Case, of particular relevance, are the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”) and the Convention on the Rights of the Child (“The CRC”). However, the principles enshrined in these two instruments are also reflected in numerous other international human rights instruments including the European Convention on Human Rights, The International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights, the Convention on the Elimination of All Forms of Discrimination against Women and the United Nations Standard Minimum Rules for the Treatment of Prisoners.
7. This Report cannot attempt to summarise the entirety of the many international instruments referred to. However, this report should be read with them in mind. All bar the Minimum Standard Rules, which are Appendix 1 to this Final Report, are available on the HRC's website (www.humanrights.ky). What is clear from both the Beijing Rules and the CRC is that the interests of the child should be the main concern. Article 3 of the CRC states:

   “In all actions involving children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

   Article 1.1 of the Beijing Rules states:

   “Member states shall seek, in conformity with their respective general interests, to further the well-being of the juvenile and her or his family.”

   In these particular cases there seem to the HRC to be five broad areas which give cause for concern and which may offend, not just against the fundamental principles articulated above, but also against specific requirements of the Beijing Rules and the CRC.

Detention of Juveniles Pending Trial

8. Locking children up prior to the disposal of their cases should be avoided if at all possible. Articles 13.1, 13.2 and 13.3 provide that:

   “Detention pending trial shall be used only as a measure of last resort and for the shortest possible period of time.”

   Whenever possible, detention pending trial shall be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home.

   Juveniles under detention pending trial shall be kept separate from adults and shall be detained in a separate institution or in a separate part of an institution also holding adults.”

   The thinking behind this is obvious but is stated explicitly in the commentary to Article 13:

   • “The danger to juveniles of ‘criminal contamination’ whilst in detention pending trial must not be underestimated”

Adjudication of Criminal Allegations

9. It is self-evident that juveniles are entitled to a fair trial, no less so than adults. Article 14 of the Rules deals with this. The Rules go on to state explicitly that:
   • “Throughout the proceedings the juvenile shall have the right to be represented by a legal adviser or to apply for free legal aid where there is provision for such aid in the country.”

   Article 40 of the CRC reflects the same requirement as does the European Convention on Human Rights and the International Covenant on Civil and Political Rights.

Disposal of Cases Following Conviction

10. The detention of juveniles post trial is also quite rightly, regarded as an extreme course. Article 17.1 of the Beijing Rules makes the position clear and is reproduced in full below:
    • “The disposition of the competent authority shall be guided by the following principles:
      • The reaction taken shall always be in proportion not only to the circumstances and the gravity of the offence but also to the circumstances and the needs of the juvenile as well as to the needs of the society;
      • Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum;
      • Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response;
      • The well-being of the juvenile shall be the guiding factor in the consideration of her or his case.”

    The commentary to Article 17 goes on to make it clear that “strictly punitive measures are not appropriate, incarceration in the case of juveniles [should be avoided] unless there is no other appropriate response that will protect the public safety.” See also Article 40.4 of the CRC, which deals with dispositions.

11. Article 18 goes on to list a number of alternatives to custody which should be considered before the tribunal has to resort to imprisonment. The CRC makes similar provisions in Article 37 (b):

    “…The arrest, detention or imprisonment of a child shall be in conformity with the law and shall only be used as a measure of last resort and for the shortest possible period of time.”

Conditions of Detention

12. Should the tribunal have no option but to resort to the imprisonment of a child it is also clear that the child’s age should be taken into account in determining the place in which they are detained. Article 37 (c) establishes that:

    “Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so…”

    Article 26. 3 of the Beijing Rules further provides that:

    • “Juveniles in institutions shall be kept separate from adults and shall be detained in a separate institution or in a separate part of an institution also holding adults.”

Treatment whilst in Detention

13. The Rules also lay down guidelines as to the appropriate facilities that should be made available. Article 13.5 states that:
    • “While in custody, juveniles shall receive care, protection and all necessary individual assistance-social, educational, vocational, psychological, medical and physical-that they may require in view of their age, sex and personality.”

    Article 26.4 additionally makes particular note of young female offenders:

    • “Young female offenders placed in an institution deserve special attention as to their personal needs and problems. They shall by no means receive less care, protection, assistance, treatment and training than young male offenders. Their fair treatment shall be ensured.”

    Of relevance here also are the Convention on the Elimination of All Forms of Discrimination against Women and the United Nations Minimum Rules of the Treatment of Prisoners.

Assessment

14. In these cases the HRC notes that there has been:
    • The detention of children in adult prison pending trial
    • Children’s trials (or taking of their pleas) without access to legal advice
    • Sentence of children without access to legal advice
    • The imposition of sentences of imprisonment on children to be served in an adult prison
    • A severe lack of appropriate dedicated facilities for juveniles accused of crimes, especially young females.

    These findings lead the HRC to conclude that there are prima facie breaches in these Cases of every one of the Articles referred to in paragraphs 7 to 13 above. Each of the other international instruments referred to in paragraph 6 above are also similarly breached.

15. Of further concern is a legislative framework that is in many cases, overly preoccupied with punishment and which therefore fails to comprehensively address the needs of the child as required under international law. The HRC has reported before on the dangers of mandatory minimum sentences, both in its 2006 Report for the Convention on the Rights of the Child and in paragraphs 7 – 10 of the Final Report in CIHRC Case 6/06 The “Lifers” Case. Where these mandatory sentences exist, they do not only apply to adults but equally to children who are over the age of criminal responsibility, which in the Cayman Islands stands at 10 years old. Under these provisions, children are facing mandatory ten year terms of imprisonment for a wide variety offences some as trivial as possession of airguns or membership of a gang. This is disproportionate, unjust and contrary to internationally accepted norms and to a multitude of international instruments. Article 17.1(a) of the Beijing Rules is pertinent in this respect.

    “The reaction taken shall always be in proportion not only to the circumstances and gravity of the offence but also to the circumstances and needs of the juvenile...”

    These sentences, by definition, cannot be said to take these factors into account.

16. The introduction of mandatory minimum sentences, and, in particular, their application to children was an unfortunate and retrograde step for the recognition of fundamental human rights in the Cayman Islands. The HRC appreciates that the enactment of the laws providing for these sentences may well have been viewed as necessary in response to a perceived danger. However, this is precisely why human rights require constitutional elevation. Constitutional guarantees could ensure that law-makers are always fully cognizant of proposals which have the potential to undermine human rights; and in addition, should also provide a mechanism whereby such laws can be promptly and effectively challenged and, if necessary, annulled.
17. Let it be clear, the HRC is not suggesting that no action be taken to address challenges to good order within our society. However, any and every such response should be proportionate to the danger it seeks to eliminate. It is not necessarily therefore the length of the sentences that the HRC objects to; but to the mandatory nature of the sentences that curtails discretion and along with it, in some cases, the availability of measured and proportionate sentences that fit the particular crime. This is clearly sometimes a difficult balance to get right; but to reiterate, this is why the balancing process must give due regard to human rights.
18. The HRC understands that mandatory sentences are currently under review. This is a welcome development that the HRC supports. However, the HRC equally understands that the legislative proposals currently under consideration may also give rise to human rights issues. The HRC would therefore like to offer any guidance it possible can to ensure that the amendments to offending laws are fully compliant with international human rights obligations.

    The lesson that must be learnt from this series of events is that as the country seeks to modernize its Constitution, the inclusion of fundamental rights, with a procedure to protect against legislative encroachment and a mechanism to provide for judicial enforcement, are absolutely essential.

19. Returning to the rights of children more generally, the HRC would also like to refocus attention on the range of recommendations that it has previously made in its Report for the Convention on the Rights of the Child. The HRC would once again like to offer its assistance to work with any and all interested parties towards the meaningful implementation of these recommendations and, in so doing, the full recognition of the rights of the child in the Cayman Islands.

Conclusions

20. It is quite clear that in many cases the various agencies involved simply do not have the facilities available to them to allow proper disposal of these cases in accordance with the relevant international instruments. As the learned Judge noted in reference to ‘C’’s case:

    “"[there is] no appropriate facility or program for juveniles. We need a specialist program tailored for adolescents...the limitations of system mean that if she breaches [her youth court order] I have to return her to custody…I don't have any choices…The situation at Frances Bodden has deteriorated to the point where there is no point placing her there."

    In her concluding remarks the Learned Judge stated:

    • "In the absence of formal ruling from ministers young defendants go to Tranquillity Bay. In our experience it is uniformly bad. It is high time that we have a facility here or explore alternatives,…,We need a secure facility with an education facility,…,We need a secure remand facility where [young people] can receive education and therapy,…,Eagle House does not begin to meet needs of boys and for girls there is nothing at all,…,Frances Bodden is a home, it does not offer counselling and is not properly built for re-training or re-education,…,We need some facility between home and prison."
21. These are strong words, especially coming from a Judge with considerable experience of the youth justice system; however they are not sentiments from which the HRC would dissent. The HRC urges the government to take steps to ensure that the appropriate facilities and legislative framework are put in place to address the clear breaches of the international instruments referred to in this Report and to ensure that young people accused of crimes receive fair and appropriate treatment, training and education, not just incarceration.

Important Note

22. It is the intention of the HRC that this report be read as a complete document. Further, the HRC hopes that those desirous of quoting from its contents, or attempting to summarise it, will not do so without ensuring that they fully place any comments or quotations in their context. To do otherwise may create an entirely misleading impression.

Last Updated: 2007-11-21