Bermuda is a group of islands located in the North Atlantic Ocean, just east of South Carolina (United States). It follows the English legal system and is a self-governing overseas dependent territory of the United Kingdom (the Monarch is the official Head of State). The University of Kent Law School and the Bermuda College have forged a dynamic relationship, allowing Bermudian law students to complete the LLB Stage 1 programme at Bermuda College and then directly enter into the second year of the LLB programme at the University of Kent.

In Bermuda, legislative amendments to the Court of Appeal Act 1964 have been tabled with the aim of extending prosecutorial rights of appeal, particularly in situations where judges discharge defendants on technical points or on a “no case to answer” ruling. These amendments have been offered largely in response to controversial judicial decisions in cases such as R v Roger Bowen and Smith v The Queen (Bermuda).

R v Roger Bowen
In R v Roger Bowen, Mr. Bowen was accused of killing Larry Thomas, a bartender, while driving drunk. In the absence of a jury, the Supreme Court of Bermuda heard evidence that Mr. Bowen, after receiving a breath test, was 1.5 times over the legal alcohol consumption limit. However, the judge ordered the jury to clear Mr. Bowen due to a technical issue surrounding the status of the officer who administered the breath test. In Bermuda, for a breath test result to be admissible in court, the operator of the machine must be “designated” as a “qualified technician” by the Commissioner of Police. In the Bowen case, the judge noted that the officer who tested Mr. Bowen was “certified” but not designated, and this was not enough to satisfy the statutory requirements. The ruling required the jury to acquit, effectively, on a technicality, without hearing factual evidence.

Bermuda’s Director of Public Prosecutions was urged to appeal the ruling in Bowen, but refused to do so, citing the “extremely limited rights of appeal” of the Prosecution. Such limitations to the prosecution’s right to appeal can be found in Section 17(2) of the Court of Appeal Act 1964, which states that the Attorney-General may appeal against the ruling of a judge which discharges the defendant in respect of “a question of law alone.” This should be read in comparison with Section 17(1)(b), which states that a convicted person may appeal on a “question of fact alone, or a question of mixed law and fact.” It is this incongruity of the prosecution’s right to appeal and the defendant’s right to appeal, which forms that basis of the law reform debate.

Two-limb test in “No case” Submissions
The process employed by judges in Bermuda in relation to no case submissions is based on the common law test set out in Galbraith [1981]. It is worth noting that in the United Kingdom, a no case submission is made under the Criminal Procedure Rules, which are based generally on the Galbraith principles. Lord Lane CJ set out a two-limb test for a no case submission, which asks, first, whether there is prima facie evidence to prove the elements of the prosecutions case. If not, then the judge should stop the case. The second limb requires a judge to stop the case if he or she feels a conviction on the prosecution’s evidence would be “unsafe,” after examining the quality and reliability of the evidence.

The difficulty here is that the court will be looking at the dependability of the evidence and not its legal adequacy. The issue becomes whether the test of Galbraith violates the legal principle that judges assess the law and juries are finders of fact.

Smith v The Queen (Bermuda)
It can be argued that the ruling by the judge in Bowen was one of fact, not law. In Smith v The Queen (Bermuda), it was argued that every ruling on a no case submission will necessarily “involve issues of fact and degree and cannot ever involve “a question of law alone”. If this is the case, then it follows that under Bermuda law, the prosecution can never appeal a ruling by a judge before the jury hears the evidence.

Bermuda’s Chief Justice, The Right Honorable Richard W. Ground, has called for changes to this area of the law, saying generally that “if you require a judge to make a decision like whether to acquit somebody at half time, you should also provide for an appeal from that decision. It’s wrong in principle, and unfair to the judge, to require them to take decisions like that without there being an appeal, for two reasons really. If they get it wrong, it should be capable of correction, and if they get it right, they should be capable of vindication. ” The antinomy here is that Bermuda offers deference for verdicts imposed by a jury, through the continued preservation of the Double Jeopardy principle.

In effect, the issue revolves around whether a judge should be able to remove a case, or a particular set of facts, from the consideration of the jury. If a judge does so, should that decision be subject to review? Consider the comments made by Justice Stevens in the Supreme Court of the United States, in the case of Bush v Gore, where it was said that it “is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law.”

Conclusion
It is submitted that the Chief Justice’s suggestions should be implemented, not because of a distrust of Bermuda’s judges, but because of recognition of the democratic importance juries play in the judicial process. It is argued herein that the issues raised by the Chief Justice are well-founded. With respect to Justice Stevens, it is not confidence in judges that forms the basis of the rule of law, but transparency, democracy and justice.

David A. Amaro is in the final year of the Senior Status LLB.