Attorney-General and Minister of Legal Affairs, Senator the Hon. Kathy Lynn Simmons, JP
I will begin by saying this: the Government takes the welfare of the people of Bermuda very seriously. The laws of any jurisdiction are shaped by the society they serve. It is my Ministry’s mandate to ensure that our laws reflect our society’s needs and to uphold them.
In the recent Throne Speech, the Ministry of Legal Affairs outlined a number of areas that we intend to examine in the coming year. Today, I want to speak specifically about three Throne Speech initiatives that my Ministry will work on during this legislative session.
The three policy initiatives are:―
• Systematically releasing information pertaining to sex offenders,
• Child support enforcement, and
• Optimizing the availability of Legal Aid, while minimizing cost and achieving cost predictability.
Perhaps the most controversial and most challenging of these initiatives is systematically releasing information pertaining to sex offenders. The Throne Speech said:―
When sex offenders have been tried and convicted, to help prevent the tragedy of sex crimes being repeated, the Government will selectively release information pertaining to sex offenders to members of the public. Offenders and the disclosure of their information will be managed according to the risk they pose........
From my perspective, the Ministry needs to look carefully at the legal framework for disclosure. The overall policy objective of releasing sex offender information will be to protect the public at large and identifiable members of the public from possible repeat sex offenders. At the same time victims should be afforded special protection from anxiety and public humiliation because, in a small community, identifying sex offenders may inadvertently identify the victims.
There are legislative and public interest issues related to releasing information on sex offenders to members of the public. The Government cannot do what some members of the public may see as an easy solution. We cannot simply compile a 'Register' which includes offences and photographs of all persons in Bermuda who fall within the 'sex offender' definition of section 329D of the Criminal Code, and have this Register available at a Government office or online to be seen by all.
Let me be clear. Our laws would not permit this. And I believe it would not be in the interest of the public for such a complex matter to be given such a simplistic solution. The range and circumstances of these offences are such that the most serious offenders should be identified differently from those that pose less danger to the public.
There is another challenge. Data, for example the age, gender, offences and re-offences of sex offenders, can help us form public policy. Our policies should be based on solid data, but at the moment we are challenged by multiple agencies collecting data rather than having one source of data. This is because each agency is looking for information specific to its area of operation. So an immediate challenge is to compile sex offender data so it is consistent and useful for policy development.
Accordingly, my Ministry will work closely with the Bermuda Police Service, Department of Corrections, Magistrates' Court and the Department of Court Services to collect useful data. A more responsive and effective system will then be devised to utilize the ‘Protocol on Disclosure of Information Identifying Sex Offenders’ compiled in 2008 to release sex offender information to individuals, groups, and to the public. This will protect members of the public and minimize re-offending by convicted sex offenders.
If there is a policy issue more challenging than releasing information on sex offenders it would be enforcing judicial orders of child support payments. Almost everyone knows someone who is affected by this. And because it involves children and families it is among the most deeply-felt policy issues.
From the Throne Speech the commitment is to:―
.....undertake a thorough assessment of the Child Support System to analyse the deficiencies of its enforcement measures to create new enforcement options. Access to alternative dispute resolution will be simplified so that a resolution is more quickly achieved for the child’s benefit. The overall goal is to improve enforcement measures to minimise delinquency…
It was further revealed in the Throne Speech that the amount of child support arrears are best estimated at $46,709,558.35 for 1840 outstanding cases as at August 29, 2017. These figures are derived from the 'Family Support Accrual Arrears Report' and other information provided by the Magistrates' Court on August 30, 2017. This means that there is an average of $25,385.00 owing per case. Said another way, that is the amount of money on average that a child or children attached to the case are deprived of. The overall policy objective is to minimize the number of children who are not receiving the benefits of child support payments.
The statutory enforcement methods currently available (primarily per section 36.1L of the Children Act 1998) include:―
1) Warrant for distress and sale of goods (but this method is currently not used);
2) Attachment of pension income, salary, wages or garnishee debts owing to defendant by a third party;
3) Surrender of passport or other travel documents so as to limit or prevent travel outside Bermuda; and
4) Imprisonment (usually after the Court is satisfied that the person has wilfully refused to make payments by Court order).
Currently the most successful methods of enforcement are regular phone calls and warning letters; attachment of earnings; committal to prison and travel restrictions.
There are two main challenges to overcome in order to improve this situation. One, there is a challenge with compiling accurate data as a result of transferring data from a flawed software system to a new one. Two, there is a shortfall in human resources needed to administer the child support orders. I have been made to understand that there is currently only one enforcement officer responsible for the administration of the entire 1840 cases. That person is also handling administrative duties and substituting for the Family Support Manager in his/her absence. This raises a glaring human resources shortfall in the system.
Accordingly, the next steps are:―
• Ensuring the accuracy of data;
• Close examination of enforcement methods and infrastructure to improve outcome;
• Examine best utilization of alternative dispute resolution;
• Assess the possibility of providing more resources to achieve more effective results;
• Pursue more effective collaboration with reciprocal enforcement jurisdictions; and
• Judicial prioritization of this issue.
The last of the three Throne Speech initiatives that we will address as a priority is optimizing the availability of legal aid while minimizing and maintaining cost. In short, that means better access to legal aid services with no further financial burden on Government.
The Legal Aid Scheme under the Legal Aid Act 1980 is a pillar of our justice system. It has remained a long standing challenge to contain the Scheme’s cost while meeting the demand for access to legal services by those in need who cannot otherwise afford legal representation. To make the task even more challenging, that demand usually increases with economic decline.
In keeping with a data driven approach, during the 2011/12 fiscal year the original Legal Aid Budget was $1,000,000 and was adjusted by the end of the year to $4,818,000. Subsequently for each fiscal year up to 2016/17 the original budget to adjusted budget range was between $1,400,000 and $3,750,000. For the current 2017/18 fiscal year $2,000,000 has been budgeted to date.
To achieve the policy objectives of eliminating this unpredictability and minimizing cost, the Legal Aid Scheme will have to be restructured by amending the Act and allocating resources to allow for more cases to be dealt with by on-staff Legal Aid Counsel. The further intent is to minimize more costly outsourcing. Some outsourcing will be necessary particularly to avoid conflict of interest with multiple defendants. It is estimated that the necessary measures will bring annual costs within the $2,500,000 to $3,000,000 range.
In closing, I intend to use accurate data and information to aid legal policy development relating to all three of my Ministry’s Throne Speech initiatives. The overarching objective of these initiatives is to ensure the protection and well-being of affected members of our society namely victims of sex offenders, children in need of financial support and those unable to afford legal services.