A Response to the Discussion Paper on The Penal Code dated 17th December 2021
(Cayman Islands Law Reform Commission)
I Introduction
A. Does the Law Reform Paper deliver on its title?
The Paper which is labelled "Part 1" is entitled "THE PENAL CODE: IS IT COMPATIBLE WITH THE BILL OF RIGHTS?" [1]
In its text (see LRC 1 in the Analysis below) the Paper is stated to be
prepared "in response to a referral by the Honourable Attorney General
in 2017 requesting that the Law Reform Commission review the Penal Code
(2019 Revision) to assess its compatibility with the Bill of Rights,
Freedoms and Responsibilities as reflected in Part 1 to Schedule 2 of
the Cayman Islands Constitution Order, 2009 and to update the obsolete
and archaic provisions contained therein."
At first sight a paper with this title appears to be a recent attempt
by the Cayman Islands Law Reform Commission ("the LRC") in an ongoing
task to supply some of the answers to the early question that the
2010-2013 Human Rights Commission had put to the Attorney General:
"What laws of the Cayman Islands will need to be changed to bring them
into compatibility with Part 1 of the Constitution that is about to
come into effect?"
The title of the LRC Discussion Paper ("the Paper") conveys the
impression that our (the 2010-2013 HRC's) query was after several years
still being noticed. For that I am glad. The Bill of Rights, Freedoms
and Responsibilities began to come into effect in 2012, and it is
important at the outset to note that, along with the remainder of the
2009 Constitution Order, it had been approved by referendum among the
Cayman Islands' voting population, and it alone provides the procedures
by which any incompatibility between Cayman Islands legislation and the
Constitution might be considered and rectified.
While other sources of legislation, and especially the relevant
international human rights treaties that are extended to the Cayman
Islands, do merit consideration for the sake of comparison and
suggestion, it is surely unreasonable not to see the negotiated 2009
Constitution ("the Constitution") through the lens of its far greater
democratic accountability to the Cayman Islands populace than any other
legal instrument that can be cited. Furthermore there are important
constructions in its Bill of Rights, Freedoms and Responsibilities
("the BRFR") that purposively characterise this document in its
application to Cayman Islands legislation that can easily be missed -
or worse, intentionally neglected - if other proposed sources of
legislation are to be given equal weight to it. This point will be
further explored below.
Moreover, because of the unique importance of the Constitution as a
negotiated document of the Cayman Islands which was specifically agreed
to by the Cayman Islands electorate, the very question of compatibility
indicated by the Paper's title: - "The Penal Code: Is it Compatible
with the Bill of Rights" - should be given a measure of pin-point
emphasis that seems lacking in much of its content. With the exception
of its section 5 "Compulsion by Spouse", the Paper evidently emphasises
extra-constitutional jurisprudence more than the very instrument, the
Constitution, that provides the fundamental benchmark with which Cayman
Islands law - including the Penal Code - is charged to be specifically
compared and, where necessary, corrected: this clear charge being
specifically acknowledged in the title of the Paper.
B. Some Observations on references in the Constitution to "this Part".
Expanding on my reference in "A" above to our Constitution's important
constructions, the importance of the references in the Constitution to
"this Part" can hardly be overstated. This is because the meaning of
"this Part" is the whole BRFR, i.e. Part One of the Constitution. Where
we see the phrase "this Part" in any section of BRFR, the reference is
not merely to the particular section or sub-section in which the phrase
might occur, but to the entire Part One of the Constitution.
The Constitution Section 1 Guarantee of Rights, Freedoms and
Responsibilities sets out the character of the whole Bill of Rights,
Freedoms and Responsibilities in all of Section 1's sub-sections:
subsection (1) using the name of BRFR in full, and subsections (2) and
(3) both referring to the whole BRFR by the phrase "This Part of the
Constitution" (subsection (2)) or "this Part" (subsection (3)). Thus,
Section 1 is not merely about Section 1 but about the whole BRFR. The
importance of this will be further shown in due course.
Constitution Section 16 Non-discrimination also uses the phrase "this
Part of the Constitution" in its sub-section (1). The Paper seems to
refer to the effect of this in its section 4.18 ("We also acknowledge
that section 16 is not a standalone right") , but in my view the effect
of this limitation is generally greatly under-stated in the Paper (I
can personally testify that its inclusion in Section 16 was very
intentional). The sense of subsections (1) and (2) is that government
shall not afford different and unjustifiable treatment to different
persons on any ground such as sex, race, colour, etc. in respect of the
rights under this Part of the Constitution - subject also to
subsections (3), (4), (5) and (6). It would be erroneous to include
documented rights other than those in BRFR (= Part One) in such a way
as to suggest that Section 16 Non-discrimination mandated or applied to
them directly (as if it were freestanding in its application). This
discussion contributor ("the Contributor") considers that some of the
section reviewers' comments about "discrimination" seem to have erred
in this regard.
Constitution Section 17 Protection of children refers in its
sub-section (1) to the "provisions of this Part which afford protection
to children". It is recounting that the protections of Section 17 are
"in addition" to all the other protections that are provided to
children by all of Part One of the Constitution. These would, of
course, include the protection of Section 2 Life.
When considering suggestions of reform with particular reference to the
draconian Section 7 of the Paper, we must first note these careful
protections of children that are afforded by the Constitution in Part
One as a whole including the protections of Section 17.
Special note ought to be taken of the language in Section 17 subsection
(1)(a): "......the Legislature shall enact laws to provide every child
and young person under the age of eighteen (referred to in the section
as a "child") with such facilities as would aid their growth and
development, and to ensure that every child has the right to a name
from birth;"
Since the Constitution here ascribes to every child "the right to a
name from birth", there is an implied comparison of the rights of every
child (i.e. child or young person under the age of eighteen) after and
before his or her birth. While from birth children have the right to a
name, long before birth parents will already look forward to
formalising that particular right for their child. There is no basis in
any discipline of biological science or modern medicine for ascribing
an acquisition of human personhood to the action of human birth, and
the Constitution cannot rightly be construed to provide a fiction.
If "every child" had, nevertheless, been intended to convey the
specific meaning of only born individuals, the subsection 17(1)(a)
would have had to state that a "child of any age has the right to a
name."
The BRFR normatively prescribes that all the protections of Part One
such as Life and of Section 17 Protection of children apply to all
children and young people under the age of eighteen including, as
appropriate, the pre-born. More will be said about this later.
Sections 23, 24, 25, 26 and 28 all make reference in one way or another
to the whole BRFR in their construction. Section 23 Declaration of
incompatibility in particular shows the enhanced importance of Part One
of the Constitution to the process of changing existing laws, showing
therefore that for law reform the Constitution should not and cannot be
treated as just one of many legislative sources. Section 28
Interpretation of the Bill of Rights should be noted in particular for
binding the Governor to his or her constitutional responsibilities in
the Cayman Islands as a "public official". Moreover, Section 24 Duty on
public officials applies in its entirety to the Governor just as it
does to any other public official.
C. Effect of Section 1 on the Interpretation of the Bill of Rights, Freedoms and Responsibilities
As has been noted in "B" above, the Constitution Section 1 explains in
a brief overview how Part One in its entirety is to be understood and
deployed. In subsection 1(2)(a) it is directed that This Part of the
Constitution (i.e. the entire Bill of Rights, Freedoms and
Responsibilities) recognises the distinct history, culture, Christian
values and socio-economic framework of the Cayman Islands and it
affirms the rule of law and the democratic values of human dignity,
equality and freedom.
The other subsections of Constitution Section 1 deal with important
aspects of how BRFR is to be deployed, but subsection 1(2)(a) gives its
overview of how BRFR is to be understood in the first place. The Cayman
Islands' "distinct history, culture, Christian values and
socio-economic framework" is to be recognised, the subsection says, in
the whole BRFR.
Additionally, although the preamble to the Constitution is not part of
the law, it helps us to interpret the demand of the BRFR for the
recognition of its Christian values - a demand prescribed by Cayman
Islands primary law. The Constitution, the preamble says, is one that
fits the intention of the Cayman Islands to be "A God-fearing country
based on traditional Christian values ..." So for instance, when
Section 2 prescribes "(1) Everyone's right to life shall be protected
by law", the Constitution recognises that prescription in the light of
the Christian values of the Cayman Islands; moreover those Christian
values are for the Islands characteristically traditional (i.e. handed
down) in nature. The act of intentionally ending the life of a pre-born
infant could not, in this light, be consistent with the prescription of
Section 2 (2): No person shall intentionally be deprived of his or her
life.
Nevertheless this is what the LRC Discussion Paper advocates for. The
cause of this recommendation from a document that purports in its title
to seek constitutional compatibility is not difficult to find.
II Analysis of the LRC Recommendations
In this analysis, the sections of the Paper are referred to as LRC 1 etc.
LRC 1 BACKGROUND
Again, it should be carefully noted that in LRC 1 - 1.1 the Paper is stated to be
"prepared in response to a referral by the Honourable Attorney General
in 2017 requesting that the Law Reform Commission review the Penal Code
(2019 Revision) to assess its compatibility with the Bill of Rights,
Freedoms and Responsibilities as reflected in Part 1 to Schedule 2 of
the Cayman Islands Constitution Order, 2009 and to update the obsolete
and archaic provisions contained therein."
LRC 2 HISTORICAL BACKGROUND OF THE PENAL CODE IN THE CAYMAN ISLANDS
The Contributor notes that LRC 2 - 2.5 closes with the statement
"Further, with the enactment of the Bill of Rights contained in the
Constitution, there is an even more pressing need to examine the Penal
Code to determine if any of its provisions are in conflict with the
fundamental human rights."
But, "with the enactment of the Bill of Rights contained in the
Constitution", the Cayman Islands have a defined document stating their
understanding of "the fundamental human rights", and as recognised by
the above request of the Attorney General the Law Reform Commission
were charged to assess the Penal Code's compatibility with that
document: the Bill of Rights, Freedoms and Responsibilities as
reflected in Part 1 to Schedule 2 of the Cayman Islands Constitution
Order, 2009. Without such definition, "the fundamental human rights"
becomes anybody's view of what these actually comprise.
LRC 3. SCOPE OF THE DISCUSSION PAPER
LRC 3 - 3.2
"A desk review of the provisions identified as raising Bill of Rights
compatibility issues was carried out having regard to the relevant
provisions of the penal laws of various jurisdictions including England
and Wales, Jamaica, Canada, India, The Bahamas and Australia." "
This, I suggest, goes to the heart of the lack of clarity inherent in
the Paper. There were two separate issues which the LRC was tasked by
the AG (ref. LRC 1.1 above) to assess with regard to the Penal Code.
One was the legally critical issue of its compatibility with BRFR, and
the other was to update any obsolete and archaic provisions in it.
These two separate issues manifestly do not appear in the description
in LRC 3.2 of what was carried out. I suppose there is no reason to
think that both issues could not have been dealt with in sections
corresponding to the particular Penal Code provisions that were
selected for examination in LRC 3.1. But there appears to the
Contributor to be a general and serious confusion and conflation of the
two originally tasked issues which damages the Paper fatally.
It should also be noted that the title of the Paper THE PENAL CODE: IS
IT COMPATIBLE WITH THE BILL OF RIGHTS? only refers to the first of the
two tasks, the tasks that were properly requested by the AG. This seems
to pave the way for an unfortunate conflation, and hence distortion in
LRC 3.2 of the two requested tasks that ought to have been clearly
distinguished and described. If LRC 3 - "SCOPE OF THE DISCUSSION PAPER"
is improperly described from the outset then it can only be expected
that the Paper's recommendations might not be generally satisfactory or
sound in relation to the actual tasks that were required.
BRFR is clear about what it orders with regard to incompatibility and
it is the duty of the Law Reform Commission, as well as the Judicature
and the Legislature generally, including the Governor as a "public
official", to be faithful to what the Constitution itself prescribes.
Additionally, the preparation for the updating of "obsolete and archaic
provisions" should be carefully intended and undertaken. The
Contributor agrees also with the general benefits of reviewing the
provisions of the laws of other jurisdictions. But the Commission was
never tasked with a demand for the chimera of global compatibility,
and, as the European Court of Human Rights admits and asserts, there
will be variations among states with differing histories, traditions
and constitutions. Compatibility issues, as such, should be carefully
assessed separately by comparison with the Constitution - with likeness
or unlikeness of Cayman Islands laws with those of other jurisdictions
being a separate issue additionally relevant to the purpose of updating.
LRC 4 - MINIMUM AGE OF CRIMINAL RESPONSIBILITY
This very long section seems really minimal in terms of responding to
the AG's request with regard to constitutional compatibility, albeit
showing valid concerns for the very difficult questions of minimum age
of criminal responsibility and the degree of confidentiality that
should be afforded those whose actions would be criminal if they were
older. The issue of the compatibility of the Penal Code with the
Constitution is discussed substantively only at 4.14, 4.17 and 4.18 out
of 56 sub-sections.
The Contributor agrees with the recommendation that the age of criminal
responsibility ought to be increased from ten years, but sees
difficulties (partly constitutional) in forbidding release of
information about earlier (or any) misdemeanours. A careful balance of
the rights of the person with the rights of those around him or her
must be sought and for constitutional compatibility BRFR section 9
would need very careful inspection and application.
While no country in the United Kingdom has increased the age of
criminal responsibility beyond 12 years it would seem more reasonable
to increase it here to 12 rather than 14 years.
LRC 5 - COMPULSION BY SPOUSE
This report section is well constructed, giving primacy of place to the
compatibility of the laws under review with the Constitution under part
LRC 5 (a) in its examination of "The defence of compulsion by spouse in
the Cayman Islands". The report goes on also to deal fairly with "The
defence of compulsion by spouse in other jurisdictions", namely (i)
England and Wales and (ii) Canada. The example given of the court
finding of an incompatibility of a section of the Canada Criminal Code
with the Canadian Constitution is particularly interesting and wholly
relevant to our own primary task here in Cayman.
The Contributor agrees with the recommendation that the offence of
compulsion by spouse in section 16 of the Penal Code should be repealed.
LRC 6 - INSULTING THE MODESTY OF A WOMAN
The review in this section was extremely inadequate in terms of a
response to the AG's request for a review of compatibility with the
BRFR, only briefly touching on that in LRC 6 - 6.9, for the most part
on its way to citing other Conventions. In view of the effect of BRFR
Section 1 upon the whole BRFR including the sections cited a robust
discussion of the matter should be expected.
The Contributor feels that no adequate reason has been given in the
review to repeal Penal Code Section 133, though agrees that
consideration might be given to changing the description of "insulting"
to another word, for example "affronting". This reviewer agrees too
that the references in Section 88A to "insulting" should be taken out
and the wording of the section rephrased accordingly.
LRC 7 - ABORTION
In this section the review only engaged with the Attorney General's
request (and with the title of the Paper) in one half of one of its 46
subsections, namely LRC 7 - 7.9. The Contributor needed to look at that
engagement more than once to make sure it was being seen correctly as
follows: "The criminalisation of the procurement of abortion in
sections 141, 142 and 143 of the Penal Code raises compatibility issues
with the fundamental right to life protected in section 2 of the Bill
of Rights which provides that everyone's right to life shall be
protected by law and that no person shall intentionally be deprived of
his or her life."
The Contributor can only surmise that the LRC 7 reviewer is taking it
for granted that the pre-born child is an "untermensch", a subhuman
thing, and therefore taking it for granted that the pre-born child (as
not "a person") or indeed any other concerned party is not protected by
Section 2 and other relevant Sections of BRFR, as is the mother of the
pre-born child. Yet in pregnancy a mother bears "a child", one who has
a genetic contribution from both father and mother, and by birth sends
forth this child into the world.
The Contributor is aware that there are some powerful opinions that
were referred to and enumerated by the LRC reviewer; but in light of
the construction of Cayman Islands BRFR the Contributor considers that
the LRC reviewer has not at all engaged with the actual issue of
compatibility with the primary law of Cayman with which s/he was tasked.
The Contributor accordingly considers that the changes in Law that were recommended not be made.
The Contributor strongly urges further study to be given to the subject
in the light of Cayman's BRFR with the intent of strengthening benefit
and protection to all parties concerned.
LRC - 8 UNNATURAL OFFENCES
In this section the review included about only four specific references
to Cayman's BRFR in LRC - 8's 37 subsections. This is unfortunate
because one cannot just assume there exists a legislatively worldwide
"right view" on what is a natural and what is an unnatural act. (In
Cayman to act legislatively upon such an assumption would undoubtedly
breach BRFR s.10.) There would be no point in different countries or
jurisdictions forging their own constitutions at all if the correct
approach to ensuring legal compatibility or validity were to lump
together all constitutions or agreements made worldwide and test local
laws by their compatibility to all or any of them.
The remarks of the Contributor above at LRC 3 are particularly apposite
here, because the LRC 8 reviewer like others in the Paper has
approached the matter only by "raising compatibility issues" as a
general exercise, rather than doing what the AG specifically required,
namely, "review the Penal Code (2019 Revision) to assess its
compatibility with the Bill of Rights, Freedoms and Responsibilities as
reflected in Part 1 to Schedule 2 of the Cayman Islands Constitution
Order, 2009 and to update the obsolete and archaic provisions contained
therein." Where it comes to a judgment about the legal acceptability or
otherwise about some act, which must precede a legislative
recommendation, firstly the AG's requirement needed to have been
fulfilled.
Mention also is made in LRC 8.9 of the incompatibility of the sections
of the Penal Code at issue with the imposed law the Civil Partnership
Act (2020), which is currently under review. However, this
controversial law which was imposed without the benefit of
parliamentary approval is itself unprotected by BRFR as is shown by
BRFR s.14(1). This is because the Civil Partnership Act (2020) by its
provisions purports to effect "marriages" called Civil Partnerships
between (among others) persons of the same sex by providing for these
marriage under an alternative name. This factor alone, in the
Contributor's opinion, renders the Act legally unsustainable, as well
as unsupported by the general jurisprudence of the European Convention.
The Penal Code's sections 144 and 145 currently appear already as effectively modified by the appended note:-
By Order in Council made the 13th day of December, 2000, it is
provided, inter alia, that “a homosexual act in private shall not be an
offence provided that the parties consent thereto and have attained the
age of eighteen years."
The Contributor recommends that further work should be done in specific
response to the AG's request before making the LRC 8 reviewer's
additional suggested Penal Code changes, should these then be found to
be required by any incompatibility of these sections with BRFR
specifically.
LRC - 9 INDECENT ASSAULT
The LRC - 9 reviewer found no relevance to the Penal Code offence in
BRFR except possibly by implication BRFR s.16, because BRFR is never
mentioned in the review. In view of the AG's instruction and the title
of the Paper it seems to the Contributor that this ought to have been
pointed out. Also it is not clear to the Contributor whether the
differing Categories of Offence mentioned for Penal Code Sections 132
and 145 are determined by the Code itself or otherwise, as they are
both in the same Penal Code Section Part V - B "Offences Against
Morality".
Subject to the clarification sought the Contributor can agree with the recommendation made.
LRC - 10 INCEST
The LRC - 10 reviewer also found no specific relevance to the Penal
Code offence in BRFR, and in view of the AG's instruction and the title
of the Paper it seems to the Contributor that this ought to have been
pointed out. The Contributor found this reviewer's apparent assumptions
about clearly different actions being correctly subject to
"discrimination" law strange and probably wrong (see text of BRFR
s.16). Incest is normally understood to be sexual intercourse between
close relatives by nature or sometimes by marriage. It is not
justifiable to use the same word for other types of problematic sexual
or erotic activities, albeit reasonable to capture them in law. This is
because of the severe difference in biological consequence, which in
spite of the current fluidity of relationships, must not be lost sight
of in view of the social and individual deficits incurred.
The Contributor agrees however that the "linear relationships" captured
should include step-parents, persons with parental responsibility and
guardians, but the device of merely changing the meaning of language to
this end should be avoided. The recommendation should be subject to
further review.
III In Conclusion
LRC - 11 CONCLUSION
The Contributor agrees with the observations of this section and notes
that, here, it is indeed BRFR that is being referred to as the measure
of the necessary compatibility of our laws. Nevertheless and unhappily,
as stated repeatedly in Sections I and II of this Response, the LRC
Discussion Paper greatly erred in its general neglect of the strictly
constitutional compatibility that was required, and as a result, even
though the Contributor did agree with certain of the Paper's
conclusions as set out in this contribution's Section II under LRC 4 to
10, the overall structure of the examination was fatally damaged.
Notwithstanding this very serious criticism it is my hope that my
contribution will be helpful to the future operations of the Law Reform
Commission, and I pray they will receive it in the spirit in which it
is tendered.
+Nicholas, George Town
(Bishop Nicholas Sykes)
Anglican - Christian Episcopal Church.
Footnote
[1]The Penal Code was presumably enacted into Cayman Islands Law in
1975 (pre-BRFR) in the context of the already existing UN Declaration
on Human Rights (1948) and the European Convention on Human Rights
(1953) and its compatibility with them.
8