Proposed Changes to Bermuda’s Criminal Law

Proposed Changes to Bermuda’s Criminal Law

In May of this year, the Attorney General introduced two Bills in the House of Assembly that contained several measures aimed at reforming Bermuda’s criminal law, with the goal of enhancing efficiency. The Disclosure and Criminal Reform Act 2015 (the “Reform Bill”) and The Criminal Jurisdiction and Procedure Act 2015 (the “Procedure Bill”) (together the “Bills”) were passed by the House of Assembly on 5 June 2015. They remain to be debated in the Senate.

According to the recitals of the Reform Bill, its purpose is to introduce a new prosecution and defence disclosure regime, as well as a new case management regime and to amend the law to improve the criminal appeals process. The Procedure Bill, in its introductory recitals, indicates that it seeks to “modernize criminal procedure and to promote the fair and efficient administration of justice in Bermuda” through certain enactments and amendments. The Bills, together, work towards reducing the length of time taken to reach a trial and the length of the trial itself. The Government, in presenting the Bills, argues that these measures are in the interests of both defendants and victims and their families in keeping with the phrase: “justice delayed is justice denied”. In addition, these steps are said to reduce the overall costs of trials.

Key Aspects of the Bills

Although there are many items dealt with in the Bills, we will focus on the key points of note within each of them. In the Reform Bill, the prosecution’s duty to disclose its case is codified and a new duty to disclose all relevant material, whether it is to be relied upon or not, is added. On the defence side of things, a new duty to provide a defence statement within twenty-eight (28) days of the first arraignment is to be introduced (Section 5). Consequences for failure to properly disclose in a defence statement are also set out, including a defendant being curtailed from presenting alibi evidence if that evidence was not previously provided in the defence statement (Section 10). A new pretrial case management hearing is to be instituted in the Supreme Court and will also be available on application in the Magistrates Court. This is intended to narrow the issue in the case, actively manage cases and shorten the average length of trials.

Amendments are also to be made to the prosecution’s right to appeal, expanding it to allow all rulings which terminate matters to be appealable and permitting the prosecution to appeal where new and compelling evidence later emerges relating to a greater number of offences than currently permitted. In terms of appeals made from the Magistrates’ Court to the Supreme Court, defendants would now be required to perfect their appeal in advance. The Reform Bill also permits judges to appoint up to three alternate jurors to follow the evidence along with the twelve jurors so that they can step in, if necessary, to avoid the entire jury being discharged if a single juror is unable to continue. Finally, courts will be given the power to order wasted costs against legal counsel due to their improper, unreasonable, negligent conduct or omission.

In the Procedure Bill, key provisions relate to the framework currently in place with regard to the criminal jurisdiction of the Magistrates Court being repealed and replaced with a code governing the commencement of prosecutions, trial of summary offences, the allocation of either-way offences, and with indictable matters being referred directly to Supreme Court. Preliminary inquiries, often used by defence counsel to test the prosecution’s case, are to be eliminated under the Procedure Bill. In addition, judges and juries will be able to draw adverse inferences from a criminal suspect’s silence in certain circumstances.

Controversial Sections

Some criticism has been leveled against aspects of the Bills, specifically 1) Sections 5 and 10 of the Reform Bill introducing the defence statement requirement and setting out the consequences for failing to properly disclose by way of that statement and 2) Section 91 of the Procedure Bill permitting unfavourable inferences to be drawn from an accused person’s silence.

Section 5 of the Reform Bill states that provided the prosecution has complied with the requirement to disclose its case in Section 3(1), an accused, where he intends to give evidence at trial, must serve a defence statement on the prosecutor and the court within 28 days of the first arraignment. Section 5(2) provides:

“(2) A defence statement is a written statement—
(a) setting out the nature of the accused person’s defence, including any particular defences on which he intends to rely;
(b) indicating the matters of fact on which he takes issue with the prosecution;
(c) setting out, in the case of each such matter, why he takes issue with the prosecution;
(d) indicating any point of law (including any point as to the admissibility of evidence or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose; and
(e) containing such other particulars or material as may be required under regulations and which reasonably relate to disclosure by the defence.”

The Section further provides that if there are changes to the defence, prior to the conclusion of the prosecution’s case, the accused is to serve a written statement on the prosecution and the court setting out those changes “as soon as is reasonably practicable or within such time as the court may order”. Section 5(7) states that nothing in the section should be construed as compelling a defendant to give evidence when he does not wish to do so or to serve a defence statement when he does not wish to give evidence. Instead, the Reform Bill provides at Section 5(8) that if the accused does not wish to give evidence, written notice of such should be provided to the prosecution within 28 days of the first arraignment hearing.

Section 10 of the Reform Bill deals with the consequences of the failure by the defence to adequately disclose with regard to the defence statement contemplated by Section 5. The Explanatory Memorandum gives an understanding of what is sought by this section:

“Clause 10 sets out the consequences for faults in defence disclosure. The court will order service of a defence statement where none has been served, order that a defence statement service is rectified or order that an alibi defence not be put to the court, whichever is relevant.
“Failure to put forward a defence statement, putting forward a different defence to that in a defence or updated defence statement, or setting out inconsistencies in a defence or updated defence statement can lead to further consequences. This includes giving a jury all or part of a defence or update a defence statement, making appropriate comment, and drawing proper adverse inferences. At all times, the court will hear representations from the defence, and will consider whether the accused person has a justification for his failure and the extent of any inconsistencies.”

Section 91 of the Procedure Bill sets out a proposed amendment to the Police and Criminal Evidence Act 2006 relating to a defendant’s silence, by inserting Section 59A as follows:

“Evidence of silence in criminal proceedings for offences
59A (1) In a criminal proceeding for an offence, such unfavourable inferences may be drawn as appear proper from evidence that, during official questioning in relation to the offence, the accused person failed or refused to mention a fact –
(a) that the accused person could reasonably have been expected to mention in the circumstances existing at the time; and
(b) that is relied on in his defence in that proceeding.”

Subsection 2 goes on to make clear that subsection 1 does not apply unless a special caution has been given to the accused person, before the failure or refusal to mention any fact, by an investigating official who, at the time of giving the caution, had reasonable cause to suspect the accused person had committed an offence. In addition, the special caution must be given in the presence of counsel acting for the accused person at that time with the accused person having been allowed reasonable opportunity to consult with counsel in absence of the investigating official.

Criticism Leveled

The Bermuda Bar Council (the “Bar Council”) by a sub-committee said that it supported the overall goal of modernization and bringing greater efficiency to the criminal justice system, but expressed concern about certain provisions, which it concluded, it could not support in their current form.

In their letter to the Attorney General, the Bar Council takes issue with several matters, but specifically Section 5 of the Reform Bill and Section 91 of the Procedure Bill. They wrote:

“However, some of the reforms suggested will, in our view, not only fail to meet the objectives of the Government but will in fact make the system less efficient and more costly. Moreover, some of the proposed amendments infringe on the constitutional rights of individuals and such infringements cannot be justified on the basis of efficiency and cost savings. Since no other pressing social need or problem has been identified to justify the violation of constitutional rights, many of the proposed amendments would be highly unlikely to survive the constitutional challenges that would most certainly be brought seeking to strike down the legislation.”

The Centre for Justice wrote a letter to the President of the Senate on 23 June 2015 in which they indicated that they wished to be associated with the Bar Council’s support for reform aimed at improving efficiency and effectiveness of the administration of the criminal justice system but also expressed the same concerns about the same provisions that the Bar Council had expressed. Their letter concludes with a request that the Senate reject the Bills.

Both the Bar Council and the Centre for Justice argue that Section 5 of the Reform Bill and Section 91 of the Procedure Bill are unconstitutional because they infringe on the Bermuda Constitution Order 1968 by interfering with an accused’s right to a fair trial and their right to silence. Both bodies point to the difference between Bermuda having a written constitution and the United Kingdom (“UK”) not, given that many of the proposed reforms are based on UK law. Instead, they seek to rely on Canadian jurisprudence given the Canadian Charter of Rights and Freedoms.

Chief Justice Mr Ian Kawaley has said that the judiciary broadly supports the principle of increasing the powers of the court to effectively and efficiently manage criminal matters. With regard to the criticisms leveled against the Bills he said:

“There may be legal concerns about the constitutionality of some of the proposed changes, but we [the judiciary] are bound to keep an open mind on such matters because the courts may be required to adjudicate on such questions. The opposition there has been to the amendments is not altogether shocking bearing in mind that it does represent a sea change in the way in which the right to silence in particular has been traditionally defined. When broadly similar changes were implemented in England and Wales many years ago there was a similar outcry from defence lawyers.”

The Bills, which were to be heard by the Senate on three previous occasions to date, have yet to be heard. We will have to keep a close eye on whether they succeed in light of the criticisms leveled and the opposition to some aspects of the reforms proposed.