Criminal Justice (International Co-operation) (Bermuda) Amendment Act 2012
FA E R
N
AT F
TQUO U
BERMUDA
CRIMINAL JUSTICE (INTERNATIONAL CO-OPERATION) (BERMUDA)
AMENDMENT ACT 2012
2012 : 26
WHEREAS it is expedient to amend the Criminal Justice (International Co-
operation) (Bermuda) Act 1994 for the purpose of providing powers to enable the
performance and enforcement of the obligations assumed by Bermuda under treaties or
agreements entered into between the Government of Bermuda, as authorized by the
Government of the United Kingdom, and the governments of foreign states, relating to
mutual legal assistance in criminal matters;
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 may be cited as the Criminal Justice (International Co-operation)
(Bermuda) Amendment Act 2012.
Inserts Part IIA
The Criminal Justice (International Co-operation) (Bermuda) Act 1994 is amended
by inserting, immediately after section 11, the following new Part—
“PART IIA
INTERNATIONAL TREATIES AND AGREEMENTS
MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS
Interpretation
In this Part, unless the context otherwise requires—11A
1
2
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“information” means any fact, statement or record in any form that is
relevant or material for the enforcement of any provision under this
Part;
“request” means a request for assistance by a requesting state to a
requested state, which is made in accordance with the terms of a treaty
concluded by the requesting state and the requested state;
“requested state” means a party to a treaty under this Part that receives a
request for assistance under the treaty;
“requesting state” means a party to a treaty under this Part that makes a
request for assistance under the treaty;
“treaty” means a mutual legal assistance treaty or agreement in criminal
matters that incorporates the exchange of information and the
performance and enforcement of specified requirements with respect
to legal assistance in criminal matters, entered into by the Government
of Bermuda, as authorized by the Government of the United Kingdom,
with another government of a foreign state.
Application
The provisions of this Part apply to any treaty entered into before or after
the commencement of this Part.
Legal effect of Part
This Part has effect for the purpose of enforcing the giving of assistance
by persons in Bermuda in connection with the performance of the obligations
assumed by Bermuda under a treaty.
The Attorney-General, in performing his functions under this Act, is
not restricted by any law or any rule of law relating to confidentiality except as
expressly provided under this Act or in the applicable treaty.
Duties of the Attorney-General
The Attorney-General is the competent authority for Bermuda under
the treaties and agreements to which this Part applies.
The Attorney-General may provide assistance to any requesting state
in accordance with the terms of the treaty with that state .
Grounds for declining a request for assistance
Notwithstanding section 27, the Attorney-General may, where he
determines that the costs of a request shall be in excess of $500, decline the request
if the requesting state does not agree to pay the difference in the costs of providing
the assistance, whether incurred by the Attorney-General or any other person.
The Attorney-General may also decline a request for assistance if ―
11B
11C (1)
(2)
11D (1)
(2)
11E (1)
(2)
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CRIMINAL JUSTICE (INTERNATIONAL CO-OPERATION) (BERMUDA)
AMENDMENT ACT 2012
with respect to information relating to an offence which is a
summary offence under the laws of Bermuda, the information
relates to a period that is more than 12 months after the offence
was committed;
the request pertains to information in the possession or control of
a person other than the person named in the request or it does not
relate specifically to the affairs of that person named in the
request;
the information is protected from disclosure under the laws of
Bermuda on the grounds of legal professional privilege;
the requesting state would not be able to obtain the information―
under its own laws for the purposes of the administration or
enforcement of its criminal laws; or
in response to a valid request from the Attorney-General under
the treaty;
the disclosure of the information would be contrary to public
policy; or
the Attorney-General is not satisfied that the requesting state will
keep the information confidential and will not disclose it to any
person other than―
a person or authority in its own jurisdiction for the purposes
of the administration and enforcement of its criminal laws; or
a person employed or authorized by the government of the
requesting state to oversee data protection.
Notification of refusal
Where the Attorney-General declines, in whole or in part, a request under
this Part, he shall notify the requesting state and give reasons for his decision.
Power to require information
The Attorney-General may, in response to a request for testimony or
evidence to be given by a person in Bermuda, by notice in writing served on such
person in Bermuda, require the person to provide the information relating to the
testimony or evidence before a court nominated by the Attorney-General as
provided in section 6(2).
The provisions of section 6(2) shall, with the necessary modifications,
apply to a request under this section.
Where a request for assistance by a requesting state so stipulates—
the court shall obtain the information sought by the request in the
form of depositions of witnesses;
(a)
(b)
(c)
(d)
(i)
(ii)
(e)
(f)
(i)
(ii)
11F
11G (1)
(2)
(3)
(a)
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the court may require that original documents or copies of original
documents be certified or authenticated,
and in each case Schedule 1 shall have effect.
Statutory duty to provide information
A person on whom a notice has been served under section 11G shall
appear before the court and provide the information specified in the notice, within
the period specified in it.
The court may extend the time specified in the notice served by the
Attorney-General if in its opinion the circumstances warrant.
Location or identification of persons or items
Subject to subsection (2), the Attorney-General may consider a request
to assist in locating, or identifying and locating—
a person who is believed to be in Bermuda;
item or items, as specified in the request, believed to be in
Bermuda.
Where, on receipt of a request under subsection (1), the Attorney-
General is satisfied—
that the request relates to a criminal matter in the requesting
state; and
that there are reasonable grounds for believing that the person or
item to whom the request relates—
is or might be concerned in, or could give or provide evidence
or assistance relevant to, the criminal matter; and
is in Bermuda,
the Attorney-General may authorise, in writing, assistance in accordance with this
section.
The Attorney-General may authorise the giving of assistance under
subsection (2) by forwarding the request to the police, public officer or other
appropriate Government department in Bermuda, and the person or department
requested shall use its best endeavours to locate or, as the case may be, identify
and locate the person or item specified in the request, and shall report to the
Attorney-General the outcome.
On receipt of such report, the Attorney-General shall inform the
requesting state of the result of the inquiries made pursuant to the request as
provided in section 11N.
(b)
11H (1)
(2)
11I (1)
(a)
(b)
(2)
(a)
(b)
(i)
(ii)
(3)
(4)
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Transfer of persons in custody
Subject to the provisions of this section, the Attorney-General may, in
response to a request, authorise the transfer of a person in custody in Bermuda to
the territory of the requesting state under such terms and conditions as he may
deem appropriate.
The provisions of section 7, with the exception of subsection (2), shall
apply, with the necessary modifications, to a transfer of a person in custody in
Bermuda to the territory of the requesting state under this section.
No warrant shall be issued pursuant to section 7 for the purposes of
this section in respect of a person in custody unless—
the person has consented, in writing, to being transferred in
accordance with the request referred to in subsection (1) and the
consent has been communicated to the Attorney-General and to
the requesting state;
the Attorney-General has consented to the transfer in writing and
has communicated his consent to the person in custody and to the
requesting state;
the requesting state has communicated its acceptance and
observance of the terms and conditions of the transfer to the
Attorney-General and to the person in custody.
For the purposes of subsection (3)(a), consent may be given either—
by the person in custody himself; or
in circumstances in which it appears to the Attorney-General
inappropriate, by reason of the physical or mental condition or
youth of such person in custody, for him to act for himself, by a
person appearing to the Attorney-General to be an appropriate
person to act on his behalf,
but a consent once given is not capable of being withdrawn after the issue of the
warrant.
Transit of persons in custody
The Attorney-General may, in response to a request, authorise the
transit through Bermuda of a person held in custody by the requesting state or a
third state, whose personal appearance has been requested by the requesting state
for purposes connected with a criminal investigation, prosecution or proceeding.
The person in custody who has been authorised to transit through
Bermuda under subsection (1), who is being transported in an aircraft or ship
which lands or calls at a place in Bermuda, shall be kept in such custody while in
transit in Bermuda as the Attorney-General may, in consultation with the Minister
responsible for national security, direct in writing until his transportation is
continued.
11J (1)
(2)
(3)
(a)
(b)
(c)
(4)
(a)
(b)
11K (1)
(2)
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Where—
a person is being held in custody pursuant to a direction under
subsection (2); and
the person’s transportation is not, in the opinion of the Attorney-
General, continued within a reasonable time,
the Attorney-General may, in consultation with the Minister responsible for
national security, direct, in writing, that the person be transported in custody to
the country from which the person was first transported, and such a direction shall
be sufficient authority for that person’s removal from Bermuda by such means as
the Attorney-General directs.
Where a person in custody who has been authorised to transit through
Bermuda under subsection (1) is, pursuant to a direction of the Attorney-General,
to be detained in a prison, the Prisons Act 1979, so far as applicable and with all
necessary modifications, shall apply with respect to that person as if he were a
person who has been sentenced to imprisonment for an offence against the law of
Bermuda and is liable to be detained in a prison under such a sentence.
For the purposes of enabling the grant of a temporary visa under the
Bermuda Immigration and Protection Act 1956 to any person whom it is proposed
to transit through Bermuda pursuant to this section, the Attorney-General may
issue a certificate, in writing, that the person is to be transported through Bermuda
pursuant to this section.
The Attorney-General may, at any time, by notice in writing, cancel any
certificate issued under subsection (5) in respect of any person who is in Bermuda
for the purposes of being transported through Bermuda pursuant to this section if
the Attorney-General is satisfied that that person’s presence in Bermuda is no
longer necessary for that purpose.
The Attorney-General may provide in the regulations for such other
matters as he may deem necessary for the better carrying out of the purposes of
this section.
Regulations made under subsection (7) shall be subject to the negative
resolution procedure.
Assistance in forfeiture proceedings
The Attorney-General may by order made pursuant to section 9 assist
with a request to enforce a foreign forfeiture order if such order is in compliance
with the provisions of section 9.
Without limiting the provisions of section 9, a foreign forfeiture order
shall not have effect for the purposes of this Act or any enactment referred to in
section 9(3) until it is registered by the Supreme Court of Bermuda.
(3)
(a)
(b)
(4)
(5)
(6)
(7)
(8)
11L (1)
(2)
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The Attorney-General may under the order made under subsection (1)
prescribe requirements to be satisfied before the court can register a foreign
forfeiture order.
Production, search and seizure
Where, on receipt of a request, the Attorney-General is satisfied
that —
the request relates to a criminal matter in the requesting state; and
there are reasonable grounds for believing that the item to which
the request relates is relevant to the criminal matter and is located
in Bermuda,
the Attorney-General, or an authorised officer directed by him, may apply to the
Supreme Court for an order under subsection (3) or a warrant under subsection (4)
in respect of specified premises.
An application for a warrant referred to in subsection (4) in respect of
any item in the possession of a financial institution shall not be made unless that
item can be particularised.
If, on such an application, the court is satisfied that the conditions
referred to in subsection (7) are fulfilled, it may make an order that the person who
appears to the court to be in possession of the item to which the application relates
shall —
produce the item to an authorised officer for him to take away; or
give an authorised officer access to the item,
within seven days of the date of the order or such other period as the court
considers appropriate.
On an application referred to in subsection (1), the court may issue a
warrant in writing authorizing the Attorney-General, or an authorised officer
directed by him, to enter the premises, if necessary by force, at any time within 14
days commencing on the day of the issue of the warrant, and search them if the
court is satisfied that the conditions in subsection (7) are fulfilled and that—
an order made under subsection (3) in relation to any item on the
premises has not been complied with; or
the circumstances of the matter require that urgent action be
taken.
The Attorney-General, or an authorised officer directed by him,
entering premises by virtue of a warrant under this section—
may take such other persons and equipment with him as he thinks
necessary; and, on leaving the premises entered by virtue of a
warrant under this section, shall, if they are unoccupied or the
(3)
11M (1)
(a)
(b)
(2)
(3)
(a)
(b)
(4)
(a)
(b)
(5)
(a)
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occupier is temporarily absent, leave them as effectively secured
against trespassers as he found them;
may seize and remove any item whatsoever found there which he
has reasonable cause to believe may contain information relevant
to a request; and
shall prepare a list of the items seized, where anything has been
seized, and, if so requested by a person showing himself either—
to be the occupier of the premises; or
to have had possession or custody of those items immediately
before the seizure,
provide that person with a copy of that list.
The Attorney-General may transfer the items seized to the requesting
state in accordance with the terms of this Act and the applicable treaty, and may
in writing state the conditions that are to apply to such transfer.
The conditions to be fulfilled under subsections (3) and (4) are that—
there are reasonable grounds for suspecting that a specified
person in Bermuda has carried on or has benefited from an offence
relating to the item in respect of which the request is made;
there are reasonable grounds for believing that the item to which
the application relates —
is likely to be of substantial value (whether by itself or together
with another item) to the criminal matter in respect of which
the request is made; and
does not consist of or include items subject to legal privilege;
and
the court is satisfied that it is not contrary to the public interest
for the order or warrant to be issued.
Forwarding information or items to requesting state
Where the Attorney-General obtains any information under sections
11G or 11I or causes a person to forfeit any item or seizes any item under sections
11L or 11M, he shall keep such information or such item forfeited or seized
confidential other than for purposes of forwarding to the requesting state.
The Attorney-General may forward or provide any item forfeited or
seized under sections 11L or 11M to the requesting state after 20 days of the date
of receipt of such item.
(b)
(c)
(i)
(ii)
(6)
(7)
(a)
(b)
(i)
(ii)
(c)
11N (1)
(2)
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Offences and penalties
A person commits an offence who fails to provide information as
required by sections 11G or 11I or wilfully tampers with or alters such information
so that it is not in its original form when received by the Attorney-General.
A person commits an offence who, without lawful excuse, destroys or
damages any information or items which the Attorney-General or the court, under
this Part, has directed such person or another person to provide.
A person who commits an offence under subsection (1) or (2) shall be
liable on summary conviction to a fine not exceeding $10,000 or to imprisonment
for a term not exceeding six months, or to both.”
11O (1)
(2)
(3)
[Assent Date: 13 July 2012]
[Operative Date: 13 July 2012]
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