Attorney-General On Criminal Reform Act 2015

Official notices brought into force large parts of criminal reforms contained in the Criminal Jurisdiction and Procedure Act 2015 and Disclosure and Criminal Reform Act 2015, Attorney-General Trevor Moniz said in the House of Assembly on Friday [Nov 20].

“The purpose of this legislation is to create a speedier and more efficient criminal justice system which maintains fairness for everyone connected by it,” Mr Moniz said.

The Attorney-General’s full statement follows below:

Mr Speaker, on 30 October 2015, the Criminal Jurisdiction and Procedure Act 2015 Commencement Day Notice 2015 and the Disclosure and Criminal Reform Act 2015 Commencement Day Notice 2015 were published in the Official Gazette.

In summary these notices brought into force large parts of recently enacted criminal reforms contained in the Criminal Jurisdiction and Procedure Act 2015 and Disclosure and Criminal Reform Act 2015 as from Friday, 6 November 2015.

Honourable members will recall consideration of this legislation earlier this summer. They will also recall that the purpose of this legislation is to create a speedier and more efficient criminal justice system which maintains fairness for everyone connected by it.

Mr Speaker, most provisions of the Criminal Jurisdiction and Procedure Act 2015 are now in force. This legislation sought to rationalize the process through which criminal prosecutions commence and operate.

What remain to be implemented are sections 23 to 42 of the Act. In brief, these provisions seek to abolish preliminary inquiries and replace them with an administrative sending procedure and an application to dismiss, which may be heard in the Supreme Court.

The judiciary asked that those provisions be brought into force later this year so that the full scheme is effective as from the first arraignment session of 2016 in January. I agreed and acceded to this request, and a future commencement notice will be made in December.

As to the Disclosure and Criminal Reform Act 2015, Mr Speaker, sections 18 to 21 are now in force. The provisions now in effect address the following:

• Firstly, new rules on active case management and indictments, which encourage the early identification of issues in a criminal trial and for parties to seek binding rulings as part of this process;
• Secondly, appointment and substitution of alternative jurors in complex trials;
• Thirdly, greater scope permitted for criminal procedure rules by the Chief Justice;
• Fourthly, wasted costs orders against lawyers personally; and
• Fifthly, expanded prosecution rights of appeals for terminatory rulings and where new and compelling evidence later emerges in respect of serious offences.

Mr Speaker, the rest of the Disclosure and Criminal Reform Act 2015 would implement a new regime containing rules on prosecution and defence disclosure.

The Bermuda Police Service and Department of Public Prosecutions requested additional time for compliance. The BPS will continue to be responsible for collecting and forwarding evidence to the DPP. However, the DPP will take all decisions in respect of disclosure under the new regime.

Additionally, without the new rules on prosecution disclosure being brought into force, it would not be balanced or fair to bring the new rules of defence disclosure at this time. Therefore, the full disclosure scheme will come into force together.

In accepting the request for additional time, we are aiming for 1 January 2016 for implementation of the new rules on disclosure.

Additionally, Mr Speaker, I have tabled a number of amendments to the Disclosure and Criminal Reform Act 2015, such amendments being made under section 91(2) of the Criminal Procedure and Jurisdiction Act 2015. These amendments were made on 30October 2015 and also came into force on 6 November 2015.

These amendments are largely housekeeping measures aimed at cleaning up some of the language. For example, provisions on case management are being renumbered and consistency is being brought relating to terms for legal representatives in criminal proceedings.

More substantively, Mr Speaker, the legislation formerly required that a defence statement be served within 28 days of arraignment. This has been changed so that service of a statement is to be made within 28 days of the prosecution complying with its disclosure obligations. This provides the defence with more time to comply, and it is a more logical sequencing of events.

Another amendment, Mr Speaker, was made to ensure that the court retains discretion to admit late alibi evidence where it would be contrary to a defendant’s right to a fair trial for such evidence to be excluded.

Honourable members will recall that the legislation, when considered by this Honourable House, sought to require compliance with rules of notice before a defendant could adduce alibi evidence at trial. This was in line with past practice under the Evidence Act 1905.

The amendment will clarify that a judge or magistrate should nonetheless admit alibi evidence where it would be in the interests of the fair trial rights of the defendant. It is my view that the courts always retained an inherent discretion to adduce evidence where the interests of justice require it.

However, I accept that there is merit in drafting the legislation to make this discretion as explicit as possible for the avoidance of doubt on this point.

Mr Speaker, these amendments are in keeping with the spirit of Government’s programme of reform aimed at modernizing criminal procedure while maintaining the rights of the accused.

Thank you, Mr Speaker.

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