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Home | March 2013 Please tell us what you think of this article. Tell a friend Print Friendly

Falklands : Legislative Assembly February Meeting: Legislation
Submitted by Falkland Islands News Network (Juanita Brock) 08.03.2013 (Article Archived on 05.04.2013)

KP: Mr Speaker, Honourable members, this is a short Bill which will provide a new legal base for the collection and publication of Agricultural statistics.

 


 


Agricultural Returns Bill 2013 (Gazette No 2 07/02/2013)


 


The Bill was published in the Gazette and did not require a first reading.


 


KP:  Mr Speaker, Honourable members, this is a short Bill which will provide a new legal base for the collection and publication of Agricultural statistics.


 


Farming statistics have been collected and published for many years in accordance with the provisions of the Livestock ordinance.  As Agriculture has developed and the data has changed, the Livestock ordinance no longer encompasses the full range of statistics collected.


 


Options for considered for maintaining the collection of agricultural statistics included amending the Livestock Ordinance, utilising the Statistics Ordinance, or introducing specific legislation for the purpose.  The later course has been adopted with this Agricultural Returns Bill. 


 


If the bill is passed it will provide for Agriculture statistics to continue to be collected and published as in the past.  The statistics provide a stock-take of Falklands’ Agriculture and Farming.  The information collected is essential in informing decision-making on agricultural issues and implementing the Rural Development Strategy.


 


The Bill covers a wider range of agricultural activities than provided for in the Livestock ordinance.  It maintains many of the provisions of the Livestock Ordinance as amended in relation to the approval of forms and the publication of statistics.  It specifically allows for forms of more than one part, with different deadlines for submission of information in the different parts.  This addresses some of the previous problems in providing information. 


 


The Bill, if passed, replaces the sections of the Livestock ordinance on making annual returns.  It is only those sections of the Livestock Ordinance which would be repealed.  The remainder of the Livestock Ordinance would remain in force. 


 


I beg to move that the Bill be read a second time.


 


The Financial Secretary, Ms Nicola Granger, seconded the Motion. There was no debate and the Bill was dealt with by the short procedure and the Bill passed.


 


 


 


 


 


 


Administration of Justice (Amendment) Bill 2013  (Gazette No 2 07/02/2013)


 


The Bill was published in the Gazette and did not require a first reading.


 


KP:  Mr Speaker, Honourable Members, I beg to move that the Bill be read a second time and will refer to the Acting Attorney General for the disposition.


 


RC:  Mr Speaker, Honourable Members, this Bill comes to the Legislative Assembly as just the first element of a programme of revision of the Law on Criminal Procedure in the Falkland Islands.  It’s fair to say that the Attorney General’s Chambers recognises the need for a substantial revision of the law on Criminal Procedure.   Due to a lack of clarity in some areas and because of the fragmented nature of the law, it is made up of a number of amended ordinances and also English enactments which have been applied to the law of the Falkland Islands.  It is a combination of those factors, which makes for a law which is neither feasibly accessible or user friendly. 


 


In the light of this recognition the wholesale review and replacement of the Law on Criminal Procedure has been commissioned.  And, in fact, it’s already underway and drafting started in January of this year.  The project is expected, however, to take several months to produce complete drafts.  And then those drafts must be subject to consultation, to policy approval by the Executive and then, of course to consideration and scrutiny by this Assembly.


 


So the very earliest that a full package of Criminal procedure Law could realistically be in place is towards the end of the current calendar year.  And it may be significantly later, of course, as a substantial policy debate about the issue is brought forward.  In the light of that the Attorney General’s Chambers carried out an assessment of what matters appeared to be so urgent that they really can’t wait for that full review.  In undertaking that assessment we had to be alive to the scarcity of resources in FIG both in terms of policy development and in terms of legislative drafting.


 


And this necessarily meant that a balance had to be struck and amendments in this Bill have been kept at this stage to a minimum to avoid wasting those resources through duplicated work.


 


We have also, as part of this process, carried out a consultation in relation to the Bill and I would say we are particularly grateful for the input of the Senior Magistrate, from other stakeholders in the legal community who have given their time at particularly short notice because, of course, we brought this Bill forward to the Legislative Assembly in February, when it was originally scheduled to come forward in May.  And it was brought forward to address concerns which have been publically stated about the nature of the urgency of some of the amendments.


 


The compacted nature of the consultancy which of course was undertaken parallel to consideration of the policy issues by Executive Council means that we will have to propose a number of government amendments to the Bill to address a number of issues that were raised by those consulted in terms of how the Bill could be improved.  And we looked at those and agreed that there could be some improvements made.


 


Turning to the detail in the existing Bill, it seeks to address five key areas:


 


1.     To replace the current committal procedure with a new sending procedure adopted from the procedure that now applies in England and Wales.


2.     To include a number of serial sexual offences in the list of offences that must be tried on indictment to be tried in the Supreme Court.


3.     It provides that an accused person under 18 must now be tried on indictment in the Supreme Court when tried with an offense which an adult would have to be tried in the Supreme Court.  But that Court must adapt procedures to take into account the age and experience of the young accused person.


4.     To allow for cases to be transferred in both directions between the Summary Court and the Magistrates’ Court. 


5.     To provide that whoever is appointed as a Clerk to the Magistrates’ Court will also be Clerk to the Summary Court


 


So I will deal very briefly with those five key issues in turn.  Firstly in relation to Committal Procedure being replaced by sending procedure, Criminal offenses in the Falkland Islands as Summary Offenses which may be tried by the Magistrates’ Court or the Summary Court and Indictable Offenses which must be tried by the Supreme Court and indictable offences are characterised by their seriousness, for example, treason, murder or rape. 


 


And all cases, however, begin in the Magistrates’ Court or Summary Court but if they are indictable offenses they must make their way up to the Supreme Court.  And the process for that to happen is called a committal.  Existing laws in the Falkland Islands refers to procedures for committal in England and Wales.  However, the committal process in England and Wales is in the process of being abolished in phases throughout the country. And it is being replaced with a new and simpler procedure called sending. 


 


Now the new procedure involves automatic transfer as opposed to the existing committal procedure which requires the magistrates’ or Summary Court to test the strength of the case before it is submitted to the Supreme Court.  However there is a safeguard for the Defendant in the Sending procedure in that the Defendant can still make an application for dismissal of the case after it has been transferred to the Supreme Court.  There is an argument that given a purpose or common sense approach to our existing law would allow us to apply the sending procedure as it is in England and Wales.  However, to give certainty and clarity what this Bill would do is incorporate the sending procedure wholesale into our own ordinance.


 


It’s largely based on Section 51 on the English Crime and Disorder Act 1998 and the detail of this new sending procedure makes up most of the Bill which is why I dealt with it first in my explanation although it is actually dealt with by Clause 13 of the Bill.  Clause 13 would add a new schedule to the Administration of Justice Ordinance for that purpose.


 


I should add that the provisions in the Bill go slightly further than those in the English Act in connection with the issue of press reporting. And there what we have tried to do is to reflect modern practices in terms of news distribution.  For example the provisions would be intended to cover the provision of an e-mail news service.  However, in making those amendments we have kept a key eye on the balance that is to be struck between the freedom of expression and the freedom to receive information.  And it is considered that reporting restrictions are a necessary and proportionate balance to protect the rights of an accused person for a fair trial.  And I would add that we specifically consulted the press in relation to that element that’s included in the Bill.


 


Moving on to the second key amendment; the second element is to add a number of offences to the list which are indictable offences in the Falkland Islands and this is done by Clause 8 in the Bill.  We are proposing this to reflect the fact that the existing list of indictable offenses in the Falkland Islands is considered too restricted in relation to sexual offenses, whereas the Sexual Offenses Act 2003, which applies to the Law of the Falkland Islands has done since 2003.


 


It contains a number of offenses which are not termed as rape but which are of a very similar nature and are considered similarly serious.  For Example, an offense under Section 2 of that Act, assault by penetration, it is subject to a maximum sentence of imprisonment for life – the same as for rape.  It is therefore considered appropriate that a number of those offenses be added to the list of indictable offenses.  Now it’s worth remembering here that a key function of the Supreme Court which deals with indictable offenses is to offer a defendant the right of Trial by Jury when charged with very serious offenses – an option which is not available in relation to a summary offense.


 


That links us on to another key amendment which we have made.  In drafting the Bill we picked up what seemed to us to be a fundamental anomaly in the law which could easily be corrected as part of this Bill and which provides persons who are under 18 and who are charged with an indictable offence with the same protections as adults.  It seemed clear that they should have the same protections as adults.  That isn’t quite the case under our existing law.  And again so it would insure that those persons under 18 accused of very serious offenses would have the right of trial by jury in those circumstances.


 


What we also provided as a consequential amendment is that the Supreme Court would need to adapt its procedure to reflect the age and experience of the young person before it and that’s dealt with in Clause 11.


 


Mr Speaker, Honourable Members, the fourth of the key amendments is intended to address a particular concern highlighted recently by the Courts. In relation to flexibility between the Summary and the Magistrates’ Court which meant that problems could arise whenever the Senior Magistrate is out of the Islands.  We sought to address this by allowing cases to be transferred between the summary and Magistrates’ Courts – that is both criminal and civil cases.  This doesn’t have any significant policy implications because the Summary Court already has very similar powers to the Magistrates’ Court but it does resolve what is effectively a gap in the existing gap in the provision of Administration of Justice.


 


Now one of the proposed amendments to the Bill which will be put later assuming the second reading and proceed would take that change a little further in relation to the transfer of cases between Courts.  What it would do is also extend the jurisdiction of the Summary Court to include cases brought under the Children Ordinance with the making of Care and Supervision Orders.  At the Moment, under our existing law, jurisdiction is withheld under the Children ordinance in relation of those cases being heard by the Summary Court pending the making of rules by the Chief Justice.  However, given that there don’t appear on the face of it to be any good policy reasons for continuing to hold that jurisdiction from the Summary Court and indeed the practical effect of that could eventually be to restrict our ability to protect children, it was considered appropriate to include a provision in the relevant Bill which expands the jurisdiction of the Summary Court and would allow the Summary Court to deal with those cases in the absence of the Senior Magistrate.


 


The fifth and final key element of the amending element of the Bill is simply to provide a statutory framework for the appointment of a Clerk to the Summary Court.  This has been done as a matter of practice for a number of years but it wasn’t specifically provided for in Law.  Of course we can’t say that it had been included on the basis or urgency but it was an easy way of tidying up – a tidying up exercise that could be included with absolutely minimal use of resource.


 


The Bill would also make a number of consequential amendments to matters that I described and it also allows an order to be made in due course if there are any consequential amendments that we have missed


 


Finally then, turning to the remaining Government amendments that are to be proposed, those are mostly technical matters for example they do pick up a number of consequential amendments that have previously been overlooked and it also introduces a general provision to deal with other references in the law to the committal process which are liberally sprinkled throughout the statute book and it would pick those up as a whole.


 


Of course one of the substantive amendments I have already referred to in relation to Children Ordinance proceedings but there are two other substantive amendments which are to be proposed as government amendments in due course that I would like to briefly explain.  Both relate to amendments of Clause 10 and would insert a new Section 35b and 35c into the Administration of justice ordinance.


 


The first deals with an eventuality that we certainly wouldn’t be faced with but that is potentially a stand-off between the Summary Court and the Magistrates’ Court in relation to transfer of cases.  As I say we hope it wouldn’t arise but we have provided that should the issue arise in terms of the Chief Justice being allowed to intervene and direct in which court a case is dealt with and we’ve gone on a little further there in that to provide a balance between control and flexibility when looking at transfer between the two Courts, the Chief Justice could designate a category of case for which approval would be needed from the Supreme Court before the Summary Court could take over.  What we are trying to do there is strike a balance between control and flexibility.


 


The second amendment of Clause 10 that is to be proposed I would like to briefly explain is the question of practice directions – a new Section 35c would give extended powers to the Chief Justice or Senior magistrate to make practice directions and relation to the procedure to be followed in relation to a case which is being transferred between Courts.  And that is because the procedure in the magistrates’ court and the Summary Court is subtly different in some areas and of course there could potentially be some confusion in relation to a case which has started in one court and is transferred to another.  What procedure should be followed?  So we provided for the Chief Justice or Senior Magistrate to make practice directions to deal with that practical measure and to avoid uncertainty in relation to procedure.


 


Mr Speaker, that is my summary of the Bill.


 


 


Administration of Justice (Amendment) Bill 2013  (Gazette No 2 07/02/2013)


 


The Debate:


 


The Hon Mr Dick Sawle seconded the Motion.


 


DS:  Indeed I would like to second that Mr Speaker.  I will make a comment in due course.


 


KB:  You have heard the Motion expounded.  Does anyone wish to speak on the principles of the Bill?


 


DS:  Mr Speaker, perhaps it’s not so much on the principles of the Bill – but –


 


KB:  OK –


 


DS:  It is on the principles of the Bill.  Speaking entirely on the principles of the Bill, I would like to say this very much indeed.  I am very grateful for the hard work that the Attorney General’s Department has put in, especially that of Ronnie Maclennan-Baird, our Legislative Drafter and this is, I gather, a piece of legislation which we recognise is long overdue, was urgent, did need to be urgently addresses and will be addressed in a sense more completely perhaps later on after a few more months.  And I would also like to thank the Acting Attorney General for a very concise layman’s view of what these amendments actually mean – one that I could understand and very much appreciate and I would just like to underline my thanks to the Department for their hard work.


 


KB:  Thank you.  Does any other Honourable member wish to speak to the Bill?


 


MS:  Mr Speaker, If I understood the lengthy exposition correctly, there is an inevitable transfer of activity from Magistrates’ Court to the Supreme Court rather than the reverse so the Supreme Court would have jurisdiction in more cases.


 


I wondered if the Acting Attorney General could advise and assure that the activities that are currently allowed to be taken outside the Falklands by the Supreme Court will be sufficient to allow for this increased work load without the Chief Justice having to come to the Falklands for what may turn out to be administrative matters.


 


RC:  Mr Speaker, the transfer of cases provision actually deals with transfer of cases between the Magistrates’ Court and Summary Court so I may have misunderstood the question there but that is the matter which the transfer of provision is intended to deal with.  So it’s between the Magistrates’ Court and the Summary Court.  Perhaps I misunderstood the question.


 


MS:  I understood that we’d increased the list of Indictable Offenses which will inevitably result therefore in the Supreme Court having more activity than it currently has.  There is a sufficient provision to deal with them outside the Islands if necessary for practical purposes.


 


RC:  Mr Speaker, I do apologise.  Yes, you are absolutely right that there are a number of additional – I think four or five additional offenses that have been added to the list of indictable offenses so you are absolutely right.  The Honourable member is absolutely right that that could result in additional business for the Supreme Court.  I would certainly like to be able to provide that reassurance.  It’s difficult, of course, to predict the number of cases that are likely to come before the Court and they are all very serious cases which at the moment here in the Falkland Islands we are very thankful for the fact that they rarely come before the Court.  So I certainly can’t invisage there being an issue in relation to the business of the Supreme Court and the capacity being there to deal with the cases as you indicate.  Thank-you.


 


There was no objection to the Bill being red a second time.


 


KP:  Mr Speaker, Honourable Members, I request that the House suspend Standing Order No. 55.11 which allows new clauses to be red a first time during consideration of a Bill by the Committee of the Whole without a question being put.  The suspension will remove a relatively unproductive procedure of Members in considering this Bill.


 


Members did not object to the suspension of Standing Order No. 55.11 for the consideration of this Bill and the Standing Order was duly suspended.


 


KB:  The Committee is now in Committee


 


CAP: Clauses 1 – 9


 


RC:  I beg to move that Clauses 1 – 9 stand part of the Bill.


 


There was no objection to the Motion and Clauses 1 – 9 stood part of the Bill.


 


CAP:  Clause 10


 


RC:  I beg to Move that Clause 10 be amended as follows:


 


A.    By Omitting Sub-section 6 from New Section 35a and B by adding the following sections to new part 3a


B.     Section 35b transfer of cases, orders and directions Sib-section 1, A Supreme Court Judge may. If the interests of justice require, do either or both of the following things:


1.     Order that a case that is currently before the Summary Court or the Magistrates’ Court is to be transferred from one Court to the other.


2.     Direct in relation to a specific case that an order of the Summary Court transferring it from the Magistrates’ Court to the Summary Court may only take effect if it is approved by the Supreme Court by a Supreme Court Judge.


C.    Sub section 2, a Supreme Court Judge may direct in relation to a category of cases about an order of the Summary Court transferring a case in that category from the Magistrates’ Court to the Summary Court may only take effect if it is approved by a Supreme Court judge.


D.    Sub Section 3, in this section Supreme Court Judge means:


1.     The Chief justice or


2.     An Acting Judge of the Supreme Court


3.     May include the Senior Magistrate even if


a.    The Senior Magistrate has already dealt with the same case in the Magistrates’ Court or


b.    The effect of an order or direction would be for the Senior Magistrate to hear that case.


E.      Section 35c transfer of cases Practice Directions Sub-section 1 the Chief Justice or the Senior Magistrate may issue practice directions about


1.     How the power of the case is transferred from one court to another is to be exercised and what procedures are to apply in cases that have been transferred from one court to another which may be different from the procedures that would normally apply in the Court to which the case has been transferred


2.     When determining whether or not to transfer a case from one court to the other the Summary Court and the Magistrates’ Court must have proper regard to practice directions that have been issued about how the power to do that is to be exercised


 


 


There was no debate and Clause 10 as amended stands part of the Bill


 


CAP:  Clauses 11 to 13


 


RC:  I beg to Move that Clauses 11 to 13 stand part of the Bill.


 


There was no debate so Clauses 11 to 13 stood part of the Bill.


 


CAP:  Clause 14


 


RC:  I beg to Move that the following new Clause 14 be inserted into the Bill after clause 13 and the remaining clauses and parts be re-numbered accordingly:


 


 

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