WEDNESDAY, JULY 18: Madam President, there has been much discussion in the public domain regarding the establishment of a sex offenders register and the disclosure of information pertaining to same. As this is an extremely sensitive issue that by its very nature gives rise to emotive debate, it is imperative that the public is correctly informed of the law and the protocol with respect to the disclosure of information about convicted sex offenders.
Madam President, whilst historically there have been demands from some segments of the community for a US styled sex offenders register in the wake of convictions for sexual offences, Bermuda's laws, which are modeled on UK law, do not allow for the establishment of such a register.
Further Madam President, contrary to media reports that I have been working with several interest groups to establish a protocol for the release of information, the protocol for the release of information about convicted sex offenders has been long established and was issued by me in 2009 as Minister of Justice, to the Bermuda Police Service.
Madam President, with regard to the law governing this subject matter, at present, the Minister of Justice is empowered by section 329H of the Criminal Code Act 1907 ("the Criminal Code") to issue a Protocol governing the disclosure of information in relation to sex offenders who are considered to present a risk of significant harm to the health and safety of the public, an affected group of people or an individual. In this context, "sex offender" means a person convicted of any one or more of the following offences:-
(a) carnal know ledge of a girl under 14 (section 180);
(b) carnal knowledge of a girl between 14 and 16 (section 181);
(c) sexual exploitation of a young person (section 182A);
(d) sexual exploitation of a young person by a person in a position of trust (section 182B);
(e) incest by a male person (section 191);
(f) incest by a woman (section 192);
(g) indecent acts in public or with intent to offend
(h) indecent act involving children (section 198);
(i) sexual assault (section 323);
j) sexual assault by a person with AIDS etc. (section 324);
(k) serious sexual assault (section 325);
(1) aggravated sexual assault (section 326);
(m) showing child abusive material, child pornography or offensive material to a child (section 182C);
(n) use of children in the production of child abusive material or child pornography (section 182D);
(o) luring of a child (section 182E);
(p) making, distributing, etc. of child abusive material or child pornography (section 182F);
( q) possession of child abusive material or child pornography (section 182G);
(r) accessing of child abusive material or child pornography (section 182H).
Madam President, as Minister of Justice, I may amend this list by secondary legislation should it become necessary to do so, but the list is current at the date of this Protocol.
Madam President, this Protocol is not intended to lay down hard and fast rules for disclosure of information. As is explained below, this is an exercise that needs to be approached on a case by case basis, and this document is intended to preserve the flexibility that is required whilst at the same time giving an indication of the factors that will be taken into consideration in dealing with requests for information or making disclosure in the public interest. This Protocol does not purport to affect the disclosure of information as between different Departments or Ministries within the Government of Bermuda. There should be full and frank disclosure of all relevant information between the various Departments and Ministries affected by any case falling within this Protocol.
Madam President, with regard to the starting point for considering disclosure, in R v Chief Constable of North Wales Police Area Authority, ex parte AB and CD, it was accepted that the Common Law position was that disclosure of information about sex offenders should be guided by three important principles:-
(i) There is a general presumption that information should not be disclosed, because of
(a) the potentially serious effect on the ability of the convicted person to live a normal life;
(b) the risk of violence to the offender;
(c) the risk that disclosure might drive the offender underground;
(ii) There is a strong public interest in ensuring that information about offenders can be disclosed where that is necessary for the prevention or detection of crime, or for the protection of young or other vulnerable people;
(iii) Each case should be considered carefully on its particular facts, assessing the risk posed by the individual offender, the vulnerability of those who may be at risk; and the impact of disclosure on the offender.
The law in Bermuda has been drafted with these concerns in mind. If consideration is being given to disclosing information about a convicted sex offender, the starting point will be the assessment conducted on behalf of the Commissioner of Prisons and the court under section 329E(2) of the Criminal Code. Disclosure cannot be made unless that assessment concludes that the offender presents a risk of significant harm to the health and safety of the public, an affected group of people or an individual. It follows that this assessment must be available to the Minister when considering whether or not to make a disclosure under section 329H.
Madam President, if the offender is considered to pose such a risk, the next question to be answered is "should any disclosure be made?" The Minister will decide this on a case-by-case basis, but there are specific factors that will be taken into account. It must be emphasised in relation to this and the succeeding paragraphs that no one factor is conclusive, the Minister will arrive at a balanced decision based on the presence or absence of these factors and will attach such weight to each of them as he or she deems appropriate.
The Minister will consider: -
(i) If a request for disclosure is made soon after conviction, whether the offender is appealing against conviction;
(ii) The seriousness of the risk posed by the offender;
(iii) Whether the offender is a risk to a particular person, group of persons or the community at large;
(iv) Whether any persons at risk are not in Bermuda;
(v) Whether there is any likelihood of the offender discovering their whereabouts;
(vi) Whether there is any likelihood of the offender being able to travel to where the person(s) at risk is/ are;
(vii) The physical health of the offender;
(viii) The health of the persons at risk;
(ix) The impact of the disclosure on person(s) at risk;
(x) What use will the persons to whom information IS disclosed make of that information
Madam President, under section 329H(2) of the Criminal Code, the Minister may elect to give:
1. no notification;
2. notification of a specified group of persons;
3. notification of a specified individual;
4. notification to the public.
5. Notification may include such identifying information (including a photograph of the sex offender) as the Minister may determine.
In addition, before determining to give any notification in accordance with the protocol in relation to a particular sex offender the Minister shall consult with the Commissioner of Police.
Madam President, if it is decided that disclosure should be made, the next issue to be decided is to whom should disclosure be made. To a very great extent, the considerations previously outlined will determine who should be told about the offender, although there may be circumstances where, as a result of the weight attached to a particular factor, the Minister decides on a wider or narrower disclosure than might otherwise be expected.
Madam President, generally speaking, the information that will be disclosed will depend on the purpose for which disclosure is made. Where there is a risk that the offender could come into contact with vulnerable persons, the disclosure may be more extensive than to a prospective employer based in a remote location. For example, the disclosure to the principal of a school that a convicted sex offender resides within, say, half a mile of the school, will normally include the offender's name, any alias that may be used, nature of offence, factors of concern, age, race, sex, date of birth, height, weight, hair and eye colour, home address, any current temporary address, location of employment, vehicle make, model, colour, licence plate number and photograph. In each case, the nature and extent of the disclosure will be a matter for the Minister's judgment.
Further, Madam President, the Minister is required before notifying anyone of information regarding a sex offender to consult with the Commissioner of Police. In practice it is envisaged that the Bermuda Police Service will be heavily involved in providing the Minister with the information and assessments previously mentioned and the formal consultation may involve no more than an exchange of letters. In more complicated cases, the consultation may need to be more extensive.
Madam President, how information is disclosed will very much depend upon the reason for the disclosure. If individuals are to be notified, it will normally be the practice for an officer of the Bermuda Police Service to visit them by prior appointment at their home or place of work and for any documented information to be handed over in a face-to face meeting. Where a group of people have to be informed, best practice suggests that they be invited to a private face to face meeting with one or more officers, preferably in reasonably neutral but secure surroundings. Notification to the public at large would normally be undertaken through the broadcasting and/ or print media, although much would depend upon the particular circumstances in which a disclosure to the public at large was contemplated.
Madam President, it is important to note that this protocol and the law operate on the presumption that information should not be disclosed because of the risk of preventing a sex offender from living a normal life and the danger of vigilante justice. However, the public can be assured that this category of offender is monitored as all convicted sex offenders who have served a term of imprisonment are required under section 329G of the Criminal Code to inform the police of their name and current address for ten years after their release. The penalty for failing to provide this information is a maximum fine of $3000 and/ or a term of imprisonment for 6 months.
Madam President, this Government shares the public outrage with respect to sexual predators and will continue to assesses the effectiveness of the current regime for disclosure in its aim to implement measures that will maintain public confidence in the criminal justice system and law enforcement with respect to this category of offender.
Thank you Madam President.