Continuing the series of comparisons between many of the sections of our proposed Cayman Islands Bill of Rights and the corresponding Articles of the Convention.

My comments – in italics- are for the most part quite brief, and I hope you find them informative and perhaps thought provoking.

This commentary will be published daily until the topic is exhausted.
I hope you all enjoy this series.

Comparing the Cayman Islands draft Bill of Rights, freedoms and responsibilities with the European Convention on Human Rights. (5)

Comment on CI BRFR Section 8 No punishment without law
and ECHR Article 7- retrospectivity
CI BRFR Section 8 and ECHR Article 7 are in substance identical. There appears to be a delicate balancing act between subsections (1) and (2), preserving the possibility of a conviction through violation of generally recognised “principles of law”, while yet preventing the passing of laws merely to secure the conviction of particular persons considered to be in breach of them if they had been in effect already.


No punishment without law

CI BRFR Section 8.-

(1) No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed; nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

(2) This section shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.


ECHR Article 7 - retrospectivity

1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

2. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by civilized nations.
***


Comment on CI BRFR Section 9 Private and family life
and ECHR Article 8 – Right to respect for private and family life

The derogations from this right are much more extensively set out in CI BRFR Section 9 than those in ECHR Article 8 and include non-contravention “to regulate the right to enter or remain in the Cayman Islands”.


Private and family life

CI BRFR Section 9.-

(1) Government shall respect every person’s private and family life, his or her home and his or her correspondence.

(2) Except with his or her own consent or as permitted under subsection (3), no person shall be subjected to the search of his or her person or his or her property or the entry of persons on his or her premises.

(3) Nothing in any law or done under its authority shall be held to contravene this section to the extent that it is reasonably justifiable in a democratic society –

(a) in the interests of defence, public safety, public order, public morality, public health, town and country planning, or the development or utilisation of any other property in such a manner as to promote the public benefit;

(b) for the purpose of protecting the rights and freedoms of other persons;

(c) to enable an agent of the Government or a public body established by law to enter on the premises of any person in order to inspect those premises or anything on them for the purpose of any tax, rate or due or in order to carry out work connected with any property that is lawfully on those premises and that belongs to the Government or that public body;

(d) to authorise, for the purpose of enforcing the judgment or order of a court, the search of any person or property by order of a court or the entry on any premises by such order; or

(e) to regulate the right to enter or remain in the Cayman Islands.

ECHR Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.