Changes to Bermuda’s Criminal Law – An Update
About Jennifer Haworth
Jennifer Haworth is a Director in the firm’s Litigation & Dispute Resolution team. Jennifer has a wide practice in all aspects of civil and commercial litigation both in Bermuda’s courts as well as in mediation and arbitration.
Jennifer Haworth’s full profile on mjm.bm.
In early July of this year, I wrote a blog post detailing two proposed Criminal Law Reform bills: the Disclosure and Criminal Reform Act 2015 (the “Disclosure Act”) and the Criminal Jurisdiction and Procedure Act 2015 (the “Procedure Act”). At that point, the Bills had been passed by the House of Assembly on 5 June 2015 and remained to be debated in the Senate.
After much contention regarding the controversial clause 91, which permitted unfavourable inferences to be drawn from an accused person’s silence, a decision was made by the Government to withdraw this provision. Following that decision, the Bills were debated and passed by the Senate on 15 July 2015. The removal of the controversial clause was welcomed by its critics, including the Centre for Justice.
The commencement notice for both pieces of legislation was published in the Royal Gazette on 4 November 2015 providing a commencement date of the 6 November 2015, although not all sections of each piece of legislation are in force yet. With regard to the Disclosure Act, sections 1 to 17 are not yet in force and these largely set out the bulk of the Act itself (noted in green within the Act), with sections 18 to 21 (those which are in force) dealing entirely with amendments to the Criminal Code Act 1907 (the “Criminal Code”), the Criminal Appeal Act 1952 and the Court of Appeal Act 1964. Likewise with regard to the Procedure Act, sections 23 to 42 are not yet in force (also noted in green) with sections 1 to 22 and 43 to 93 now operative. Those sections not yet in force are in Part IV which is entitled “Sending Cases to the Supreme Court”.
Certain amendments to the Disclosure Act are to be sought by the Government in this legislative session by way of introduction of the Criminal Jurisdiction and Procedure (Disclosure and Criminal Reform Act 2015) Regulations 2015. Much of the regulations are designed to make amendments to the principle act, providing clarification in respect of sections 3, 5, 7 and 10, none of which are in force yet. In addition, it seeks to amend section 18 which provided for certain amendments to the Criminal Code by replacing as previously provided amendments with new ones. We will of course, have to wait and see what the House and Senate do with these proposed changes.