Criminal Code Amendment Act 2007
CRIMINAL CODE AMENDMENT ACT 2007



BERMUDA

2007 : 8

CRIMINAL CODE AMENDMENT ACT 2007
Date of Assent: 29 March 2007

Operative Date: Notice in Gazette


ARRANGEMENT OF SECTIONS

1 Citation
2 Amends Part X
3 Inserts new sections 182C

to 182K
4 Amends section 329D
5 Inserts new section 464A

to 464D

6 Amends section 329D
7 Consequential

amendments
8 Commencement




WHEREAS it is expedient to amend the Criminal Code 1907 for
the purposes of protecting children from being sexually exploited or
being preyed upon for sexual purposes by way of, but not limited to, the
internet environment:

Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:

Citation
1 This Act, which amends the Criminal Code 1907 (“the principal
Act”) may be cited as the Criminal Code Amendment Act 2007.


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CRIMINAL CODE AMENDMENT ACT 2007


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Amends Part X
2 Part X of the principal Act is amended by inserting before section
177 and after the heading “OFFENCES AGAINST MORALITY” the
following —

“Interpretation of Part X
176A In this Part, where not inconsistent with the context —

“child”, for the purposes of this section and sections 182C to
182H, means a person under the age of sixteen.

“child abusive material” means material that depicts or describes
a child or a representation of a child who is, or appears to be,
a victim of torture, cruelty or physical abuse in a way that a
reasonable person would regard as being, in all the
circumstances, an abuse of the child;

“child pornography” means —

(a) a photograph, film, video or other visual
representation, whether or not it was made by
electronic or mechanical means —

(i) that shows a child who is, or is depicted as
being engaged in explicit sexual activity; or

(ii) the dominant characteristic of which is the
depiction, for a sexual purpose, of a sexual
organ or the anal region of a child;

(b) any written material or visual representation or
audio recording that advocates or counsels sexual
activity with a child; or

(c) any audio recording that has as its dominant
characteristic the description, presentation or
representation, for a sexual purpose, of sexual
activity with a child.

“communications medium” includes any device used for
processing, sending, receiving, and or retaining information,
images or holograms; and

“material” includes —

(a) an object;

(b) a still visual image of any kind, whether a drawing,
painting, photograph, or other representation on a
surface of any kind, and whether printed or not;

(c) a moving visual image of any kind, whether produced
from a cinematographic film, video tape, or other
medium;

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(d) a hologram;

(e) a written communication; and

(f) an audio recording.”.

Inserts new sections 182C to 182K
3 The principal Act is amended by inserting next after 182B the
following —

“Showing child abusive material, child pornography or offensive
material to a child
182C (1) Any person who knowingly shows child abusive material,
child pornography or offensive material to a child is guilty of an
offence and is liable —

(a) on conviction on indictment to imprisonment for ten
years; or

(b) on summary conviction to imprisonment for five
years.

(2) In this section “offensive material” means material
that —

(a) describes, depicts, expresses, or otherwise deals with
matters of sex, drug misuse or addiction, cruelty or
violence or revolting or abhorrent phenomena, in a
manner that is likely to offend a reasonable adult;

(b) describes, depicts, expresses or otherwise deals with
sexual activity of any kind between a human being
and an animal;

(c) is an obscene article within the meaning of the
Obscene Publications Act 1973.

Use of children in the production of child abusive material or
child pornography
182D (1) Any person who, having custody, charge or care of a
child, knowingly allows the child to be used for the production of
child abusive material or child pornography is liable —

(a) on conviction on indictment to imprisonment for ten
years; or

(b) on summary conviction to imprisonment for five
years.

(2) For the purposes of this section —

(a) any person who is a parent or a guardian of a child
is presumed to have custody of a child;

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(b) any person to whose charge a child is committed by
any person who has custody of the child is presumed
to have charge of the child; and

(c) any person exercising authority over or having actual
control of a child is presumed to have care of the
child.

Luring
182E (1) Any person who, by means of a communications
medium, communicates with a child, for the purpose of
committing any of the acts described in sections 177(1), 180,
181(1), 182A(1), 182B(1), 184(1), 185(1), 187(1), 188(1) or 189 is
guilty of an offence and is liable —

(a) on conviction on indictment to imprisonment for
ten years; or

(b) on summary conviction to imprisonment for five
years.

(2) It is no defence to a charge under this section that
the accused believed that the person was over the age of sixteen
years unless the accused took all reasonable steps to ascertain
the age of the person.

Making, distributing, etc. of child abusive material or child
pornography
182F (1) Any person who knowingly makes, prints or
publishes child abusive material or child pornography is guilty of
an offence and is liable —

(a) on conviction on indictment to imprisonment for
ten years; or

(b) on summary conviction to imprisonment for five
years.

(2) Any person who knowingly distributes, transmits,
makes available, sells, imports or exports child abusive material
or child pornography is guilty of an offence and is liable —

(a) on conviction on indictment to imprisonment for
ten years; or

(b) on summary conviction to imprisonment for five
years.

Possession of child abusive material or child pornography
182G Any person who possesses child abusive material or child
pornography for the purpose of making it available to, showing it

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to, or for viewing by, other persons, is guilty of an offence and is
liable —

(a) on conviction on indictment to imprisonment for five
years; or

(b) on summary conviction to imprisonment for three years.

Accessing child abusive material or child pornography
182H (1) Any person who knowingly accesses child abusive
material or child pornography is guilty of an offence and is
liable —

(a) on conviction on indictment to imprisonment for
five years;

(b) on summary conviction to imprisonment for three
years.

(2) In subsection (1), a person accesses child abusive
material or child pornography if the person knowingly causes
child abusive material or child pornography to be viewed by, or
transmitted to, himself.

(3) It is no defence to a charge under this section that
the accused believed that the person was over the age of sixteen
years of age unless the accused took all reasonable steps to
ascertain the age of the person.

Defences
182I (1) A person shall not be convicted of an offence under
sections 182D or 182F to 182H if it is proved that the material in
question is justified as being for the public good on the ground
that it is in the interest of science, literature, art or learning.

(2) Whether the material is justified as being for the
public good is to be a question of fact.

Offence by Director and Officer
182J (1) Where an offence under section 182F or 182G is
committed by a body corporate and is proved to have been
committed with the acquiescence, consent or connivance of any
person, being a director, officer or other similar officer of such
body or a person who was purporting to act in any such
capacity, that person as well as the body corporate shall be
guilty of the offence.

(2) For the purposes of this section, where the affairs of a
body corporate are managed by members, the member shall be
deemed to be a director of the body corporate.

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(3) Any person, being a director, officer, or other similar
officer of a body corporate that is convicted of an offence under
section 182F or 182G shall be liable —

(a) on conviction on indictment to imprisonment for
ten years; or

(b) on summary conviction to imprisonment for five
years.

(4) A body corporate that is convicted of an offence under
section 182F or 182G shall be liable —

(a) on conviction on indictment to a fine of one
million dollars; or

(b) on summary conviction to a fine of $20,000

Prosecution of offences
182K No prosecution shall be commenced under sections 182C
to 182H or 182J without the prior consent of the Director of
Public Prosecutions.”.

Amends section 329D
4 Section 329D (1) of the principal Act is amended by inserting
next after paragraph (xii) of the definition “sexual offence” the
following —

“(xiii) showing child abusive material, child
pornography or offensive material to a child
[section 182C];

(xiv) use of children in the production of child
abusive material or child pornography (section
182D);

(xv) luring of a child (section 182E);

(xvi) making, distributing, etc. of child abusive
material or child pornography (section 182F);

(xvii) possession of child abusive material or child
pornography (section 182G);

(xviii) accessing of child abusive material or child
pornography (section 182H).”.

Inserts new section 464A to 464D
5 The principal Act is amended by inserting next after 464 the
following—

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“Search and seizure of child abusive material etc
464A (1) Any police officer or customs officer may seize,
remove and detain any thing which he has reason to suspect to
be child abusive material or child pornography, within the
meaning of Part X.

(2) If a magistrate or justice of the peace is satisfied by
information on oath that there are reasonable grounds for
suspecting that in or on any premises or place specified in the
information any person has child abusive material or child
pornography, in respect of which an offence under this Act is
being or has been committed, he may issue a warrant under his
hand empowering any police officer named in the warrant to
search the premises or place within fourteen days of the date of
the warrant.

(3) Nothing in this section shall derogate from any
powers of search and seizure under any provision of law apart
from this section.

Forfeiture of things used for child pornography etc.
464B (1) On application of the Director of Public Prosecutions
a court that convicts a person of an offence under section 182C
to 182H, in addition to any other punishment that it may
impose, may order that any material be forfeited to the Crown
and disposed of as the Court directs if the Court is satisfied, on a
balance of probabilities, that the material—

(a) was used in the commission of the offence; and

(b) is the property of —

(i) the convicted person or another person
who was a party to the offence, or

(ii) a person who acquired the material from
a person referred to in subparagraph (i)
under circumstances that give rise to a
reasonable inference that it was
transferred for the purpose of avoiding
forfeiture.

(2) Before making an order under subsection (1), the
court shall cause notice to be given to, and shall hear, any
person whom it considers to have an interest in the material,
and may make an order declaring the nature and extent of the
person’s interest in it.

Relief from forfeiture
464C (1) Within thirty days after an order under section 464B
(1) is made, a person who claims an interest in the material

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forfeited may apply in writing to the court that made the order of
forfeiture for an order that the forfeiture order be varied or set
aside.

(2) The court that made the order of forfeiture shall fix a
date on which the application is to be heard.

(3) At least fifteen days before the hearing, the applicant
shall serve notice on the Director of Public Prosecutions.

(4) The court may make an order declaring that the
applicant’s interest in the material is not affected by the
forfeiture and declaring the nature and extent of the interest if
the court is satisfied that the applicant was not a person referred
to in section 464B (1)(b)(i) or (ii).

Forfeiture Appeals
464D (1) Any person who received a notice given under section
464B (2) and was heard by the court may appeal against the
order of forfeiture-

(a) to the Supreme Court if the court that made the
order is one of summary jurisdiction; or

(b) to the Court of Appeal if the court that made the
order is the Supreme Court.

(2) The Director of Public Prosecutions may appeal to the
Supreme Court on the refusal of a court of summary jurisdiction
to grant an order of forfeiture.

(3) The Director of Public Prosecutions may appeal to the
Court of Appeal on the refusal of the Supreme Court to grant an
order of forfeiture.”.

Amends section 329D
6 Section 329D(1) of the principal Act is amended in the definition
of Minister by deleting the words “public safety” in the definition of
“Minister” and inserting the word “Justice.”

Consequential amendments
7 (1) Section 2 of the Obscene Publications Act 1973 is amended
by inserting next after subsection (2) the following—

“ (3) A thing shall be deemed to be obscene for the
purposes of this Act if it is child abusive material or child
pornography within the meaning of Part X of the Criminal
Code”.

(2) The Police and Criminal Evidence Act 2005 is amended in
Schedule 1 by adding the following after item 19 of Part II thereof —

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“25. Section 182C (showing child abusive material, child
pornography or offensive material to a child).

26. Section 182D (use of children in the production of
child abusive material or child pornography).

27. Section 182E (luring).

28. Section 182F (making, distributing, etc. of child
abusive material or child pornography).

29. Section 182G (possession of child abusive material or
child pornography).

30. Section 182H (accessing of child abusive material or
child pornography).”.

Commencement
8 The provisions of this Act shall come into force on such day or
days as are appointed by the Minister by notice in the Gazette.