Comprehensive Reform: Criminal Justice System

June 8, 2015

The recent Bills introduced pave the way for a “comprehensive programme of reform” of the criminal justice system in Bermuda, Attorney-General Trevor Moniz said.

Speaking in the House of Assembly on Friday, Attorney-General Moniz said:”The changes contemplated by this Bill are consequential and wide-ranging, and will help to achieve the policy objective of ensuring a criminal justice system which is fit for purpose in the 21st century.

“The framework governing the criminal jurisdiction of the Magistrates’ Courts will be done away with, and in its place will be a comprehensive code governing the commencement of prosecutions, the trial of summary offences, the allocation of either-way offences and the speedy sending of matters to be dealt with in the Supreme Court.

“The Bill before this Honourable House would eliminate preliminary inquiries. Cases will instead be transferred administratively to the Supreme Court once a defendant elects trial by jury or the Magistrate declines jurisdiction.

“Bermuda currently has an absolute statutory right to silence. That is, a person arrested in connection with the commission of any offence is not obliged to say anything to the police as part of that investigation.

“The Bill before this Honourable House proposes to relax this statutory rule by allowing courts during the course of criminal proceedings to draw adverse comments in the following circumstances:

  • when failing to mention certain facts when questioned or charged by the police;
  • when failing to account for objects, substances or marks on his person, clothing, possessions or at a place where arrested; and
  • when failing to account for his presence at a particular case when arrested.

“Allowing a criminal suspect to provide certain reasonable explanations early on in an investigation is an important part of the overall scheme to modernize and streamline the criminal justice system. Encouraging the early disclosure of explanations can assist in focusing the scope of a police investigation.

“In order to ensure that trials proceedwith all due expedition, criminal suspects have their part to play in this process; indeed, it is most in their interest that proceedings are dealt with as expeditiously as possible.

“Refusing to cooperate with the police when a reasonable explanation could be offered at an early stage in certain circumstances provides no tactical advantage to the defence and serves only to unnecessarily lengthen proceedings. For example, a person found with a dangerous weapon or with bloodied fists can be reasonably expected to provide an account to the police.

“Submissions received from the Bermuda Bar expressed concern about the constitutionality of these provisions. I am certain that this question may arise during debate on this point as well. Let me just say this. I am satisfied that the provisions being introduced are constitutional.

“We are not removing the criminal suspect’s right to silence. The right will continue. What will change is there will now be reasonable consequences to exercising that right in an unreasonable way.

“There is no compulsion under the legislation to give evidence. Maintaining one’s silence after this Bill is passed will not amount to a criminal offence or contempt of court.

“What is most important, Mr. Speaker, is that the legislation will only permit the drawing of adverse inferences, not require it.”

Speaking on the “Disclosure and Criminal Reform Act 2015”, the Attorney-General said, “The Bill has a simple, practical ambition: to create a speedier and more efficient criminal justice system which maintains fairness for everyone connected by it.”

“The reforms contained in this Bill, together with its companion Bill, the“Criminal Jurisdiction and Procedure Act 2015”, contain some of the most consequential reforms ever undertaken to criminal procedure in Bermuda.

“This should hardly surprise anyone; the legislation governing procedure on our books is based on 19th century English precedents. It has been showing its age for a considerable amount of time, and has had to adapt to the stresses and strains of modern life.

“Let me now provide this Honourable House with a brief overview of the tools contained in this Bill which the Government believes will help foster this important paradigm shift in our criminal justice system:

  • The prosecution duty to disclose its case will be placed on a statutory footing, together with a new duty to disclose material in its possession which is reasonably capable of undermining its case against a defendant.
  • There will be a new duty by the defence to serve on the court and the prosecution a defence statement setting out, in summary form, the important details of its case at trial. This will note aspects of the prosecution case which are disputed and legal issues required to be determined by the court in advance of, and during, trial.
  • A new pre-trial case management hearing will be instituted in the Supreme Court. Such a hearing will also be available on application in the Magistrates’ Court. These hearings, together with the new rules on disclosure, will assist in actively managing cases and narrowing issues in a case, thus shortening the average length of trials in Bermuda. Binding rulings can also be sought and made by the judge in advance of trial.
  • This procedure will be complemented by the appointment of case management judges. This official can be a different judge who can decide matters before a trial, or matters referred to him or her during trial, thus allowing a case to be disposed of more efficiently.
  • The prosecution will be given the right to appeal a ruling by a judge or magistrate terminating a case. This will bring the law back to where it was before a 2000 Privy Council ruling which drastically restricted the prosecution’s ability to appeal cases.
  • The prosecution’s right to appeal an acquittal following the later discovery of new and compelling evidence will be expanded. The application of this procedure only to cases from 2010 onwards will be removed, and the limit to only murder will be extended to a wider number of serious offences.
  • Criminal appeals from the Magistrates’ Court to the Supreme Court will need to be perfected before they can be heard.
  • The process relating to the appointment of jurors will be updated to reduce the risk of prematurely discharging a jury.
  • Courts will be given the power to order wasted costs against legal representatives owing to their negligent conduct.
  • Provision is made for a number of other technical and consequential amendments aimed to support the overall policy rationale of these reforms.

The Attorney-General added, “The Court of Appeal Act 1964 also allows for appeals by the DPP where someone is acquitted or discharged of murder or premeditated murder and where new and compelling evidence later emerges.

“This follows amendments introduced and passed in 2010. However, the right of appeal only applies in respect of offences occurring after 2010 and for acquittals based on murder and premeditated murder.

“The Bill removes this retrospective limitation. In addition, it will expand the number of offences to which this procedure applies to include all serious arrestable offences contained in Schedule 1 of the Police and Criminal Evidence Act 2006. This includes, amongst others, manslaughter, most forms of sexual crime, kidnapping and serious firearms offences.”

The Attorney-General’s statement on the Criminal Jurisdiction and Procedure Act 2015:

Mr. Speaker, Government wishes that this Honourable House give consideration to the Bill entitled the “Criminal Jurisdiction and Procedure Act 2015”.As I noted during my comments in support of the Bill entitled, the “Disclosure and Criminal Reform Act 2015”, this Bill before us today forms part of a comprehensive programme of reform in respect of the criminal justice system in Bermuda.

Given that my comments on the policy rationale for the earlier Bill apply with equal force to this Bill before us today, and further given that the two Bills form part of the same programme of reform, I do not propose to repeat much of what was already stated to Honourable members. Instead I simply offer a broad overview. I do however wish to emphasize that the changes contemplated by this Bill are consequential and wide-ranging, and will help to achieve the policy objective of ensuring a criminal justice system which is fit for purpose in the 21st century.

Mr. Speaker, It is anticipated that the tools contained in this Bill will help foster this important paradigm shift in our criminal justice system as follows:

  • The framework governing the criminal jurisdiction of the Magistrates’ Courts will be done away with, and in its place will be a comprehensive code governing the commencement of prosecutions, the trial of summary offences, the allocation of either-way offences and the speedy sending of matters to be dealt with in the Supreme Court.
  • Judges and juries will be able to draw adverse inferences from a criminal suspect’s failure to account for matters which are reasonably expected on police questioning and in court.
  • There will be a number of other technical and consequential amendments aimed to support the overall policy rationale of these reforms.
  • Mr. Speaker, At present, all criminal offences commence in the Magistrates’ Court. Matters which are transferred to the Supreme Court must first be subject to a preliminary inquiry in the Magistrates’ Court.. These proceedings involve the Prosecution putting forward much of their case and tendering their main witnesses to give evidence, and the court must then be satisfied that there is sufficient evidence before it proceeds to the Supreme Court; otherwise, the matter is discharged.

In practice, the legal test for a matter to be committed is very easy to meet. Except in the rarest and most obvious cases where there is no evidence to support an important element of an offence, these proceedings arelargely pro forma. Having consulted with the Department of Public Prosecutions, I have been informed that in their collective memory, only one matter has ever been discharged following a preliminary inquiry. That case involved a short-form inquiry, and in any event, was brought to the Supreme Court by way of a voluntary bill of indictment.

Mr. Speaker, Preliminary inquiries are often used as an opportunity for defence counsel to test the prosecution’s case early on or to lay the groundwork for inconsistent statements to be put to witnesses at trial, and oftentimes a particularly grueling cross-examination can be used to dissuade witnesses from appearing in front of a jury. There is also a strong public policy imperative to prevent vulnerable witnesses (such as children, sexual offence complainants, seniors or those under threat from gangs) from testifying multiple times in what might potentially be a traumatic experience. It is in the interests of all parties, including innocent defendants eager to vindicate their name, for a criminal defendant to proceed to trial expeditiously. Fairness has many facets, and the speed with which a criminal is disposed of is a fundamental aspect of it.

Mr. Speaker, Preliminary Inquiries are thought to be extremely laborious, time consuming, costly, and even prejudicial in some instances where there is adverse pre-trial publicity. Therefore the length and cost of criminal proceedings can be effectively reduced, so that more speedy trials may be achieved in accordance with the constitutional requirement for a fair hearing of criminal offences within a reasonable time.

Preliminary inquiries have historically served the purpose of allowing a limited form disclosure of the prosecution’s case to defendants in criminal trials. This will become a far less compelling reason to retain preliminary inquiries in light of new and robust rules of prosecution disclosure also enacted as part of the current reforms.

To these ends, Mr. Speaker, the Bill before this Honourable House would eliminate preliminary inquiries. Cases will instead be transferred administratively to the Supreme Court once a defendant elects trial by jury or the Magistrate declines jurisdiction. Fairness does require that a defendant facing an obviously weak case be given the chance to have charges dismissed as quickly as possible. In this situation, a defendant can make an ‘application to dismiss’ before a Supreme Court judge once the prosecution discloses its case. Where there is insufficient evidence for the trial on one or multiple counts to continue, a defendant must have them thrown out.

In a clear example of a ‘nudge’ popularized by behavioural economists, the law will shift from requiring an additional stage in every criminal procedure to only requiring it in clear cases and where requested by the defence.

Mr. Speaker, We note that the Magistrates’ Court’s administrative structure is overburdened, which can lead to unconscionable delays to all involved. The Supreme Court is not perfect, but significant progress has been made in clearing up the Court’s backlog following efforts by the former Chief Justice, Sir Richard Ground (and continued under his successor, Chief Justice Kawaley). The effect of abolishing committal proceedings and letting the Supreme Court decide whether or not to dismiss a case would keep in meritorious matters to be prosecuted while filtering out unmeritorious ones, thereby allowing the Magistrates’ Court to concentrate on tackling its backlog. As the workhorse of our criminal justice system, a healthy and speedy Magistrates’ Court is in the interest of everyone.

England abolished preliminary inquiries in 1980, replacing them with paperbased committals. These were then abolished in 1999 for indictment-only offence. Finally, in 2012, committals were abolished altogether. In addition to England, note that the preliminary inquiry process was reformed in Canada and Antigua in 2004, and abolished in St Lucia, Trinidad & Tobago and Jamaica in the years from 2008 to 2013.

Mr. Speaker, Bermuda currently has an absolute statutory right to silence. That is, a person arrested in connection with the commission of any offence is not obliged to say anything to the police as part of that investigation. The Bill before this Honourable House proposes to relax this statutory rule by allowing courts during the course of criminal proceedings to draw adverse comments in the following circumstances:

  • when failing to mention certain facts when questioned or charged by the police;
  • when failing to account for objects, substances or marks on his person, clothing, possessions or at a place where arrested; and
  • when failing to account for his presence at a particular case when arrested\

Allowing a criminal suspect to provide certain reasonable explanations early on in an investigation is an important part of the overall scheme to modernize and streamline the criminal justice system. Encouraging the early disclosure of explanations can assist in focusing the scope of a police investigation. In order to ensure that trials proceedwith all due expedition, criminal suspects have their part to play in this process; indeed, it is most in their interest that proceedings are dealt with as expeditiously as possible. Refusing to cooperate with the police when a reasonable explanation could be offered at an early stage in certain circumstances provides no tactical advantage to the defence and serves only to unnecessarily lengthen proceedings. For example, a person found with a dangerous weapon or with bloodied fists can be reasonably expected to provide an account to the police.

Mr. Speaker, Empirical evidence from other jurisdictions suggests that the vast majority of criminal suspects do not remain silent during their police detention, even where an absolute right exists. There is no reason to doubt this state of affairs for Bermuda. Therefore, the proposed changes would have little effect on current practice. Where it will cause change is in respect of defence lawyers who advise their clients to simply stay quiet or those ‘professional criminals’ who are familiar with the criminal justice system and who just bide their time until they can be released. The need for adverse inference as an investigatory tool will be more acute when the final provisions of PACE come into force. Those provisions will drastically shorten the period of detention. The police will have a shorter period during which to investigate an alleged offence. I anticipate that the final stages of PACE will come into effect towards the end of this year. The detention time-clock in PACE and the right to draw adverse inferences should be seen as complementary reforms.

Mr. Speaker, Submissions received from the Bermuda Bar expressed concern about the constitutionality of these provisions. I am certain that this question may arise during debate on this point as well. Let me just say this. I am satisfied that the provisions being introduced are constitutional.

The UK legislation which is the model of our adverse inference provisions was subject to thorough judicial scrutiny. It was ultimately considered by the European Court of Human Rights. In that case, the Court said that the right to silence and the privilege against self-incrimination were not absolute. An accused’s silence could be taken into consideration when deciding guilt, though it could not be determinative of the matter.

The Court did interpret a requirement that an accused be entitled to consult with a lawyer early on in the process of questioning. With this implied requirement, the legislation was held by the Court to strike an appropriate balance between the right to silence and the right to account for matters which a suspect could reasonably be expected to do. I am pleased to say that this additional safeguard is incorporated into the Bill before the House today as a requirement to allow a criminal suspect to consult with a lawyer before being questioned by the police in interview.

Mr. Speaker, It is important that we are clear about what is and what is not being proposed in this legislation. We are not removing the criminal suspect’s right to silence. The right will continue. What will change is there will now be reasonable consequences to exercising that right in an unreasonable way. There is no compulsion under the legislation to give evidence. Maintaining one’s silence after this Bill is passed will not amount to a criminal offence or contempt of court. This position is consistent with guidance of the UN Committee on Human Rights in respect of the International Covenant on Civil and Political Rights. This convention is applicable to Bermuda, and our courts will have regard to it in construing constitutional provisions. That guidance regards the absence of compulsion by the use of inhuman and degrading treatment as key to safeguarding the right to silence. A reasonable requirement to account for certain matters is not to be regarded as such compulsion.

What is most important, Mr. Speaker, is that the legislation will only permit the drawing of adverse inferences, NOT require it. This is a point worth repeating. It will not be mandatory for the court to draw an adverse inference if a suspect is silent during a police investigation or trial. There will still be a residual power by the judge NOT to draw an inference and to not put such an inference before the jury.

n addition, an adverse inference drawn from a suspect’s silence is not in itself sufficient to establish guilt. There must be a compelling case to call for an answer before the court can allow an adverse inference to be drawn. In practice, the use of this legal provision in a trial is mainly to draw the jury’s attention to the suspect’s failure to answer questions when interviewed under caution. A jury can be invited to consider why an innocent party would refuse to answer reasonable questions and whether a subsequent defence offered was plausible.

It is on this basis that I am confident the provisions are fair and constitutional.

Mr. Speaker, The Bill also makes a number of complementary consequential amendments which are within the overall spirit of the purpose of these reforms. They include, amongst others:

  • expanding the scope of Criminal Procedure Rules which may be issued by the Chief Justice;
  • improving the provisions on amending indictment rules; and
  • clarifying the procedures to be used in a trial against corporations.

I propose to go into more detail as appropriate in my comments when this Bill goes into committee.

Mr. Speaker, As also indicated in my earlier comments in respect of the Bill entitled the “Disclosure and Criminal Reform Act 2015”, there is a possibility of future changes and tweaks in respect of the reforms to be enacted by this Bill.

It also bears repeating that fairness is an expansive concept which in addition to the criminal defendant must also take into account the interests of the victims of crime, the taxpayers and the general public, all of whom have an overarching interest in an efficient and effective criminal justice system. The reforms proposed in this Bill should go a long way towards achieving this objective, and they draw on practices from overseas that have been tried and tested

This Bill should go a significant way towards meeting the Government’s policy objectives of cost containment, minimizing delays and safeguarding the interests of victims of crime, witnesses and their families.

Mr. Speaker, With these introductory remarks, I look forward to debate and to further comments from my Honourable Colleagues.

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The Attorney-General’s statement on the Disclosure and Criminal Reform Act 2015

Mr. Speaker, Government wishes that this Honourable House give consideration to the Bill entitled the “Disclosure and Criminal Reform Act 2015”. The Bill has a simple, practical ambition: to create a speedier and more efficient criminal justice system which maintains fairness for everyone connected by it.

I do believe, Mr. Speaker, that the reforms contained in this Bill, together with its companion Bill, the“Criminal Jurisdiction and Procedure Act 2015”, contain some of the most consequential reforms ever undertaken to criminal procedure in Bermuda. This should hardly surprise anyone; the legislation governing procedure on our books is based on 19th century English precedents. It has been showing its age for a considerable amount of time, and has had to adapt to the stresses and strains of modern life. The need for reform has been clear for a long time coming, and I am pleased to come before this Honourable House today toeffect that reform.

Mr. Speaker, It is important to set these reforms in historical context. Efforts have for years been made by various policy-makers, from both sides of the House. As far back as 1992, a Criminal Justice Review Team led by Judge Stephen Tumin, made the case for continuing reform to our criminal justice system. Certain of its recommendations set Bermuda on the path towards implementing the Police and Criminal Evidence Act 2006 [PACE]. In 2000, Government drafted a Prosecution of Offences Bill which would have streamlined the commencement and continuation of criminal proceedings. There is substantial overlap between the policy objectives of that Bill and the legislation before the Honourable House today. That Bill was never taken up by this Honourable House. A Justice System Review commissioned by a predecessor of mine, then Senator Larry Mussenden, was published in 2004. That report made far reaching recommendations, many of which are only now being brought to this Honourable House. That report also advocated for PACE and a new Bail Act.

All of this is to say that we have pursued criminal reform through fits and starts, without considering rationale, root-and-branch reforms of the way criminal cases are started and tried in Bermuda.

That is, Mr Speaker, until now. It is also important to point out that the judiciary have been for many years calling for legislation which streamlines and modernizes the functions of our criminal courts. In January 2013, the Honourable Chief Justice put the case for reform succinctly in his comments at the opening of the legal year; and I quote:

The financial cost of this system threatens its long-term existence. Some of these costs can be curtailed if the criminal trial process is modernised to reduce the length of criminal trials where this can be justly achieved. With the support of the new Parliament, it is hoped that new Criminal Procedure Rules will be brought into force in the first quarter of this year. This represents a first step towards empowering the Court to manage cases with a view to increased efficiency without diluting fairness. Primary legislation is however required to empower the courts to make costs orders against parties who flout court directions, to compel the prosecution to give adequate disclosure, to require the defence to give disclosure and to abolish preliminary inquiries.

End quote.

Mr. Speaker, I am pleased with the work of this Honourable House in supporting the passage of the Chief Justice’s Criminal Procedure Rules 2013. Those rules were an important first step towards modernization and efficiency in our trials. Rule 1.1 requires that criminal cases by dealt with justly; this involves, amongst other considerations:

  • acquitting the innocent and convicting the guilty;
  • dealing with the prosecution and the defence fairly;
  • recognising the rights of a defendant;
  • respecting the interests of witnesses, victims and jurors; and
  • dealing with the case efficiently and expeditiously.

However, without the proper legislative tools in place, the courts cannot fully realize this overriding duty to deal with cases justly. This legislation provides those very tools. Consistent with the objectives of the Ministry and the Judiciary who are hand-in-hand on the need for reform, the Bill will foster a new culture of active case management in place of the old culture of delay and adjournments.

Mr. Speaker, I receive a number of complaints from many who are affected by the criminal justice system. Some of the most frequent concerns addressed to me come from victims of crime and their families concerned about the inordinate time it seems to take for their case to be processed through our courts. It is frequently said that justice delayed is justice denied. This should be an area of common interest with criminal advocates, since defendants also have an interest in the speedy resolution of cases.

Mr. Speaker, Let me now provide this Honourable House with a brief overview of the tools contained in this Bill which the Government believes will help foster this important paradigm shift in our criminal justice system:

  • The prosecution duty to disclose its case will be placed on a statutory footing, together with a new duty to disclose material in its possession which is reasonably capable of undermining its case against a defendant.
  • There will be a new duty by the defence to serve on the court and the prosecution a defence statement setting out, in summary form, the important details of its case at trial. This will note aspects of the prosecution case which are disputed and legal issues required to be determined by the court in advance of, and during, trial.
  • A new pre-trial case management hearing will be instituted in the Supreme Court. Such a hearing will also be available on application in the Magistrates’ Court. These hearings, together with the new rules on disclosure, will assist in actively managing cases and narrowing issues in a case, thus shortening the average length of trials in Bermuda. Binding rulings can also be sought and made by the judge in advance of trial.
  • This procedure will be complemented by the appointment of case management judges. This official can be a different judge who can decide matters before a trial, or matters referred to him or her during trial, thus allowing a case to be disposed of more efficiently.
  • The prosecution will be given the right to appeal a ruling by a judge or magistrate terminating a case. This will bring the law back to where it was before a 2000 Privy Council ruling which drastically restricted the prosecution’s ability to appeal cases.
  • The prosecution’s right to appeal an acquittal following the later discovery of new and compelling evidence will be expanded. The application of this procedure only to cases from 2010 onwards will be removed, and the limit to only murder will be extended to a wider number of serious offences.
  • Criminal appeals from the Magistrates’ Court to the Supreme Court will need to be perfected before they can be heard.
  • The process relating to the appointment of jurors will be updated to reduce the risk of prematurely discharging a jury.
  • Courts will be given the power to order wasted costs against legal representatives owing to their negligent conduct.
  • Provision is made for a number of other technical and consequential amendments aimed to support the overall policy rationale of these reforms.

Mr. Speaker, The effortsby policy-makers, prosecutors and members of the judiciary to introduce legislation providing for prosecution and defence disclosure have been for many years now largely inspired by the experience of the UK which introduced such legislation in 1996. The legal obligation of the prosecution to provide its case to the defence and any information which could undermine that case and/or assist the defence was put on a statutory footing.

The proposed disclosure legislation would impose a robust duty of disclosure on the part of the prosecution. In addition, the prosecution will need to make available to the defence any relevant evidence it has access to and which it does not propose to use at trial. The prosecution will be placed under a continual duty in respect of this “unused evidence”.

Common law rules have always required such disclosure by the prosecution. These rules have over time become obscured. It is particularly difficult for litigants-in-person who are not legally trained to rely upon them. However, these will be placed on a statutory footing, together with clear statutory guidance as to how the rules will be operationalized. Active and speedy disclosure will also be important to ensuring the success of another of the Ministry’s key proposed reforms, namely the abolition of preliminary inquiries. This will be made effective by the complementary Bill, the Criminal Jurisdiction and Procedure Act 2015.

Mr. Speaker, As a fair trial hinges upon the accused knowing the case to which he/she has to answer, more robust requirements of disclosure will be required from the Defence under this Bill. On the other side, Defence Case Statements will be required from defendants early on. These statements must set out what aspects of the prosecution’s case are agreed and what aspects are subject to challenge. The judge will in turn use the results of disclosure by all parties to manage the length of trial, improve ease of understanding and simplify the jury’s task.

Mr. Speaker, The impetus for this is the huge wastage of costs in criminal trials that arises when issues in dispute are not identified early and criminal proceedings are not sufficiently focused from the outset. A very concrete example of this might be where expert witnesses for the prosecution provide evidence which is not under challenge from the defence and are flown to Bermuda at great public expense and are not questioned by defence counsel. Equally, trials are adjourned or extended because there are no clear statutory rules governing the time table of the prosecution’s obligation of disclosure to the Defence.

The Bill reflects longstanding criminal case management practice in England & Wales, a jurisdiction from which our own criminal procedural rules are otherwise largely derived, and various Australian and Canadian jurisdictions. In addition, these reforms have the support of the judiciary.

Mr. Speaker, The Bill will help to further the objective of ‘active case management’ shared by the Ministry and the judiciary in the conduct and management of criminal cases. It will do this by establishing case-management hearings empowered to decide legal and evidentiary questions before the presentation of evidence at trial and before a jury is sworn and empanelled.

There is already some limited scope for pre-trial determinations to be made by the court. However, the extent to which these rules might permit pretrial determinations on substantive matters is not clear. It is equally unclear what the consequences are for failure of the court or parties to abide by their obligations at present. For example, the Criminal Procedure Rules already in place fail to prescribe consequences, and are unable to do so in the absence of a foundation in primary legislation.

Often, Mr. Speaker, issues need to be resolved during the course of trial. This is partially a consequence of counsels’ inability or unwillingness to proceed with cases expeditiously, and this will mean further delays to trial after jurors have been sworn and witnesses bound over.

A further problem arises when judges allow parties to reopen a ruling previously made, thus allowing collateral issues to be relitigated. The principle of res judicata requires some degree of finality in decisions which are made. Often times, these collateral proceedings will add to the length and costs of trial – costs more often than not borne by the public purse as most criminal advocates are paid for from the legal aid budget.

Of course, Mr. Speaker, it is impossible to eliminate all in-trial rulings. The Bill before us today does not propose to do that. The dynamic nature of trials means that certain issues unforeseen by either party or the court will inevitably arise. Nonetheless, there is still much scope for anticipating such matters, especially in conjunction with disclosure requirements and active case management. In addition, these binding rulings must remain final, unless the overriding interests of justice require that they be re-opened.

The provisions draw largely from the practice of English and Canadian courts, which have been utilizing such robust powers of case management for many years now. They enact a number of tools missing from the current Criminal Procedure Rules so as to make active case management a reality in our courts.

Mr. Speaker, The Bill enacts a number of reforms to the jury system to further the Ministry and Judiciary’s overall objective of administering a more efficient criminal justice system. Judges will be able to appoint up to 3 additional alternate jurors to follow the evidence together with the 12 regular jurors where it would be in the interests of justice to do so. This might happen in complex trials expected to take a long time and which face a particular risk of collapsing prematurely. Alternate jurors reduce the risk of this happening. Where an original juror is discharged, the alternate juror can take his or her place having already listened to the evidence and submissions.

In addition, criminal trials in Bermuda must be determined by at least 10 or more jurors. Where the jury falls below 10, the entire jury is discharged, and the trial collapses. This threshold should be amended so that 9 jurors can constitute an effective trial jury. [Though where a jury does fall to 9 or 10 jurors, the threshold for a majority verdict will now be 8.]

Mr. Speaker, Legislation currently provides for costs to be awarded in favour of parties to criminal proceedings. Similar rules exist in England & Wales. However, at times it is the acts or omissions of legal representatives and third parties that might lead to increased costs faced by courts and parties. Facing this conundrum, UK legislative provisions brought in 1991 and 2004 respectively allow for the courts to order that liability for wasted costs be borne by legal representatives and third parties personally.

The Bill would import these provisions into our domestic law. Such liability would only arise as a result of any improper, unreasonable, or negligent act or omission on the part of the person concerned. The possibility of this sanction will work in conjunction with the Ministry’s other proposed reforms aimed at active case management by providing an effective incentive for legal representatives to advance a case expeditiously.

Mr. Speaker, At present, criminal appellants challenging a conviction or sentence from the Magistrates’ Court in the Supreme Court are not required to perfect their appeal before setting down a date for the hearing of an appeal.

What currently transpires is that the prosecution and Court often receive no materials from defence counsel in such appeals until the morning of the hearing which jeopardizes the ability of the prosecution to respond and the Court to correctly decide the appeal. Often this practice of just showing up to argue an appeal necessitates adjournments and/or lengthier than necessary oral submissions.

This reform accords with the Ministry’s general desire to foster active case management within the criminal courts.

Mr. Speaker, The Bill seeks to update the law on criminal appeals from the Supreme Court. Before 2000 the prosecution was able to appeal acquittals following certain terminatory rulings such as a successful ‘no case’ submission at the midway point of a criminal trial. The Bermudian practice was reversed by the Privy Council decision of Smith v The Queen.

The Court of Appeal Act 1964 was amended in 2010 to partially reverse this result by deeming acquittals appealable following a successful ‘no case’ submission for murder or premeditated murder. This Bill builds on those reforms by allowing all termintory rulings to be appealable by the prosecution, and thereby, returning the Bermudian position to as it was understood before 2000 and bringing it in line with the practice of the UK and other jurisdictions.

Mr. Speaker, The Court of Appeal Act 1964 also allows for appeals by the DPP where someone is acquitted or discharged of murder or premeditated murder and where new and compelling evidence later emerges. This follows amendments introduced and passed in 2010. However, the right of appeal only applies in respect of offences occurring after 2010 and for acquittals based on murder and premeditated murder.

The Bill removes this retrospective limitation. In addition, it will expand the number of offences to which this procedure applies to include all serious arrestable offences contained in Schedule 1 of the Police and Criminal Evidence Act 2006. This includes, amongst others, manslaughter, most forms of sexual crime, kidnapping and serious firearms offences.

Mr. Speaker, Fairness is an expansive concept which in addition to the criminal defendant must also take into account the interests of the victims of crime, the taxpayers and the general public, all of whom have an overarching interest in an efficient and effective criminal justice system. The reforms proposed in this Bill should go a long way towards achieving this objective, and they draw on practices from overseas that have been tried and tested.

Mr. Speaker, There is also a strong policy imperative at cost containment, both within the criminal justice system itself and in respect of indirect pressure on the Ministry’s Legal Aid Budget. By removing what is felt by many to be a redundant stage in criminal proceedings [namely, preliminary inquiries] and by fostering an active culture of case management, the cost of the average trial should be contained or come down.

Mr. Speaker, It is often said that justice delayed is justice denied. Robust rules of disclosure and expedited proceedings will stand to benefit all those involved in the criminal justice system, in particular, those who face the daunting task of being tried and judged. Speedy justice is also key to meeting our obligation under the Constitution to secure a fair trial for defendants.

However, the perceived fairness of a criminal justice system derives from the experiences of victims of crime, witnesses and their families. Certainly, there must be proper provisions for the preparation of defences and prosecutions. But when everyday Bermudians say that they want cases to be brought to trial as quickly as possible, they invariably think of the effect on the victims of crime and their families of waiting for the case to be heard and of society’s need to have justice served. It can have a terrible effect on these unwilling participants to a crime if cases take a long time to come to court.

Right-thinking Bermudians also are quick to accept that the interests of a defendant in a fair trial must be addressed. However, they also sometimes question if the interests of victims of crime factor at all. I know this because as the Minister with responsibility for the criminal justice system, I am privy to a number of complaints and concerns that stem from their place within that system – as victims, as witnesses, as their family members. From an expanded prosecution right of appeal for legal technicalities to reducing the trauma for witnesses of multiple court appearances, I trust that members will see these reforms as an important stage in acknowledging the concerns of all parties involved in the criminal justice system.

Mr. Speaker, With these introductory remarks, I look forward to the debate and to further comments from my Honourable Colleagues.

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Comments (11)

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  1. watching says:

    Did I read the legislation correctly, where the defendants will no longer have the right to remain silent?

    • sao says:

      I don’t think you did. My understanding is:

      Right to remain silent remains intact; the difference is that you can draw an “adverse inference” from silence in certain circumstances – such as offering no explanation for your possession of stolen goods when the police find them but subsequently saying you didn’t know you had them; presence at a scene of a crime then subsequently saying you were only there to buy a pack of cigarettes etc… It’s basically about limiting your ability to make up excuses after the fact, having been questioned about them at the time.

      So, basically – you can keep your mouth shut but the courts can hold it against you in circumstances where it would be right to ask “why didn’t you say anything at the time”? – For which you would still be allowed to offer an explanation. e.g. “I was in shock at the scene before me”

      This is my ACADEMIC understanding of the legislation – and dose NOT constitute legal advice.

      • Mockingjay says:

        How the F!@# can someone pass judgement on you for being silent!!!!!!!!!!!!!!!
        Oh my bad that’s what they did to Jesus.
        Same S!@# different day.

    • serengeti says:

      Nope. They still have the right to remain silent.

  2. San George says:

    Law was intended to make men equal not unequal. Follow the laws you have before enacting new one. Question is – can we trust the courts and the government to dispense justice according to law?

    Quo Fata Ferunt

    • Mockingjay says:

      Ahhh, Was Slavery a Law, Segregation, Apartheid,etc,etc.
      Men make SOME laws to benefit themselve’s and and to keep the (under class) under.

  3. As an individual that’s “worn both shoes on the opposite side” e.g. “proverbial foot” I can attest this is probably the best “step” to be taken by the A.G in order our courts are issuing “justice” and not the old, “only just us”

    • Mockingjay says:

      They might as well take off the books more then 3 or 4 persons congregating in a public area.

  4. Sam says:

    The change in regards to being silent is a change to the caution itself.

    The current caution “you are not obliged to say thing anything, unless you wish to do so. Anything you do say may be written down…..”

    The potential new caution would be something close to what the UK is currently using “You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.”

    You still have the right to remain silent that will never be taken away from us.

  5. Maybe you no like to eshreeminate…for yousalff!

  6. You hawvah due shaam?