October 06, 2011
I wish to advise of the tabling for First Reading, a number of Bills. Mr. Speaker:
Criminal Procedure Code (Amendment) Bill Amendments proposed to the Criminal Procedure Code will when enacted:
• Increase the sentencing powers of a magistrate from a maximum of 5 years imprisonment to 7 years.
• Increase the maximum period of extended time that a magistrate may allow the police to hold a person being investigated for a serious crime from 48 hours to 72 hours. The Police are still only able to hold a person for 48 hours without the authority of a magistrate.
• Abolish the practice for unsworn statements being given from the dock by a defendant in a criminal trial.
• Empower the Court to hear from victims as to the impact of the crime for the purpose of determining the sentence. Victim means the person who suffered the harm - physical or emotional and person(s) who would have suffered emotional loss as a result of the offence e.g. a spouse, relative or guardian of the person where the person is dead or otherwise incapable of making a statement.
• Require that accused persons who intend to rely upon alibi evidence at their trial to provide the court with notice of their alibi within stated time limits (21 days) failing which the court will direct the jury that adverse inferences may be drawn.
• Facilitate the evidence of the police firearms licensing officer being available for use at court proceedings by including that officer in a list of persons that are able to give evidence in writing rather than having to appear in person in every instance, thereby facilitating efficiency.
Bail Act – (Amendment) Bill (Amends ss. 4(2) & (3) and Parts A, B, & C of First Schedule) As I indicated in my National Address on Crime on Monday past, a Judge, prior to the grant of bail to a defendant in murder, armed robbery, and rape cases, must be satisfied that the defendant:
(i) has not been tried within 3 years;
(ii) is not likely to be tried within a 3 year period; and
(iii) whether there are substantial grounds for believing that the defendant, if released on bail would fail to surrender to custody or appear at his trial; commit an offence while on bail, or interfere with witnesses or otherwise obstruct the cause of justice, whether in relation to himself or any other person; or
(iv) having been released on bail previously, is subsequently charged with a similar offence.
(v) And, the Court is required to take into account the antecedents and character of the defendant.
In addition to these matters referenced in my National Address on Monday evening amendments to the Bail Act will require a Judge to take certain critical factors into consideration, prior to the grant of bail to a defendant in cases involving the following offences: murder, armed robbery, and rape, attempted murder, possession of firearms designed to discharge explosives, possession of automatic weapons, possession of firearms or ammunition intended to endanger life or cause serious injury to property, possession of firearms with the intent to commit an indictable offence and possession of dangerous drugs with intent to supply together with a number of other offences under the Sexual Offences Act and including rape, sexual relations with a minor under age 14, with a dependant or in instances of incest, sexual relations with someone suffering from a mental disorder. In these cases Judges will be required to take into primary consideration:
• the need to protect the safety of the public or public order, and
• the need to protect the safety of the victim or victims of the alleged offence,
• the nature and seriousness of the offence and the nature and strength of the evidence against the defendant.
Where a Judge is so satisfied and grants bail, the reasons for doing so must be put in writing. And, the Attorney General may appeal such a decision, and if he does so, the accused is not to be released on bail until the appeal is heard and determined by the Court of Appeal. And, the amendment provides for magistrates to have no jurisdiction to grant bail in these cases.
Amendments to the Court of Appeal Act.
The amendment provides that the prosecution has a right to appeal to the Court of Appeal against a ruling of a judge to uphold a no case submission or to withdraw the case from the jury in criminal trials.
Secondly, where an appeal against a conviction is allowed by the Court of Appeal but it finds that the jury must have been satisfied of facts that proved the defendant guilty of a lesser offence the court will now be permitted to substitute a lesser verdict and impose a lesser verdict. At present I am advised the Court of Appeal exercises such power by reference to powers obtaining in England under rules that allows it to apply the law and practice of England where there is no specific provision in the law of The Bahamas. This amendment will now provide a specific provision in the law.
Criminal Evidence (Witness Anonymity) Bill
This Bill is far reaching but we are convinced and satisfied that it is in the interest of The Bahamas for it to be enacted into law. We are prepared to have a separate debate on this Bill unhinged from the other criminal related Bills. This Bill provides for use in certain exceptional cases of evidence of a witness whose identity remains anonymous during the course of investigations, trial and thereafter.
It is a special measure of last practical resort. It is considered necessary in circumstances where serious offences cannot be successfully prosecuted because of the real risk of harm to witnesses. Conditions are laid down for the making of an investigation Anonymity Order or a Witness Anonymity order.
I note for the information of Honourable Members that the Bill is in its terms similar to that of the Criminal Evidence (Witness Anonymity) Law of the Cayman Islands which was based on the Criminal Evidence (Witness Anonymity) Act of the United Kingdom.
Qualifying offences for an order are to be murder, manslaughter, armed robbery, rape, offences under the Dangerous Drugs Act, Anti-terrorism Act, or Trafficking in Persons (Prevention and Suppression) Act and attempts to commit these offences.
Amendments proposed to the Penal Code will amend sections 290, 291 & 339 of the Act. The courts have determined that the death penalty is not a mandatory punishment for murder. They have also decided that the death penalty may only be used in the worst of the worst cases. The amendment seeks to ensure that the death penalty remains an option in those cases that are considered sufficiently vile to warrant it.
The most egregious categories of murder are defined in section 290. These categories include murder of police or other law enforcement officials, and persons critical to the judicial system such as witnesses, jurors, judicial officials, prosecutors, a murder in furtherance of robbery, rape, kidnapping, terrorism or other felony, multiple murders and contract killings. All sentencing for murder are to be governed by section 291. A murder falling within the most egregious category is punishable either by a sentence of death or by imprisonment for life. Any other murder is punishable in a range of 30 to 60 years. The exception will be conviction of a minor (less than 18 years of age).
A minor convicted of murder will be sentenced to a minimum of 20 years imprisonment and thereafter his continued confinement will be reviewed by the court every 5 years. Importantly, the amendment proposed will define Imprisonment for life as the whole of the remaining years of a convicted person’s life. The punishment for a person convicted of armed robbery (robbery with an offensive instrument) is increased and will have a range of 15 to 25 years.
Evidence (Amendment) Bill This Bill seeks to amend the Evidence Act to allow for the use of live television link to receive evidence of persons who are unable to be physically present at court proceedings. It also provides for remand hearings to take place by live television link. The Bill also provides for the admissibility of video recordings of testimony from child witnesses under certain circumstances.
The Bill will allow a person’s previous conviction to be given in evidence in murder cases punishable by a sentence of death.
Sexual Offences Act (Amendment) Bill
The amendment will introduce a sentence range of 15 years to life for a defendant convicted of rape. Life will mean the whole of the remaining years of a convicted person’s life. Pawnbrokers and Second-hand Dealers Bill and the Customs Management (Amendment) Bill Honourable Members are aware that my Government recently imposed a ban on the export of copper and restricted exports of other scrap metal as a deterrent to the escalation of thefts of scrap metal and of copper wirings. And, Honourable Members are aware of the terror inflicted upon our society by persons stealing from and robbing people of gold chains, bracelets etc.
It is believed that many of these stolen items find their way into cash for gold operations. The Pawnbrokers and Second-hand Dealers Bill and Customs Management (Amendment) Bill seeks to address the challenges being experienced as a result of the unregulated ‘cash for gold’ and ‘scrap metal’ businesses by providing a regulatory regime to protect legitimate businesses whilst maintaining safeguards for the public.
The Bill will require that all such businesses be licensed under the Business Licence Act under specified conditions.
The Bill when enacted imposes upon a business owner or Dealer the duty and responsibility to verify the identity of customers, to maintain records, and to keep certain items in an unaltered state for specified periods.
I advise that the Bill provides for all such businesses to be subject to monitoring by a police designated administrator. It is also proposed to empower the police with a range of powers of entry, for production of records, seizure and forfeiture of articles included in the inventories of such business places.
Certain articles are prohibited from being dealt with by a pawnbroker or secondhand dealer, namely, firearms, prohibited goods and illegal substances.
Amendments are intended to both the Firearms Act and the Dangerous Drugs Act as follows: Firearms Act ( Amendment) Bill The terms of imprisonment have been increased for most of the offences provided under this Act. Many offences tried in the Magistrates Court will now become punishable by terms of imprisonment within ranges of 4-years to 7-years or 5-years to 7-years. Penalties will be substantially longer if tried in the Supreme Court.
For purposes of unlawful possession, deeming provisions are introduced that provide that the person in control of a privately operated vehicle, aircraft or vessel in which a firearm is found is deemed to be in possession.
Two new offences are being created by this amendment, i.e.:
• Importation of firearms
• possession of body armour without approval in writing of the licensing authority, i.e. the police .
Dangerous Drugs Act (Amendment) Bill
Amendments to the Dangerous Drugs Act provide for:
• the penalty provisions of the Act in relation to convictions in the Magistrates Court increases the term of imprisonment to ranges of 4-years to 7-years and 5-years to 7-years for offences relating to possession with intent to supply, engaging in continuing criminal enterprise, and certain other penalties; and
• the imposition of penalties for possessing and supplying drugs to a minor or within one mile of a school.
There are a number of other Bills that we are introducing today. They include the Straw Market Authority Bill, Road Traffic Act Amendments, Modifications of Provisions of Ginn in West End, and a Freedom of Information Bill.
Road Traffic (Amendment) Bill
The amendment to the Road Traffic Act proposes that we make third party insurance covering property damage and bodily injury of all passengers compulsory.
Further it removes the requirement for a policeman’s presence at the scene of every accident. A police officer’s presence would only be required if someone is seriously injured or killed or when serious damage is caused to a motor vehicle. Hence, “fender benders” as we often refer to minor accidents may be settled between the parties exchanging insurance information.
The Bill empowers the Minister to make regulations with relation to seat belts, provides exemptions of seat belt requirements for certain persons (taxis and trucks – except for the driver and any front seat passenger, and specially designed vehicles for the disabled). The Bill creates an offence for driving under the influence of drugs or alcohol, amends the Act so as to add “blood” as a specimen which may be required to be given to a police office and amends and or sets a number of fixed penalty offences originally contained in the Criminal Procedure Act.
Freedom of Information Bill I am also pleased to table the Freedom of Information Bill which seeks to grant the public a right to access records held by public authorities, subject to exemption required to balance the right against the public interest in excluding certain governmental, commercial or personal information.
The Act provides definitions for information to include a written record, map, graph, plan, photograph, disc, tape, sound track or other devise on which data or sounds are embodied. The Act does not apply to judicial function of a court or the holder of a judicial office; the Royal Bahamas Police Force, Royal Bahamas Defence Force, the Department of Immigration, Customs or the Financial Intelligence Unit in relation to their strategic or operational intelligence gathering.
Records will be exempt from disclosure if the disclosure would injure the foreign relations of The Bahamas or reveal other confidential information of Cabinet; trade secrets, and in other specified circumstances The Act makes provision for the creation of the office of the Information Commissioner, who will be appointed by the Governor-General, serve for a five year term and be responsible to Parliament.