Who is considered a Juvenile?

Under Bermuda law, a juvenile is classified as a child between the ages of 8 and 15 inclusive.  The law regarding young people and the criminal justice system can be largely found in the Young Offender's Act 1950, where a juvenile is defined as a 'child' for the purposes of the law.  For the purposes of criminal law, a 'young person' is defined as a person between the ages of 16 and 17 inclusive.

Juveniles and Crimes
A Juvenile can be charged for any crime that an adult can be charged with.  It is important to note that in Bermuda, a child as young as 8 years of age can be held responsible for committing a crime.  Although this may be the case, children this young are rarely dealt with by the criminal justice system.


Juveniles and the Criminal Justice System
Under Bermuda Law, when a juvenile commits an offence, there are several options available on how to deal with a juvenile:

1.  A caution can be given by the police to the juvenile and adults alike (if guilt is admitted and they take responsibility for the act).  There are no criminal charges in connection with this a caution.  This caution is at the sole discretion of the Police Officer.


2. The juvenile can be referred by a police officer to a magistrate and the Director of Child and Family Services to be given an anti-social behaviour order (ASBO).  An ASBO can be given to any young person between the ages of 10 and 17 years inclusive.  The juvenile is not charged for the offence, but must follow what the order says, whether it is a curfew, or staying away from certain areas.  The juvenile does not get criminally charged.  However, if the juvenile does not follow what the order says, they can be criminally charged which can lead to a conviction.

* The law regarding ASBOs is found under the Parental Responsibility Act 2010.  It is important to note that although the legislation on ASBOs has existed in Bermuda since 2010, this writer is unaware of any use of these provisions to date.


3. A juvenile can also be charged by the police with the offence.  This means that the juvenile will be officially charged and summonsed to appear in juvenile court to have their case heard before a Magistrate.

Juveniles and Court Appearances

A picture of what Juvenile Court looks like

Once a juvenile is officially charged, they are summonsed to appear in juvenile court which is part of Magistrate's Court. Juvenile Court is a specialty court which hears cases where juveniles are the defendants.  Juvenile court is a closed court which means that it is not open to the public.  The magistrate sits with two lay magistrates (persons who have no legal background, but who are Justices of the Peace).  In court, there will be a prosecutor (lawyer who represents the Crown) who is responsible for prosecuting the juvenile. There is no legal  representation available to defend juveniles in juvenile court.  Legal representation will need to be obtained by a juvenile's parents through legal aid or through a private lawyer.  (Recently, Duty Counsel has been appearing in juvenile court during the plea stage of a juvenile's case)

Juveniles and Sentences
Before a juvenile is sentenced there is no legal provision that a magistrate must order a   pre-sentence report (known in Bermuda as a Social Inquiry Report) before a juvenile is sentenced, but on the basis of best practices, magistrates regularly request them in Juvenile Court.

The following sentences are available to magistrates when sentencing juveniles:

1. Absolute Discharge - the charges against juveniles are discharged upon a find or admission of guilt.
2. Conditional Discharge - the charges against the juvenile are discharged with conditions upon a find or an admission of guilt.
3. Probation - the juvenile is sentenced to Probation and will receive a conviction.  Probation can be for a maximum of three (3) years.
4. Fine 
5. Reparation
6. Damages
7. Detention - if the juvenile commits an offence that is punishable with imprisonment, and they are found guilty or plead guilty, the juvenile cannot be sent to prison but can only be  be sent to be in the care of the Director of Child & Family Services.  It is unlawful to send a child between the ages of 8-15 to prison or detention.

Juveniles Convictions and Criminal Records

The law and policy surrounding juvenile records is an area that requires further attention given the implications of having a criminal record.  Once a juvenile has been convicted in a juvenile court for an offence, the offence will be recorded on their 'Descriptive and Conviction Sheet' which is held by the Criminal Records Department with the Bermuda Police Service.  Although it is understood that juvenile records are meant to be 'sealed', it is also understood that they continue to appear on a juveniles criminal record into their adulthood. There is also no expungement of a juvenile's criminal record once they reach a certain age.  The record will continue to exist.  

Juveniles and Rehabilitation of Offenders Act
Subject to further clarification, a juvenile's offence or offences can become spent under the Rehabilitation Act once a period of 7 years has passed.  This means that before this time, it is arguable that offences must be declared upon request.  

Important Notes: This information was last updated in December 2013.  This is intended as general guidance only.  It must not be regarded as a definitive interpretation of the law.  Anyone in doubt should seek legal advice.

What having a conviction may mean for you...

If you have been criminally prosecuted before the courts, you are very likely to have a criminal conviction.  The exception is if the court has given you an absolute or conditional discharge.

Having a conviction is not the end of the world, but you should know what a conviction means for you and your future.

Under Bermuda law (The Rehabilitation of Offenders Act 1977), the law helps to remove some of the barriers you may face once you have been convicted of a crime.  The aims of these laws are to improve your chances of being fully rehabilitated into society and they also seek to achieve this whilst still having regard to public protection.

The law is helpful in that it treats the person as if they never committed an offence or were ever convicted of any offences after a certain time has lapsed.  When asked by anyone as to whether you have a conviction, once the time period has passed, you will normally be legally entitled to say "no".  One of the exception is in criminal proceedings.  

 

What is not a Conviction
If you have appeared before the Courts for an offence(s) and have been given an absolute discharge or a conditional discharge there will be no conviction recorded against your name.  It must be said that although you are not convicted, if you receive these sentences, they will still appear on your criminal record.  What is important however, is if you only have recorded  an absolute discharge or conditional dishcarge on your criminal record you are legally entitled to declare that you do not have any criminal convictions.  That said, a conditional discharge or absolute discharge may still prevent you from travelling to the U.S. without first obtaining a waiver. 

Offenders do not have to reveal or admit having a conviction (although there are some exceptions) if the conviction is spent. This means that a certain period time has to pass (rehabilitation period) since receiving your last conviction or from the time you were released from prison.

Some of the exceptions where you must reveal your convictions even after the rehabilitation period has passed is for employment where you will be working with children, seniors or other vulnerable adults. However, when doing so, it should be specifically stated on the application that the Rehabilitation of Offenders Act does not apply.  If you want to enter professions to be a doctor or lawyer, you will also be required to disclose all your convictions.   

Rehabilitation Period

For a conviction to become spent, a period of seven (7) years must have passed since your last conviction OR a period of seven years must have elapsed since you were released from prison after serving a certain sentences of imprisonment.

Young Offenders and the Rehabilitation Period under Bermuda law

In other countries, the rehabilitation period depends on the age of the offender, the offence, and the sentence the offender received.  In Bermuda, the seven (7) year rehabilitation period is standard and applies to adults and young offenders regardless of their offence, sentence and/or age.

What is a Spent Conviction?

Normally, all convictions eventually become spent. For example probation, suspended sentences, and some imprisonment sentences.  Absolute and Conditional Discharges do not lead to convictions, but may still be recorded on your criminal record.

What Convictions do not become spent under Bermuda law:

1.   a sentence of imprisonment for life;
2.   a sentence of imprisonment for a term of more than three (3) years; or
3.   a sentence or order of detention during Her Majesty’s Pleasure (“HMP”)

Drug Treatment Court & the Rehabilitation of Offenders
Offenders (18 years and older) who successfully complete Drug Treatment Court will be considered as ‘Rehabilitated’ under the Act and will not have to reveal or admit to the existence of their index offence.

If you are given a conditional discharge or an absolute discharge, this may still deem you ineligible from travelling to the United States unless you have a waiver (visa) as a conditional discharge and absolute discharge is still a finding or admission of guilt.

Important Notes: This information was last updated in May 2013.  This is intended as general guidance only.  It must not be regarded as a definitive interpretation of the law.  Anyone in doubt should seek legal advice.

Anti-social Behaviour Orders in Bermuda

(ASBOs)

ASBOs are issued by the court pursuant to the Parental Responsibility Act 2010 (“the Act”).  The ASBO is designed to prevent children between the ages of 10-17 years from offending or from committing more serious offences by prohibiting youngsters from doing certain things.  An ASBO can be given if you meet the following requirements:

(1) you are between the age of 10 and 17 years;

(2) you are engaging in anti-social behaviour; and

(3) the court deems it necessary to protect any member of the public from further anti-social behaviour by the you. 

What is Anti-social Behaviour?

“Anti-social behaviour” is defined under the Act as “behaviour by a person which causes or is likely to cause harassment, alarm or distress to one or more persons not of the same household.  This behaviour need not amount to a criminal offence.

If for example you are harassing or bullying someone the police may deem you as a suitable candidate for an ASBO.  The following behaviours have also been known to be tackled by ASBOs in the United Kingdom although it is not yet clear whether these behaviours will constitute anti-social behaviours in Bermuda:

• harassment of residents or passers-by;

• verbal abuse;

• criminal damage;

• vandalism;

• noise nuisance;

• writing graffiti;

• engaging in threatening behaviour in large groups;

• racial abuse;

• smoking or drinking alcohol while under age;

• substance misuse;

• joyriding;

• begging;

• prostitution;

• kerb-crawling;

• throwing missiles;

• assault; and

• vehicle vandalism.

What an ASBO does

The ASBO may have a requirement that you refrain from going to certain places, events or buildings or prohibit you from associating with certain people.  It can include other conditions also that the court deems necessary in order to protect the public from your behaviour.

An application for an ASBO can only be made to the court by a police officer who must consult with the Department of Child & Family Services.  Before making an ASBO, the court shall obtain information on you from Child & Family Services for consideration.  An ASBO should not exceed more than two years unless the original ASBO is varied.

If you are unsure about what the ASBO is prohibiting you from doing you should seek further clarification as the court has a duty to ensure that the terms of the ASBO are clear, specific and precise and capable of being understood by you.  Any prohibitions that are too wide or general may not be valid.

Unreasonably disobeying an ASBO constitutes a criminal offence and you will be put before the courts and they can fine you up to $3,000.00 or imprison you for up to six (6) months (granted you are at least 16 years old) or you may be given both penalties.

If you wish to vary or discharge your ASBO either you, your parent/guardian or the police officer may apply to the court to have the order varied. 

By being given an ASBO you will not obtain a criminal conviction.  Only on disobeying an ASBO are you likely to be given a criminal conviction.  Please see our article on criminal convictions. 

Important Note: This information was last updated in May 2013.  This is intended as general guidance only.  It must not be regarded as a definitive interpretation of the Act.  Anyone in doubt should seek legal advice.

Cannabis Possession

It is against the law for a person to be in possession of any amount of cannabis.  If you are caught breaking this law you can be criminally prosecuted.

Cannabis, like alcohol is a drug that young people often experiment with.  However, unlike alcohol, cannabis is illegal.  Cannabis use amongst teens and young people has long been a concern for parents and the community.  Unfortunately, experimentation with any illegal drugs can have serious health and social consequences and cannabis use, in particular has been known to lead to the use of more ‘hard’ drugs. 

Since teens have been known to be ‘risk takers’ if you are caught with cannabis the consequences can be detrimental.   In the wave of violent crime, the police have recently been afforded new stop and search powers which was the topic of discussion at a public forum held by the Centre for Justice as well as on radio talks shows.  With the increase in gun violence and unsolved murders, the police have had to crack down hard on reducing gun crime and solving crime. 

Young Person being stopped and searched

For these reasons, you may be stopped and searched under the new police and search powers.  But you are not involved in gun crimes so you need not be concerned, right?  That may be the case, but one of the unintended consequences of the police searches is that there is a rise of young people being caught with possession of cannabis regardless of the amount.  Therefore if you as a young person is arrested for possession of cannabis, you risk facing criminal consequences. 

One of the consequences is a criminal conviction.  Under the Young Offenders Act 1950 s.4, it is important to note that a person as young as 8 years of age can be convicted of a crime, although children between the ages of 8-13 will only be convicted it if it is proven that they had the mental capability to commit a crime at the time, otherwise children 14 and over will be deemed to have the capacity to commit a crime.

Once convicted, you will carry the burden of a criminal record.  You will have to answer “yes” when asked if you have ever been convicted of a crime on all future employment and college applications.  If you have attained the age of 16 years, on your conviction your name, photo, address and the school you attend will appear in the newspaper which can tarnish your reputation in such a small community.  In Bermuda, there is the likelihood that your name will also be added to the US stop list which will prevent you from entering the Unites States even to attend college or receive medical treatment.   And the above penalties are for a first time offence.

That said, it is understood that the police do have the discretion to deal with the possession of 3 grams of cannabis or less outside of the criminal justice system, but this is at their sole discretion.  Further, the courts have in the past been known to throw out cases of possession of small quantities of cannabis, but this is no guarantee.  Also Government is looking to introduce pre-court measures for persons caught with small amounts of cannabis so as to avoid being convicted.  However until this change transpires, it is important to note that possession of any amount of cannabis continues to be illegal. 

Although having your reputation tarnished is an inconvenience, probably the most difficult part of cannabis possession is the criminal conviction. If you have been arrested for possession of cannabis, it is extremely important that your parents contact an experienced defence lawyer for help. It would be very unfortunate for such an event to have a substantial impact on your future.

Important Note: This information was last updated in November 2012.  This is intended as general guidance only.  It must not be regarded as a definitive interpretation of the law.  Anyone in doubt should seek legal advice.