Bill paves way for immunity deals for crown witnesses

(CNS): The government is expected to pass a piece of legislation next month that will enable the Office of the Director of Public Prosecutions (ODPP) to cut deals with important witnesses who are implicated in a crime and provide immunity from prosecution or a commitment to a reduced sentence on a guilty plea. Currently, the crown has no power to cut deals or make promises to any witness suspected of being involved in crime, even when their help secures the successful prosecution of more serious criminals.

While prosecutors can ask a judge to consider the help of a co-defendant or a convicted witness at their sentencing hearing, they have no power to promise a plea deal before their case is heard by a court. In many cases, judges have reduced sentences significantly where a defendant has played a lesser role in a crime or has been convicted of an unrelated crime and given evidence that has helped to secure the conviction of a more serious offender. However, there are no guarantees.

At present, the prosecution makes a decision to charge an individual based entirely on the evidence presented by the police. The ODPP can decline to prosecute because of insufficient evidence but it has no power to offer immunity from prosecution in exchange for evidence.

The bill, which was first proposed in 2017, is now open for public consultation ahead of the debate in parliament in December.

While sentences will remain in the hands of the court, the law will formalise the court’s ability to cut a sentence and explain the reasons. Local attorney Prathna Bodden, a partner with Samson Law Associates, one of Cayman’s leading practices in criminal defence, said the legislation could prove helpful in certain cases because the prosecution often struggles to secure eye-witness evidence in serious cases.

She said it was also “good to formalise the process and make clear the circumstances” under which a co-defendant would be offered immunity.

But Bodden also warned that the crown would need to be even more careful about evidence given by co-defendants and ensure it is supported by other circumstantial evidence “to avoid miscarriages of justice”. She said it is not unheard of for defendants to point the finger at innocent parties to deflect their own guilt, and that the evidence “must be impartial” to justify immunity from prosecution.

Bodden said that having a more formal framework to deal with sentencing may also be helpful as there have been cases where defendants have still served considerable time in prison, sometimes in appalling conditions, because they opted to plead guilty and give evidence against their co-defendants, often at great risk to their own lives.

Caine Thomas (21), a crown witness who gave evidence against Shane Conner and Elmer Wright, was gunned down on Seven Mile Beach in April this year. Thomas, who had pleaded guilty in 2018 to his role in a home invasion on Patrick’s Island in 2017, was not released until 2022 and was killed a few months later. No one has been charged with his murder.

Marlon Dillon, dubbed the “supergrass” after he gave evidence in a murder trial and an armed robbery, was kept in a cage at the George Town lockup for years while he waited for all the cases in which he was giving evidence to come to court. He was eventually released but was then involved in a dispute with the authorities over his deportation on release over what he said were the conditions agreed upon for his evidence.

Dillon had helped to secure the convictions of his co-defendants in the Cayman National Bank heist at Buckingham Square in 2012 and also the conviction of Brian Borden for the murder of Robert Mackford Bush who was killed in a gang-style execution in West Bay in 2011.

Anyone wishing to comment should contact the Portfolio of Legal Affairs (PLA) at info.pola@gov.ky or their constituency MP.

See the bill below and in the CNS Library.