Tuesday, 30 April 2013

Law Report - Loophole in the Criminal Appeal Rules?

Brangman v Raynor [2013] SC (Bda) 23 App

In his appeal against sentence, Brangman received a small reduction in his sentence to bring it into line with other sentences for sex offences handed down by the Magistrates' Court.

An interesting issue arose, however, as to whether appellants were able to exploit a provision in the law to get an automatic extension of bail when they appeal.

Kawaley CJ said that sections 11 & 12 of the Criminal Appeal Act appear to allow that if an appeal against conviction is filed before sentencing takes place, the proceedings are automatically stayed and so if the appellant is already on bail he cannot be remanded until the appeal is determined [41].

That appeared to be what had happened in the present case, where the appellant had managed to cleverly get his appeal in between the conviction being read out and the sentencing, presumably by serving it personally on the Senior Magistrate. Kawaley CJ said he would welcome the views of the Court of Appeal on this issue.

Comment - It's also noted that it requires the lawyers to not only get the appeal form drafted in time but to find and serve the Senior Magistrate. If the Senior Magistrate is sitting in Court, it would presumably be contempt of court to approach the bench to serve him without his permission. That might be a practical way for the Senior Magistrate to postpone an appeal until bail and other important issues have been dealt with.

Law Report - court appointment of third arbitrator

Carnival Corporation & ors. v Estibeiro [2013] SC (Bda) 20 Civ

The parties were involved in an arbitration under Bermuda law. The Respondent had applied to the Florida Court for the appointment of a third arbitrator. The Applicants had applied to the Bermuda Supreme Court for the same, submitting that the Bermuda Court was the appropriate place to do this.

Kawaley CJ agreed that the Bermuda Court was the appropriate place to seek relief in a dispute concerning a Bermuda arbitration. He appointed Geoffrey Bell QC, who was of a higher order of seniority than those suggested by the applicants, which should help to allay the concerns of the respondent as to the third arbitrator's neutrality.

Law Report - disclosure of information - Tax Information Exchange Agreements

Bunge Limited v The Minister of Finance [2013] SC (Bda) Civ

The Applicant was challenging the Minister's refusal to provide a copy of a request for information by Argentina under an Agreemnet for the Exchange of Information Relating to Taxes.

Hellman J notedthat the International Co-operation (Tax Information Exchange Agreements) Act 2005 was materially similar to the USA - Bermuda Tax Convention Act 1986 for these purposes, although the 2005 Act did not contain a provision that the notice requesting the information should contain the pertinent details of the initial Request [15].

He held fairness and justice required that an applicant was entitled to be satisfied that a request fulfilled the statutory requirements. The right to disclosure of the request is not unfetted. Confidential or sensitive information, for example information prejudicial to the investigation, could be redacted [38]. If necessary, the Court could review the unredacted request in the absence of the applicant to determine whether or not it is valid [41].

Wednesday, 3 April 2013

Welcome to MJM's Bermuda Law Blog!

MJM has just launched a new legal blog. Welcome to what is now the second best law blog in Bermuda!!!


I wrote about the new procedures for immigration appeals in the Royal Gazette on Monday...