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Bermuda may allow judge-alone trials

Attorney General Kim Wilson speaking yesterday.

Plans to introduce trials without juries at the request of the defendant and to relocate witnesses overseas are both in the pipeline, according to Attorney General Kim Wilson.

"I'm looking at introducing new legislation so that a defendant, if they choose, can select judge-alone trial," she revealed yesterday.

Sen. Wilson explained that a defendant might elect to have a trial without a jury when "the nature of the case or perhaps the nationality of the defendant" means they may prefer to have a judge decide the case. "This would be at the defendant's election, not the prosecution," she said.

Other countries that allow trials without juries at the behest of the defendant include India and Canada, the British Overseas Territories of the Falkland Islands and St. Helena, and the Netherlands.

England and Wales first introduced the provision in 2007, where it is allowed on the application of the prosecution in cases of serious and complex fraud or where there is a danger of jury tampering.

Earlier this month in the House of Assembly, PLP MP Wayne Perinchief, a former Assistant Police Commissioner, suggested Bermuda should consider introducing a specialist "gun court".

Jamaica set up such a court to tackle rising crime in the 1970s. It is empowered to sit with a judge alone, but no jury, and tries suspects in camera, with the court closed to the public and the press. All gun crimes go to that court except murder and treason, which go to a jury.

Bermuda has seen seven gun murders since May 2009, but no murder charges. Thirteen people were shot and wounded last year, and seven wounded this year.

Police have repeatedly complained that witnesses to the crimes have failed to come forward with information, and Mr. Perinchief spoke of his concern that jurors seem reluctant to convict armed criminals even when they are charged.

Asked about the idea of a gun court, Sen. Wilson said while Bermuda is looking at some trials by judge alone: "The extent of our gun crime although it's alarming and in recent times has been on the increase is certainly not to the same extent as it is in other jurisdictions at this time and I don't think it warrants its own court."

However, Shadow Attorney General Trevor Moniz questioned the rationale behind Sen. Wilson's plan, saying that allowing defendants but not prosecutors to elect judge-alone trials would increase acquittals, not convictions.

"In the case of serious violent crime, and gun crime generally, trials by judge only are justified by the needs of society. We need expeditious action to address the very serious crime in our community. I don't know what problem a trial by judge only but at the election of the defendant would solve," he said. "He will choose this only if it offers him a better chance of being acquitted. We are trying to increase convictions."

However, Mr. Moniz backed the idea of prosecutors being allowed to apply for such trials.

"I support that because of the problems that we face. You can't get these people convicted. People are intimidated, they are frightened," he said.

Mark Pettingill, of the Bermuda Democratic Alliance, said: "I tend to agree with the AG that despite the concern with regard to gun crime I am not of the view that it warrants a special court such as they have in other jurisdictions. I believe that we should have an alternative to trial by jury but our Constitution effectively would require that this election must be made by the defendant."

Sen. Wilson also said yesterday that the Justice Protection Bill should go before Parliament when it resumes in May. This will allow witnesses to be relocated to other overseas territories during investigations and trials.

The other territories are also working to implement the bill, which was first announced in the 2008 Throne Speech but has been delayed due to the need for further consultation.

"It's hoped we will be tabling it during the third session. It's in its final stages and we are going to be sending it out for comments and consultation very soon," Sen. Wilson said. However, she stressed that it will not involve permanently relocating people and giving them a whole new life.

"It's not like you see on TV where people change their identity and move to another place. Most people want to come back home it's not envisioned they will stay there forever," she explained.

However, she disagreed that witness intimidation is a major problem for Bermuda.

"I would like to think that we have not reached the stage of a number of other jurisdictions where witness intimidation is common," she said. "It exists to a certain extent, I'm sure it must, but we have had cases in recent times where key witnesses have been extremely brave and provided testimony."