The three year mandatory prison sentence for possessing a bladed article in public is not unconstitutional, Chief Justice Richard Ground has ruled.

The judgment came after an appeal mounted by David Jahwell Cox, 28, who was jailed for three years by a Magistrate after taking a two-foot machete into a crowded bar at Devonshire Recreation Club.

In rejecting the appeal yesterday, Mr. Justice Ground said knife possession is a "real and pressing social problem" in Bermuda, and lawmakers are entitled to take steps to combat it.

He had heard defence lawyer Craig Attridge argue that the obligatory minimum punishment of three years is wrong because only a judge should have the power to determine a sentence, and not have this discretion taken out of his or her hands by Parliament as with bladed weapons offences.

Mr. Attridge further argued that because such sentences may be disproportionate in individual cases, they contravene the right under Bermuda's Constitution to be protected from "inhuman" treatment.

If Mr. Justice Ground had upheld the appeal against Cox's sentence, it would have been a precedent-setting move that could have forced Government back to the drawing board over the mandatory minimum sentences.

They were first introduced in July 2005 after a spate of violent incidents including a machete fight at the Wellington Oval football ground, which marred the Friendship Trophy Finals in 2004.

A person convicted at Magistrates' Court faces a minimum of three years behind bars. If convicted at Supreme Court, the minimum is five.

Lawyer Charles Richardson, who works at Juris Law Chambers with Mr. Attridge, has also appealed the mandatory sentence on behalf of a client in the past.

Explaining the background to The Royal Gazette: the Cox case in advance of the Chief Justice's ruling, he told "The law does not take into account the varying degrees of culpability.

"For instance there is a big difference between someone having a bladed article at a football ground and the example I like to use of little Jamal who lives next to the Railway Trail and who picks up his father's machete out of his father's garden shed, goes to the Railway Trail, and playfully starts to lop off a few branches.

"He would be subjected to a mandatory three or five years. The whole point we are making is when you take judges' discretion away you take away the constitutional right to be punished in a way proportionate to the thing done. Three or five years in the case of little Jamal is clearly not proportionate."

Mr. Richardson said that earlier this summer, Puisne Justice Norma Wade Miller ruled in the case of his client Denton Parris — found with a hatchet in a knapsack — that a judge can suspend the minimum sentence. This means a defendant does not go to prison unless they misbehave again during the period of the sentence.

Mr. Richardson described this as the first step towards the appeal in the Cox case.

In comparison to Bermuda, Magistrates in the UK can impose a maximum sentence of just six months for possession of a bladed article. There is no mandatory minimum. Mr. Richardson said: "I don't think there's any jurisdiction that has such a harsh mandatory minimum (sentence as Bermuda) for an offence that could have such a wide range of culpability."

However, delivering his judgment in the Cox appeal yesterday, Mr. Justice Ground said the obligatory prison term does not contravene the "separation of powers' principle designed to protect the judiciary from interference by government. In addition, he said the mandatory sentence is not so disproportionate that it breaches human rights as protected by Bermuda's Constitution.

"In coming to that conclusion, I have had regard to the fact that there is a defence of 'good reason' which includes, but is not limited to having the article for use at work; for use at organised sporting events; for religious reasons; or as part of a national costume. It seems to me that, if applied properly, that should remove the risk of a truly 'innocent' person being subject to mandatory imprisonment," he said.

"On the other hand, anyone who sits in the courts of Bermuda on a regular basis will know only too well that the possession and use of knives and other bladed weapons is a real and pressing social problem in this country, which shows every sign of being on the increase. In my judgment, the legislature is entitled to take steps to combat it."

The Chief Justice added that even if he was wrong on this, and the mandatory sentence does risk subjecting some individuals to a penalty so disproportionate it is inhuman, there is a "safety valve" allowing judges to suspend the sentence in exceptional circumstances.