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.