Local lawyers raised a host of concerns with the Bermuda Government over legislation aimed at improving the legal system.

In a letter to Attorney-General Trevor Moniz dated March 18, the Bermuda Bar Association (BBA) warned that the Magistrates’ Court (Criminal Jurisdiction and Procedure) Act 2015 and the Prosecution and Defence Disclosure (Procedure) Act 2015 were inconsistent with “the stated purpose of the legislation, established legal principles and basic fairness”.

Despite the concerns and objections of the Opposition, the legislation was subsequently tabled and approved by the House of Assembly. It is set to be debated in the Senate tomorrow.

The letter, released to The Royal Gazette last Friday, calls on the Attorney-General not to move forward with the legislation as presented.

“[The] Bar Council and the Criminal Sub-Committee supports the view that improving the efficiency and effectiveness of the administration of the criminal justice system is to be commended,” the letter stated.

“However, some of the reforms suggested will, in our view, not only fail to meet the objectives of the Government but will in fact make the system less efficient and more costly. Moreover, some of the proposed amendments infringe on the constitutional rights of individuals and such infringements cannot be justified on the basis of efficiency and cost savings.

“Since no other pressing social need or problem has been identified to justify the violation of constitutional rights, many of the proposed amendments would be highly unlikely to survive the constitutional challenges that would most certainly be brought seeking to strike down the legislation.”

The letter said that while it appeared the Government sought to draft the amendments in keeping with similar legislation in the United Kingdom, they appeared to adopt the portions that work against the defendants but not the safeguards.

“The UK provisions, for instance, require that the rules be interpreted and applied so as to protect the defendant’s right to a fair trial and his right to silence,” the letter continues.

“The drafters of the proposed legislation for Bermuda have eliminated all of the safeguards that comprise the modern approach and standard in most other free and democratic societies.”

Among the significant areas of concern were amendments altering a defendant’s right to silence.

While Mr Moniz said in the House that the blanket rule to remain silent often hampered cases, even for defendants, the BBA strongly objected to that section of the legislation.

The association said the right to remain silent was “paramount and recognised by the constitution” in Bermuda, noting similar provisions in the Canadian Charter of Rights and Freedoms.

“The Supreme Court of Canada has found that the right to silence is a fundamental right that is not subject to limitation imposed by government, minimal or otherwise,” the letter stated.

“It is likewise the subcommittee’s position that the right to remain silent is no less a fundamental right in Bermuda. While there have been limits on this right for years in the UK, where there is no written constitution, there were no limits placed on the right to remain silent in either Bermuda or constitution prior to their respective written constitutions coming into force.”

The letter continued to stated that compelling defence statements would violate the defendant’s rights, while also breaching his right not to give evidence at a criminal trial.

“The proposed legislation not only would infringe these fundamental rights, but goes even further than the comparable UK legislation in that it would deny the defendant the right to call evidence, such as alibi evidence, at trial if he has failed to give notice of the alibi evidence to the Crown/police prior to trial,” the letter states.

“Denying a defendant, whose liberty is at stake, the opportunity to call positive defence evidence that could result in a reasonable doubt about his evidence, not withstanding the failure to provide notice of that evidence, is not only unconstitutional and draconian but also runs the risk of legislatively mandating wrongful convictions as punishment for procedural failures.”

The BBA also noted that, as drafter, the amendment would extend to the Magistrates’ Court as well as Supreme Court, leading to both the defence and the Crown potentially “wasting time” by preparing and serving summaries and statements in minor matters such as traffic offences.

Other sections and subsections were also the subject of strong objections, including the potential introduction of Supreme Court trials being carried out without the defendant being present and provisions that would broaden the scope of potential appeals by the Crown.

Regarding the latter, the letter said: “If the foundation for these sweeping changes is truly the Government’s desire to promote efficiency and cost savings, one is left to ponder why the Government would include provisions that pave the way for a greater number of appeals by the Crown.

“More appeals will not save costs, make the system more efficient or promote public confidence in the administration of criminal justice.

“These provisions seem more designed to tip the balance further in favour of the Crown than to promote efficiency, and they do so in a manner which does not take into account the already disadvantaged position and limited resources of the defendant.

“Such provisions will not only fail to achieve cost savings and efficiency, but will work most unfairly against individuals who find themselves before our courts.”