Disclosure and Criminal Reform Act 2015
FA E R
N
AT F
TQUO U
BERMUDA
DISCLOSURE AND CRIMINAL REFORM ACT 2015
2015 : 37
TABLE OF CONTENTS
Citation
Interpretation
Duty of prosecutor to disclose case
Initial duty of prosecutor to disclose unused material
Duty of accused person to give a defence statement
Continuing duty of prosecutor to disclose unused material
Duty of prosecutor to disclose: further provisions
Public interest
Faults in disclosure by the prosecutor
Faults in disclosure by the accused person
Directions
Confidentiality
Contempt
Regulations
Rules
Guidelines and judicial protocols
Repeals
AMENDMENTS TO THE CRIMINAL CODE ACT 1907
Amends the Criminal Code Act 1907
AMENDMENTS TO THE CRIMINAL APPEAL ACT 1952
Amends the Criminal Appeal Act 1952
AMENDMENTS TO THE COURT OF APPEAL ACT 1964
Amends the Court of Appeal Act 1964
Commencement
1
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DISCLOSURE AND CRIMINAL REFORM ACT 2015
WHEREAS it is expedient to introduce a new prosecution and defence disclosure
regime to Bermuda by enacting the Disclosure and Criminal Reform Act 2015;
AND WHEREAS it is expedient to amend the Criminal Code Act 1907 to introduce
a new case management regime to Bermuda’s judiciary;
AND WHEREAS it is expedient to amend the Criminal Appeal Act 1952 in order to
improve the criminal appeals process;
AND WHEREAS it is expedient to amend the Court of Appeal Act 1964 in order to
improve the effectiveness of the Court of Appeal Act 1964;
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 Disclosure and Criminal Reform Act 2015.
Interpretation
In this Act, unless the context otherwise requires—
“accused person” means a person charged with an offence;
“conclusion of the case against the accused person” means that the accused
person—
has been acquitted; or
has been convicted,
or that the prosecutor has decided not to proceed with the case against the
accused person;
“court” means the court in which the accused person is to be tried;
“evidence in support of an alibi” means evidence tending to show that by reason of
the presence of the accused person at a particular place or in a particular area
at a particular time he was not, or was unlikely to have been, at the place where
the offence is alleged to have been committed at the time of its alleged
commission;
“material” means material of all kinds, including but not limited to information and
objects;
“Minister” means the Minister responsible for legal affairs;
“police” means the Bermuda Police Service;
“prosecutor” means a person who commences criminal proceedings on behalf of the
Crown;
“relevant unused material” means any unused material that might reasonably be
considered capable of—
1
2
(a)
(b)
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DISCLOSURE AND CRIMINAL REFORM ACT 2015
undermining the case for the prosecution against the accused person; or
assisting the case of the accused person; and
“unused material” means material that the prosecutor does not intend to use as
evidence in the trial of the accused person.
Duty of prosecutor to disclose case
The prosecutor shall serve on the accused person, in matters that are triable
either way or triable on indictment only—
a written summary of the prosecution case;
a written copy of the charges that are to be pursued against the accused
person at trial;
a written copy of the evidence on which the prosecutor intends to rely at
trial; and
such other particulars or material as may be required under regulations
and which reasonably relate to disclosure by the prosecution.
Paragraphs (b) to (d) of subsection (1) shall also apply to summary offence
matters.
The prosecutor shall write to the accused person and the court notifying them
when he has complied with his duty under this section.
This section is without prejudice to the right of the prosecutor to—
amend the way in which he puts his case, provided that, unless the court
directs otherwise, he first serves an amended written summary of the
prosecution case on the accused person;
seek leave of the court to pursue fresh charges, provided that the
prosecutor first serves a copy of the fresh charges on the accused person;
or
rely on additional evidence at trial, provided that the prosecutor first serves
a copy of the additional evidence on the accused person.
Initial duty of prosecutor to disclose unused material
The prosecutor shall, in matters that are triable either way or triable on
indictment only—
disclose to the accused person any relevant unused material in the
possession of the police or prosecutor which has not previously been
disclosed to the accused person; or
give to the accused person a written statement that there is no material of
a description mentioned in paragraph (a).
(a)
(b)
3 (1)
(a)
(b)
(c)
(d)
(2)
(3)
(4)
(a)
(b)
(c)
4 (1)
(a)
(b)
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DISCLOSURE AND CRIMINAL REFORM ACT 2015
The prosecutor shall write to the accused person and the court notifying them
when he has complied with his duty under this section.
Duty of accused person to give a defence statement
Provided the prosecutor has—
complied with his obligations under section 3(1); and
complied with his obligations under section 4(1),
an accused person, where he intends to give evidence at trial, shall serve a defence
statement on the prosecutor and the court within 28 days after the first arraignment.
A defence statement is a written statement—
setting out the nature of the accused person's defence, including any
particular defences on which he intends to rely;
indicating the matters of fact on which he takes issue with the prosecution;
setting out, in the case of each such matter, why he takes issue with the
prosecution;
indicating any point of law (including any point as to the admissibility of
evidence or an abuse of process) which he wishes to take, and any
authority on which he intends to rely for that purpose; and
containing such other particulars or material as may be required under
regulations and which reasonably relate to disclosure by the defence.
A defence statement that discloses an alibi defence shall give particulars of the
alibi defence, including—
the name, address and date of birth of any witness the accused person
intends to call to give evidence in support of the alibi, or as many of those
details as are known to the accused person when the statement is given;
any information in the accused person's possession which might be of
material assistance in identifying or finding any such witness in whose
case any of the details mentioned in paragraph (a) are not known to the
accused person when the statement is given,
and for the purposes of this section, to assist an unrepresented accused person in
determining if he has an alibi defence, the Chief Justice may prescribe guidance notes
indicating what amounts to an alibi defence in law.
If, before the conclusion of the case against the accused person, there are any
changes to the accused person's defence with respect to the facts and matters set out in
the defence statement, the accused person shall serve a written statement on the prosecutor
and the court setting out those changes as soon as is reasonably practicable or within such
time as the court may order (an updated defence statement).
A defence statement and updated defence statement shall be signed by the
accused person (and by his legal counsel where he is represented by legal counsel).
(2)
5 (1)
(a)
(b)
(2)
(a)
(b)
(c)
(d)
(e)
(3)
(a)
(b)
(4)
(5)
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DISCLOSURE AND CRIMINAL REFORM ACT 2015
Where a defence statement or updated defence statement is signed by the
accused person's legal representative, it will be deemed to have been signed on the
instructions of the accused person unless the contrary is proved.
For the avoidance of doubt, nothing in this section shall be construed as to
compel an accused person to—
give evidence at trial where he does not wish to give evidence at trial;
serve a defence statement on the prosecutor where he does not wish to give
evidence at trial.
Where an accused person does not wish to give evidence at trial he shall serve
upon the prosecutor, within 28 days after the first arraignment hearing, written notice
signed by the accused person of his intention not to give evidence at trial.
Continuing duty of prosecutor to disclose unused material
This section applies at all times—
after the prosecutor has complied with his initial duty of disclosure under
section 4(1); and
before the conclusion of the case against the accused person.
The prosecutor shall keep under review the question whether at any given time,
and, in particular, following service of a defence statement or an updated defence statement,
there is relevant unused material which has not been disclosed to the accused person.
The prosecutor shall disclose any such relevant unused material to the accused
person as soon as is reasonably practicable or within such time as the court may order.
Duty of prosecutor to disclose: further provisions
For the purposes of this Act, the prosecutor discloses relevant unused material by
supplying a copy of the relevant unused material to the accused person and his barrister
and attorney (or to the accused person where he is not represented by a barrister and
attorney) or, where this is not reasonably practicable, allowing the accused person a
reasonable opportunity to inspect the relevant unused material or taking steps to ensure
that he is allowed to do so.
Public interest
Relevant unused material shall not be disclosed to the accused person and his
barrister and attorney (or the accused person only where he is not represented by a barrister
and attorney) if, on an application by the prosecutor, the court rules that it is not in the
public interest to disclose it and orders accordingly.
Unless the court orders otherwise, the prosecutor shall give the accused person
prior notice of an application under subsection (1), although he need not give the accused
person any information about the relevant unused material that is the subject of the
application.
The accused person may—
(6)
(7)
(a)
(b)
(8)
6 (1)
(a)
(b)
(2)
(3)
7
8 (1)
(2)
(3)
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DISCLOSURE AND CRIMINAL REFORM ACT 2015
make representations to the court prior to its ruling on an application
under subsection (1); and
apply to the court for a review of its ruling on an application under
subsection (1).
Where the court makes an order under subsection (1), until the conclusion of
the case against the accused person it shall keep under review the question whether at any
given time it is still not in the public interest to disclose relevant unused material affected
by its order.
If, after making an order under subsection (1), the court at any time concludes
that it is in the public interest to disclose relevant unused material, it shall order the
prosecution to disclose that material.
The court, when—
considering an application under subsection (1); or
reviewing a ruling under subsection (1),
may at its discretion hear from any person claiming a proprietary right or interest in the
relevant unused material that is the subject matter of the application.
Faults in disclosure by the prosecutor
If, on the application of the accused person, or of its own motion, and after
giving the prosecutor the opportunity to be heard, the court is satisfied that the prosecutor
has failed to disclose relevant unused material as required by sections 5 and 7, the court
may order the prosecutor to disclose the relevant unused material within such time as the
court thinks fit.
Subject to subsection (3), the failure by the prosecutor to—
disclose relevant unused material as required by sections 5 and 7; or
comply with an order made under subsection (1),
do not on their own constitute grounds for staying the proceedings for abuse of process.
Subsection (2) does not prevent the court from staying proceedings where the
prosecutor’s failure to disclose relevant unused material, amounts to the accused being
denied a fair trial.
Faults in disclosure by the accused person
If, on the application of the prosecutor, or of the court’s own motion, and after
giving the accused person the opportunity to be heard, the court is satisfied that the
accused person has failed to serve a defence statement or an updated defence statement as
required by section 5, the court may order the accused person to do so within such time as
the court thinks fit.
(a)
(b)
(4)
(5)
(6)
(a)
(b)
9 (1)
(2)
(a)
(b)
(3)
10 (1)
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DISCLOSURE AND CRIMINAL REFORM ACT 2015
If, on the application of the prosecutor, or of its own motion, and after giving
the accused person the opportunity to be heard, the court is satisfied that the accused
person—
has purported to serve a defence statement or an updated defence
statement; but
that such statement fails to satisfy the requirements of section 5,
the court may order the accused person to serve a defence statement or updated defence
statement that does satisfy those requirements within such time as the court thinks fit.
If, on the application of the prosecutor, or of the court’s own motion, and after
giving the accused person the opportunity to be heard, the court is satisfied that the
accused person failed to comply with section 5(3), he shall not be permitted to adduce
evidence in support of an alibi.
This subsection applies where, on the application of the prosecutor, or of its
own motion, and after giving the accused person the opportunity to be heard, the court is
satisfied that the accused person has—
put forward a defence at trial having failed to serve a defence statement;
put forward a defence at trial which is different from the defence set out in
his defence statement;
put forward a defence at trial which is different from the defence set out in
an updated defence statement;
set out inconsistent defences in his defence statement; or
set out inconsistent defences in an updated defence statement.
Where subsection (4) applies—
the court may, where the accused person has served a defence statement,
direct that the jury be given a copy of all or part of his defence statement;
the court may, where the accused person has served an updated defence
statement, direct that the jury be given a copy of all or part of that updated
statement;
the court or, with leave of the court, any other party, may make such
comment as appears appropriate;
the court may direct the jury that they can draw such inferences as appear
proper in deciding whether the accused person is guilty of the offence
charged, but the accused person shall not be convicted of an offence solely
on the basis of any such inference; and
the court may draw such inferences as appear proper in deciding the facts
for the purposes of sentencing.
When deciding what, if anything, to do under subsection (4), the court shall
have regard in any instance—
(2)
(a)
(b)
(3)
(4)
(a)
(b)
(c)
(d)
(e)
(5)
(a)
(b)
(c)
(d)
(e)
(6)
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DISCLOSURE AND CRIMINAL REFORM ACT 2015
where the accused person has failed to serve a defence statement or an
updated defence statement, to whether there is any justification for such
failure;
where the accused person puts forward a defence at trial which is different
from the defence set out in his defence statement, updated defence
statement, or both—
to the extent of the differences in the defences; and
to whether there is any justification for it.
For the purposes of this section, the accused person puts forward a defence at
trial that is different from the case set out in his defence statement where he—
puts forward a defence at trial which was not mentioned in his defence
statement;
puts forward a defence at trial which is different from any defence set out
in his defence statement;
takes issue with the prosecution on a matter of fact which was not raised
in his defence statement;
takes issue with the prosecution on a matter of fact which was raised in
his defence statement, but for a reason which was not;
adduces evidence in support of an alibi without having given evidence in
support of the alibi in his defence statement; or
calls a witness to give evidence in support of an alibi without having
complied with the requirements of section 5(3) as regards the witness in
his defence statement.
Directions
On the application of the prosecutor or the accused person, or of its own motion,
the court may give directions to secure compliance by the parties with their disclosure
obligations under this Act.
Confidentiality
Any unused material disclosed to the accused person under this Act may not be
used or disclosed for any purpose other than that of the proceedings in relation to which it
is disclosed, save that it may be used or disclosed—
for the purpose of any appeal or advice on appeal against a decision of the
court or jury in those proceedings;
to the extent that it has been displayed or communicated in open court to
the public other than in proceedings for contempt of court under section
13; and
(a)
(b)
(i)
(ii)
(7)
(a)
(b)
(c)
(d)
(e)
(f)
11
12
(a)
(b)
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DISCLOSURE AND CRIMINAL REFORM ACT 2015
with leave of the court, for the purpose and to the extent specified by the
court.
Contempt
It is a contempt for a person knowingly to use or disclose unused material
disclosed to an accused person under this Act for a purpose other than one permitted by
section 12.
A person who is guilty of such a contempt in relation to material disclosed in
proceedings in the magistrates' court shall be liable to imprisonment for a specified period
not exceeding 6 months or a fine not exceeding $10,000 or both.
A person who is guilty of such a contempt in relation to material disclosed in
proceedings in the Supreme Court shall be liable to imprisonment for a specified period not
exceeding two years or an unlimited fine or both.
If—
a person is guilty of contempt under this section; and
the material concerned is in his possession,
the court finding him guilty may order that the material shall be forfeited and dealt with in
such manner as it thinks fit.
Regulations
The Minister may make regulations relating to the matters referred to in
subsections 3(1)(d) and 5(2)(e).
Regulations made under this section are subject to the negative resolution
procedure.
Rules
Except for matters referred to in section 14, the Chief Justice may make any
rules under section 540 of the Criminal Code Act 1907 for carrying into effect this Act, and
without prejudice to the generality of the foregoing, such rules may relate to—
proceedings to deal with contempt of court under section 13;
any application made under sections 8, 9 and 10;
any directions sought or made under section 11; and
subject to subsection (2), the periods of time within which the disclosure
obligations contained in sections 4 to 6 are to be carried out.
Where any periods of time are not prescribed by such rules, the court may make
such orders with respect to those periods as it sees fit.
(c)
13 (1)
(2)
(3)
(4)
(a)
(b)
14 (1)
(2)
15 (1)
(a)
(b)
(c)
(d)
(2)
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DISCLOSURE AND CRIMINAL REFORM ACT 2015
Guidelines and judicial protocols
The Minister may issue guidelines, not inconsistent with this or any other
enactment, concerning the disclosure of information in criminal proceedings.
The Chief Justice may issue judicial protocols, not inconsistent with this or any
other enactment, concerning the control and management of unused material in criminal
proceedings.
A failure by a person to comply with any provision of guidelines or judicial
protocols issued under this section shall not in itself render him liable in any criminal or
civil proceedings.
In all criminal or civil proceedings any guidelines or judicial protocols issued
under this section shall be admissible in evidence.
If it appears to a court or tribunal conducting criminal or civil proceedings
that—
any provision of guidelines or judicial protocols issued under this section;
or
any failure mentioned in subsection (3),
is relevant to any question arising in the proceedings, the provision or failure shall be taken
into account in deciding the question.
Guidelines or judicial protocols issued under this section, including any
revisions made thereto, shall not be subject to section 6 of the Statutory Instruments Act
1977.
Repeals
Section 31 of the Evidence Act 1905 (Notice of alibi) is repealed.
AMENDMENTS TO THE CRIMINAL CODE ACT 1907
Amends the Criminal Code Act 1907
The Criminal Code Act 1907 is amended by—
inserting next after section 543 the following—
“Purpose of a case management hearing
The purpose of a case management hearing is to assist the court to
actively manage criminal cases in accordance with its overriding objective to do
justice.
Subject to this Part, a case management hearing will—
consider those matters that would be better decided before the
start of criminal proceedings and other similar matters;
make arrangements for decisions on those matters; and
543A (1)
(2)
(a)
(b)
16 (1)
(2)
(3)
(4)
(5)
(a)
(b)
(6)
17
18
(a)
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DISCLOSURE AND CRIMINAL REFORM ACT 2015
deal with any other matters which may be conveniently or
appropriately dealt with at the case management hearing.
Timing of case management hearing
In this Part, a hearing is a case management hearing where it is held
in any of the scenarios contained in subsections (2), (3) and (4).
The first scenario is that—
it relates to a trial—
which is to be tried summarily; and
at which the accused person has pleaded not guilty; and
it takes place before the start of the trial.
The second scenario is that it relates to a trial on indictment and it
takes place—
after the accused person has been sent for trial for the offence; and
before the start of the trial.
The third scenario is that it—
relates to a trial on indictment to be held in pursuance of a bill of
indictment preferred under the authority of section 485(2)(c) (bill
preferred by direction or with consent of a judge); and
takes place after the bill of indictment has been preferred and
before the start of the trial.
In this Part, “start of the trial” means—
in a summary trial, when the court begins—
to hear evidence from the prosecution at the trial; or
to consider whether to exercise its power under section 33(2)
of the Mental Health Act 1968 (power to make hospital order
without convicting the accused person); and
in a trial on indictment, when a jury is sworn to consider the issue
of guilt or fitness to plead or, if the court accepts a plea of guilty
before the time when a jury is sworn, when that plea is accepted.
Holding a case management hearing
In any trial on indictment, the Supreme Court shall hold a case
management hearing with the prosecutor and the accused person or barrister and
attorney for the accused person, which is to be presided over by a judge of that
court.
In any summary trial, a case management hearing may be held—
(c)
543B (1)
(2)
(a)
(i)
(ii)
(b)
(3)
(a)
(b)
(4)
(a)
(b)
(5)
(a)
(i)
(ii)
(b)
543C (1)
(2)
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DISCLOSURE AND CRIMINAL REFORM ACT 2015
on an application by a party to the case; or
of the magistrate’s own motion.
This section does not preclude multiple case management hearings in
respect of any trial.
Powers exercisable at a case management hearing
A judge has the following powers at a case management hearing–
assisting the parties to identify the witnesses to be heard, taking
into account the witnesses’ needs and circumstances;
encouraging the parties to make admissions and reach
agreements;
encouraging the parties to consider any other matters that would
promote a fair and efficient trial;
establishing schedules and imposing deadlines on the parties;
hearing guilty pleas and imposing sentences; and
assisting the parties to identify the issues that are to be dealt with
before the start of the trial.
A judge may also adjudicate any issues that can be decided at a case
management hearing, including those related to—
the disclosure of evidence;
the admissibility of evidence;
expert witnesses;
the severance of counts;
the separation of trials on one or more counts when there is more
than one accused person; and
any other question of evidence or law relating to the case
concerned.
A ruling may be made under this section—
on an application by a party to the case; or
of the judge’s own motion.
Subject to subsection (5), a ruling made under this section has binding
effect from the time it is made until the case against the accused person or, if there
is more than one, against each of them is disposed of; and the case against an
accused person is disposed of if—
he is acquitted or convicted;
(a)
(b)
(3)
543D (1)
(a)
(b)
(c)
(d)
(e)
(f)
(2)
(a)
(b)
(c)
(d)
(e)
(f)
(3)
(a)
(b)
(4)
(a)
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DISCLOSURE AND CRIMINAL REFORM ACT 2015
the jury is discharged for failing to reach a verdict; or
the prosecutor decides not to proceed with the case against him.
A judge may discharge or vary (or further vary) a ruling made under
this section only if it appears to him that it is in the interests of justice to do so;
and a judge may act under this subsection—
on an application by a party to the case; or
of the judge’s own motion.
No application may be made under subsection (5)(a) unless there has
been a material change of circumstances since the ruling was made or, if a previous
application has been made, since the application (or last application) was made.
The judge referred to in subsection (5) need not be the judge who made
the ruling or, if it has been varied, the judge (or any of the judges) who varied it.
This section is without prejudice to any other power exercisable by, or
duty imposed on, a judge or the court contained in any other enactment.
Appointment of a case management judge
In respect of any trial on indictment, the Chief Justice may appoint a
judge of the Supreme Court to serve as the trial’s case management judge if he is
of the opinion that such appointment would be necessary for the proper
administration of justice.
The power in subsections (1) may be exercised—
on an application by a party to the case; or
of the Chief Justice’s own motion.
An application under subsection (2)(a) may be made any time after the
indictment is preferred.
The appointment of a judge as case management judge does not
preclude him from serving as the judge who hears the evidence at trial.
Role of case management judge
The case management judge shall assist in promoting a fair and efficient
trial, including by ensuring that the evidence is presented at trial, to the extent
possible, without interruption.
Powers of case management judge
In performing his duties before the start of the trial, the case
management judge shall—
preside over any case management hearings held under section
543C;
exercise powers to make rulings under section 543D; and
(b)
(c)
(5)
(a)
(b)
(6)
(7)
(8)
543E (1)
(2)
(a)
(b)
(3)
(4)
543F
543G (1)
(a)
(b)
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DISCLOSURE AND CRIMINAL REFORM ACT 2015
decide any issues on their merits under section 543J.
In a trial on indictment, the case management judge shall also have
power to hear and decide any application pursuant to section 15(1) of Second
Schedule to the Bermuda Constitution Order 1968 which directly relates to the
trial.
Information relevant to be part of the court record
When the case management judge is of the opinion that the measures
to promote a fair and efficient trial that can be taken before the start of the trial
(including adjudicating the issues that can be decided), he shall ensure that the
court record includes information that, in his opinion, may be relevant at the stage
of the presentation of the evidence at trial, including—
the names of the witnesses to be heard that have been identified
by the parties;
any admissions made and agreements reached by the parties;
the estimated time required to conclude the trial;
any orders and decisions; and
any issues identified by the parties that are to be dealt with at the
stage of the presentation of the evidence on the merits.
This section does not apply to a case management judge who also hears
the evidence at trial.
Trial continuous
Even if the judge who hears the evidence on trial is not the same as the
case management judge, the trial of an accused person shall proceed continuously,
subject to adjournment or postponement by the court.
Issues referred to the case management judge
During the presentation of the evidence at trial, the case management
judge shall adjudicate any issue referred to him by the judge hearing the evidence.
For the purposes of adjudicating an issue, the case management judge
may exercise the powers of a trial judge.
Restrictions on reporting
Except as provided by this section no report of matters falling within
subsection (2) may be published in Bermuda.
The following matters fall within this subsection—
a ruling under section 543D;
proceedings on an application for a ruling under section 543D;
(c)
(2)
543H (1)
(a)
(b)
(c)
(d)
(e)
(2)
543I
543J (1)
(2)
543K (1)
(2)
(a)
(b)
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DISCLOSURE AND CRIMINAL REFORM ACT 2015
an order under section 543D that a ruling be discharged, varied
or further varied; and
proceedings on an application under section 543D for a ruling to
be discharged, varied or further varied.
The judge dealing with any matter falling within subsection (2) may
order that subsection (1) does not apply, or does not apply to a specified extent, to
a report of the matter.
Where there is only one accused person and he objects to the making
of an order under subsection (3)—
the court may make the order if (and only if) satisfied after hearing
the representations of the accused that it is in the interests of
justice to do so; and
if the order is made, it shall not apply to the extent that a report
deals with any such objection or representations.
Where there are two or more accused persons and one or more of them
objects to the making of an order under subsection (3)—
the court may make the order if (and only if) satisfied after hearing
the representations of each of the accused that it is in the interests
of justice to do so; and
if the order is made, it shall not apply to the extent that a report
deals with any such objection or representations.
Subsection (1) does not apply to the publication of a report of matters
made at the conclusion of the trial of the accused person or of the last of the accused
persons to be tried.
Nothing in this section affects any prohibition or restriction imposed
by virtue of any other enactment on the publication of a report of any matter.
Offences in connection with reporting
If a report is published in contravention of section 543K each of the
following persons is guilty of an offence—
in the case of a publication of a written report as part of a
newspaper or periodical, any proprietor, editor or publisher of the
newspaper or periodical;
in the case of a publication of a written report otherwise than as
part of a newspaper or periodical, the person who publishes it;
in the case of the inclusion of a report in a broadcasting
programme—
any body corporate which is engaged in providing the service
in which the programme is included; and
(c)
(d)
(3)
(4)
(a)
(b)
(5)
(a)
(b)
(6)
(7)
543L (1)
(a)
(b)
(c)
(i)
15
DISCLOSURE AND CRIMINAL REFORM ACT 2015
any person having functions in relation to the programme
corresponding to those of an editor of a newspaper.
A person guilty of an offence under this section is liable on summary
conviction to a fine of an amount not exceeding $5,000.
Proceedings for an offence under this section shall not be instituted in
Bermuda otherwise than by or with the consent of the Director of Public
Prosecutions.”;
(ii)
(2)
(3)
deleting section 451;
deleting and substituting section 488(2) as follows—
An objection to an indictment or to a count in an indictment, for a
defect apparent on its face, shall be taken by motion to quash the indictment or
count before the accused person enters a plea, and, after the accused person has
entered a plea, only by leave of the court before which the proceedings take place.
The court before which an objection is taken under this section may,
if it considers it necessary, order the indictment or count to be amended to cure
the defect.”;
“(2)
(3)
deleting section 489 and by substituting the following—
“Amendment of indictment
An indictment may not be amended after it is presented, except by the
prosecutor with the—
leave of the court; or
consent of the accused person.
Nothing in this section shall affect the powers of the court under
section 489A.
For the purposes of this section, an amendment of an indictment
includes the substitution of an indictment.
Orders for amendment of indictment, separate trial and postponement of trial
Where, before trial, or at any stage of a trial, it appears to the court
that the indictment is defective, the court shall make such order for the amendment
of the indictment as the court thinks necessary to meet the circumstances of the
case, unless, having regard to the merits of the case, the required amendments
cannot be made without causing injustice.
Where an indictment is so amended, a note of the order for amendment
shall be endorsed on the indictment, and the indictment shall be treated for the
purposes of the trial and for the purposes of all proceedings in connection therewith
as being in the amended form.
489 (1)
(a)
(b)
(2)
(3)
489A (1)
(2)
(b)
(c)
(d)
16
DISCLOSURE AND CRIMINAL REFORM ACT 2015
Where, before trial, or at any stage of a trial, the court is of the opinion
that an accused person may be prejudiced or embarrassed in his defence by reason
of being charged with more than one offence in the same indictment, or that for any
other reason it is desirable to direct that the accused person should be tried
separately for any one or more offences charged in an indictment, the court may
order a separate trial of any count or counts of such indictment.
Where, before trial, or at any stage of a trial, the court is of opinion that
the postponement of the trial of an accused person is expedient as a consequence
of the exercise of any power of the court under this Act to amend an indictment or
to order a separate trial of a count, the court shall make such order as to the
postponement of the trial as appears necessary.
Where an order of the court is made under this section for a separate
trial or for the postponement of a trial—
if such an order is made during a trial the court may order that
the jury are to be discharged from giving a verdict on the count or
counts the trial of which is postponed or on the indictment, as the
case may be; and
the procedure on the separate trial of a count shall be the same in
all respects as if the count had been found in a separate
indictment, and the procedure on the postponed trial shall be the
same in all respects (if the jury has been discharged) as if the trial
had not commenced; and
the court may make such order as to granting the accused person
bail and as to the enlargement of recognizances and otherwise as
the court thinks fit.
The court may make an order under this section that takes effect either
at a specified later date or on the occurrence of a specified event if, taking into
account, among other considerations, the need to ensure consistent decisions, it is
satisfied that it is in the interests of justice to do so.
Unless the court is satisfied that it would not be in the interests of
justice, any decision under section 446D (pre-trial rulings) which is made before
any order issued under this section takes effect continues to bind the parties if the
decisions are made or could have been made before the stage at which the evidence
at trial is presented.
Any power of the court under this section shall be in addition to and
not in derogation of any other power of the court for the same or similar purposes.
If it becomes necessary to draw up a formal record where an
amendment has been made, the record shall be drawn up setting out the
indictment as amended, and without taking any notice of the fact of the amendment
having been made.”;
(3)
(4)
(5)
(a)
(b)
(c)
(6)
(7)
(8)
(9)
deleting section 501 and by substituting the following—(e)
17
DISCLOSURE AND CRIMINAL REFORM ACT 2015
“Continuation of trial and adjournment of trial
The trial of an accused person shall proceed continuously, subject to
adjournment or postponement by the court.
A judge may adjourn or postpone a trial from time to time in the same
sitting.
For the purpose of subsection (2), no formal adjournment of trial or
entry thereof is required.
A judge, in any case tried without a jury, may reserve final decision on
any question raised at the trial, or any matter raised further to a case management
hearing, and the decision, when given, shall be deemed to have been given at the
trial.
In any case to be tried with a jury, the judge before whom an accused
is or is to be tried has jurisdiction, before any juror on a panel of jurors is called
and in the absence of any such juror, to deal with any matter that would ordinarily
or necessarily be dealt with in the absence of the jury after it has been sworn.
On any such adjournment or postponement the Court may direct the
trial to be held upon such day as the Court may determine, and may remand the
accused person accordingly.
In any such case, the accused person is bound to attend to be tried,
and the witnesses are bound to attend to give evidence, at the time and place to
which the trial is adjourned or postponed without entering into any fresh
recognizances for that purpose, in the same manner as if they had respectively been
originally bound by their recognizances to attend to be tried and to attend to give
evidence at the time and place to which the trial is adjourned or postponed.”;
501 (1)
(2)
(3)
(4)
(5)
(6)
(7)
amending section 518—
in subsection (3) by inserting after the words “Subject to” the words
“subsection (4) and”; and
by inserting next after subsection (3) the following—
If the judge considers it advisable in the interests of justice to have one,
two or three alternate jurors, the judge shall order that one, two or three further
names be drawn.”;
“(4)
amending section 522(1) by inserting next after the words “The jury” the
words “(including any alternate jurors)”;
inserting next after section 522 the following—
“Substitution of alternate jurors
Alternate jurors shall attend the presentation of the evidence at trial
and, if there is not a full jury present, shall replace any absent juror, in the order
in which their cards were drawn under subsection 518(4).
522A (1)
(f)
(i)
(ii)
(g)
(h)
18
DISCLOSURE AND CRIMINAL REFORM ACT 2015
An alternate juror who is not required as a substitute shall be
excused.”;
(2)
amends section 525 by replacing the word “ten” with the word “nine”;
amends section 536 by inserting next after subsection (2) the following—
In the event that, because of section 525, a jury is reduced to ten or
nine members, subsection (2) shall be read with “eight” in place of “nine”.”;
“(3)
repeal and replace section 540 with the following—
“Criminal Procedure Rules
There are to be rules of court (to be called “Criminal Procedure Rules”),
not inconsistent with this Act or any other enactment, governing the practice and
procedure to be followed in the criminal jurisdiction (original, appellate or
otherwise) of the magistrates’ court and Supreme Court.
Without limiting the generality of subsection (1) or any other
enactment or provision relating to criminal procedure, such rules may—
prescribe the manner in which applications and notices or
notifications may be made or given (including whether orally or in
writing), and the manner in which they may be responded to;
prescribe the manner in which charging documents, applications,
notices, and other documents are to be filed;
prescribe the manner in which charging documents, summonses,
warrants, applications, notices, and other documents are to be
authenticated (including by signature or any other means);
prescribe the manner in which summonses, warrants, notices,
and other documents are to be issued by a court, a Registrar, or
any other person;
prescribe information that shall be contained in charging
documents, summonses, warrants, applications, notices, and
other documents to be filed, made, or given;
prescribe forms for charging documents, summonses, warrants,
applications, notices, and other documents, or other requirements
relating to the form or presentation of documents;
prescribe other information that may be required in connection
with criminal proceedings and any requirements relating to the
form and presentation of that information;
require the service of any summons, application, or other
document;
prescribe who has responsibility for serving any summons,
application, or other document;
540 (1)
(2)
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(i)
(j)
(k)
19
DISCLOSURE AND CRIMINAL REFORM ACT 2015
prescribe who may, on behalf of a person responsible as described
in paragraph (i), serve any summons, application, notice, or other
document;
prescribe the procedure for the service of summonses, notices, and
other documents;
prescribe the manner of proving service;
prescribe requirements relating to the custody of documents,
exhibits, and other things connected with criminal proceedings;
prescribe periods, or minimum or maximum periods, within
which, or times or stages in the criminal proceedings before or after
which, steps shall, or shall not, be taken;
prescribe circumstances in which a judicial officer may grant leave
for applications or any other matter to be made or done later than
a time prescribed in the rules;
impose duties on Registrars, and prescribe the manner in which
Registrars shall carry out any action for the purposes of criminal
proceedings;
prescribe procedures relating to the delivery of judgments and
other decisions in criminal proceedings;
prescribe the manner in which criminal proceedings are to be
transferred between courts;
prescribe matters relating to the permanent court record,
including—
the formal steps in a proceeding that shall be recorded;
the manner in which the permanent court record shall be
maintained;
who may discharge courts' obligations to maintain the
permanent court record;
procedures for ensuring the accuracy of the permanent court
record;
procedures for correcting the permanent court record;
prescribe the manner in which a record of oral evidence is to be
authenticated;
provide for the establishment, form, and maintenance of registers
of notices of appeal and judgments, and provide for the registers
to be available for inspection by members of the public in
accordance with the rules;
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(i)
(ii)
(iii)
(iv)
(v)
(t)
(u)
20
DISCLOSURE AND CRIMINAL REFORM ACT 2015
provide for any other matters in respect of which rules are
contemplated by this or any other Act pertaining to criminal
procedure.
Without limiting the generality of subsection (1), rules may provide for
the use of electronic technology in relation to any matter described in subsection
(2).
Rules are to be made by the Chief Justice, following consultation with
the Senior Magistrate, the Director of Public Prosecutions, the Bar Council and
such other persons as the Chief Justice may consider appropriate.
The power to make rules includes power to make different provision for
different cases, offences or classes of prosecutor or accused persons, including
different provision—
for a specified court or description of courts;
for specified descriptions of proceedings or a specified jurisdiction.
Any power to make rules is to be exercised with a view to securing
that—
the criminal justice system is accessible, fair and efficient; and
the rules are both simple and simply expressed.
Rules made under this section are subject to the negative resolution
procedure.”;
(v)
(3)
(4)
(5)
(a)
(b)
(6)
(a)
(b)
(7)
inserts next after section 556 the following—
“556A Costs against legal representatives etc.
In any criminal proceedings—
the Court of Appeal;
the Supreme Court; and
the magistrates’ court,
may order the legal or other representative concerned to meet the whole of any
wasted costs or such part of them as may be determined in accordance with rules
of the court.
In subsection (1), “wasted costs” means any costs incurred by a
party—
as a result of any improper, unreasonable, or negligent act or
omission on the part of any representative or any employee of a
representative; or
which, in the light of any such act or omission occurring after they
were incurred, the court considers it is unreasonable to expect that
party to pay.
556A (1)
(a)
(b)
(c)
(2)
(a)
(b)
(l)
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DISCLOSURE AND CRIMINAL REFORM ACT 2015
An order under subsection (1) may be made on the court’s own motion
or on application by any party to the proceedings to which the order may relate.
An order made under subsection (1) may be appealed to the —
Supreme Court, where made in the magistrates’ court; or
Court of Appeal, where made in the Supreme Court.
No further appeal from a decision made under subsection (4) may be
permitted.
Provision for award of costs against third parties
The Minister may by regulations make provision empowering the
magistrates' courts, the Supreme Court and the Court of Appeal to make a third
party costs order if the conditions in subsection (3) are satisfied.
A “third party costs order” is an order as to the payment of costs
incurred by a party to criminal proceedings by a person who is not a party to those
proceedings (“the third party”).
The conditions are that—
there has been serious misconduct (whether or not constituting a
contempt of court) by the third party; and
the court considers it appropriate, having regard to that
misconduct, to make a third party costs order against him.
Regulations made under this section may, in particular—
specify types of misconduct in respect of which a third party costs
order may be made;
allow the making of a third party costs order at any time;
make provision for any other order as to costs which has been
made in respect of the proceedings to be varied on, or taken
account of in, the making of a third party costs order;
make provision for account to be taken of any third party costs
order in the making of any other order as to costs in respect of the
proceedings.
Regulations made under this section are subject to the negative
resolution procedure.”.
(3)
(4)
(a)
(b)
(5)
556B (1)
(2)
(3)
(a)
(b)
(4)
(a)
(b)
(c)
(d)
(5)
AMENDMENTS TO THE CRIMINAL APPEAL ACT 1952
Amends the Criminal Appeal Act 1952
The Criminal Appeal Act 1952 is amended—
in section 4 by—
19
(a)
22
DISCLOSURE AND CRIMINAL REFORM ACT 2015
inserting subsection “(1)” before the word “A”;
inserting after the new subsection (1) the following—
For the purposes of this section, a decision of a court of summary
jurisdiction in respect of a trial on an information—
discharging an accused person on the grounds that there is no
case to answer;
staying proceedings as an abuse of process; and
issuing a ruling which would otherwise have the effect of
terminating the trial,
shall be deemed to involve a question of law alone.”;
“(2)
(a)
(b)
(c)
inserting next after section 13 the following—
“Perfection of appeals
Before the Registrar can set a date upon which an appeal will be heard
under section 13(3)(b), the appeal shall be perfected.
An appeal is perfected when—
the requirements of section 13(2) are complied with;
the appellant has finalized his grounds for appeal;
the appellant has served his finalized grounds of appeal and
supporting submissions and authorities to the court and to the
respondent; and
such other requirements are complied with as may be provided for
by rules made pursuant to section 540 of the Criminal Code Act
1907.
The date upon which an appeal will be heard shall be at least ten clear
days from the time an appeal is perfected under this section.”.
13A (1)
(2)
(a)
(b)
(c)
(d)
(3)
AMENDMENTS TO THE COURT OF APPEAL ACT 1964
Amends the Court of Appeal Act 1964
The Court of Appeal Act 1964 is amended—
in section 17 by repealing subsection (5) and substituting the following—
For the purposes of this Part, a decision of a judge in respect of a trial
on indictment—
directing the jury to acquit an accused person on the grounds that
there is no case to answer;
“(5)
(a)
(i)
(ii)
(b)
20
(a)
23
DISCLOSURE AND CRIMINAL REFORM ACT 2015
staying proceedings as an abuse of process; and
issuing a ruling which would otherwise have the effect of
terminating the trial,
shall be deemed to involve a question of law alone.”;
(b)
(c)
in section 17B—
in the headnote by deleting the word “murder” and by substituting the
words “serious offences”;
in subsection (1)(a) by deleting the word “murder” and by substituting
the words “a serious arrestable offence listed in Schedule 1 to the Police
and Criminal Evidence Act 2006”; and
by deleting subsection (5).
Commencement
This Act comes into operation on a day to be appointed by the Minister by notice
published in the Gazette.
The Minister may appoint different days for different provisions of the Act.
[Assent Date: 22 August 2015]
[Operative Dates: Sections 18 to 21 in force 6 November 2015. Sections 1 to 17 in force 1
January 2016.]
(b)
(i)
(ii)
(iii)
21 (1)
(2)
24
