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.






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