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CIHRC CASE 2/07 — Mullings Final Report of the Cayman Islands Human Rights Committee

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    Background to Petition

  1. On February 4 2007, the Cayman Islands Human Rights Committee (HRC) received correspondence from the Jamaican Consulate in the Cayman Islands, outlining the Consulate's concern that a Jamaican inmate at H.M. Northward Prison; namely Mr. Delton Mullings; had suffered an injuries whilst in detention. The correspondence and supporting medical documentation indicated that Mr. Mullings had suffered a fractured elbow and an abrasion to his forehead.
  2. By way of response, the Director of Prisons, Mr. Dwight Scott, in his letter of March 2 2007 to the Honorary Jamaican Consul, copied to the HRC, the Director explained that an investigation into this matter had been undertaken by the prison authorities. According to this letter, the investigation found that:

    "On the 29' December 2006, Delton Mullings was requested to go to the Duty Clerk's office to be advised of his Earliest Date of Release, he got upset by the date given. The officer then stated that Delton Mullings proceeded to point his hand into the officer's face at the same time stating 'You a fool, you can't tell me not to come back over here' and you a fool, do something about it'. He was then instructed to go to the Principal Officer's (PO's) office. He refused this instruction and had to be escorted there by two officers. Delton Mullings failed to comply with a direct order, and when in the PO's office he became resistant after he was instructed to surrender himself to be hand cuffed. The injuries sustained, the inquiry concludes, were as a result of the struggle he gave the officers who were trying to handcuff him."

  3. The Director's letter proceeds to explain the Mr. Mullings had requested that the police attend and interview him and that the police had accordingly been advised that they may independently inquire into this matter.
  4. At its meeting on March 7 2007, the HRC accepted that this Petition and assigned the matter a Case number on the basis that it raised potential human rights concerns under Article 7 of the International Covenant on Civil and Political Rights (ICCPR) and Article 3 of the European Convention on Human Rights (ECHR), both of which prohibit inhuman and degrading treatment and have been extended to the Cayman Islands.
  5. The HRC initial action was to write to the Director of Prisons and the Commissioner of Corrections and Rehabilitation, Dr. William Rattray, on March 12 2007, requesting further information. This request led to a positive dialogue with the Commissioner of Corrections and Rehabilitation on a range of human rights issues pertaining to prisoners and their treatment.
  6. In respect of this particular complaint, the outcome of this dialogue was that since the matter was under independent investigation by the police, it was appropriate for the HRC to put on hold any further inquiry into this matter, pending the resolution of the police investigation.
  7. On September 5 2007, the HRC wrote to Mr. Mullings and the Jamaican Consulate advising that since the matter was under investigation by the police, the HRC was unable to address the substantive issues raised in the Case until a decision had been taken by the Legal Department whether or not to prosecute the Prison Officer concerned. Following completion of this process, Mr. Mullings was advised that he could re-petition the HRC if he was unsatisfied with the outcome. Notwithstanding this advice, Mr Mullings was also informed that the HRC was continuing to monitor this situation and was itself awaiting the conclusion of the independent investigation.
  8. On September 13 2007, the HRC was advised by the Commissioner of Corrections and Rehabilitation that this process had concluded by determining that there was insufficient evidence to find that the Prison Officer concerned had used excessive force and that it appeared that the injuries sustained were accidental. Accordingly, the Prison Officer was not to be charged with assault.
  9. Following the receipt of this information, this matter was raised once again by the HRC at its meeting on November 21 2007. At this meeting, the HRC concluded that it was not in a position to obtain a professional orthopaedic opinion on the force exerted to cause the injury suffered by Mr. Mullings and without this opinion, the HRC was not able to question the findings of fact made in the course of the official investigation. Both Mr. Mullings and the Jamaican Consulate were accordingly advised, on December 18 2007, to seek legal advice if they still believed that excessive force had been used.

    10. Inhuman and Degrading Treatment in the Context of Prison Discipline

  10. At the same time, the HRC resolved to take the opportunity raised by the facts of this Case and the research undertaken to review the question of what might constitute inhuman and degrading treatment in the context of prison discipline generally and to publish this guidance in the public interest. Accordingly, the remainder and indeed main purpose of this Final Report is dedicated to this objective.
  11. The prohibition of inhuman and degrading treatment, which is contained in Article 7 ICCPR and Article 3 ECHR, is one of the most fundamental values of all democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organized crime, this prohibition is enforced in absolute terms under international human rights law. This means that there can be no exception to or derogation from this prohibition, even in the event of a public emergency threatening the life of the nation.
  12. It therefore follows that because of the seriousness of any breach of this absolute prohibition, there are particularly stringent obligations placed on the State to ensure its full compliance. The European Court of Human Rights has thus held in its judgment of October 12 2004, at paragraph 80, in Bursuc v. Romania, that where a person is injured while in detention or otherwise under the control of the police, any such injury will give rise to a strong presumption that the person was subjected to ill-treatment.
  13. Similarly, in Selmouni v. France, at paragraph 87 of its July 28 1999 judgment, the European Court of Human Rights has also indicated that under such circumstances, it is incumbent on the State to provide a plausible explanation of how the injuries were caused, failing which a clear issue arises under Article 3 ECHR.
  14. In Colibaba v. Moldova, at paragraph 44, the European Court of Human Rights has recently explained further in its judgment published on October 23 2007, but which only became final on January 23 2008, that:

    "Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention."

  15. This mirrors the European Court of Human Rights' conclusion in Selman v. Turkey at paragraph 100 of the judgment delivered on June 27 2000, which provides that the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.
  16. The recent judgment in Colibaba v. Moldova also outlines at paragraphs 52 - 53 what is expected of an investigation into a complaint of ill-treatment occurring while in detention:
    • "Such investigation should be capable of leading to the identification and punishment of those responsible."
    • "The investigation into serious allegations of ill-treatment must be thorough. That means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions."
    • "They [the investigators] must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence."
    • "Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard."
  17. While the HRC has not sought to review the police investigation into this issue, it has no reason to question that it was a serious attempt to provide an independent and thorough examination of the matter. That said; in addition to the conclusion that there was insufficient evidence to proceed with a prosecution in this matter, it is important that this process is also able to demonstrate a plausible explanation to rebut the presumption of ill-treatment in such circumstances, as necessitated by this line of human rights case law.

    18. Recommendation

  18. The HRC trusts that this information is useful and looks forward to a positive affirmation from the relevant authorities to the effect that all policies and procedures are in line with these international human rights obligations. To this end, the HRC stands ready to further assist in any way that it can.

    19. Important Note

  19. 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 making sure they fully place any comments or quotations in their context. To do otherwise may create an entirely misleading impression.