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Pettingill sees need for modernising antiquated laws

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Bermuda's laws still allow people to be incarcerated for unpaid debt — something eliminated more than two centuries ago in the UK — but Attorney General Mark Pettingill insists Bermuda is “years beyond that”.

At the same time, he agreed that many of Bermuda's laws are antiquated, particularly as they relate to debt collection proceedings.

He was responding to recent criticism that committal warrants issued for unpaid debt are used as a weapon.

Taxi owner Barclay Carmichael charged that it's unfair to threaten upstanding citizens with jail for non-payment of debt when they have no means to pay.

Even the employed are fighting to keep up with bills in today's economic climate, he said.

In court for failing to adhere to the terms of a court judgement, at one stage he was ordered to pay up $700 or face 14 days in prison. This prompted a call for eradication of committal warrants.

Mr Carmichael said: “This is not the time to be dragging people through a court system for debt with the economy the way it is and showing very little signs of improvement.

“The committal warrant is a weapon that they use against you, it says pay up or else. It makes ordinary, hard-working, honest people criminals.”

The Attorney General noted that while it's still on the law books, people are rarely incarcerated for non-payment of debt in Bermuda.

“Certainly what you don't have is this archaic concept where people are brought before the court, they're not paying debts and then you throw them in prison.

“I think we're years and years beyond that; that's just not what is going on.

“The magistrate said very recently that in very extreme cases you have people that are actually committed to prison.”

Asked if it makes sense to drag people who are unemployed with no means to pay through Civil Court, he replied: “It's a mixed bag of goods.”

Unlike Britain, he pointed out that Bermuda is not a welfare state, although some would suggest the country is heading in that direction.

“We don't have a debtors' court we have a court system, they have a court system as well and people are getting chased. There's a lot of differences between our two systems.

“Of course we appreciate that we have people that are struggling, I know that.

“The new Government, we're trying to do everything we can to ameliorate that, create jobs and to improve things; it's going to take time.

“Unfortunately, many people have gotten themselves into debt positions. I don't think it's really fair to say they're being dragged before the courts.”

On the question of using committal warrants as a weapon he said: “The law has to have consequences, there has to be a degree of it.

“There'll always be issues of contempt with the legal system. If you're ordered to do something and you blatantly refuse to do it, in a situation where you can, you know that's contemptuous.

“There has to be the ability for the courts to say here's the line.

But he added: “It doesn't make any sense that if a person can't pay his debts that he's sent to prison.

“People have to expect to get paid, you enter into arrangements for payment and if you don't pay people then those people become debtors themselves. It's a vicious circle.”

As for Bermuda's antiquated laws, he agreed that many of Bermuda's Acts “go way back”.

“I think there's a list of eight to speak of that I have pulled down that allow for debtors to be committed to prison.

“The Debtor's Act, the Magistrates Act, the Children's Act, the Bankruptcy Act, the Magistrates' Court Act, Supreme Court Rules, the Criminal Code and the Summary Jurisdiction Act.

“All of those acts have provisions for people to be committed to prison.

“No, I don't think that all of those things are up to date. I mean we still have offences of clipping in the Criminal Code.

“Clipping is when you take a coin and you shave off the silver around the outside and then melt it down and then sell it for weight.

“Of course nobody does that anymore, that's an old, old law. So that type of stuff is just superfluous, you don't need to have it. We need to modernise those things.”

Attorney General Mark Pettingill (Photo by Akil Simmons)
Brief history of debt and prison

In Western Europe, debtor’s prisons were used to imprison people who were unable to pay debt throughout the mid 19th century.

The Debtor’s Act of 1869 was abolished 244 years ago in the UK, although “debtors with means to pay their debt, but did not do so, could still be incarcerated for up to six weeks”.

History will show that bankruptcy law also rendered these prisons irrelevant in most parts of the world today.

According to Wikipedia, as of May 2013, “they persist in countries such as the United Arab Emirates, Hong Kong, and Greece”.

Since the late 20th century, in some US states “people can be held in contempt of court and jailed after non-payment of child support, garnishments, confiscations, fines, or back taxes”.

“The charge for going to jail is being in contempt of court” which is deemed as “negligent non-payment, obstruction, or fraud”.

In the UK, “debtor’s prisons varied in the amount of freedom they allowed the debtor”.

“With a little money, a debtor could pay for some freedoms; some prisons allowed inmates to conduct business and to receive visitors; others even allowed inmates to live a short distance outside the prison”.

The practice was known as the ‘Liberty of the Rules’ which included “clandestine ‘Fleet Marriages’ where inmates in debtors prisons were forced to pay for their keep.

Some of London’s most notable debtor’s prisons include the Coldbath Fields Prison, Fleet Prison and King’s Bench Prison.

Acclaimed English author Charles Dickens often referred to the desolate conditions in these prisons in his literary works after his father was sent to one of these prisons.

Debtor’s prisons based on the same models used in Great Britain were established in many colonial American jurisdictions as well.

They were prevalent throughout America through to the mid-1800s.

The plight of the poor drew significant attention when the US prison population swelled as a result of the economic hardships that followed the War of 1812 with Great Britain.

Bankruptcy laws restricting imprisonment for most civil debts ensued.

Historians note that it was during these times that the terms ‘poorhouse’ and ‘poor farm’ “were also seen as institutional alternatives for debtors’ prisons.”

In 1833, the US eliminated “the imprisonment of debtors under federal law” leaving the practice up to individual states.

With the exception of non-payment of debt due to fraud, changes followed in several states through to 1849.

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Published August 23, 2013 at 9:00 am (Updated August 22, 2013 at 11:09 pm)

Pettingill sees need for modernising antiquated laws

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