Bermuda Laws Don’t Allow For US Style Register
Bermuda’s laws, which are modeled on UK law, do not allow for the establishment of an American style sex offender register, Attorney General Kim Wilson said in the Senate this morning [July 18].
Minister Wilson said while there are provisions for notifications in individual cases, “this protocol and the law operate on the presumption that information should not be disclosed because of the risk of preventing a sex offender from living a normal life and the danger of vigilante justice.”
The Minister explained that disclosure cannot be made unless that assessment concludes that the offender presents a “risk of significant harm to the health and safety of the public, an affected group of people or an individual.”
“There has been much discussion in the public domain regarding the establishment of a sex offenders register and the disclosure of information pertaining to same,” said Minister Wilson.
“As this is an extremely sensitive issue that by its very nature gives rise to emotive debate, it is imperative that the public is correctly informed of the law and the protocol with respect to the disclosure of information about convicted sex offenders.
“Whilst historically there have been demands from some segments of the community for a US styled sex offenders register in the wake of convictions for sexual offences, Bermuda’s laws, which are modeled on UK law, do not allow for the establishment of such a register.”
“Contrary to media reports that I have been working with several interest groups to establish a protocol for the release of information, the protocol for the release of information about convicted sex offenders has been long established and was issued by me in 2009 as Minister of Justice, to the Bermuda Police Service.
“With regard to the starting point for considering disclosure, in R v Chief Constable of North Wales Police Area Authority, ex parte AB and CD, it was accepted that the Common Law position was that disclosure of information about sex offenders should be guided by three important principles:-
“There is a general presumption that information should not be disclosed, because of
- the potentially serious effect on the ability of the convicted person to live a normal life;
- the risk of violence to the offender;
- the risk that disclosure might drive the offender underground;
“There is a strong public interest in ensuring that information about offenders can be disclosed where that is necessary for the prevention or detection of crime, or for the protection of young or other vulnerable people;
“Each case should be considered carefully on its particular facts, assessing the risk posed by the individual offender, the vulnerability of those who may be at risk; and the impact of disclosure on the offender.
“The law in Bermuda has been drafted with these concerns in mind,” continued Minister Wilson.
“If the offender is considered to pose such a risk, the next question to be answered is “should any disclosure be made?” The Minister will decide this on a case-by-case basis, but there are specific factors that will be taken into account.
“Before determining to give any notification in accordance with the protocol in relation to a particular sex offender the Minister shall consult with the Commissioner of Police. If it is decided that disclosure should be made, the next issue to be decided is to whom should disclosure be made.
“Generally speaking, the information that will be disclosed will depend on the purpose for which disclosure is made. Where there is a risk that the offender could come into contact with vulnerable persons, the disclosure may be more extensive than to a prospective employer based in a remote location.
“For example, the disclosure to the principal of a school that a convicted sex offender resides within, say, half a mile of the school, will normally include the offender’s name, any alias that may be used, nature of offence, factors of concern, age, race, sex, date of birth, height, weight, hair and eye colour, home address, any current temporary address, location of employment, vehicle make, model, colour, licence plate number and photograph. In each case, the nature and extent of the disclosure will be a matter for the Minister’s judgment.
“The Minister is required before notifying anyone of information regarding a sex offender to consult with the Commissioner of Police. How information is disclosed will very much depend upon the reason for the disclosure.
“If individuals are to be notified, it will normally be the practice for an officer of the Bermuda Police Service to visit them by prior appointment at their home or place of work and for any documented information to be handed over in a face-to face meeting.”
“It is important to note that this protocol and the law operate on the presumption that information should not be disclosed because of the risk of preventing a sex offender from living a normal life and the danger of vigilante justice.”
Minister Wilson’s full statement follows below:
Madam President, there has been much discussion in the public domain regarding the establishment of a sex offenders register and the disclosure of information pertaining to same.
As this is an extremely sensitive issue that by its very nature gives rise to emotive debate, it is imperative that the public is correctly informed of the law and the protocol with respect to the disclosure of information about convicted sex offenders.
Madam President, whilst historically there have been demands from some segments of the community for a US styled sex offenders register in the wake of convictions for sexual offences, Bermuda’s laws, which are modeled on UK law, do not allow for the establishment of such a register.
Further Madam President, contrary to media reports that I have been working with several interest groups to establish a protocol for the release of information, the protocol for the release of information about convicted sex offenders has been long established and was issued by me in 2009 as Minister of Justice, to the Bermuda Police Service.
Madam President, with regard to the law governing this subject matter, at present, the Minister of Justice is empowered by section 329H of the Criminal Code Act 1907 (“the Criminal Code”) to issue a Protocol governing the disclosure of information in relation to sex offenders who are considered to present a risk of significant harm to the health and safety of the public, an affected group of people or an individual.
In this context, “sex offender” means a person convicted of any one or more of the following offences: —
(a) carnal knowledge of a girl under 14 (section 180);
(b) carnal knowledge of a girl between 14 and 16 (section 181);
(c) sexual exploitation of a young person (section 182A);
(d) sexual exploitation of a young person by a person in a position of trust (section 182B);
(e) incest by a male person (section 191);
(f) incest by a woman (section 192);
(g) indecent acts in public or with intent to offend (section 197);
(h) indecent act involving children (section 198);
(i) sexual assault (section 323);
(j) sexual assault by a person with AIDS etc. (section 324);
(k) serious sexual assault (section 325); (1) aggravated sexual assault (section 326);
(m) showing child abusive material, child pornography or offensive material to a child (section 182C);
(n) use of children in the production of child abusive material or child pornography (section 182D);
(o) luring of a child (section 182E);
(p) making, distributing, etc. of child abusive material or child pornography (section 182F);
(q) possession of child abusive material or child pornography (section 182G);
(r) accessing of child abusive material or child pornography (section 182H).
Madam President, as Minister of Justice, I may amend this list by secondary legislation should it become necessary to do so, but the list is current at the date of this Protocol.
Madam President, this Protocol is not intended to lay down hard and fast rules for disclosure of information. As is explained below, this is an exercise that needs to be approached on a case-by case basis, and this document is intended to preserve the flexibility that is required whilst at the same time giving an indication of the factors that will be taken into consideration in dealing with requests for information or making disclosure in the public interest
This Protocol does not purport to affect the disclosure of information as between different Departments or Ministries within the Government of Bermuda. There should be full and frank disclosure of all relevant information between the various Departments and Ministries affected by any case falling within this Protocol.
Madam President, with regard to the starting point for considering disclosure, in R v Chief Constable of North Wales Police Area Authority, ex parte AB and CD, it was accepted that the Common Law position was that disclosure of information about sex offenders should be guided by three important principles:-
(i) There is a general presumption that information should not be disclosed, because of
(a) the potentially serious effect on the ability of the convicted person to live a normal life;
(b) the risk of violence to the offender;
(c) the risk that disclosure might drive the offender underground;
(ii) There is a strong public interest in ensuring that information about offenders can be disclosed where that is necessary for the prevention or detection of crime, or for the protection of young or other vulnerable people;
(iii) Each case should be considered carefully on its particular facts, assessing the risk posed by the individual offender, the vulnerability of those who may be at risk; and the impact of disclosure on the offender.
The law in Bermuda has been drafted with these concerns in mind. If consideration is being given to disclosing information about a convicted sex offender, the starting point will be the assessment conducted on behalf of the Commissioner of Prisons and the court under section 329E(2) of the Criminal Code. Disclosure cannot be made unless that assessment concludes that the offender presents a risk of significant harm to the health and safety of the public, an affected group of people or an individual. It follows that this assessment must be available to the Minister when considering whether or not to make a disclosure under section 329H.
Madam President, if the offender is considered to pose such a risk, the next question to be answered is “should any disclosure be made?” The Minister will decide this on a case-by-case basis, but there are specific factors that will be taken into account. It must be emphasised in relation to this and the succeeding paragraphs that no one factor is conclusive, the Minister will arrive at a balanced decision based on the presence or absence of these factors and will attach such weight to each of them as he or she deems appropriate.
The Minister will consider: —
(i) If a request for disclosure is made soon after conviction, whether the offender is appealing against conviction;
(ii) The seriousness of the risk posed by the offender;
(iii) Whether the offender is a risk to a particular person, group of persons or the community at large;
(iv) Whether any persons at risk are not in Bermuda;
(v) Whether there is any likelihood of the offender discovering their whereabouts;
(vi) Whether there is any likelihood of the offender being able to travel to where the person(s) at risk is/are;
(vii) The physical health of the offender;
(viii) The health of the persons at risk;
(ix) The impact of the disclosure on person(s) at risk;
(x) What use will the persons to whom information is disclosed make of that information
Madam President, under section 329H(2) of the Criminal Code, the Minister may elect to give:
- no notification;
- notification of a specified group of persons;
- notification of a specified individual;
- notification to the public.
- Notification may include such identifying information (including a photograph of the sex offender) as the Minister may determine.
In addition, before determining to give any notification in accordance with the protocol in relation to a particular sex offender the Minister shall consult with the Commissioner of Police.
Madam President, if it is decided that disclosure should be made, the next issue to be decided is to whom should disclosure be made. To a very great extent, the considerations previously outlined will determine who should be told about the offender, although there may be circumstances where, as a result of the weight attached to a particular factor, the Minister decides on a wider or narrower disclosure than might otherwise be expected.
Madam President, generally speaking, the information that will be disclosed will depend on the purpose for which disclosure is made. Where there is a risk that the offender could come into contact with vulnerable persons, the disclosure may be more extensive than to a prospective employer based in a remote location.
For example, the disclosure to the principal of a school that a convicted sex offender resides within, say, half a mile of the school, will normally include the offender’s name, any alias that may be used, nature of offence, factors of concern, age, race, sex, date of birth, height, weight, hair and eye colour, home address, any current temporary address, location of employment, vehicle make, model, colour, licence plate number and photograph. In each case, the nature and extent of the disclosure will be a matter for the Minister’s judgment.
Further, Madam President, the Minister is required before notifying anyone of information regarding a sex offender to consult with the Commissioner of Police. In practice it is envisaged that the Bermuda Police Service will be heavily involved in providing the Minister with the information and assessments previously mentioned and the formal consultation may involve no more than an exchange of letters. In more complicated cases, the consultation may need to be more extensive.
Madam President, how information is disclosed will very much depend upon the reason for the disclosure. If individuals are to be notified, it will normally be the practice for an officer of the Bermuda Police Service to visit them by prior appointment at their home or place of work and for any documented information to be handed over in a face-to face meeting.
Where a group of people have to be informed, best practice suggests that they be invited to a private face to face meeting with one or more officers, preferably in reasonably neutral but secure surroundings. Notification to the public at large would normally be undertaken through the broadcasting and/or print media, although much would depend upon the particular circumstances in which a disclosure to the public at large was contemplated.
Madam President, it is important to note that this protocol and the law operate on the presumption that information should not be disclosed because of the risk of preventing a sex offender from living a normal life and the danger of vigilante justice.
However, the public can be assured that this category of offender is monitored as all convicted sex offenders who have served a term of imprisonment are required under section 329G of the Criminal Code to inform the police of their name and current address for ten years after their release. The penalty for failing to provide this information is a maximum fine of $3000 and/or a term of imprisonment for 6 months.
Madam President, this Government shares the public outrage with respect to sexual predators and will continue to assess the effectiveness of the current regime for disclosure in its aim to implement measures that will maintain public confidence in the criminal justice system and law enforcement with respect to this category of offender.
Thank you Madam President.
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- Crime Statistics Show Increase In Sexual Assaults | Bernews.com | August 8, 2012
If you can’t implement a registry similar to that of the US then we need more experienced (ppl that care and take their professional role seriously)Probationary Officers/staff to monitor sex offenders when they are released from prison. They should not be allowed to re-enter society as if nothing happened once their time is served. These people have mental issues that I know are not being addressed in prison because we don’t have the proper facilities to support persons with mental illnesses of this kind and many others. Please do not tell me about MAWI (when a mental out-patient assulted a young girl in her yard – yards from this facility).
Our infrastructure is failing – falling to pieces right before our eyes and all I keep hearing is our laws don’t allow this or doesn’t allow that. THAN FIX IT – we the ppl voted you all in for a reason – to improve conditions that affect the populace.
Queue the Pro-Independence bloggers. Oh, wait, that would be perfect for the last comments made to the U.N. by our Attorney General.
How old are these laws? Many seems to date way back. We laws to more up to date to match the current issues addressing this island.
Are we more concerned about the offenders rights (living a normal life, a job etc) or should you be more concerned with the victim. Look at what they have been through and see who deserves more ( a normal life, a job, not having to look over their shoulder with worry etc.
Bermuda needs to strike many of these archaic laws from the books. We have to many young victims being preyed upon because the law hasn’t been adjusted and the jail sentences aren’t long enough.
I asked this question when the woman was convicted of stealing from an elderly couple and was placed on the Abuse to Elderly Registry (or some-thing close to this).
Is this Registry viewable by the public? If it is, what is the difference? It’s O.K. to post information to the public on abusers of the elderly, but not on sex offenders.
Is this allowed under U.K. rules?
U.K. has a Sex Offender Registry which enforces the person to inform the authorities when they move dwellings, however other than Police and Prisons, it is not for the public.
“There is a general presumption that information should not be disclosed, because of
■the potentially serious effect on the ability of the convicted person to live a normal life;
■the risk of violence to the offender;
■the risk that disclosure might drive the offender underground;
So what about the VICTIMS –
Their life is ruined because of this sick persons actions on them
So what if they are a risk to violence, they should have thought about that before they bothered the VICTIMS
The risk they might dive the offender underground – That would be a good thing if it happened especially for the VICTIM
Why is the offender being treated with care when the VICTIMS are left to be relive the nightmare every time they see this sick person.
Why is all the worry about the offender, we have to protect the VICTIMS.
This worries me so much cause I have been in the presence of a few of the people charged before the courts. Just to be aware of who is who is fair for everyone.
This needs to be looked at again.
Hope this is done soon. Lots of sick people out there that need help.
Exactly. The reasons this is not done are to protect the sex offenders, of all people.
Minister Wilson, if a registry can’t be done under the current laws, change the laws. You are the government. Get busy.
Of course, what she would rather do it blame the UK. Another not-so-subtle attempt at making this an ‘independence’ issue. Which it isn’t.
@ Oh Really…i feel you on this,so right you are. Victims desearve restitution and amends.Hopefully one day we will show more care for the victims..what ever is taken from you is never recovered, be it your cherished pocessions,loved ones or your pride and dignity…its as if the rights of victims are none exsistant.. Peace to all
@ Oh really
Totally agree with you. This needs to be looked at again.
Someone sexually abuse my kid, you are going six feet under and I AM GOING WEST GATE!!!
That’s where you and I are different, I don’t have any children yet, but let my niece be a victim. You go to jail for murder, murder solves nothing, they’re dead, that’s it, no lesson learned. Mrs. Wilson as everyone clearly sees is trying to protect the offender from violence. Well Mrs. Wilson, I guarentee it would only happen once, because I will go to jail for a crime that will most likely involve a meat tenderizer, a power drill, and some very small drill bits. What are you gonna burn me with? Torture? Grievous bodily harm? Either way I won’t get a life sentence, but they will, in a wheel chair, and they’ll be damn lucky to have any of their senses left besides hearing, so they can go through life hearing the people whisper about them. So you tell me who will risk a sexual offence once I set the standard?
Change the law!!! I think Government/the law has it mixed up….we are suppose to protect the children and victims and punish the offenders not the other way around.
Come on Bermuda SPEAK UP!! Bermudians are sick and tired of archaic laws. We need change NOW. Too many VICTIMS… stop protecting the low life and start MOVING forward with heftier sentences and a REGISTER.
blah blah blah…so what are you going to do about it?
“this protocol and the law operate on the presumption that information should not be disclosed because of the risk of preventing a sex offender from living a normal life and the danger of vigilante justice.”
Well since their “Normal Life” includes having sex with little kids and fawking up children’s lives for ever I think that its a good thing to PREVENT the PERVERT from remaining what they consider “Normal”.
Bunch of f@wking idiots up on the hill I’m telling you!!!! Everytime you all open ya mouths just proves to me just how stupid and clueless you all really n truly are…
TOUCH ONE OF MINE AN YOU WILL MATHAF@WKING DIE NO SHYTE!!!
Here is a no brainer for all the politicians if our laws do not allow for the establishment of a sex offender register then it is clear we simply need to change the laws so they do. There you go, now is that so hard to do to protect children.
I have seen the newspapers and nightly news stations name and shame people for doing stupid things such as stealing from the marketplace or stealing a bike these people were named all over the papers, they lost their jobs their names are now on a database for any employee to find out if this person has a criminal conviction. So why so much protection for paedophile.Maybe Rhianna and others would be alive today if people knew how sick some people were and who is roaming are streets. I have seen cases were they didnt want to name a man because he raped his daughter and didnt want to post his name because everyone would then know who the girl was and she would then be embarrased about the situation. In those cases you blur out his face and put a alias name up and announce that if you wish to see the person’s face you can come to the specific office in hamilton and viiew the picture. for others post their names and shame their asses. It will be impossible for them to go underground with their pic on a website. And if you are worried about them living a normal life, I say the majority of people dont care if a paedophile lives a normal life or not after raping a young person ,they shouldt be out of jail in the first place. This goes back to changing the laws and maybe a lot of these young girls that got murdered would be alive today as a lot of the men already did jail time.
It really is insane to read these articles, that people actually care about a paedophile living a normal life. There was a time in Bermuda when the children came first, times have really changed.
http://www.kidshield.co.uk/sex_offenders_uk.htm
Registered Sex Offenders living in your area (UK)
Thanks for posting that.
So it turns out the government isn’t telling us the truth about something. What a surprise.
Attorney General Kim Wilson is Wrong!
We don’t have to create a list . We can refuse to issue sexual predators and offenders Bermuda Passports .
Give us a break Minister. That is a load of waffle & you know it. What about the victims? Fix the antiquated laws. They already exist in other jurisdictions. More PLP ineptness.
I’m sure many people will be upset with my post, sexual pedophilia is bad, however conviciting and exploiting a person who has been falsely accused of it is worse!
I have worked with children for several years in the US and Bermuda and I know that children LIE! Please realize that not all children do, but I am speaking about some who have lied about being toched–yes in Bermuda. And because of our culture that is “hush hush and gossipy” we have families, coworkers, children who are now grown and friends who have been around the accuser and do not speak up for them. But then they stick up for the individual in smaller circles–baffling?
Unfortunately Bermuda is such a small place and when an awful untruth is spilled out, the rumors become rampant. You are guilty before you can be proven innocent and that mentality found in the BPS and legal system too. (I have interned in the Supreme Court and have heard the negative banter that many of our supporting judical staff take to court before the trial even begins.)
So I speak on behalf of those who are falsely accused and those who will be. Innocent individuals are found guilty here in more cases here than the public realise and yes, many guilty individuals get off because of a less then stellar investigation.
So if we can’t properly manage what we have at present, it would do greater harm to our society to have any sort of registry. We cant support the criminals that re-enter into society as we speak and we do not have any sort of efficient rehabilitation for those criminals regardless of the crime. We are too small to have Scarlet Letters all over Bermuda.
With all due respect to the Minister, the real issue with the UK system (the Sexual Offences Act, the Register of Offenders Act, the Human Rights Act and the European Court of Human Rights) is whether life registration without the right of appeal was incompatible with the offender’s human rights. The UK government has proposed a system under which they could be removed if they proved they no longer posed a risk to the public.
That being said, it is applicable, for example, where a 16 year old who had ‘consensual’ sex with his 15 year old girlfriend. He should not be registered for life as a sex offender. (Albeit, that ‘consent’ cannot be legally given under the age of 16.) Such a situation cannot and should not be compared to an adult repeat offender of minors, in particular.
To avoid publication for fear of vigilantism, inability to find work, ostracizing the offender, and setting them up to re-offend is a small price to pay to avoid there being another victim. I understand the Bermuda mentality to gossip and judge, but this matter goes much further. It concerns the protection of each citizen and the offender’s rights should not outweigh the general public’s safety from that offender.
This is B**locks the UK has a sex offender list has had one for a number of years now, and public is able to access it whenever.
Why does the PLP and Kim Wilson say stuff without knowing what the facts are, your the worst Politicians ever…
British Law and Customs are trotted out here whenever there is a practice the people want to have changed but nobody wants to do anything about it (cf. record-keeping in the Court of Appeal).
When we have looked at changing or updating archaic laws over the last few years, we have looked at several jurisdictions, USA, Canada, Britain,even Australia, before creating laws that are specific to Bermuda. This excuse for not having a Sex Offenders Register seems bogus to me. If the perpetrator serves his time, and his time is adequate, people are unlikely to attempt to physically harm him unless they see him approaching another child. I would think vigilante justice is more likely to occur when predators are inadequately sentenced or not sentenced at all. Fix the whole lot – sentencing structure, in camera reporting for the vulnerable, mandatory psychiatric sessions for the predator, counselling for survivor AND their family covered under insurance, and a Sex Offenders Register.
Offerders should be brutality beaten, end of story. However, I do not believe in hidding these people identity, I say we bring back hangings. I’m almost a hundred percent sure that these people know that what they are doing is wrong. Didn’t someone in your life ever tell you, don’t do the crime if you don’t wana do the time?
Utterly disgusting. What a shame that we are placing the offenders rights before society at large. How many lives have been ruined by individuals who prey on children? So many of our social issues (drug use, etc) are linked with childhood sexual abuse yet we continue to protect individuals.
It is said that a society can be judged on how it treats it’s children. If that is true then we are in dire straits.
The law is whatever we agree it to be.
Protect our children.
I don’t think people really understand that pedophiles can’t be rehabilitated.
So even if they do their time and get counseling they will always have urges and always be capable of doing it again.