Attorney-General Trevor Moniz On Jailing Debtors

January 12, 2015

trevor_moniz[Opinion column written by Attorney-General Trevor Moniz]

On December 5th, during the debate in the House of Assembly on the Opposition Bill to amend the Debtors Act, sensational claims were made about the Government’s willingness to incarcerate Bermudians for not paying debts.

Government MPs pointed out a number of flaws with the proposed amendments and the Opposition withdrew the Bill [PDF].

Since then, however, the Opposition has continued to spread misinformation and insinuate that the Government is happy to lock up our fellow Bermudians because they can’t pay their debts.

The facts tell a different story.

Fact 1: From year to year, a significantly higher number of people were jailed for debt-related issues under the PLP Government than under the current Government.

Under the PLP Government from 2004 to 2012, a total of 635 people were incarcerated for debt-related issues, with more than 150 jailed in 2004 alone.

Under the current Government, 19 people were incarcerated in 2013 and just 10 in 2014.

Fact 2: People are not incarcerated for non-payment of debts – they are incarcerated for contempt of court. This could be due to defendants not showing up for a court appearance or refusing to pay child support even though they are able to pay.

Opposition MP Wayne Furbert never mentions this fact because it does not serve his political game.

Mr. Furbert also neglects to mention that when people are incarcerated for contempt related to a debt, the normal process for new inmates is bypassed. Instead, they go straight to the Prison Farm and are sent out on work release, the proceeds of which are used to pay off their outstanding debt.

The Judiciary has argued against removing the legal provision that allows for incarceration. To do so would seriously weaken its ability to deal with people who are capable of paying their debts but refuse to do so.

The judiciary must have power to settle these civil disputes in a fair and just manner. The Opposition’s plan for the Debtors Act would remove its ability to do so.

Indeed, the Judiciary does everything it can within its power to not incarcerate people, but at some point it is their last resort to settle a dispute. A senior Magistrate recently said he has incarcerated one person in the last two years for contempt related to debt.

The OBA is concerned with the number of people incarcerated for contempt related to debt, but what is clear is that the number of people incarcerated continues to fall. Bermuda, in short, is doing a better at managing this issue before it becomes a prison issue.

The PLP leadership chose an emotional issue to try and score cheap political points against the Government. It is a continuation of their effort to use any means to paint the OBA as a party that does not care about Bermudians, and to hide the hypocrisy of their long record in office. They never let the facts get in the way of their self-serving political agenda and good old partisan mudslinging.

- Trevor Moniz

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  1. X man says:

    Incarceration in BERMUDA cost money – I have seen times when a person was given Jail time for a Specific unpaid bill
    but we the people ends up paying thousands of dollars more for that persons incarceration.
    The Govt. Of the day most reform the entire Judicial System.

    • Triangle Drifter says:

      OK X man, so in your world the creditor does not matter. The creditor has provided a service, is owed money, the court has ruled in the creditors favour, now the debtor is supposed to walk free?

      In your world the creditor does not pay taxes & is not due the enforcements of the court ruling.

      Is that the way it is in your world?

      • Todd says:

        Based on this commentary you must have just about lost your mind when Wall Street Company executives walked away without a day in jail for the numerous fraudulent mortgage-backed securities scams and lied about BILIONS in bonuses that caused investors tens of BILLIONS of dollars!

        This had to have kept you up all nigh, for months!

      • Single Mom says:

        The only thing that keeps the father of my child paying his support is the court system.

      • Carlton Smith says:

        If government wants to do something for creditors they can allow wage garnishing and bank account freezing by the courts.

        Creditors should also do more homework before providing credit. If you charge far too much for something from people who couldn’t afford it in the first place, then it’s YOUR fault that you can’t get paid.

        Ask for all the relevant proof of income and expenditures before you grant credit, and stop looking for government to apoon feed you, holding your hand every step of the way.

        Government does not belong in business.

        • serengeti says:

          You completely miss the point.

          The biggest impact of changing the law would be to make life a lot more difficult for single mothers. Currently they can rely on the courts to make the deadbeat fathers pay up. If the only thing the courts can do is ‘garnish wages’, what if the dead beat Daddy decides he doesn’t have a job? What if he just decides never to pay? Currently he risks contempt of court. Under the PLP’s ideas, he never risks anything. He just never pays. And the people who suffer most are single Moms, who are the least able to do anything about it.

          Your other idea about how ‘creditors should do more homework’. Yeah, well that’s great, until you start complaining that banks won’t lend money. Which is what will happen. If they can’t enforce an order to repay a loan, why would they lend to someone who is a higher risk? And, ultimately, what part of society will be regarded as ‘high risk’? So who will be harmed by this? Innocent people who, despite being working class, would repay loans.

          The people who want this PLP idea are deadbeats and con artists.

      • Toodle-oo says:

        Yes I say , lock the irresponsible b*****ds up ! And like you said , there’s an unbelievable amount of them on the island .

        One character I can think of owes me a modest sum of money and probably has total personal debt to the banks (who have given up on him) and his other friends in the region of $100,000

        Meanwhile in my time of difficulty he’s earned over $10,000 in the last 2 months that has gone right into his pocket and refuses to even discuss what is overdue to be repaid to me.
        Goes out and ‘parties’ every night , not a care in the world.

        I fell sorry for his newest landlord , who will be number 6 in line , to find out that he refuses to pay rent to anyone moving from place to place and leaving devastation and debt in his trail.

        These guys who can pay , but refuse to , need the shock of lock-up to knock some sense into them
        Don’t release them until the debt has been repaid or they have made guaranteed arrangements for it to be .

        • Triangle Drifter says:

          Oh, a scammed landlord too are you. I have been doing this dance with the courts for something like 5 years.

          Almost $5000 owed & $250 paid for the whole of 2014. Sound about right? The MO of my one is to skip out at the first hint of being taken to court hoping that the landlord will not bother to seek rent owed. This one is well known to the courts, owing money to all kinds of establishments around the Island.

          Wish there was an online list of undesirable tenants. The non-payers would get known real fast & find themselves on the street.

          • Toodle-oo says:

            No , I’m not the (or a) landlord in reference. I do feel sorry for him though as I know he’s going to find out very soon what all the previous ones now know.
            They fall for the sugary sweetness and pleas of help and sincerity and then get burnt.

            The thing is , there’s hundreds , maybe even thousands of others like him who ruin it for all the others.

            My landlord learned a long time ago and stopped renting to ‘Bermudians’ many years ago . I’m the only one he has out of many .

    • It is what it is says:

      And what do you propose weimplement to ensure that a person pays for his childs milk and pampers before he takes his new girlfriend on a Meditteranean cruise?

      it is so Republicanesque to just cut something without putting forward an idea of a solution.

  2. Triangle Drifter says:

    The debtors know how to play the system. They know that the courts are not going to chase up on them when they fail to pay. Nothing happens until those who are owed do the courts job for them & reactivate the case, doing all of the paperwork all over again, waiting for a warrant to be issued, then a court date, then there is a payment or two, then the whole case goes dormant till somebody outside of the courts starts it all over again.

    Meanwhile the debtor is having a good laugh at the courts as they go about their lives running up debts around the Island.

    • Longtail says:

      Spot on TD…. avoiding paying debts has become a form of art for some!

  3. Local Music Lover says:

    Can we please see more work and less Opinion pieces from the Government?

    Please.

    • hmmm says:

      PLP say stuff, generally requires a response…
      ASK the PLP to stop grandstanding with misinformation.

      Once again, the PLP mess is being cleaned up by the OBA. Even though the PLP is out of office, they are still hellbent on making mess for the OBA to clean up.

  4. Politricks says:

    Apparently the PLP wants to protect dead beat dads who have proven their ability to pay.

    Why do you guys hate single mothers so much?

    • Triangle Drifter says:

      This is not just about deadbeat dads. This is not just about single mothers who made bad decisions.

      This is about all manner of debts. Sit in the back of debt court someday. There is a long procession of cellphone bills unpaid, power bills unpaid, rent bills unpaid, all manner of services unpaid or not fully paid for.

      The number of irresponsible people on this Island is staggering.

  5. Valirie Marcia Akinstall says:

    I find the Attorney General’s response rather disconcerting…

    First, it is NOT a comparison between the PLP’s and OBA’s tenures in office. That argument serves only to make it a political football being tossed between both political camps.

    Second, the Attorney General should give us a breakdown of his current statistic of not only how many but how many are males vs females and what types of debts.

    Third, the real issue is to legislatively address draconian laws that undermines individual human rights and promotes restorative justice when debtors genuinely work their way back to financial health.

    Fourth, in order to see precisely where the anomalies lie you have to chisel down to the court proceedings itself. Examples: a)how does the court know when an individual is able to pay a debt; b) is there a standard court form that debtors must fill out and submit to the court, under oath; c) is that document then reviewed for accuracy and ability to pay ones debts? In other words, if someone says that they are not working, where will payment be sort and how will payment be sort? And mostly importantly, how does the court verify the veracity of the debtor’s claims as stated on the form under oath?

    Magistrates should not be ordering debtors to pay a some of money if debtors have no means of making payment. But there has to be a means of independently verifying employment, making sure that other critical expenses (of the debtor)are not overlooked and/or undermined, so that REALISTIC and CONSISTENT payments come from the debtor.

    However, once the debtor fails to make ONE payment, the court should order that the debtor return to court rather than an automatic ‘contempt of order’ order applied to the terms of the debt payment. And it’s that automatic ‘contempt of court’ order that bailiffs abuse over the weekends to ensure the debtors are incarcerated.

    Moreover, once a debtor has paid off all debts there should be legislation that demands that their credit history be cleared and that debt collection agencies are legally barred from keeping outdated credit history records beyond a legal time period.

    Additionally, any debt collection agency that releases credit information on an individual must also have the individual’s knowledge and consent of who their credit information is being released to. In other words, the company and/or individual must never be able to subject the debtor to unlimited, on-going, detailed credit checks as a part of their contractual agreement and/or once the debt has been paid.

    • Codfish and Potatoes says:

      This one of the dumbest posts I have seen in a long time. Under this person’s logic, an ever more protracted system is the solution rather that people taking responsibility for their debts. This person suggests chiseling down, verifying employment and clearing credit histories. Rubbish!

      This person also make the utterly stupid statement that bailiffs abuse the process. Simply untrue. Bailiffs are ordered by the court to serve documents and arrest people. They receive no benefit from carrying out their duties for the court on behalf of the judgment creditors.Further, most bailiffs do not work on Sundays and seldom on Saturdays!

      Bottom line – if you fail to punish people who refuse or neglect to pay civil debts or criminal penalties (fines), no one in the right mind would pay a bill again.

      • Valirie Marcia Akinstall says:

        This stupid person has a name, Valirie Marcia Akinstall, not a pseudonym to hide beneath so as to mock and insult others.

        If you want to be heard then state your case without insults but that’s just too respectful and transparent for someone who wants to jeer others.

        But then your brilliance should be applauded because all debtors are beyond hope, compromise and financial integrity, in your eyes, but then that’s what they use to say about slaves.

        • Onion says:

          London, UK

          • Valirie Marcia Akinstall says:

            Petty, hate…actually it’s…

            London, England

        • aceboy says:

          *groan*…why mention slaves?

          • Creamy says:

            You know why. She thinks it’s the trump card that wins all arguments.

            • Valirie Marcia Akinstall says:

              Because historically it was a speech given by Cicero (Philosopher and senator during the rein of the Roman Empire) who made the comments regarding the slaves owned by Romans as they captured new foreign territories.

              Cicero passionately pleaded that slaves who were forced work off their ‘debts’ of ownership still did not become ‘free men’ as their status was always compromised. Cicero’s solution, legal records should be accurately kept to show that they were indeed free thereby restoring hope and financial integrity where they had despaired.

              Sorry, Creamy and aceboy, I do not live in your world of playing any race cards, to simply state it, history has shown us where slaves are not unique to Blacks and/or Africa.

  6. Terry says:

    The Minister is reply to Wayne Furberts asinine comments.

    Furbert is just stirring the pot on an issue that has been festering for years under the PLP.

    Thank you Minister for setting the record straight as to issues and what must be done.

    Go have a steak Wayne.
    That’s the only time your not talking out of both sides of your mouth.

    Shalom.

  7. JONO says:

    WELL STATED, TREVOR….FACTS ARE FACTS…

    • Ride says:

      I just don’t get why the PLP would highlight an issue that they have a much worse track record on than the OBA government. This is not the first time they have done this. In fact it seems they do it too frequently.

      The first thing they should do is compare their track record. If it is worse, then they should find some other issue to lament. All they are doing is reminding people why they were not re-elected.

      Ride

  8. Northshore says:

    I`M sorry, but if I`m owed money and I`m not getting paid then I want his or her *** in jail !! And I don`t give a rats *** how much it costs to lock the deadbeats up !!!

  9. Alvin Williams says:

    It’s not about track records or failed or lack of policies on the part of the former PLP government’ it’s about the here and now and what is to be done going forward in regard to debtors and jail sentences.
    It appears to me than some debt is more holier than others; because if a business failed to pay an employee’s health insurance or pension after they have taken it from their wages. That is not only outright theft; but translate into debt owed to that employee. Very few persons have been taken to court for this; let alone given a jail sentence. So enough with the semantics; the political cover ups; you are either going to cease putting people in jail for debt or you are not?

    • Ride says:

      You are both right and wrong at the same time.

      A party holds government for 14 years and does nothing to address the debtors jailing while literally hundreds per year are incarcerated. The next party comes in and having been there only a few years less than 20 per year are incarcerated.

      The PLP can’t then be up in arms over the less than 30 people that have been locked up when they both:
      1 – Did nothing about the law for 14 years, and
      2 – People were being locked up in the hundreds under their watch.

      Surely you see this and agree.

      A fully agree with your point on the employer thieves that steal people’s money and put their health and retirement at risk. It seems an open and shut case. Why don’t they sue the company for the money+interest and legal fees. Put a freeze on the company accounts and get your money.

      Ride

    • Creamy says:

      Alvin, will you be willing to explain to single mothers why they have to go without things, now that the deadbeat fathers don’t have to psy up after a court order? Will you explain to their kids when they are homeless?

  10. clearasmud says:

    I have to agree with Ms Atkinstall that the AGs comments were not helpful and pure politics. Neither party is responsible for locking up anyone as there is a clear division between the politicians and the Judiciary and it would have been better for the Top lawyer in the country to help to educate the people about these matters rather than to respond to a useless comment from the opposition with a useless commentary of his own.

  11. Rhonda says:

    http://bernews.com/2012/11/alexis-swan-is-it-cost-effective-to-jail-debtors/

    another example of OBA hypocrisy….they just can’t be trusted…

    Written by OBA Candidate Alexis Swan] Almost every day, we read or hear stories about people who have been sent to jail for not being able to pay their bills.

    Bermuda is already facing monumental debt as a country. Should we be spending more money on locking up those who can’t find jobs to pay their debts? Or should we look to creating a solution outside prison walls that will enable those in debt to pay their bills and maintain their dignity without having a prison record hanging over their heads for life?

    Running up debts with no intention of paying them is one thing. But little regard is given to those who had every intention of paying, but who can prove that they simply cannot pay the debt they have incurred due to job loss or other unfortunate circumstance related to these tough economic times. If they go to jail, the bills remain unpaid and the problem has not been resolved.

    How do we arrive at a solution that will please the creditors and keep the person who is trying to pay his/her debts out of prison? Westgate is, after all, an expensive alternative. The cost to the taxpayer of keeping a debtor locked up is upwards of $80,000 a year – in many cases the bill will be more than the offender’s debt.

    We need to look for solutions to this and similar problems that help our fellow Bermudians, not solutions that change their lives for the worse. Bermuda seems to be one of the few countries in the world which locks people up for debt. It seems to me a throwback to the days of the offence of wandering abroad.

    My question to government Ministers is whether they truly consider that this treatment of debtors is appropriate in this day and age. What service does the government think jailing them does for the people of Bermuda? It is clear that there have been high volumes of job losses in Bermuda recently, and that is beyond people’s control.

    If we are going to move forward as a country we have to learn to create solutions for our people and not more problems. No one deserves to live in fear.

    We have seen the government mismanage the public’s money on numerous occasions. There is never an explanation as to where the money has gone. Yet if an individual mismanages his own money, he can be pulled up before a magistrate to explain what happened and to beg not to be sent to jail.

    That’s not fair, and it’s not the way we should be operating in the 21st Century. We need to put this right. The One Bermuda Alliance intends to do just that.

    - Alexis Swan is running in C#24 Warwick South East against the PLP’s Lawrence Scott

    • Edmund Spenser says:

      You forgot to mention that during ’04 the numbers jailed was over 150, in ’13 the number was 19 and in ’14 was down to 10. The OBA, and the court, is looking for and in many cases finding alternatives to jailing people for debts. But don’t let the fact that they are keeping a campaign promise get in the way of a good rant.

    • Creamy says:

      So Rhonda, talking of hypocrisy, do you agree with Alexis Swan’s article, or do you agree with Trevor Moniz?

      • Rhonda says:

        I agree with the Oba, both of sides of the Oba.

      • Rhonda says:

        To making Bermuda
        more affordable, an OBA
        Government will:
        • End the practice of sending people to jail
        for failing to pay debts.
        • Reduce the cost of electricity by properly
        regulating the energy sector.
        • Waive stamp duty for first time home owners
        on properties valued under $1million.

        • Introduce a banking and financial services
        ombudsman service through the Department
        of Consumer Affairs to assist families with
        mortgage issues.
        • Ensure that families who are struggling
        financially get the child daycare and financial
        and housing assistance they need.

  12. Valirie Marcia Akinstall says:

    I am going to take a bold and respectful ‘in your face’ attitude towards the Attorney General’s statistic that only 19 were incarcerated in 2013 and 13 in 2014. Why? Because as I review some articles from the Bermuda Police Service – on a weekly basis they arrest individuals on outstanding warrants. These individuals are arrested over the weekend to appear in Court on Monday morning. So, how many in BPS’ weekly arrests are in fact debtors?

    I have asked once before if BPS can give us a breakdown of what type of outstanding warrants? For example, in another article on this news service BPS releases the stats of one DUI and 17 warrants. One DUI but what are the other categories? Are they all failure to appear in court? Criminal or civil court? ‘Contempt of court’ court orders? From the civil contempt of court, court orders how many are due to debts? How many are male vs female.

    Each week BPS releases their stats, do we have the stats from the bailiffs’ department as well?

    And to the pedantic Onion and cohorts…

    London, England