Monday, 19 November 2012

law report - non disclosure of police interview, mistrial

Simons v Miller [2012] SC (Bda) 67 App

The Appellant had been convicted in the Magistrates' Court. Part of the Magistrate's reasoning for convicting him was that his evidence in defence lacked credibility and depended on allegations about prosecution witnesses that had not been put to them in cross-examination.

He was appealing as the police interview had not been disclosed before trial.

Kawaley CJ listened to the Respondents submissions that counsel for the Appellant was aware of the existence of the interview, as it was mentioned in the Police Officer's statement, but had not asked for it; and that the Magistrate had relied on other evidence to find the Appellant guilty.

It was held that the failure to disclose the interview record had denied the Appellant a fair trial. Whether or not an appeal is upheld will depend on whether the failure to disclose was material to the outcome. In this case, the interview record might have influenced the Magistrate's reasoning in that it would show that the Appellant's evidence was not a recent invention but had been maintained from the start.This might positively affect his credibility, notwithstanding that defence allegations were not put to witnesses in cross-examination.

Even though some of the fault lay at the feet of the Defence, the appeal was upheld, and the case remitted to a different magistrate.

Comment - attention is also drawn to the English Court of Appeal case of R v Hadley [2006] EWCA 2544, where it was held that an appeal would be upheld if the non-disclosed evidence was capable of affecting the jury's mind, i.e. unless the other evidence against the accused was so strong that the undisclosed material could have made no difference to the outcome.

Thursday, 15 November 2012

Law report - enabling trusts / trustees

Re ABC Trust [2012] SC (Bda) 65 Civ (13 November 2012)

All parties sought to amend the Trusts to allow modern charging provisions for professional trustees; to change the perpetuity period; and to change a provision of the charitable trust.

Kawaley CJ noted that changes could be made to a trust document if it was expedient to the Trust, consistent with the equitable principles governing trusts [6].

There is nothing controversial about allowing modern professional trustees to charge their usual rates [8].

In this case, there were benefits to extending the perpetuity period - to give future generations the benefit of the trusts and to avoid ruining young beneficiaries  who would otherwise receive substantial sums of money at a young (irresponsible??) age [10].

It made good practical sense that the charitable trustees should not have to consider the law of Prince Edward Island in determining whether a purpose was charitable, and the change was approved [12].

Law report - Paternity blood tests in the Magistrates' Court

Re C: A child [2012] SC (Bda) 64 App (9 November 2012)

The Magistrates' Family Court had ordered that the alleged father of a child take a blood test to ascertain whether he was the father. As Kawaley CJ noted, this was somewhat surprising, as counsel for the mother of the child had conceded that the Magistrate had no authority to make such an order [10].

Kawaley CJ upheld the appeal against the order. He directed that the Family Court could in future properly encourage the parties to resolve parental disputes by mediation to avoid applications to the Supreme Court [29].

The Supreme Court would probably deal adminstratively with consensual requests to substitute historical Magistrates' Court orders for a Supreme Court order [28].

Wednesday, 14 November 2012

Law report - special reasons not to disqualify from driving for 12 months

Petty v Miller [2012] SC (Bda) 63 App (5 November 2012)

The Appellant had pleaded guilty to driving over the alcohol limit, driving an unlicensed vehicle and without insurance. He had been riding a toy scooter, not as a means of transport, but just riding it outside of his house, at a low speed, and with a low risk of harm. In the Magistrates' Court it was submitted that these were special reasons why he should not be disqualified for the usual 12 months.

However, the Magistrate said that these were not special reasons. He was disqualified for 12 months for the alcohol charge and also fined in respect of the charges.

The appeal was on the grounds that the Magistrate had failed to give reasons for his findings, that there were special reasons in this case, and that the fines were excessive.

On appeal, Kawaley CJ held that there were special reasons, namely the nature of the vehicle being a toy scooter with a low speed, that the Appellant was just outside of his house. The risk of harm was not a special reason on the facts of this case [11].

The period of 12 months' disqualification was reduced to 3 months [13].

Kawaley CJ was not minded to interfere with the fines, as although it is easy to dismiss the idea of having insurance or a licence for a toy scooter, the law is there to ensure that road users are insured, etc. for the benefit of other road users [14].

Comment - this is a case that I am particularly familiar with, as I represented Mr Petty on appeal.

Please note that you will not get off lightly if you try to use a toy scooter instead of an ordinary scooter to ride home after while over the alcohol limit. This was a case on special circumstances where he was just outside of his house and riding a very short distance, not to go anywhere.

Law report - Wrongful acquittal by Magistrate

Miller v PS [2012] SC (Bda) 62 App (31 October 2012)

The Respondent had been acquitted by the Magistrate after a submission by his counsel that he could not be found guilty as he committed the offence whilst unlawfully detained.

The Appellant appealed on the grounds that this was not a lawful reason to acquit somebody.

Kawaley CJ considered Cumberbatch v Crown Prosecution Service [2009] EWHC 3353 (Admin), an English case where the appellant was acquitted on the basis that he was resisting police officers who were themselves acting unlawfully.

The present case was different, as the unlawful detention was not an essential element of PS's criminal acts [8].

The Magistrate should have allowed Crown Counsel to address him on the point [9].

Although the appeal would be allowed, the matter would not be remitted. The child should not have been in prison and these matters were at the low end of criminal liability. The no case to answer might have succeeded were it not for evidence that accidentally came out in cross examination. Re-connecting the child to the criminal justice system in all the circumstances would not serve his best interests or the wider public interest [11]

Law report - Can Supreme Court award child support payments

A v B [2012] SC (Bda) 60 Civ (26 October 2012)

The Applicant brought an action to claim child support payments from the Respondent in the Supreme Court.

The Respondent objected, saying that such claims had to be brought in the Magistrates' Family Court.

Hellman J held:

The parties cannot voluntarily submit to Supreme Court jurisdiction if the Court lacks jurisdiction to hear that case [7].

The relevant sections of the Children's Act suggest that such applications are to be brought in the Magistrates' Court [14].

There were two Bermuda judgments with conflicting views on whether the Supreme Court could in fact be used for such claims: W v M [2009] SC (Bda) 18 Civ, and Harshaw v Reid [2012] SC (Bda) 18 Civ. In neither case was the issue central but Harshaw v Reid concerned a barrister's bills and did not receive full argument on the point, nor was W v M put before the court. Hellman J preferred the view in W v M that the Supreme Court could not be used [27].

The Supreme Court did not have inherent jurisdiction, the matter having been legislated by parliament as to where a claim should be brought. The Supreme Court continued to have inherent jurisdiction for matters relating to children outside of the statutory scheme [33].

Tuesday, 23 October 2012

Law report - constitutional claim against Prisons Commissioner

Nisbett v Commissioner of Prisons [2012] SC( Bda) 57 Civ

The Applicant had brought a constitutional motion to complain about his treatment whilst in prison for seven years.

The acts complained of were:
  1. being beaten by prison officers or fellow prisoners on their instigation;
  2. subject to inhuman solitary confinement;
  3. being given unjustifiable restrictions on family visits;
  4. being given unjustifiable restrictions on his religious diet requirements;
  5. parole documents being destroyed by corrections officers;
  6. loss of earnings due to release on licence being delayed by two years;
  7. exposure to second-hand cigarette, cannabis and crack cocaine smoke from other cells

The respondent sought to strike out the claim because one should not bring a constutional motion if there are other means of legal redress.

Hellman J held that for (1), above, the applicant could have brough a civil claim for assault or battery [33]. However, the allegation of the abuse of state power meant that this might not be adequate redress in the circumstances [34]. He did not strike out the claim but invited the parties to make submissions on what should happen with that claim next [40].

Similarly for (5) above, which might constitute wrongful imprisonment, the consitutional claim would be allowed to proceed [41].

The remaining issues were more suitable for judicial review proceedings regarding whether the prison rules had been correctly applied [45]. These allegations were struck out for the constitutional motion [48]. Presumably the applicant could re-apply for leave to commence judicial review proceedings.

Monday, 15 October 2012

Law report - bringing action against a company in liquidation

Re Kingate Management Limited [2012] SC (Bda) 52 Com

This judgment marks another episode in the liquidation of Kingate Management Limited ("Kingate"), which is linked to the Bernie Madoff affair. See previously here and here.

Liquidators for other Kingate entities had brought a civil claim against Kingate alleging that they were entitled to recover generous management fees which had been paid to Kingate. The action was also brought against certain trustees who had held shares in the corporate shareholders of Kingate.

It is necessary to obtain the permission of the court to continue an action against a company in liquidation. Other aspects of the judgment were whether the other defendants in the civil action were entitled to be joined to the application for permission to continue an action; and whether discovery should be ordered.

Joining of co-defendants
Regarding joining the other defendants to the application, Kawaley CJ said that normally the company will be the only respondent to such an application. The other defendants could not identify a single case where a creditor or shareholder had appeared, despite such case law going back to the nineteenth century [21]. Although circumstances might exist where a creditor would be entitled to be joined, it would be unusual circumstances [22].

Although a creditor has the right to challenge the exercise of a company's powers to bring or defend legal proceedings, this did not extend to appearing on an application to lift a stay for proceedings in which the company was a defendant. [24] It is for the creditor to make the application that the company should defend the proceeding [24].

Furthermore, if a creditor is unwilling to finance a proposed litigation course, it will not lie in their mouths to complain if the liquidator fails to do so due to lack of funds [26].

The lifting of a stay is a matter between the party suing and the company itself and is of no legally cognisable concern to co-defendants. [28]

Lifting of stay
The company has no assets to distribute at present. It follows that the civil action will not interfere with an active liquidation [48]. Furthermore, it would be appropriate for claims against the company and the co-defendants to be heard in the same proceedings to prevent overlap or inconsistent findings [47].
The plaintiffs in the civil action would not gain any advantage over other creditors by bringing the action, as any successful claim would be paid by insurance monies for the benefit of third parties rather than the insolvent estate. It would not increase the plaintiff's share due out of the company's assets. [49]

The Liquidators for other Kingate entities argued that they were entitled to know the commercial value of Kingate's insurance policy. Kawaley CJ agreed that this was appropriate under the Third Parties (Rights Against Insurers) Act 1963, s.3(1), which states that a plaintiff is entitled to such information as is reasonably required for the purpose of ascertaining whether any rights have been transferred to and vested in him and for the purpose of enforcing such rights.

Friday, 12 October 2012

Law report - appropriate sentence for importing cannabis

Hewey v Raynor [2012] SC (Bda) 54 App

The Appellant had been sentenced to eighteen months in prison for importing cannabis with a street value of around $100,000.

He had flown into the airport, having checked in a bag containing the cannabis, which he then left on the baggage conveyor belt. He said at the Magistrates' hearing that he had had a change of heart and so had just left the bag there.

Kawaley CJ held that it was open to the Magistrate to impose an immediate custodial sentence, given that:
  • the Appellant had said that he intended to leave Bermuda as soon as he was released from custody;
  • he had not cooperated to any great extent with the authorities; and
  • he had been at liberty for some years before the charges had been laid [14]
Furthermore, lack of previous convictions was not a mitigating factor for such an offence, given its planned nature and that it is common sense to employ individuals for smuggling who have no previous convictions [13].

This was not a case where the drugs were left at the airport as part of a plan to be recovered by an accomplice. It was one where the appellant had had a change of heart, or abandoned his plans part-way through it, and had left the drugs where it was extremely likely that they would be picked up by the appropriate authorities. [21]

Had he actually come clean at the airport and handed the drugs in, a custodial sentence might not have been required [21].

However, given his change of heart, a sentence of 12months was more appropriate [22].

Law report - eviction and care of property

Ingram v Robinson [2012] SC (Bda) 50 Civ

The Plaintiff had been evicted by the Defendant.

On the instructions of the Bailiff, some of the Plaintiff's property was left on the side of the road; some were stored in a warehouse; and others were left in the premises with a changed lock.

The Plaintiff then claimed that some of the items were damaged or missing, including jewellery.

Hargun AJ held that the Defendant had not become a bailee of the goods and was not responsible for their loss.

Three factors were considered:
  • the list of missing items was not the result of a physical inspection but was from memory;
  • it is probable that some of the missing items were lost after having been deposited on the side of the road;
  • the plaintiff entered the premises on numerous occasions after the eviction and so it could not be said with certainty whether they had ever come into the hands of the Defendant.

Even if the Defendant had become a bailee of the goods, she had done what was right and reasonable in the circumstances, as:
  • the Plaintiff knew of the eviction in advance;
  • she could have removed her own belongings;
  • she did not attend the eviction;
  • the bailment was involuntary as the items should not have been left there in any case;
  • the Defendant acted under the control of the bailiff; and
  • the storage location used was secure.

Law report - Claims under the Workers' Compensation Act

Peiris v Bermuda Building Services Co. Ltd. [2012] SC (Bda) 49 Civ

This was a claim under the Workers' Compensation Act.

S.4(1)(b) states:
if it is proved that the injury to a worker is attributable to the serious and wilful misconduct of that worker, any compensation claimed in respect of that injury shall be disallowed:

Provided that where the injury results in death or serious and permanent incapacity, the court on a consideration of all the circumstances may award the compensation provided for by this Act or such part thereof as it shall think fit.

The Court found that the Plaintiff had suffered serious and permanent incapacity.

Counsel for the Defendant submitted that the second part of s.4(1)(b) was a free-standing provision, giving the court a general discretion in the case of death or serious injury that it would not otherwise have.

Hellman J held that it would be surprising if the court had a free-standing discretion regarding compensation for serious injury or death when it did not for less serious injuries [23]. The discretion is only engaged when the injury is due to the serious and wilful misconduct of the worker. [24].

Counsel for the Defendant submitted that failure to wear a safety harness on a forklift truck amounted to serious and wilful misconduct. However, Hellman J approved passages from the House of Lords in Johnson v Marshall [1906] AC 409 and Bist v London & South Western Railway Co [1907] AC 209 that a very high threshhold was required for serious and wilful misconduct: much higher than that required for negligence, for example. [28]-[31].

Where an arm is of little practical use and only has some limited movement in the hand, it was enough to amount to loss of use of the entire arm. The judge awarded damages on this basis, with a slight reduction for there being some function in the arm at the shoulder. [34]

Amounts paid to the Plaintiff as salary since the incident should not be offset from the award, because compensation and salary are seperate and distinct. [35].

Law Report - Litigants in person - costs and case management

Junos v Minister of Tourism & Transport [2012] Bda SC 55 Civ

Another judgment relating to litigants who represent themselves. See here for the previous judgment in Junos' ongoing litigation.

The applicant was attempting to clarify the rules for litigants in person ("LIPs") claiming their costs when successful.

Kawaley CJ held that a distinctive case management approach may be required with LIPs to ensure that their fair trial rights are adequately met [7]. The court has to tread a line between efficient case management where LIPs are unaware of court procedures and may lack the mutual trust that opposing lawyers share; and ensuring that LIPs feel their case is heard fairly [8].

The court will often have to devote more time to hearing a LIP's side of the case, as they often do not present it in the most effective manner. If their case is ultimately unmeritorious, the other side will recover the costs of the increased amount of time required. If the LIP is successful, the other side has the comfort that the LIP recovers costs on a reduced rate to make up for the increased time spent [9].

Where a LIP has suffered financial loss in preparing his case he will be able to recover 2/3rds of what an attorney would have charged [14]

Where a LIP has suffered no loss in preparing the case, they will be able to recover a discretionary rate of no more than $50 per hour. The time allowed is based on how long it would have taken an attorney to do the work, uplifted to allow for the LIP's inexperience. However, it is still subject to the cap of 2/3rds of what an attorney may charge for the item. [14]

Great care is required in applying the English rule that lawyers cannot charge for research time in the Bermudian context, taking into account the lack of local academic and vocational legal qualifications and the limited availability of practicioners' texts. [19]

Thursday, 11 October 2012

Law Report - delay and judicial review and the Ombudsman

Davis v The Minister of Economy Trade and Industry & Anor. [2012] Bda SC 48 (Civ)
Mr Davis had applied for judicial review of:
  • the Minister of Economy Trade and Industry's decision not to refer an unfair dismissal complaint to a tribunal; and
  • the Minister for National Security's decision not to revoke the work permit of Mr Davis' former general manager, which may have enabled the Applicant to apply for his job
The Respondents sought to set aside the grant of leave to apply for judicial review. Rosewood Limited, the Applicant's former employer, appeared as an interested party.
JR had initially been granted without a hearing. The Respondents submitted that, as it concerned decisions made more six months prior to the application, it was too late to review the decision.
Kawaley CJ held that seeking legal advice and preparing the case did not account for an excessive delay [10].
It was highly prejudicial for the first Respondent's staff to have to think back to the decision months after it was made [15]. Furthermore Rosewood had been prejudiced in its ability to defend against the unfair dismissal complaint so long after the fact [16] and after a key witness had left their employ [17].
It was also prejudicial to the Minister for National Security for his decision to be considered after such a delay and, further, the Applicant had already received significant redress regarding one of his complaints to the Minister [24].
In light of the prejudice caused to the Respondents by the delay, strong public interest reasons are required to hear the application [25].
Such reasons did not exist. Considering the facts of the Applicant's complaints:
  • the Employment Inspector had made a carefully reasoned decision based upon legal advice [26];
  • the Ombudsman had assisted the Applicant in resolving the procedural problems he had faced [28];
  • revoking the work permit would not have saved the Applicant's job [30];
  • the reprimand given by the Minister for National Security was not the type of response that the court would review [31]
Accordingly there was not sufficient public interest to justify the prejudice to the Respondents or Rosewood.
Regarding the Ombudsman
The Ombudsman had been involved in the complaints prior to the JR application. The case illustrates the value that the Ombudsman's services provide as an alternative to JR in circumstances where it is not reasonable to expect an individual to resort to court action.
JR will rarely be appropriate after the Ombudsman has reviewed a case. Exceptionally it may be done in order to attempt to enforce recommendations made by the Ombudsman [38]. However, in the present case, the application was designed to obtain relief that the Ombudsman's findings did not support [39].
Where a complainant has referred a dispute to the Ombudsman and her recommendations have been implemented, the complainant will normally be deemed to have elected to pursue an alternative public remedy to JR [46].

Monday, 17 September 2012

If you're looking for the Julian Assange article...

Welcome to Royal Gazette readers - the Julian Assange article that you read about may be found at this link

To clarify, I'm not saying that Julian Assange could take advantage of church sanctuary in Bermuda - the blog post just makes a comparison between his situation and a quirky and obscure aspect of Bermuda law.

Tuesday, 11 September 2012

Law report - sentencing - sexual exploitation of a young person

Miller v Crockwell [2012] SC (Bda) 47 (7 September 2012)

The Respondent, Crockwell, had been convicted of sexually exploiting a twelve year old girl. The maximum sentence was twenty years in prison if convicted in the Supreme Court, or five years if convicted in the Magistrates' Court. Crockwell had opted for the Magistrates' Court.

Crockwell was given  a custodial sentence of fifteen months by Magistrate Khamisi Tokunbo, suspended for two years. The appeal was on the grounds that the sentence was manifestly inadequate.

Kawaley CJ said that defendants under the age of 21 are able to claim a special defence that is not available to older offenders, namely that he believed the complainant was older than 14. Obviously, if the defence succeeds then the defendant will be found not guilty. However, the existence of the defence means that the offence is not seen as such a grave one if committed by an offender under the age of 21 than if it were committed by an older offender [41]-[45].

It follows that the Magistrate was not dealing with a case where an immediate custodial sentence was essential or the usual penalty [46]. Similar sentences had been given in the past.

There were special circumstances to justify a suspended sentence, namely that the offence was of a low gravity, he was 20 years old at the time of the offence, there was a low risk of reoffending, and he had family and church support and risked losing his job. Although he had not pleaded guilty, his defence was not based on making the victim out to be a liar, thereby increasing trauma to the victim [48]-[49].

 Kawaley CJ drew support from Bermuda Court of Appeal cases, such as Kirby v Durham [1989], which stated that the age of a defendant or the fact that he is a first time offender or unlikely to reoffend, might be "exceptional circumstances" which might justify a suspended sentence [50].

The Magistrate had erred in law by refusing to hear the victim impact statement [60], although he should not be overly cricitised for doing so as the Prosecution had delayed in serving it, such that it interfered with effective case management on a busy court day.

Nonetheless, the victim statement revealed what might reasonably have been expected in an incident such as this. The contents were not such to render the sentence manifestly inadequate [62]. It was not the Prosecution's submission that the failure to consider should mean that the defendant was re-sentenced. Stretching the matter out further would not be attractive for either the victim or the offender [63].

The public humiliation received by the offender will serve as a further deterrent over and above the sentence received [63].

The judge reported the victim's statement at [64] in order to inspire other victims of similar offences to come forward and to educate the offender and other perpetrators of such crimes about the impact on the victim.

Some guidelines were set out for future sentencing:
the only appropriate sentence in the Magistrates' Court for an adult offender with no previous convictions, for exploitation of a young person, is an immediate custodial sentence [87]. The starting point would be a sentence of around 18 months, which would be increased or decreased, depending on the circumstances.

The UK sentencing guidelines are persuasive on considering aggravating and mitigating factors [84].

Kawaley CJ also raised a couple of questions which might arise in the future:
Should the special defence given to defendants under the age of 21 (that they believed the child was over the age of 14) in fact only be available to defendants under the age of 18, when read in line with the Age of Majority Act 2001, which changed all reference to the age of 21 to age 18 in Acts of Parliament? [44]
Does the Constitutional requirement that the Courts be independent mean that Magistrates cannot be summarily removed from office? [73]

Wednesday, 5 September 2012

Law report, claiming costs when you represent yourself

Junos v Minister of Tourism and Transport [2012] SC (Bda) 46 Civ (31 August 2012)

A judgment of particular interest to unrepresented litigants (litigants in person or "LIPs") and parties facing a successful LIPs.

The following principles might be drawn in considering legal costs to be awarded to a LIP who was unemployed and / or did not suffer any pecuniary loss from representing herself:

In respect of any one item, regardless of how many hours a LIP spent working on it, the maximum that can be recovered is two thirds of what a solicitor could have recovered [7].

The starting point is how long a LIP spent working on an item, rather than a presumption that they will get two-thirds of what a lawyer could claim [8] (the presumption may apply, though, when the LIP has suffered loss from the time spent working on her case)

It might be appropriate to allow a LIP more time than would be allowed to a lawyer with administrative support [9]

Kawaley CJ declined to make any ruling at this stage on whether the $50 maximum rate for LIPs should be reduced and said it was a matter for the Registrar.

Comment - lawyers will be pleased to discover that these rules don't apply to LIPs who are themselves practising attorneys. A practising attorney is always able to recover their full costs (London Scottish Benefit Society v Chorley (1884) 13 QBD 872; In the matter of the Elcome Trust [2010] SC (Bda) 3 Civ)

Law report - extension of time in planning appeals

Desilva v Minister of Environment Planning and Infrastructure [2012] SC (Bda) 45 App (31 August 2012)

The Appellant had had 21 days to appeal against a planning decision (or such longer period as the Court may allow). He did not in fact appeal until some five months after the 21 days had expired.

He applied to extend time.

Kawaley CJ held that there is no obvious reason in principle why Order 3 rule 5 of the Rules of the Supreme Court should not apply regarding extension of time to appeal. He further held that the right of access to the court should be enjoyed only to the extent that it does not extinguish the right of an opposing party to a fair trial within a reasonable time [13]. There must be a good reason to justify extending time.

It was relevant that the Minister had himself routinely ignored the 21 day limit for filing appeals in the past. This may have led the Appellant and his architect to believe that the rules were relaxed in this context.

The case had some commercial importance to the Appellant, and the level of discretion in extending time was unclear, so time would be extended in this case.

However, the Appellant would be required to pay the Minister's costs

Law report - Import duty rates

Mailboxes Unlimited Ltd v The Collector of Customs [2012] SC (Bda) 43 Com (22 August 2012)

Mailboxes runs a business whereby customers order goods to an address in New Jersey. Mailboxes then takes custody of the goods and brings them into Bermuda.

Following the 2012 budget, Customs said that Mailboxes and similar importers did not qualify for business end use relief and would have to pay 25% duty on all imported items.

Mailboxes brought a summons against the Collector of Customs for a declaration and injunction that they qualified for the relief. They also sought an order regarding the procedure for filling out customs forms.

Counsel for the Defendant asserted that no injunctive relief was available in civil proceedings against the Crown, and Kawaley CJ accordingly struck out the application for an injunction (injunctive relief against the Crown is only available in limited circumstances, such as in judicial review proceedings).

Counsel for the Defendant also submitted that Mailboxes had followed the wrong procedure in bringing the claim by originating summons. Somebody who wishes to challenge assessment of customs duty may write to the collector of customs asking him to review it (s.122(2) Revenue Act 1898). The Defendant argued that may meant shall in this context [17]. Kawaley CJ cited the recent Digicel v CellOne decision where a statutory disputes resolution procedure was held to be an optional first recourse. He held that he had the discretion to refuse to consider the summons on the grounds that the Plaintiff had an alternative remedy [21], but that he would not in this case because it would require the dispute to be re-opened in another forum; the application to strike out had not been made early enough; there was a legal issue to be aired; it was unclear whether the statutory procedure would afford an applicant a fair hearing within a reasonable timeframe; and commercial realities requires giving priority to the right of access to the courts to enable speedy justice.

The question as to procedures for filling out customs forms, however, was appropriate to go through the statutory procedures [22]-[24].

This left the question of whether the plaintiff qualified for business end use relief.

Kawaley CJ held that the business end use relief applied to all importers who are importing the goods for the purposes of their own business, regardless of the ultimate use whether by a business or a consumer, - this goes far beyond just retailers [31].

Tuesday, 21 August 2012

law report - transfer of principals, legitimate expectation

Ming & anor. v the Minister for Education and anor. [2012] SC (Bda) 39 Civ (1 August 2012)

The Applicants were seeking judicial review of the Minister's decision to transfer two school principals. Kawaley CJ found that the school PTAs had a legitimate expectation of being consulted prior to such a transfer [34]. The court exercised its discretion to quash the Minister's decision in order to give effect to this finding [44], putting the transfer plans on hold for another school year. Kawaley CJ said that it was only by granting the relief that the Minister would be stirred to honour its commitments to involve the PTAs as partners. He cited the fact that half of the island's parents have abandoned the public school system for consumer-friendly private schools which are more respectful of the aspirations and needs of citizens served by those schools.

The judgment is notable for Kawaley CJ's discussion of the principles of legitimate expectation and judicial review in the context of Bermuda [25]-[26]. He starts by drawing on the English principles, going back to Magna Carta. He says that Bermudian public law canot ignore Bermuda's own distinctive legal roots in the historical context of slavery, post-emancipation, oligarchical government and racial segregation, through to a parliamentary democracy with a written constitution.

This gives rise to tensions between democratic aspirations from civil society and Executive institutions not yet fully purged of more authoritarian notions of power.

He cites Rose-Marie Belle Antoine, who suggested an activist approach for judges in societies similar to Bermuda.

The Caribbean man and judge has an active role to play in re-interpreting the legal framework to build a more just society. The judge and legislator must perform the role of social engineer.

Kawaley CJ includes this quote to illustrate the role of the Court when interpreting legislation designed to promote social change.

Law report - arbitration clause covering individuals

Buchanan v Lawrence [2012] Sc (Bda) 38 Civ (27 July 2012)

The plaintiff had paid membership fees to The Finest Golf Clubs of the World Limited. He subsequently met with the defendant, a director of the company, who allegedly agreed to personally refund the fees.

The plaintiff brought a claim against the defendant for the failure to refund. The defendant relied on an arbitration clause in the agreement with the company, which covered disputes between the club, its officers, directors, affiliates, and any club member, relating to the rules and regulations and transactions arising out of them.

Kawaley CJ held that the correct test is that proceedings should be stayed when there is a prima facie case that the dispute is caught by the arbitration clause [5]-[6].

In this type of case, there is no clear distinction between a claim against a director as a director and in his personal capacity, when the Defendant's involvement was due to his position as a director [8].

In terms of costs, Litigants were also warned that the court was likely to follow the judgment of Colman J in A v B (No 2) [2007] EWHC 54 (Comm), in that a party who has been found to have deliberately ignored an arbitration clause would have costs awarded against them on the indemnity basis [10]-[11].

Friday, 17 August 2012

Julian Assange, Ecuador, and Bermuda's curious right to sanctuary

The fascinating legal case of Julian Assange is making headlines again. He is holed up in the Ecuadorian embassy in London, having been granted political asylum in Ecuador. Ecuador is trying to get him safe passage out of UK territory. The UK, meanwhile, is considering what options it has to pluck him from the embassy. The legal situation has been superbly presented by UK legal blogger, Carl Gardner.

It's not unheard of for political figures to seek refuge in an embassy. General Noriega of Panama holed up in the Vatican's embassy to Panama in 1990. Eventually the Americans blasted him out not with grenades but with unbearably loud heavy metal music.

The untouchable status of embassies makes them akin to the medieval right to church sanctuary. In medieval England, fugitives who had committed crimes involving life or limb could seek sanctuary in a church, where the law was unable to touch them. They were then attended to by a coroner, to whom they would confess their crime. They then had forty days to "abjure the realm", which meant to renounce their allegiance to England. They were then dressed in a white robe with a red cross, which gave them safe passage to leave England aboard the first available ship, provided that they kept to the King's highways on their journey to port.

Of course, all that medieval stuff has now been abolished by statute and no longer applies in England.

So what's the significance of this to Bermuda?

By a quirk of history, it appears* that the right to sanctuary still exists in Bermuda.

Bermuda was established as a colony in 1612. The Supreme Court Act states that the common law and the Acts of Parliament of England which were in force in 1612 shall be the laws of Bermuda.

The right to sanctuary was not abolished in England until 1623 (by King James I), a mere eleven years after Bermuda was settled. I cannot see any reference to the right being abolished in Bermuda and so, presumably, it still exists in Bermuda for criminals who have committed violent offences. Due to the quirk of the chronologies of when Bermuda was founded and when the right was abolished, it is quite possible that Bermuda is the only place in the modern world where the medieval right to sanctuary still exists.**

However, a note of caution for anyone who is thinking of bumping somebody off and then adjuring the realm: Henry the Eighth passed an Act in 1530 vastly curtailing the right. From then on, the right still existed, but abjurers were not allowed to leave the realm. Instead they were required to spend the rest of their days in a church sanctuary of their choice and if they left the sanctuary, they would be tried for their original offence.

It is unclear whether a serious criminal would prefer to spend the rest of their life in a church yard, or risk 15 years in Westgate.

And, to bring it back to Julian Assange, just how long is he willing to live in the Ecuadorian embassy to avoid arrest? If the UK government decides to just wait it out, his attempt at asylum could end up mirroring the conditions of a Bermudian sanctuary-seeker. He could be there for years and, as embassy residences go, this is not Chelston we're talking about, but a first floor flat in central London.

For anybody interested in finding out more about the right of sanctuary, there is an out of copyright book available to read online here which gives a reasonable overview.

* I am not 100% sure about this, as the abolition of ecclesiastical law in Bermuda may have affected the right to sanctuary, - however, it appears to have been a right recognised by both church law and common law, and was regulated by Acts of Parliament.
** other candidates might be Newfoundland, Virginia, Massachusetts and Maine, as they were also settled before 1623, but I am unfamiliar with how their law is determined

Tuesday, 14 August 2012

Born Bermudian?

A couple of articles in the Royal Gazette have highlighted the case of a woman born to a Bermudian father, currently trying to obtain Bermudian status.

I decline to make any comments on the individual case, and note that the woman has been invited by the Immigration Dept to make an application. However, the comments to the articles raise some questions of concern.

Under section 18 of the Bermuda Immigration and Protection Act (the "Act"), a person born in Bermuda with a Bermudian parent shall possess Bermudian status. They must also possess commonwealth citizenship, but this is not normally a problem, as practically every Bermudian has commonwealth citizenship and will confer this to a child born in Bermuda.

This is very straightforward and there are no other requirements.  However, some commenters have claimed that applicants are being required to prove that their Bermudian parent was involved in their upbringing. This is completely irrelevant and should not be required in order to get status. Whether one has a Bermudian parent is a question of fact, and there is no element of discretion as to the involvement of a parent in a child's upbringing.

In order to prove that one is a mother of a child, all that is normally required is to show the birth certificate. There is a common law presumption that a child born to a married woman is also the child of her husband. Obviously when a mother is unmarried, there can be no presumption as to who the father is, so it must be proved. This might be done by looking at the birth certificate, or perhaps by a DNA test.

Furthermore, the Act provides that where it is necessary to determine that a parental relationship exists, the Minister must be satisfied that the parent held him/herself out as the parent before the child's 15th birthday of the child by bringing up the child or providing maintenance and support and taking an active role in the child's life.

It must be stressed that this applies only where it is necessary to do so - i.e. that the relationship cannot be otherwise determined. Perhaps no father's name appears on the birth certificate. Or perhaps the father is deceased or uncontactable or uncooperative.

A child born to a Bermudian parent possesses Bermudian status as of right. There should be no additional test of parental involvement imposed. To do so is unlawful as it is beyond the powers given to the Minister under the Act, and also unjust, as it imposes an additional penalty on a child who has had the misfortune to have a useless father (or to have tragically lost a father) that they also lose their Bermudian birthright.

Law report - Using hand-held devices while driving

Farnworth v R [2012] SC (Bda) 36 App (20 July 2012)

The Appellant had been convicted in the Magistrates' Court of using a hand held device (an iPod) while driving a motorcycle, contrary to regulation 44 of the Motor Car (Construction, Equipment and Use) Regulations 1952. There was no evidence that she had touched the device with her hands whilst driving.

The decision of the Magistrate was upheld, as listening to an iPod via earphones amounted to "use" [17]-[18], [20]. Kawaley CJ mooted whether the enactment was a disproportionate response to objectively identifiable public safety concerns, a question that he suggested might arise in a constitutional complaint regarding the right to receive information and ideas under section 9 of the Constitution [21].

Comment - this was a conviction of a motorcyclist. It is unclear whether a car driver who has plugged a hand-held device into a car audio system, in the same way that one might insert a CD, would also be liable. For example, the music would be turned on or off via the dashboard controls, rather than having to handle the device. Is he using the device, or merely using the car's audio system?

Liability is even less clear if there is a passenger in the car who has control of the hand-held device plugged into the audio system. Presumably the driver could claim that it is the passenger using the device, but this is still open to interpretation.

Law Report - land valuation - statutory construction

Director of Land Valuation v Banks [2012] SC (Bda) 37 App (27 July 2012)

In a dispute about ARV and land tax, it was held that tax was payable from when a building was capable of being beneficially occupied, regardless of whether a planning certificate has been obtained [26]-[27].

Section 5(1) of the Land Valuation & Tax Act, requiring the Director to treat a complex or series of valuation units as a single unit, does not apply to high-end residential properties, but only to properties where the units supporting the main house are used for some commercial or business purpose (including furnished short-term lets but not unfurnished residential lets) [42]-[44].

If a taxpayer is challenging an ARV assessment, then it is clear that the Director should amend the confirmed valuation list if the objection has not been heard before the final confirmation. If the position were ambiguous, such ambiguities should be resolved against the Director [49]-[50].

Thursday, 19 July 2012

Is the Attorney General right on sex offenders' register?

Attorney General of Bermuda has responded to public concerns about sex offenders by suggesting that, as Bermuda's laws are modelled on UK laws, it's impossible to have a public register.

It's true enough that a public register is contrary to the common law as, in the words of Justice Waite in ex parte M [1989] 2 All ER 359, it operates as a blacklist, and as such  has the dangerous potential as an instrument of injustice and oppression.

But the Attorney General is arguably wrong that this means that it is impossible for Bermuda to have a public register. As all who have studied law will know, it is perfectly legal for Parliament to override the common law and it does so every time it passes an Act of Parliament.

Bermuda is, of course, also signed up to the European Convention on Human Rights (ECHR), and the European Court might also have something to say about a public register in that it violates privacy, but the ECHR is nothing to do with English Common Law.

There are arguments for and against a public register but the relationship with the UK has nothing to do with it.

PS - as an aside it might be argued that the most immediate obstacle to a public register in Bermuda is Bermuda's home-grown Human Rights Act as passed by Bermuda's own members of parliament. Section 2(2)(a)(vii) prohibits discrimination on the basis of somebody's criminal record.

We have the bizarre situation in Bermuda where it is perfectly lawful to discriminate against gays and lesbians - but a no-no to discriminate against convicted sex offenders.

Law Report - unlawful imprisonment of children

JS v Miller [2012] SC (Bda) 32 App (13 June 2012).

A fourteen year old appealed against the decision of the Family Court. He submitted that (1) the Family Court had no right to sentence him to corrective training; and (2) the Bail Act did not apply to children.
It was held by Kawaley CJ that it was abundantly clear that corrective training is not a sentence that can be passed on a child under the age of 16 and that to have imposed such a sentence was wholly inexplicable and "astonishing" [12]. Furthermore, any sentence of corrective training must specify the maximum period of the sentence [22]. The Bail Act 2005 is intended to apply to children as well as to adults [29].

More generally, sentencing courts must exercise constant care to ensure that no person accused or convicted of a criminal offence is unlawfully detained. If an unlawful sentence is believed by counsel involved in a case to have been imposed, prompt action must be taken to bring the unlawful detention to an end [16].

Comment - in a case where somebody has been unlawfully imprisoned by a court, the "Great Writ" of habeas corpus might be used as a swift remedy to get before the Supreme Court to release a prisoner. Habeas corpus is one of the oldest and most effective remedies for preventing unlawful imprisonment. When the court receives the writ, it will command the production of the prisoner before the court, make inquiries into whether the detention is lawful and, if necessary, order the release of the prisoner. It's not supposed to be used for a criminal appeal but it is probably arguable that it is appropriate when it is claimed that the imprisonment is wholly unlawful, as opposed to merely excessive.

Wednesday, 18 July 2012

Rights of permanent residents

I wrote the article below a couple of months ago. It was published in the Royal Gazette on the 11 April 2012. As a footnote to the article, I would qualify my view on the rights of Belongers by saying that it's not entirely clear to what extent their rights are absolutely protected by the Constitution. However, it is clearly still an advantage to obtain Belonger status.
A couple of recent news articles have highlighted some of the uneven treatment handed out to Permanent Residents and husbands of Bermudians. A wife of a Bermudian is deemed to “belong” to Bermuda under the Constitution just the same as a Bermudian, so can stay here without restriction or hindrance even if she commits the most appalling crime imaginable (as long as her husband doesn’t divorce her for it). Husbands of Bermudians do not have the same luck. In fact, if a husband of a Bermudian loses his permission to remain in Bermuda, he does not even get a statutory right of appeal to an independent tribunal. In this respect, he has fewer rights than when the government revokes permission of a work permit holder.
PRC holders also face disadvantages. They may lose their status merely if they are absent from Bermuda for two years without government permission. A PRC holder at least gets a right of appeal if status is revoked.
There is, however, a way for husbands of Bermudians and PRC holders to obtain the coveted “Belonger” status. “Belongers” under the Constitution include Bermudians, wives of Bermudians, and, “citizens of the United Kingdom and colonies by virtue of the grant by the Governor of a certificate of naturalisation”. Essentially this means somebody who is naturalised in Bermuda as a British overseas territories citizen (a BOT citizen), which is not quite the same as British citizenship or Bermudian status. The vast majority of Bermudians should already be BOT citizens by birth. It doesn’t give you the right to vote, but it is a form of citizenship governed by UK law, and gives rights to live and work in Bermuda.
A husband of a Bermudian may apply to become naturalised as a BOT citizen by having lived lawfully in Bermuda for three years without any long periods of absence from Bermuda, being of good character and speaking English. A PRC holder can similarly be naturalised after having lived lawfully in Bermuda for five years. Some of the requirements may be waived in special circumstances.
Furthermore a husband of a Bermudian who had been living lawfully in Bermuda for three years prior to the marriage can apply for naturalisation as a BOT citizen immediately upon his marriage to a Bermudian. A PRC holder can apply for naturalisation one year after obtaining PRC status, provided they were living here for four years prior to obtaining PRC status.
Naturalisation is at the discretion of the Governor but the discretion should be exercised fairly and reasonably, and an applicant should be made aware of any problem areas in an application.
It is noted that the Bermuda immigration laws do not recognise Belonger status as a category of persons who may live and work in Bermuda without the permission of the Minister. However, it is likely to be unconstitutional for the Minister to refuse such permission for somebody who belongs to Bermuda.
It is also noted that the Bermuda Immigration and Protection Act allows a naturalised BOT citizen to apply for Bermuda status in certain circumstances. So BOT citizenship might be an avenue to Bermudian status for some PRC holders.
The bottom line is that BOT naturalisation may offer substantial protection to husbands and PRC holders against some of the quirks of Bermuda’s immigration laws.

Thursday, 28 June 2012

Law Report, interim injunction where there are parallel foreign proceedings

E.R.G Resources LLC v Nabors Global Holdings II Limited [2012] SC (Bda) 23 Com (5 April 2012)

The Plaintiff had been granted an ex parte interim injunction restraining the Defendant from disposing of certain shares pending the outcome of the action. The Defendant applied to set aside the injunction and the action dismissed on the grounds that the parties had agreed that Texas would be the exclusive jurisdiction; that the Plaintiff could not maintain actions in two jurisdictions on the same matter; and that it was an inappropriate case for an interim injunction as the Texas courts would be very unlikely to order similar interim relief.

It was held by Kawaley CJ that interim injunctive relief may be granted in support of foreign causes of action where the court has jurisdiction over the defendant [23]. The applicant is implicitly requesting the local court to assist the foreign court by making an order the foreign court is unable to make because the property affected is subject to the territorial jurisdiction of the local court. Whether or not the foreign court itself would be minded to grant interlocutory relief if it could thus becomes an important factor to take into account in determining where the balance of convenience lies and in deciding how the discretion to grant injunctive relief should be exercised [15].

The central question to be asked is whether it is consistent with modern notions of judicial cooperation and respect for foreign courts to grant the interim relief sought in support of a claim being pursued before a foreign court. This will usually likely require an assessment of :
(a) whether an application has been made to the foreign court so its position on interim relief can be ascertained;
(b) if an application has been refused by the foreign court whether it was refused on merits grounds or merely because it lacked the jurisdiction to grant such relief; and
(c) in general terms whether the grant of interim relief by the ‘ancillary’ court would be justified with a view to assisting the foreign court in its adjudication of the substantive dispute. [22]

Law Report, basis for ordering Letter of Request in winding up proceedings

In In the Matter of Sea Containers Ltd [2012] SC (Bda) 26 Com (10 May 2012), concerning the winding up of a company, counsel for the liquidators sought an Order for a Letter of Request to the English High Court to determine certain questions of English law of relevance in the matter.

Kawaley CJ held that the basis for making the Order was s.175(1)(a) of the Companies Act 1981, empowering a liquidator to bring any legal proceeding on behalf of or in the name of the company. The court's decision on whether or not a particular issue should be decided by a foreign court will be determined by essentially pragmatic "case management" considerations, taking into account which is the most appropriate or convenient forum.

Law Report, jurisdiction of Family Court

In the case of T.O v Department of Child and Family Services [2012] SC (Bda) 30 App (1 June 2012), the Family Court had made an Order that it was satisfied to release two children, [E] and [A], for adoption. Kawaley CJ held that the Family Court has no jurisdiction to make any recommendation as to adoption while a Care Order is in force.

Law Report - appeal against "manifestly inadequate" sentence

In Raynor v Davis [2012] SC (Bda) 29 App (1 June 2012), the Respondent was sentenced by the Magistrates' Court to one year in prison after pleading guilty to a charge of burglary. He had broken into the hotel room of a couple both in their seventies. When the husband sought to restrain him, the Respondent shouted that he had a gun, before escaping from the scene. The incident had the potential to damage Bermuda's commercial interests, due to the negative publicity from attacks on tourists. At the time of the offence the  Respondent was on probation for Prowling.

The Appellant, a police officer, appealed on the grounds that the sentence was manifestly inadequate.

Kawaley CJ noted that the Respondent's record reads like the resume of a man who has dedicated his life to the diligent pursuit of non-violent property offences. The Supreme Court can be greatly assisted by UK Sentencing Council Guidelines, although they are of limited value to the Magistrates' Court. Drug addiction is not a mitigating factor.

The dictum of L.A Ward J in Osborne v Harvey [1987] Bda LR 78 was followed, where he said:
"The leading authority in Bermuda on the meaning of ‘manifestly inadequate’ is
Plant (R) v Robinson Criminal Appeal No. 1 of 1983 in which the Court of Appeal
held that manifestly inadequate means obviously inadequate, that is to say
obvious to the appellate tribunal that the sentence is much too low and fails to
reflect the feelings of civilized society to the crime in question. It also stated that a
sentence is manifestly inadequate when it is obviously insufficient because the
judge or magistrate has acted on a wrong principle or has clearly overlooked, or
undervalued, or overestimated, or misunderstood some salient features of the
evidence. It is a failure to apply right principles"

In the circumstances the one year sentence was manifestly inadequate. A sentence of 30 months was substituted, taking into account that the Respondent was also serving other sentences.