One of the hallmarks of good governance is legislative change that betters the lives of people, whether through improvements to economic wellbeing, improvements to security or improvements to the application of justice.

Our criminal justice system is broken and needs fixing. On June 5, the House of Assembly passed sweeping legislative changes — part of a continuing review and overhaul of our antiquated criminal laws — to vastly improve the criminal justice system.

While there will always be those who find fault with legislative reform — “We are moving too fast!” or “We are not moving fast enough!” — the provisions that the Bermuda Government is bringing forward with the Disclosure and Criminal Reform Act and the Criminal Jurisdiction and Procedure Act will drag Bermuda’s criminal justice system out of the dark ages to ensure that justice is applied fairly, expeditiously and efficiently.

In keeping with the truism that “justice delayed is justice denied”, many of the reforms relate to case management. Some of the highlights are as follows:

n New disclosure rules will be applied requiring the prosecution and defence to provide each other with relevant information about their cases.

In the case of Supreme Court trials, the defence and prosecution will be required to provide each other with summaries to narrow the issues at trial and thus reduce the length of trials. Summaries will only be required in the more serious offences.

n Case management will be strengthened to narrow, identify and deal with issues up through the date of trial and beyond, ensuring shorter trials and fewer collapsed trials.

n Jury collapse will be vastly reduced by the introduction of alternates and by reducing the number of jurors required to return a majority verdict — to nine when the jury has 11 or 12 members and to eight when the jury has nine or ten members.

n The prosecution right to appeal will be restored to the pre-2000 position so that acquittals on technicalities are appealable.

n Where new and compelling evidence comes to light after the passing into force of this legislation, the prosecution will be able to reopen the acquittal in a serious crime case.

n Where costs are wasted by third parties, as opposed to the accused person, the court will have the power to order the responsible party, whether that be an attorney or another person, to pay the costs so wasted.

n As is the case under the existing Evidence Act 1905, the accused person will continue to have an obligation to give notice to the prosecution of any alibi that he or she intends to rely upon at trial.

n Upon arrest, the person will be given the usual caution: “You do not have to say anything.” Only in the presence of the arrested person’s lawyer will a special caution be given to the arrested person.

This is an added safeguard to ensure that adverse inference will not be drawn against unrepresented individuals who fail to say something which they later wish to raise in their defence at the trial.

n The special caution will be given when the arrested person’s lawyer is present and will say: “You do not have to say anything, but it can harm your defence if you do not say something now that you later wish to rely on at trial.”

After the special caution is given, the arrested person will have the opportunity to confer with his/her lawyer in private before any questions will be put to him.

In the absence of such an opportunity, no adverse inference may be drawn.

n In appropriate cases as defined in the Act, the judge will have the ability to draw an adverse inference from a criminal suspect’s failure to answer questions when it would be reasonable for him or her to answer.

For example, “why were you at the crime scene?” or “why are your knuckles bloody?” or “why are you carrying an offensive weapon in your pocket?”. Every criminal suspect will continue to have a right to remain silent. That right will continue. What will change is that there will be reasonable consequences to exercising that right in an unreasonable way.

This is nothing new and has been the position in England since 1994, and it has been recognised by the European Court of Human Rights that the right to silence is not absolute.

Indeed, our own Constitution does not provide for an absolute right to remain silent.

n The way cases proceed through the courts will be overhauled to eliminate antiquated, time-consuming and costly preliminary inquiries.

There is no doubt that these changes have been long in coming. In 2000, the Progressive Labour Party drafted a Prosecution of Offenders Bill but did not have the will to introduce it in the House.

In 2004, a Criminal Justice System Review commissioned by the then Attorney-General called for modernisation, including case management and prosecution disclosure.

Again, no action was taken by the PLP to make these needed changes.

In 2013, the Honorable Chief Justice said: “The financial cost of the system threatens its long-term existence. Some of the costs can be curtailed if the criminal trial process is modernised to reduce the length of criminal trials where this can be justly achieved, with the support of the new Parliament, it is hoped that new Criminal Procedure Rules will be brought into force in the first quarter of this year.

“This represents a first step towards empowering the court to manage cases with a view to increased efficiency without diluting fairness. Primary legislation is, however, required to empower the courts to make cost orders against parties who flout court directions, to compel the prosecution to give adequate disclosure, to require the defence to give disclosure and to abolish preliminary inquires.”

The One Bermuda Alliance is committed to bringing forth legislative reform to modernise our laws to ensure that justice is fairly and even-handedly applied to the accused, to the victims and to the community, and to fix our broken criminal justice system. The legislation passed in the House on June 5 puts us well down that path with more to come.

• Georgia Marshall is a One Bermuda Alliance Senator