Criminal Code Amendment Act 2012
FA E R
N

AT F
TQUO U

BERMUDA

CRIMINAL CODE AMENDMENT ACT 2012

2012 : 29

WHEREAS it is expedient to amend the Criminal Code Act 1907;

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
This Act, which amends the Criminal Code Act 1907 (the “principal Act”) may be

cited as the Criminal Code Amendment Act 2012.

Inserts section 33A
The principal Act is amended by inserting next after section 33 the following—

“Instructing a person who participates in an unlawful gang to commit an
offence

Any person who knowingly instructs, directly or indirectly, a person
who participates in or actively contributes to unlawful gang activity to commit an
offence is guilty of an offence of the same kind, and is liable to the same punishment
(including an additional element under section 70JB) as if he himself had
committed that offence.

In a prosecution for an offence under subsection (1), it shall not be
necessary to prove that—

an offence other than the offence under subsection (1) was actually
committed;

the accused person instructed a particular person to commit an
offence; or

33A (1)

(2)

(a)

(b)

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2

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CRIMINAL CODE AMENDMENT ACT 2012

the accused person knew the identity of all of the persons who
constitute the unlawful gang.

Section 70JA (unlawful gang and unlawful gang activity-
interpretation) applies for the purposes of this section.”.

(c)

(3)

Inserts sections 70JA and 70JB
The principal Act is amended by inserting immediately after section 70J the

following—

“Unlawful gang and unlawful gang activity - interpretation
For the purpose of this section and section 70JB —

“unlawful gang” means a group, however organised, that—

is composed of three or more persons; and

has as one of its purposes or activities the facilitation or
commission of one or more offences, that, if committed, would
likely result in the direct or indirect receipt of a material benefit
(including a financial benefit), by the group or by one of the
persons who constitute the group;

“unlawful gang activity” means unlawful criminal acts committed by—

an unlawful gang; or

a person participating in or actively contributing to the activity of
an unlawful gang.

In determining whether a person participates in or actively contributes
to unlawful gang activity, the court may consider if the person—

uses a name, word, symbol, or other representation that identifies,
or is associated with, an unlawful gang;

frequently associates with any of the persons who constitute an
unlawful gang;

receives any benefit from an unlawful gang; or

frequently engages in activities at the instruction of any of the
persons who constitute an unlawful gang.

Unlawful gang activity - increased penalty
Where a person is being sentenced for an offence which (whether

wholly or partly) falls within the definition of unlawful gang activity, the court
shall—

first determine the sentence (“the basic sentence”) in accordance
with established principles but without regard to this section; then

70JA (1)

(a)

(b)

(a)

(b)

(2)

(a)

(b)

(c)

(d)

70JB (1)

(a)

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CRIMINAL CODE AMENDMENT ACT 2012

where the basic sentence includes a term of imprisonment or a
fine, increase the sentence by adding an additional element
determined in accordance with subsection (2).

The additional element shall be—

a term of imprisonment of at least three years but not more than
five years, where the basic sentence includes a term of
imprisonment of seven years or more; or

a term of imprisonment of at least one year but not more than three
years, where the basic sentence includes a term of imprisonment
for less than seven years; or

a fine of at least $1,000 but not more than $10,000, where the
basic sentence includes a fine.

The court shall not add an additional element under this section where
the basic sentence is one of imprisonment for life.”.

(b)

(2)

(a)

(b)

(c)

(3)

Duration of sections 2 and 3
Sections 2 and 3 of this Act shall continue in operation until 31 December 2015

and then expire, unless the Minister responsible for justice, by Notice published in the
Gazette on or before that date, extends its duration beyond 31 December 2015.

Where the Minister responsible for justice issues a Notice under subsection (1)
to extend the duration of sections 2 and 3 beyond 31 December 2015, he may, from time
to time, but before expiration of a Notice already issued, issue another Notice to extend the
duration of sections 2 and 3, as and when needed.

On the expiration of sections 2 and 3 of this Act, section 16 of the Interpretation
Act 1951 shall apply as if sections 2 and 3 of this Act had been repealed by another Act.

[Assent Date: 20 July 2012]

[Operative Date: 20 July 2012]

4 (1)

(2)

(3)

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