Daniel Peter Frank Vanderwerff v Royal Cayman Islands Police - Judgment

¶ ```html IN THE GRAND COURT OF THE CAYMAN ISLANDS HOLDEN AT GEORGE TOWN, GRAND CAYMAN CAYMAN ISLANDS LEGAL DEPARTMENT LIBRARY 183 OF 2007 JUN 12 2007 CAUSE NO. ROYAL CAYMAN ISLANDS POLICE AND： DEFENDANT Appearances： Mr. James Stenning of Stenning & Associates for the Plaintiff Mr. George Keightley for the Defendant， the Crown Before： Hon. Justice Henderson Heard： May 10， 17 & 24， 2007 JUDGEMENT How long may a foreigner who wishes to leave the country be detained in the Cayman Islands because he is under police investigation? To what extent may the court inquire into the strength of the evidence against him on a habeas corpus application? These important questions have been raised for the first time on the present application. FACTS The Plaintiff， Daniel Peter Frank Vanderwerff， is a Canadian citizen who has lived for some Cayman I his family.mployed her his employer of misappropriating company funds in excess of US $230，000.00. His ```
```html 1 employment was terminated and the allegation was reported to the Financial Crime Unit 2 of the Royal Cayman Islands Police Service (“RCIP”) for investigation. 3 4 Mr. Vanderwerff decided to return to Canada with his family. On April 30th, 2007 he 5 was arrested at the Owen Roberts International Airport while attempting to leave the 6 island. He was taken to the Financial Crime Unit and told by Detective Sergeant Betty 7 Ebanks that he was under investigation for theft. Detective Sergeant Ebanks said that the 8 investigation was in an early stage but was continuing, and that she was not in a position 9 to interview Mr. Vanderwerff “formally” at that time. Her affidavit continues: 10 11 “I informed him that to allow for further investigations to be 12 conducted I would grant him bail to return to the Financial 13 Crime Unit on Monday May 7th 2007. I also informed him 14 that as a condition of his bail he would be restricted from 15 travelling and requested that he surrendered his passport 16 to me. I believed these conditions were necessary to secure 17 that Mr. Vanderwerff surrender to custody at the 18 appointed time given the serious nature of the charges and 19 his attempt to leave the jurisdiction that morning.” 20 21 She says that she has reasonable grounds for believing that Mr. Vanderwerff has 22 committed an arrestable offence (theft is such an offence). There is insufficient detail in 23 her affidavit to permit a court to determine objectively whether that is so. 24 25 Mr. Vanderwerff says in his own evidence that “any allegation of theft is totally 26 His wife ar have nc 27 wole to find e in the Cids Canada.es t tances 27 nd daughter 27 ayrreturned H ent circu 27 uld be unamptment to 27 in the pmshat he 27 nan Islarese believe Judgment - Daniel Peter Frank Vanderwerff v. Royal Cayman Islands Police Cause No. 183 of 2007 01.06.07 Page 2 of 15 ```
```html 1 and says that his “liquid assets are non-existent.” He continues to live here by relying on 2 his credit cards, a situation which cannot last indefinitely. 3 4 On May 2nd, 2007 Mr. Vanderwerff applied to me ex parte for a writ of habeas corpus ad 5 subjiciendum. (Order 54 of the Grand Court Rules sets out the procedure on an 6 application for a writ of habeas corpus.) I determined that he had satisfied the limited 7 initial burden upon him to justify an inquiry into the legality of the restraint upon his 8 liberty. The fact that Mr. Vanderwerff is not detained in the usual sense but is at large on 9 bail is no bar to the court’s ability to consider a habeas corpus application： see R. v. 10 Secretary of State, ex parte Launder [1998] QB 994， at 1000 - 1； [1998] 3 WLR 221， 11 225， 235 - 6. 12 13 The return to the writ was presented on May 11， 2007. The hearing was then adjourned 14 to May 17， 2007 to provide counsel further time to review the authorities. 15 16 WHAT IS THE SCOPE OF THE ENQUIRY? 17 18 Mr. Vanderwerff was arrested under section 36 of the Police Law (2006 Revision)， which 19 reads in part： 20 “Any officer may， without an order from a Justice of the Peace and without 21 a warr ay person - 22 (a) whom he on reasons restable” 23 24 or to beabmmitt anoff 25 nt， arrest an mitted 26 The procedure to be followed after such an arrest is described in section 37： Judgment - Daniel Peter Frank Vanderwerff v. Royal Cayman Islands Police Cause No. 183 of 2007 01.06.07 Page 3 of 15 ```
```html “37. (1) When any person has been taken into custody without a warrant for an offence, the officer in charge of the police station or other place for the reception of arrested persons to which such person is brought shall at once enquire into the case, and if, when the enquiry is completed, there is no sufficient reason to believe that the person has committed any offence such person shall be released forthwith. (2) If, upon such enquiry, there is reason to believe that the person arrested has committed an offence such officer being of the rank of sergeant or above may release the person on bail. (3) Where the constable arresting a person determines that he does not have sufficient evidence to charge but has reasonable grounds for believing that the detention of that person without being charged is necessary – (a) to secure or preserve evidence relating to an offence for which he is under arrest; (b) to obtain such evidence by questioning him; or (c) to complete the investigation, he may place that person in police detention for a period not exceeding seventy-two hours from the time of arrest. (4) Where a constable of the rank of Superintendent or above has reasonable grounds for believing that – (a) the detention of that person without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him; (b) an offence for which he is under arrest is a serious arrestable offence; and (c) the investigation is being conducted diligently and expeditiously, he may authorise the keeping of that person in police detention for a further period of seventy-two hours after the period referred to in subsection (3). Where the constable has reasonable grounds for believing what is reasonable grounds for believing set out in subsection (4), he may authorise the keeping of that person in police detention for a period not exceeding seventy-two hours (unless detefurred to intimate keeping the person in the period not authorised of Judgment – Daniel Peter Frank Vanderwerff v. Royal Cayman Islands Police Cause No. 183 of 2007 01.06.07 Page 4 of 15 ```
```markdown (6) No person may be kept in police detention after the period referred to in subsection (5) except upon the order of a summary court made on the application of a constable. (7) The application made under subsection (6) shall be heard in chambers, and the court shall consider whether there are reasonable grounds for believing the matters set out in subsection (4) and, if it is so satisfied, it may order further detention for a further period of seventy-two hours. (8) If, at the end of the period of seventy-two hours referred to in subsection (7), the person is not charged, he shall be released without further reference to the court, but may be re-arrested for the offence for which he was previously arrested if new information justifying a further arrest has come to light since his release." Thus, in the Cayman Islands, a person suspected of having committed an arrestable offence may be detained in custody without charge for up to twelve days. The arresting officer must believe the suspect has committed an arrestable offence and that belief must be held "on reasonable grounds." If the arresting officer also believes that there is insufficient evidence to justify a charge, he may (subject to the other preconditions in section 37 (3) being satisfied) detain the suspect for up to seventy-two hours. A further seventy-two hours of detention may be imposed if a police officer of the rank of Superintendent or above agrees that the offence is a "serious arrestable offence" (section 37 (4)) and that the other preconditions are satisfied. A third period of seventy-two hours of detention can be justified if the Commissioner of Police decides that he has reasonable grounds. Finally, the fourth and final seventy-two hours of detention can be justified by the Court of Summary Jurisdiction. In contrast, where the suspect is released on bail, the only requirement is that the arresting officer believe, on reasonable grounds, that an arrestable offence has been committed.

¶ [1] A release on bail by the arresting officer is governed by the provisions of the

¶ [2] **Bail Law (2006 Revision):** Police Law, section 37 (10). The Bail Law permits the

¶ [3] arresting officer to impose conditions of bail which appear to be necessary to ensure that

¶ [4] the suspect "surrenders to custody": Bail Law, sections 6 and 7. Holding a suspect's

¶ [5] passport is a common device for ensuring that he does so.

¶ [7] Mr. Vanderwerff now argues that the court should enquire into the nature and strength of

¶ [8] the evidence gathered by the authorities for the purpose of determining, objectively,

¶ [9] whether Detective Sergeant Ebanks did indeed have reasonable grounds to believe he has

¶ [10] committed theft.

¶ [12] Mr. Keightley, for the Defendant, argues that the only permissible enquiry is a much

¶ [13] narrower one – an enquiry into whether Detective Sergeant Ebanks does and did believe,

¶ [14] subjectively, that there are reasonable grounds for the arrest. If she has formed that

¶ [15] opinion in good faith, that is the end of the enquiry.

¶ [17] He rests that submission on the well known decisions of the House of Lords in **Liversidge**

¶ [18] v. Sir John Anderson and another [1942] 1 AC 206 and **Greene v. Secretary of State**

¶ [19] [1942] AC 284. Greene involved a challenge by way of **habeas corpus** to a decision

¶ [20] made by the Secretary of State for Home Affairs under Regulation 18 (B) of the **Defence**

¶ [21] (General) Regime under the

¶ [22] maf the Regul that: **Defence) Treaty Power Act**

¶ [23] terial part oation stated's (the en

¶ [24] ct, 1939.

¶ [26] "If the Secretary of State has reasonable cause to believe any

¶ [27] person to be of hostile origin or associations or to have been

¶ [28] Judgment – Daniel Peter Frank Vanderwerff v. Royal Cayman Islands Police Cause No. 183 of 2007 01.06.07

¶ [29] ```html 1 recently concerned in acts prejudicial to the public safety or 2 the defence of the realm or in the preparation or instigation of 3 such acts and that by reason thereof it is necessary to exercise 4 control over him, he may make an order against that person 5 directing that he be detained." 6 7 8 Liversidge was a similar case, but the action was for false imprisonment. Mssrs. 9 Liversidge and Greene having been detained under the regulation, they argued that the 10 court should enquire into whether the evidence in possession of the Secretary of State 11 was sufficient to justify the decision taken. In other words, they asked for objective 12 assessment by the court of the sufficiency of the evidence supporting the Secretary of 13 State's subjectively held view. 14 15 Their Lordships held that there was no need for an affidavit from the Secretary of State. 16 The return to the writ asserted that he held the requisite view, and his good faith was not 17 impugned. Lord McMillan's judgment in Greene is representative: 18 “The Secretary of State is not bound to disclose or to justify to any 19 court the grounds on which he concedes himself to have reasonable 20 cause to believe that the appellant was a person of hostile associations 21 and that by reason thereof it was necessary to exercise control 22 over him. The result, in my opinion, is that the production of the 23 Secretary of States' order, the authenticity and good faith of which 24 is in no way impugned, constitutes a complete and pre-emptory 25 answer to the Appellant's application. It justifies in law his 26 detention. In the absence of any relevant challenge of its validity, 27 and there is no such challenge, it necessarily follows that the 28 Secretary of State has no need to submit an affidavit” (at page 297). Judgment - Daniel Peter Frank Vanderwerff v. Royal Cayman Islands Police Cause No. 183 of 2007 01.06.07 Page 7 of 15 ```
These cases were decided in a time of war. There were compelling reasons why the Secretary of State could not and should not have been expected to explain the grounds of his belief. There are no analogous concerns in the present case. An earlier decision of the Privy Council in 1931, Eleko v. Officer Administering the Government of Nigeria [1931] 662, is a decision which may, at first glance, appear inconsistent with Liversidge and Greene. The Deposed Chief's Removal Order in Nigeria permitted the Governor to exclude a deposed native chief from the area over which he had previously exercised jurisdiction or influence. Before exercising his power under the Ordinance, the Governor had to be satisfied that the subject of his order was a native chief, that he had been deposed, and that native law and custom required that he leave the area over which he had exercised jurisdiction or influence. Eleko argued on a habeas corpus application that he was not a native chief, that he had never been deposed, and that there was no such native law or custom. The Governor said that the court had no power to enquire into those questions of fact; his order (which, of course, embodied his own opinion on those matters) must be taken as final and conclusive. The judgment of Their Lordships was delivered by Lord Atkin, who said: Their Lordships are satisfied that the Court invests the executive power, and in no sense as a court. As the executive he can only act in pursuance of the powers given to him by law. In accordance with British jurisprudence no member of
```html 1 the executive can interfere with the liberty or property of a British 2 subject except on the condition that he can support the legality of 3 his action before a court of justice. And it is the tradition of British 4 judges should not shrink from deciding such issues in the 5 face of the executive. The analogy of the powers of the English Home 6 Secretary to deport aliens was invoked in this case. The analogy 7 seems very close. Their Lordships entertain no doubt that under the 8 legislation in question, if the Home Secretary deported a British 9 subject in the belief that he was an alien, the subject would have the 10 right to question the validity of any detention under such order by 11 proceedings in habeas corpus, and that it would be the duty of the 12 Courts to investigate the issue of alien or not." 13 14 15 The three questions of fact were described as conditions precedent to the exercise of the 16 Governor's jurisdiction under the Ordinance. 17 18 In Regina v. Governor of Brixton Prison, ex parte Ahsan and others [1969] 2 WLR 618, 19 the Court of Appeal rationalized these apparently conflicting decisions. It emphasized 20 that Greene, unlike Eleko, was not concerned with a challenge concerning a condition 21 precedent upon which jurisdiction depended (per Lord Parker C.J. at page 234). The 22 position arrived at by the Court of Appeal is that an objective assessment of the 23 sufficiency of the evidence is permissible on any question which is a condition precedent 24 to the exercise of jurisdiction by the decision maker; in contrast, no such enquiry is 25 permitted concerning the ultimate issue. 26 27 The question which Mr. Vanderwerff says I should address is this： does the evidence in 28 the of DetectivEbanks a 29 reasunds for be has comm objectivt， t 30 sonable gro lieving he lan am ed theft? ssessmen Judgment - Daniel Peter Frank Vanderwerff v. Royal Cayman Islands Police Cause No. 183 of 2007 01.06.07 Page 9 of 15 ```
Judgment – Daniel Peter Frank Vanderwerff v. Royal Cayman Islands Police Cause No. 183 of 2007 01.06.07 Page 10 of 15

¶ [1] Into which category does such a question fall? The question is answered conclusively by the judgment of the House of Lords in Holgate – Mohammed v. Duke [1984] 1 All E.R. 1054. This was an action for false imprisonment which turned on the wording of section two (4) of the Criminal Law Act 1967, which reads:

¶ [2] "Where a constable, with reasonable cause, suspects that an arrestable offence has been committed, he may arrest without warrant anyone whom he, with reasonable cause, suspects to be guilty of the offence."

¶ [3] The House of Lords held (at page 1057) that the presence of reasonable cause is a condition precedent to a constable having the power to make a lawful arrest without warrant. The presence or absence of this condition precedent is a question of fact which a court may determine. If the constable in question did have reasonable cause, his decision to arrest without warrant amounted to an exercise of "executive discretion" which could not be questioned in a court of law except on Wednesbury principles.

¶ [4] There is no reasonable basis for distinguishing the Holgate-Mohammed decision. It is noteworthy, also, that in Ghani and others v. Jones [1969] 3 All E.R. 1700, the Court of Appeal engaged in an objective assessment of whether certain police officers had reasonable grounds for believing that passports and letters seized from the plaintiffs were material evidence of a murder (at page 1705).

¶ [5] I am satisfied that the enquiry must be made as to whether Detective Sergeant Ebanks did have the requisite state of mind, but must extend
```html 1 to the broader question of whether the evidence in her possession amounts to reasonable 2 grounds for suspecting an arrestable offence had been committed by Mr. Vanderwerff. 3 4 The present affidavit from Detective Sergeant Ebanks is inadequate for such an enquiry. 5 6 Obviously, the Defendant does not have to show beyond a reasonable doubt, or even on 7 the balance of probabilities, that Mr. Vanderwerff has committed an arrestable offence. 8 Reasonable suspicion is more than mere suspicion although it cannot be equated with 9 prima facie proof： Young v. Gordon 1994-95 CILR 445 (Grand Court) . The Defendant’s 10 burden is to show that there existed at the time of the arrest, and there still exists now, a 11 body of evidence which would justify an independent and rational observer in concluding 12 that Mr. Vanderwerff may have committed theft. For this purpose, hearsay evidence may 13 be relied upon. 14 15 I direct the Defendant to file a further return to the writ within ten days setting out in 16 summary fashion the evidence relied upon. The Plaintiff is at liberty to re-list the hearing 17 for a date after that deadline has past. 18 19 FOR HOW LONG MAY THE PLAINTIFF BE KEPT IN THE CAYMAN ISLANDS 20 AGAINST HIS WILL? 21 23 legvision whic to a restryton of autha art with the， too well k ainquire citnor nstrued 22 I st proposition known to islativ eproh amounts atic must be re t on libe coity， that ```
```markdown restrictively. Ambiguities in it must be resolved in favour of the liberty of the subject. Moreover, habeas corpus "is an area where substance rather than form governs": *Cartwright and Knowles v. Superintendent of Her Majesty's Prison, Privy Council* Appeal no. 40 of 2003 (February 10, 2004) at paragraph 16. "Semantics must yield to common sense": *ibid.* Neither the Police Law nor the Bail Law impose any limit on the period of time during which Mr. Vanderwerff may be held in the Cayman Islands against his will, on bail but not charged. At the outset, Mr. Keightley argued that there is no limit at all – as long as the police are continuing to investigate the allegations in good faith, the suspect could be held on police bail indefinitely. During argument, Mr. Keightley retreated to a more defensible position – that he can only be held on bail without charge for a reasonable time. That must be correct. In the absence of any time limit in the legislation, I attribute to the Legislative Assembly an intention that a suspect may be held in the Cayman Islands on police bail only for a reasonable time. What is reasonable will depend on all of the circumstances, including: 1) the nature and extent of the allegations; 2) the period of time which a diligent and competent police force acting in good faith might be expected to take to investigate the allegations; 3) the seriousness of the allegations; 4) the degree of difficulty posed to extradite the suspect from his home country if he is allowed to return there; 5) the nature and extent of the suspect's ties to the Cayman Islands; Judgment – Daniel Peter Frank Vanderwerff v. Royal Cayman Islands Police Cause No. 183 of 2007 01.06.07 Page 12 of 15 ```
6) the difficulty and expense suffered by the suspect in remaining in the Cayman Islands against his will. This is not meant to be an exhaustive list. Clearly, the time period will be longer than the maximum period of twelve days during which a suspect may be detained in custody without charge in the Cayman Islands. The period will not, however, necessarily be as long as the usual amount of time taken to investigate similar allegations against suspects who reside here permanently. It is not unreasonable to expect the authorities to expedite an investigation into allegations against someone who finds himself in the same circumstances as Mr. Vanderwerff. Investigative resources available to the police are a factor to be considered but are not determinative. In assessing what is a reasonable time, the court is entitled to assume that adequate resources will be applied to the investigation. In Nazary and others v. R. 2001 CILR 371, the Grand Court (en banc) heard a habeas corpus application by three detainees who had entered the Cayman Islands illegally and applied for asylum. This court held that the executive was obliged to determine and resolve the immigration status of the detainees within a reasonable time. The court adopted a statement of principle contained in the head note of the report of the judgment in Tan Te Lam v. Superintendent of Tai A Chau Detention Centre [1996] 4 All E.R. 256-24: "Where a statute confers power upon an individual to detain an individual for removal from the country, in the absence of contrary indications in the statute, it was to be implied that that power could only be exercised during the period necessary, in all the circumstances of the case." Judgment – Daniel Peter Frank Vanderwerff v. Royal Cayman Islands Police Cause No. 183 of 2007 01.06.07 Page 13 of 15
```html 1 the particular case, to effect that removal, that the person seeking 2 to exercise the power of detention had to take all reasonable steps 3 within his power to ensure the removal within a reasonable time and 4 that, if it became clear that removal was not going to be possible 5 within a reasonable time, further detention was not authorised. 6 The courts would construe strictly any statutory provision purporting to 7 allow the deprivation of individual liberty by administrative 8 detention and would be slow to hold that statutory provisions 9 authorised administrative detention for unreasonable periods or 10 in unreasonable circumstances...” (underlining added) 11 The passage includes an acknowledgement that, if it proves to be impossible to resolve 12 the issue giving rise to the detention within a reasonable time, then “further detention was 13 not authorised.” In other words, there may be cases where it is simply impossible to 14 accomplish within a reasonable time what the authorities may wish to achieve. 15 17 Holding Mr. Vanderwerff’s passport as a condition of his police bail is a restraint on his 18 liberty which the Legislative Assembly has authorised by legislation, but it is authorised 19 only for a reasonable time. If, on the further return to the writ of habeas corpus, the court 20 concludes that the period of time during which the suspect’s passport has been held is 21 unreasonable, the bail order will be set aside and the passport returned to the Plaintiff. 22 23 The Defendant is directed to file a further return within 10 days setting out its view of 24 what would constitute a reasonable time for the present investigation and the reasons 25 supporting that opinion. Mr. Vanderwerff is at liberty to file his own affidavit on the Judgment - Daniel Peter Frank Vanderwerff v. Royal Cayman Islands Police Cause No. 183 of 2007 01.06.07 Page 14 of 15 ```
```html 1 subject. If, on the forthcoming continuation of this hearing, I conclude that the arrest was 2 lawful, the reasonable time issue will be addressed. 3 4 Dated this 1st day of June, 2007 5 Henderson，J. 6 Henderson，J. 7 Judge of the Grand Court ``` ```latex \documentclass{article} \usepackage{geometry} \usepackage{graphicx} \usepackage{hyperref} \begin{table}[h] \centering \begin{tabular}{|c|c|} \hline 1 & subject. If, on the forthcoming continuation of this hearing, I conclude that the arrest was \\ \hline 2 & lawful, the reasonable time issue will be addressed. \\ \hline 3 & \\ \hline 4 & Dated this 1st day of June, 2007 \\ \hline 5 & Henderson，J. \\ \hline 6 & Henderson，J. \\ \hline 7 & Judge of the Grand Court \\ \hline \end{tabular} \end{table} \begin{flushright} \includegraphics[width=0.5\textwidth]{grand-court-seal} \end{flushright} \begin{flushleft} Judgment - Daniel Peter Frank Vanderwerff v. Royal Cayman Islands Police Cause No. 183 of 2007 01.06.07 \end{flushleft} \begin{flushright} Page 15 of 15 \end{flushright}