| Right to fair trial |
Fair trial 7. —
- Every one has the right to a fair and public hearing in the determination of his or her legal rights and obligations by an independent and impartial court within a reasonable time.
- Everyone charged with a criminal offence has the following minimum rights –
- to be presumed innocent until proved guilty according to law;
- to be informed promptly, in a language which he or she understands and in detail, of the nature and cause of the accusation against him or her;
- to have adequate time and the facilities for the preparation of his or her defence;
- to defend himself or herself in person or through legal assistance of his or her own choosing or, if he or she has not sufficient means to pay for legal assistance and the interests of justice so require, through a legal representative at public expense provided through an established public legal aid scheme as prescribed by law;
- to examine or have examined witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her;
- to have the free assistance of an interpreter if he or she cannot understand or speak the language used in court;
- when charged on indictment in the Grand Court, to have the right to trial by jury;
and, except with his or her own consent, the trial shall not take place in his or her absence, unless he or she so behaves in the court as to render the continuance of the proceedings in his or her presence impracticable and the court has ordered him or her to be removed and the trial to proceed in his or her absence, or unless, having had reasonable notice of the hearing and of the nature of the offence charged, he or she is voluntarily absent from the proceedings.
- When a person is tried for any criminal offence, the accused person or any person authorised by him or her shall, if he or she so requires and subject to payment of such reasonable fee as may be prescribed by law, be given within a reasonable time after judgment a copy for the use of the accused person of any record of the proceedings made by or on behalf of the court.
- No person who shows that he or she has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he or she could have been convicted at the trial for that offence, save on the order of a
superior court in the course of appeal or review proceedings relating to the conviction or acquittal.
- No person shall be tried for a criminal offence if he or she shows that he or she has been lawfully pardoned for that offence.
- No person who is tried for a criminal offence shall be compelled to give evidence at the trial.
- Every person who has been convicted by a court of a criminal offence shall have the right to appeal to a superior court against his or her conviction or his or her sentence or both as may be prescribed by law; but-
- nothing in any law shall be held to contravene this subsection –
- to the extent that it precludes an appeal by a person against his or her conviction of an offence if he or she pleaded guilty to that offence at his or her trial; or
- to the extent that it makes reasonable provision with respect to the grounds on which any such appeal may be made or with respect to the practice and procedure to be observed in relation to the making, hearing and disposal of any such appeal; and
- this subsection shall not apply in relation to the conviction of a person by a superior court, or in relation to his or her sentence on such conviction, if he or she was convicted by that court on an appeal against his or her acquittal by a lower court.
- When a person has, by a final decision of a court, been convicted of a criminal offence and, subsequently, his or her conviction has been quashed, or he or she has been pardoned, on the ground that a newly-disclosed fact shows that there has been a miscarriage of justice, he or she shall be compensated out of public funds for any punishment that he or she has suffered as a result of the conviction unless it is proved that the non-disclosure in time of that fact was wholly or partly his or her fault.
- All proceedings instituted in any court for the determination of the existence or extent of any civil right or obligation, including the announcement of the decision of the court, shall be held in public.
- Nothing in subsection (1) or (9) shall prevent the court from excluding from the proceedings persons other than the parties to them and their legal representatives to such extent as the court-
- may be empowered by law to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice, or in interlocutory proceedings, or in the interests of public morality, the welfare of minors or the protection of commercial confidence or of the private lives of persons concerned in the proceedings; or
- may be empowered or required by law to do in the interests of defence, public safety, or public order.
- Nothing in any law or done under its authority shall be held to contravene –
- subsection (2)(a), to the extent that the law in question imposes on any person charged with a criminal offence the burden of proving particular facts;
- subsection (2)(d), to the extent that the law in question imposes conditions that must be satisfied if witnesses called to testify on behalf of an accused person are to be paid their expenses out of public funds;
- subsection (5), to the extent that the law in question authorises a court to try a member of a disciplined force for a criminal offence notwithstanding any trial and conviction or acquittal of that member under the disciplinary law of that force, save that any court so trying such a member and convicting him or her shall in sentencing him or her to any punishment take into account any punishment imposed on him or her under that disciplinary law.
- In this section, “legal representative” means a person entitled to practise in the Cayman Islands as an attorney.
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Right to a fair trial
- Everybody has the right to a fair and public hearing in the determination of his legal rights and obligations by an independent and impartial tribunal within a reasonable time.
Everyone charged with a criminal offence has the following minimum rights:
- to be presumed innocent until proved guilty according to law.
- to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
- to have adequate time and the facilities for the preparation of his defence;
- to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
- to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
- to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
No person shall be tried for an offence in respect of which he has previously been acquitted.
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| Right to personal liberty |
Personal liberty
5. —
- No one shall be deprived by government of liberty and security of the person.
- The right to liberty does not extend to the following measures taken in accordance with a procedure prescribed by law –
- in execution of the sentence or order of a court, whether in the Cayman Islands or elsewhere, in respect of a criminal offence under any law of which he or she has been convicted or in consequence of his or her unfitness to plead to a criminal charge;
- in execution of an order of a court punishing him or her for contempt of that court or of another court; 13
- in execution of the order of a court made in order to secure the fulfilment of any obligation imposed on him or her by law; but no person shall be deprived of his or her liberty merely on the ground of inability to fulfil a contractual obligation;
- for the purpose of bringing him or her before a court in execution of the order of a court;
- on reasonable suspicion that he or she has committed, is committing or is about to commit a criminal offence under any law;
- in the case of a minor, under the order of a court or with the consent of his or her parent or guardian, for the purpose of his or her education or welfare;
- for the purpose of preventing the spread of an infectious or contagious disease;
- in the case of a person who is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for the purpose of his or her care or treatment or the protection of the community;
- for the purpose of preventing the unlawful entry of that person into the Cayman Islands, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from the Cayman Islands, or for the purpose of restricting that person while he or she is being conveyed through the Cayman Islands in the course of his or her extradition or removal as a convicted person from one country to another;
- in execution of the order of a court detaining a person charged with a criminal offence in respect of whom a special verdict has been returned that he or she was guilty of the act or omission charged but was insane when he or she did the act or made the omission.
- Any person who is arrested or detained shall be informed promptly, in a language that he or she understands, of the reason for his or her arrest or detention and of the right to remain silent.
- Any person who is arrested or detained shall have the right, at any stage and at his or her own expense, to retain and instruct without delay a legal practitioner of his or her own choice, and to hold private communication with him or her, and in the case of a minor he or she shall also be afforded a reasonable opportunity of communication with his or her parents or guardian; but when a person arrested or detained is unable to retain a legal practitioner of his or her own choice or be represented by a legal practitioner at the public expense as may be prescribed by any law, he or she may be represented, and hold private communication with, such person as the court may approve.
- Any person who is arrested or detained –
- for the purpose of bringing him or her before a court in the execution of the order of a court; or
- on reasonable suspicion of his or her having committed, or being about to commit, a criminal offence,
and who is not released, shall be brought promptly before a court; and if any person arrested or detained in such a case as is mentioned in subsection (2)(e) is not tried within a reasonable time he or she shall (without prejudice to any further proceedings that may be brought against him or her) be released either unconditionally or on reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he or she appears at a later date for trial or for proceedings preliminary to trial, and such conditions may include bail.
- Any person who is deprived of his or her liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his or her detention shall be decided speedily by a court and his or her release ordered if the detention is not lawful, and he or she shall be entitled to compensation if unlawfully arrested or detained; but a judicial officer or an officer of a court or a police officer acting in pursuance of the order of a judicial officer shall not be personally liable to pay compensation under this subsection in respect of anything done by him or her in good faith in the discharge of the functions of his or her office, and any liability to pay any such compensation in respect of that thing shall be a liability of the Crown.
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Right to Liberty
5.
- Everybody has the right to liberty of the person.
- The right to liberty does not extend to the following measures taken in accordance with a procedure prescribed by law:
- the detention of a person after conviction by a competent court;
- the arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
- the arrest or detention of a person effected for the purpose of bringing him before the competent legal authority of reasonable suspicion of having committed and offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
- the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
- the detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants;
- the arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
- Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him.
- Everyone arrested or detained in accordance with the provisions of subsection 2(c) shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
- Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
- Everyone who has been arrested or deprived of his liberty in contravention of the provisions of this article shall have an enforceable right to compensation.
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Non—discrimination |
Non—discrimination
16.—
- Subject to subsections (3), (4), (5) and (6), government shall not treat any person in a discriminatory manner.
- In this section, “discriminatory” means affording different treatment to different persons on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, age, mental or physical disability, property, birth or other status.
- Nothing in any law or done under its authority shall be held to contravene this section to the extent that it has an objective and reasonable justification and there is a reasonable proportion 24
between the provision of law in question or, as the case may be, the thing done under it and the aim which that provision or the thing done under it seeks to achieve.
- Subsection (1) shall not apply to any law so far as that law makes provision-
- for the appropriation of revenues or other funds of the Cayman Islands or for the imposition of taxation (including the levying of fees for the grants of licences);
- with respect to the entry into or exclusion from, or the employment, engaging in any business or profession, movement or residence within, the Cayman Islands of persons who are not Caymanian or who do not possess Caymanian status;
- for the application, in the case of persons of any such description of grounds as is mentioned in subsection (2) (or of persons connected with such persons) of the law with respect to adoption, marriage, divorce, burial, devolution of property on death or other like matters that is the personal law applicable to persons of that description; or
- whereby persons of any such description of grounds as is mentioned in subsection (2) may be subjected to any disability or restriction or may be accorded any privilege or advantage which, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is objectively and reasonably justifiable in a democratic society and there is a reasonable proportionality between the means employed and the purpose sought to be realised.
- Nothing in any law shall be held to contravene subsection (1) to the extent that it requires a person to be a Caymanian or to possess Caymanian status, or to possess any other qualification (not being a qualification specifically relating to any such description of grounds as is mentioned in subsection (2)) in order to be eligible for appointment to any office in the public service or in a disciplined force or any office in the service of a local government authority or of a body corporate established directly by any law for public purposes.
- Subsection (1) shall not apply to anything which is expressly or by necessary implication authorised to be done by any such provision of law as is referred to in subsection (3), (4) or (5).
- Subsection (1) is without prejudice to any restriction on the rights and freedoms guaranteed by section 9, 10, 11, 12, 13 or 14 if that restriction would, in accordance with that section, be a restriction authorised for the purposes of that section on the ground that –
- the provision by or under which it is imposed is reasonably required in the interests of a matter, or for a purpose, specified in that section; and
- the provision and the restriction imposed under it are reasonably justifiable in a democratic society.
[Note. Subsection (2) lists, non-exhaustively, the grounds of discrimination listed in Article 14 of the European Convention on Human Rights, plus age and mental or physical disability. To balance this, subsection (3) introduces a general exception to the prohibition on discrimination, drawing on section 16(6) of the new Falkland Islands Constitution.]
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Non—discrimination
15.
- Everybody has a right not to be discriminated against.
- A person is discriminated against if they are treated differently to another person or persons in an analogous situation, whether directly or indirectly, or suffer any detriment, on the grounds of their racial or ethnic origin, colour, creed, nationality or place of origin, sex, sexual orientation, pregnancy, mental or physical disability, age or other status.
- Nothing in subsection (1) requires the legal recognition of same-sex marriages or gender-reassignment, such matters being in the discretion of Parliament.
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Limitation of rights |
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[the limitations on each and every right is set out in cumbersome detail within the same section; which leaves more room for confusion, misunderstanding and to legal challenge]
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Limitation on rights
- The rights and freedoms as set out in subparagraph (3) below may be limited by measures that are objectively justified as necessary in an open and democratic society based on human dignity, equality and freedom, such limitations must:
- be in accordance with the law;
- pursue a legitimate aim;
- be proportionate to the legitimate aim taking into account, among other things:
- the importance of the right at stake;
- any less restrictive alternative measure that could have been taken; and
- not impair the very essence of the right.
- A legitimate aim includes measures taken for the purposes of securing national security, the protection of public safety, public health and morals and the rights of others.
- The rights referred to in subparagraph (1) are those set out in sections: 2, 8, 9(1), 10(1), 11(1), 12, 13(1) and (2), 14(1), 15(1), 17(1), 18(1).
- Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.
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Rights of children and young people |
Protection of children
- The Legislature shall, in addition to the provisions in this Part which afford protection to children, enact laws to promote the well-being and welfare of children and to afford them protection from harm, exploitation, neglect, abuse, maltreatment or degradation and to provide them with such facilities as would aid their growth and development.
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Rights of children and young persons
16.
- Every child and young person (being a person under the age of 18) has the right -
- to a name and a nationality from birth;
- to family care or parental care, or to appropriate alternative care when removed from the family environment;
- to basic nutrition, shelter, basic health care services and social services;
- to be protected from maltreatment, neglect, abuse or degradation;
- to be protected from exploitative labour practices;
- not to be required or permitted to perform work or provide services that -
- are inappropriate for a person of that child's age; or
- place at risk the child's well-being, education, physical or mental health or spiritual, moral or social development;
- not to be detained except as a measure of last resort, in which case, in addition to the rights a child enjoys under sections 12 and 35, the child may be detained only for the shortest appropriate period of time, and has the right to be -
- kept separately from detained persons over the age of 18 years; and
- treated in a manner, and kept in conditions, that take account of the child's age;
- to have a legal practitioner assigned to the child by the state, and at state expense, in civil proceedings affecting the child, if substantial injustice would otherwise result; and
- not to be used directly in armed conflict, and to be protected in times of armed conflict.
- Every child prisoner shall be segregated from adult prisoners and shall be entitled to have any criminal proceedings against him or her pursued with the greatest possible expedition.
- A child's best interests are of paramount importance in every matter concerning the child.
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