SPECIAL REPORT to the Legislative Assembly – [NOT COMPLETE]

Prepared by the Office of the Complaints Commissioner

Date: 11 October 2013

Re:  “Nowak and the Cayman Islands Prison Service.” – An Investigation by the Office of the Complaints Commissioner made on 19 October 2011

Ministry of Home and Community Affairs

Failure to Comply with Recommendations within a Reasonable Time

File number 12408. Recommendations made on 19 October 2011.

Prepared and published under the authority of the Office of the Complaints Commissioner 11 October 2013

1. Foreword

This Special Report has been prepared pursuant to the Commissioner’s powers under S.18 (3)- (5) of the 2006 Law and in accordance with such powers Her Excellency the Governor will be provided with a copy of this report in advance of its presentation to the Legislative assembly under S.18(4) of the Law.

2. Executive summary and Background

On 18 August 2011 the Office of the Complaints Commissioner began an investigation into a complaint against the Cayman Islands Prison Service and the Portfolio of Internal and External Affairs. The allegations made were that the complainant and others had been subjected to a strip-search which she believed to have been in retaliation for a letter she had written the day before; and, connected to same, in regard to an inappropriate comment made by a prison officer.

On 19 October 2011, the Complaints Commissioner wrote separate letters regarding the decision (including findings and recommendations) to, amongst others, Mr. Franz Manderson, then Deputy Governor designate, copied to Mr. Eric Bush, then Acting Chief Officer for the Portfolio; and to Mr. Dwight Scott, the then Director of Prisons. In light of the investigation findings 3 OCC Recommendations were made. Recommendation 1 was complied with in October 2011. Recommendation 2 was complied within December 2011.

Recommendation 3 was as follows:

The Cayman Islands Prison Service should install phone jamming equipment in both Northward and Fairbanks Prison. Since realistically it is virtually impossible to stop cell-phone and BlackBerry use in prisons, this is a sensible, viable and, in the long-term, cheaper alternative which would avoid regular and repeated use of strip-searching as a means of retrieval (which could not only put both the Prison and the Cayman Islands Government in violation of Human Rights protections, but also leave both entities open to potential lawsuits). The minor inconvenience it would cause to staff wanting to use cell-phones and BlackBerrys for personal use would be far outweighed by the aforementioned benefits. Phone jamming equipment is currently used in prisons in many countries, including France, India, Ireland, Italy, Mexico, New Zealand and Sweden; and is currently being considered for use in prisons in Germany and the U.K.

The date for compliance with this recommendation was 19 April 2012.

For the purposes of this Special Report only Recommendation 3 is relevant.

Although initially the Portfolio took issue with some aspects of the OCC decision, none of these concerned Recommendation 3.

Once the Recommendations were made, the OCC began monitoring them for compliance. As of the time of writing this Report,  whilst the OCC accepts both the financial constraints on the Ministry, and that some efforts towards compliance with regard to the outstanding Recommendation have been made by the Ministry, this falls far short of substantial compliance. This is particularly serious bearing in mind the following:

1.         The importance of the issue itself including the serious security breaches that have been highlighted in the national media for several months prior to the date of this Report (e.g., “OCC  Wants To Jam Prison Cell Phones”, Cayman Compass, 27

October 2011; “Prison Cell Photos Pop Up On Social Media”, Cayman Compass 30

April2013; “Rapist Was One Of The Prisoners With Access To Facebook”, Cayman News Service, 1 October 2013). I have been advised by the Deputy Governor (e-mail of3 Apri12012 refers-see section 4 of this Report) that there is cell phone jamming equipment at HMP Northward. Clearly, events have demonstrated that this is inadequate (there is evidence, for example, that the Body Orifice Security Scanner [BOSS] Chair was, as of July 2013, not correctly calibrated, and may not have been used by all prisoners coming through Reception) and in any event there is no such equipment at HMP Fairbanks;

2.         Concerns raised in H.M Inspector of Prisons report dated September 2012, based on inspections conducted in July 2012;

3.         The extensive correspondence between the OCC and the Chief Officer of the

Ministry concerned (see section 4 of this Report);  and

4.         The great age of the matter- nearly 18 months since the deadline for compliance and almost exactly 2 years since the Recommendation were made.

Having monitored this recommendation for compliance since 19 October 2011, with no substantial compliance and no immediate signs of resolution, this Special Report has been prepared pursuant to S.18 of the Complaints Commissioner I,aw (2006 Revision). in particular S.18(3) which states:

“….Where the Commissioner has made a recommendation under subsection (1) and within the time specified  or a reasonable  time thereafter, he is of the opinion  that no adequate action has been taken to remedy the injustice, he shall lay before the Legislative Assembly a Special Report on the case”.

3. Recommendations and Monitoring.

At the conclusion of the Investigation 3 recommendations were made. Recommendation one was complied within October 2011. Recommendation 2 was complied within December 2011. Recommendation 3 was as follows:

See under 2 – All as Recommendation 3

4. Ministry efforts at compliance with Recommendation 3.

EDITOR: THEN FOLLOWS COPIES OF CORRESPONDENCE AND EMAILS BETWEEN THE OCC AND THE VARIOUS GOVERNMENTS OFFICERS.

PLEASE SEE ATTACHMENT SHOWING LETTER FROM STEPHEN FRADLEY, OVERSEAS TERRIRORIES PRISON REFORM COORDINATOR REFERRED TO BY THE OCC

6. Conclusion

The response from Mr. Fradley [attached] details yet further delay with regards to complying with the outstanding Recommendation, into 2014 at the earliest.

EDITOR: The OCC acknowledged some attempts towards compliance had been made with regard to the outstanding recommendation, but those efforts fell far short of substantial compliance.

She mentioned the reports of cell phone use in jail and said the deputy governor [Franz Manderson] had told her office that some form of jamming was in use. She said this, however, appeared to be confined to the high security unit.

Reports of the inmates using phones with no recourse from the authorities told a different story about the jamming equipment said to have been in use. One inmate posting on Facebook was in the high security unit!!

The Body Orifice Security Scanner Chair was not properly calibrated and handsets and SIM cards were being smuggled into the prison by visitors.

In response the Premier’s Office released this statement:

Zero tolerance separates prisoners from cell phones

GRAND CAYMAN, Cayman Islands – The Cayman Islands is working with the Foreign and Commonwealth Office to find cell phone jamming solutions that will best fit the needs of the local prison context and ensure best value for money.

Until the research is concluded, a zero tolerance policy against drugs and communications devices is in full force at Her Majesty’s Prison Services in the Cayman Islands.

Cell phones are considered contraband in the prisons, so much so that staff members are not allowed to have phones in their possession while on duty.

Prison Director Neil Lavis said the message has been received by inmates and staff.

“Our intelligence systems have improved and we’re getting a lot more finds than we used to,” he said.

A Complaints Commission report tabled in the Legislative Assembly on Monday was critical about the prison service because cell phone jamming equipment had not been installed by the 19 April, 2012, deadline.

Mr. Lavis said there are many phone jamming products on the market, but not all live up to the claims made in advertising brochures.

“They don’t always do what they say. If and when we do purchase something, we have to ensure that it’s the right fit for Cayman. That takes time,” Mr. Lavis said.

He said the prison service has not been ignoring the 19 October, 2011, recommendation.

“We’re responded to it by doing other things,” he said.

That includes properly calibrating the Body Orifice Security Scanner (BOSS) chair and using it with every prisoner that goes through Reception and doing daily checks and searches.

“If anyone is found with a cell phone, then straight away they are taken out of the general population, placed on report and given a heavy punishment,” he said.

Any cell phone jamming system that is put in place will need to work despite the telecommunications tower, which services both Digicel and LIME.  “The power from that mast negates the blocker. I have to get a blocker that works and isn’t in competition with that tower. What I don’t want to do is spend money on a system that doesn’t work. Money is limited, even more so now,” he said. “We must ensure value for money which means waiting to see what the research tells us,” Mr. Lavis said.

In the meantime, he has assured that the policies and procedures that have been put in place to curtail the use and improve the detection of electronic devices will be rigorously enforced and those found to have contravened them will face the consequences.