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Clause 91 cut from Bill, reforms passed

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Georgia Marshall, One Bermuda Alliance senator

Government’s decision to remove the most controversial element of its hotly debated package of legal reforms has been welcomed by critics of the changes.

Venous Memari, managing director of the Centre for Justice, said the centre was pleased that Clause 91 of the Criminal Jurisdiction and Procedure Bill had been deleted from the Bill because it could have allowed for adverse inferences to be drawn from an accused’s silence at the police station later during trial.

Opposition and independent senators also backed the move that came towards the end of a long debate in which both the Criminal Jurisdiction and Procedure Bill and its companion Bill, the Disclosure and Criminal Reform Bill were passed in the Senate yesterday.

But The Centre for Justice and PLP senators still expressed concerns about other areas of the proposed legal reforms.

“Clearly, we are very pleased that Government has withdrawn the provisions relating to the possibility of unfavourable inferences being drawn from an accused’s silence at the police station at trial,” said Ms Memari.

“We commend Government for listening to the objections and concerns that have been expressed by various professional bodies and groups with respect to the constitutional rights of an accused.

“We are disappointed that Government did not withdraw the provisions requiring a defendant to serve a statement on the prosecutor and the court within 28 days of his arraignment — if he is going to give evidence at trial — failing which the ‘court may direct the jury to draw inferences as appear proper in deciding whether the accused person is guilty of the offence charged’ although a defendant can’t be convicted of an offence solely on the basis of any such inference.

“We are curious as to why Government did not withdraw the latter provision. No doubt, the constitutionality of this provision will be decided by the courts in due course.”

Independent senator James Jardine and senate president Carol Ann Bassett praised Government for listening to the concerns that had been expressed about Clause 91 and the right to silence.

“This particular clause caused a great deal of concern from a whole variety of areas on the Island,” Sen Jardine said.

“I would like to commend Government for removing this particular clause — they have listened and made a judgement.”

Sen Bassett added: “I am so pleased that the Government has listened and removed the entire clause, which was extremely offensive to me.”

PLP senate leader Diallo Rabain and senator Marc Daniels also acknowledged that the removal of the clause was the correct decision.

Sen Rabain said: “It is absolutely amazing that the Government has listened, but I see the cup as half full as they did not listen for the original (first) bill that was debated earlier today.”

Sen Daniels told the Senate he had major concerns over the package of legal reforms tabled by Government that he felt would simply “waste more time”.

Referring to the Criminal Jurisdiction and Procedure Bill he added: “I see constitutional challenges and I see delays. This is a very disappointingly drafted piece of legislation.”

The Bill together with the amendment to remove Clause 91 will now go back to the House of Assembly for debate on Friday.

Earlier in the day the Disclosure and Criminal Reform Bill was passed by a six-four vote despite major doubts cast by independent senators as well as PLP senators.

Sen Bassett and Sen Jardine joined Sen Rabain and PLP senator Renee Ming in voting against the Act, with Sen Bassett urging Government to take objections into account.

The PLP has opposed both bills since Attorney-General Trevor Moniz brought them before legislators on June 5.

Sen Rabain agreed with the need for the legal system to be modernised — but in light of myriad objections over the erosion of fundamental rights, he urged fellow senators to “send a message” and reject the (first) bill.

Sen Marshall was the only OBA senator to speak on the first bill, which Sen Jardine said had also surprised him.

He called Sen Bassett’s dissension “most unusual”, saying he had not seen such a move during his time in the Senate — and reiterated her concern over the need for one-on-one dialogue.

After the passing of the Disclosure and Criminal Reform Bill closed the morning session, Government Senate Leader Michael Fahy called it a healthy debate.

“The Opposition seems to have the approach that if there are concerns from one or two stakeholders, therefore the Government is wrong,” he said. Sen Fahy insisted concerns had been heard and detractors consulted with, but that “we as a Government do not believe these provisions are unconstitutional”.

“More to the point, judges themselves will have an opportunity to use the Act as they see fit,” he added.

“Recall that many of these were proposals in 2004, under a law reform committee chaired by an Attorney-General of the PLP.”

Diallo Rabain, the Progressive Labour Party leader in the Senate
Carol Ann Bassett, president of the Senate
James Jardine, Independent senator
<p>‘It reeks of tactical deceit’</p>

Government senators engaged in “tactical deceit” by unexpectedly bringing legal reform bills before the Upper House after repeated delays.

The charge came from Opposition senator Marc Daniels, right, a lawyer who missed the morning session because he was involved in a Supreme Court trial where the prosecution was giving the final address to the jury.

“For the last month, we have written to senator Fahy querying when the Government intended to bring these bills, and each occasion we were told in writing that it would be deferred,” he said.

“I have five back-to-back Supreme Court trials. We started speeches today in my most recent case.

“I expressed in court in each case that if the Government brought the Bill I would have to attend, as I was to lead the debate for the party.

“Then suddenly it comes today, presumably once the government ascertained that they had at least one of the independent senators’ support.”

The legislation would have passed even with his presence, he conceded.

“But it is a sad day when a matter of such national importance is dealt with in such an unfair manner,” Sen Daniels said. “To me, it reeks of tactical deceit.”