Young Offenders Act 1950

[13 December 1950]

[preamble and words of enactment omitted]

PART I
INTRODUCTORY

Division of Act into Parts

1 [omitted]

Interpretation and determination of age

2 (1) In this Act�

"child" means a person under the age of sixteen years;

"Director" means the Director of Child and Family Services;

"Family Court" has the meaning given in section 8;

"guardian", in relation to a child or young person, includes any person who, in the opinion of the court having cognizance of any proceedings in which the child or young person is con cerned, has for the time being the charge of or control over the child or young person;

"impose imprisonment" means pass a sentence of imprisonment or commit to prison in default of payment of any sum of money or for failing to do or abstain from doing anything re quired to be done or to be left undone;

"the Minister" means the Minister responsible for prisons;

"probation officer" means a person appointed to be a probation officer under section 66 of the Criminal Code [title 8 item 31];

"senior training school" has the meaning given in section 51;

"the Board" means the body established in pursuance of the Treatment of Offenders Board Act 1979 [title 10 item 31];

"young person" means a person who has attained the age of six teen years but is under the age of twenty-one years.

(2) Any question that arises under this Act relation to the age of a person shall be determined as provided in section 78.

[section 2 amended by 1998 : 38 effective by notice in Official Gazette]

Saving of Royal Prerogative

3 Nothing in this Act shall affect Her Majesty's Royal Prerogative of mercy or any power vested in the Governor, acting as the representative of Her Majesty, to exercise such Royal Prerogative on behalf of Her Majesty or to grant a pardon, either free or subject to conditions, or any remission of the sentence of any court or any respite of the execution of any such sentence.

Age of criminal responsibility

4 (1) It shall be conclusively presumed that no child under the age of eight years can be guilty of an offence.

(2) A child under the age of fourteen years shall be deemed not to be criminally responsible for any act or omission unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission.

(3) It shall be conclusively presumed that a male child under the age of fourteen years cannot have carnal knowledge.

Restriction on sentence of death

5 Sentence of death shall not be pronounced on or recorded against a person convicted of an offence which would otherwise be pun ishable with death if it appears to the court that at the time when the offence was committed he was under the age of eighteen years, but in lieu thereof the court shall sentence the convicted person to be detained during Her Majesty's pleasure, and thereupon he shall be liable to be detained in such place and under such conditions as the Governor may direct.

Restriction on imprisonment

6 (1) No court shall impose imprisonment on a child.

(2) No court shall impose imprisonment on a person who (though not a child) is under the age of eighteen years unless the court is of the opinion that no other way of dealing with him is appropriate; and for the purpose of determining whether any other way of dealing with any such person is appropriate the court shall obtain information relevant to the circumstances of the offence of which he has been convicted and such information as can with reasonable expedition be made available to the court relevant to his character, environment and antecedents and to his mental and physical condition, and the court shall take into account any information so obtained and any other information before the court which is relevant to the matters aforesaid.

(3) Where a court of summary jurisdiction imposes imprison ment on a person under the age of eighteen years the court shall state the reason for its opinion that no other way of dealing with him is appro priate and shall record the reason in the judgment of the court and in the record book required to be kept under section 22 of the Summary Jurisdiction Act 1930 [title 8 item 34].

PART II
CHILD OFFENDERS

Interpretation of Part II

7 In this Part�

"approved hostel", in relation to a requirement in a probation or der as to the residence of a probationer, means a hostel ap proved by the Minister;

"order for conditional discharge" has the meaning given in sec tion 17;

"probationer" means a person in respect of whom a probation order has been made;

"probation order" has the meaning given in section 18;

"probation period" has the meaning given in section 18;

"punishable with imprisonment", in relation to an offence com mitted by a child, means an offence which (in the case of an offender other than a child) is punishable only with impris onment otherwise than in default of payment of a sum of money or for failing to do or abstain from doing anything re quired to be done or to be left undone.

Vesting of jurisdiction in Special Courts under Magistrates Act 1948 (Family Court)

8 The jurisdiction conferred upon a Family Court by or under this Part shall be exercised by a Special Court established under the Magistrates Act 1948 [title 8 item 15]; and a Special Court when sitting to exercise such jurisdiction shall be known as a "Family Court".

[section 8 amended by 1998 : 38 effective by notice in Official Gazette]

Jurisdiction of Family Court and of Supreme Court in charges against children

9 (1) A Family Court shall have and exercise jurisdiction in accordance with this Act, to hear and determine in a summary manner a charge of any offence preferred against a child except�

(a) a charge of murder or of any other offence which, in the case of a person other than a child, is punishable with death; or

(b) a charge of attempted murder; or

(d) in the case of a girl, a charge of infanticide;

and no charge of any offence preferred against a child, except a charge of murder or other offence punishable with death as aforesaid or a charge of attempted murder or a charge of manslaughter or a charge of infanti cide, shall be heard or determined by any court other than a Family Court.

(2) Notwithstanding anything in subsection (1), where a child is indicted on a charge of attempted murder there may be joined in that in dictment charges for any indictable offences�

(a) which are founded on the same act or omission which constitutes the charge of attempted murder; or

(b) which are founded on separate acts or omissions which, together with the act or omission which constitutes the charge of attempted murder, constitutes a series of acts done or omitted to be done in the prosecution of a single purpose;

and if the Attorney-General at any stage of criminal proceedings taken against the child certifies that any such charges are suitable for trial be fore the Supreme Court a Family Court shall not, without the subse quent leave of the Attorney-General, have jurisdiction to try such charges.

(3) Nothing in the foregoing provisions of this section shall be construed so as to abrogate or abridge in the case of a child, any statu tory provision whereby a person indicted before the Supreme Court on a charge of murder, or of attempted murder, or of manslaughter or of in fanticide, may be convicted of some other offence.

(4) Where a child indicted before the Supreme Court on a charge of any such offence as is mentioned in subsection (1)(a), (b), (c) or (d) is convicted of any other offence (whether in the circumstances men tioned in subsection (2) or in the circumstances mentioned in subsection (3)) then the Supreme Court may deal with the child as provided in sec tion 16.

[section 9 amended by 1998 : 38 effective by notice in Official Gazette]

Application of Summary Jurisdiction Act 1930

10 Subject to this Act, a Family Court in the exercise of its juris diction under this Act shall have the like powers and discharge the like duties as are conferred or imposed by the Summary Jurisdiction Act 1930 [title 8 item 34], upon other courts of summary jurisdiction in the exercise of their jurisdiction.

[section 10 amended by 1998 : 38 effective by notice in Official Gazette]

Restriction on ex parte proceedings in Family Court

11 A Family Court shall not hear or determine ex parte a charge of any offence punishable with imprisonment.

[section 11 amended by 1998 : 38 effective by notice in Official Gazette]

Magistrate may act alone in certain proceedings

12 Where any proceedings are necessary or expedient in order to deal with a failure on the part of a person other than a child to comply with an order of a Family Court, a magistrate may, if he thinks fit, take such proceedings acting alone:

Provided that, without prejudice to the powers conferred on a magistrate by section 23 and section 24, nothing in this section shall apply in relation to a probation order or to an order for conditional dis charge.

[section 12 amended by 1998 : 38 effective by notice in Official Gazette]

Sittings of Family Court

13 (1) Family Court shall sit as often as may be necessary for the purpose of exercising the jurisdiction conferred upon them by or un der this Part.

(2) A Family Court shall sit either in a different building or room from that in which sittings of courts other than Special Courts are held or on different days from those on which sittings of such other courts are held; and no person shall be present at any sitting of a Family Court except�

(a) members and officers of the court;

(b) parties to the case before the court, their counsel and witnesses and other persons directly concerned in the case;

(d) such other persons as the court may specially authorize to be present.

[section 13 amended by 1998 : 38 effective by notice in Official Gazette]

Restriction on newspaper reports

14 Subject as hereinafter provided, no newspaper report of any pro ceedings in a Family Court shall reveal the name, address or school, or include any particulars likely to lead to the identification any child concerned in the proceedings, either as being the person against or in respect of whom the proceedings are taken or as being a witness therein, nor shall any picture be published in any newspaper being or including a picture of any child so concerned in any such proceedings as aforesaid:

Provided that the court or the Governor acting in his discretion may in any case, if satisfied that it is in the interests of justice to do so, by order dispense with the requirements of this section to such extent as may be specified in the order.

[section 14 amended by 1998 : 38 effective by notice in Official Gazette]

Preliminary proceedings

15 With respect to proceedings preliminary to the hearing and ter mination of a charge of an offence preferred against a child, the following provisions shall have effect�

(a) if under section 9, a Family Court has jurisdiction to hear and determine the charge, then the preliminary proceedings shall be such as are provided in relation to a summary prosecution, by the Summary Jurisdiction Act 1930 [title 8 item 34];

(b) if the charge is such that it falls to be heard and deter mined before the Supreme Court, then, subject to sec tion 39, the preliminary proceedings shall be such as are provided, in relation to a charge of an indictable offence, by the Indictable Offences Act 1929 [title 8 item 32].

[section 15 amended by 1998 : 38 effective by notice in Official Gazette]

Powers on conviction

16 Subject to section 5 and sections 17 to 41, where a child is con victed of offence by a Family Court or (as the case may be) before the Supreme Court, the court may deal with the child as hereinafter provided and in no other way�

(a) the court may make an order for the absolute discharge of the child;

(b) the court may make an order for the conditional dis charge of the child;

(d) where, in the case of a person other than a child, a court might under the Criminal Code [title 8 item 31] order the payment of damages for injury or compensation for loss, the court may order the child to pay such damages or compensation; and section 560 of the Criminal Code shall have effect in relation to such an order:

Provided that the damages and compensation together shall not exceed $240;

(e) where, in the case of a person other than a child, a court might order the payment of costs, the court may order the child to pay costs;

(f) if the offence is punishable with imprisonment, the court may by order commit the child to the care of the Director, or to the care of a fit person (whether a relative of the child or not) who is willing to undertake the care of the child;

(g) the court may sentence the child to pay a fine, not ex ceeding $168 or not exceeding such amount as would be imposable for the offence in the case of an offender other than a child, whichever is the lesser amount;

(h) if the offence is punishable with imprisonment, the court may sentence the child, if a male, to be whipped;

(i) [deleted by 1982:47]

(j) where the child is convicted before the Supreme Court of attempted murder, or of manslaughter or (in the case of a girl) of infanticide, and the court is of the opinion that none of the other methods in which the case may legally be dealt with is suitable, the court may sentence the child to be detained for such period as may be specified in the sentence; and thereupon the child shall be liable to be detained in such place and under such conditions as the Governor acting in his discretion may direct.

16A [repealed by 1982:47]

[section 16 amended by 1998 : 38 effective by notice in Official Gazette]

Absolute and conditional discharge

17 (1) This section shall have effect in relation to the discharge of a child by a court, as mentioned in section 16(a) and (b).

(2) Where a court by which a child is convicted of an offence is of opinion, having regard to the circumstances, including the nature of the offence and the character of the child, that it is not expedient to in flict punishment and that a probation order is not appropriate�

(a) the court may make an order discharging the child ab solutely; or

(b) the court, if it thinks fit, may make an order discharging the child subject to the condition that he commits no offence, being an offence punishable with imprisonment, during such period, not exceeding twelve months from the date of the order, as may be specified in the order.

(3) An order discharging a child subject to such conditions as aforesaid is hereinafter in this Part referred to as "an order for condi-
tional discharge" and the period specified in any order as "the period of conditional discharge".

(4) Before making an order for conditional discharge the court shall explain to the child in simple language that if he commits during the period of conditional discharge an offence punishable with impris onment he will be liable to be sentenced for the original offence.

(5) Section 24 relates to the ways of dealing with a person�

(a) in respect of whom (while a child) an order for condi tional discharge has been made by a court; and

(b) who is convicted by or before a court in Bermuda of an offence punishable with imprisonment committed during the period of conditional discharge.

(6) Where under section 24 a person is sentenced for the of fence in respect of which an order for conditional discharge has been made, the order for conditional discharge shall cease to have effect.

Probation orders

18 (1) This section shall have effect in relation to a probation order made by a court in respect of a child, as mentioned in section 16(c).

(2) Where a court by which a child is convicted of an offence punishable with imprisonment is of opinion that having regard to the circumstances, including the nature of the offence and the character of the child, it is expedient to do so, the court may make a probation order in respect of the child, that is to say, an order requiring the child to be under the supervision of a probation officer for such period (hereinafter in this Part referred to as "the probation period") as may be specified in the order, being a period of not less than one year and not more than three years.

(3) A probation order may, in addition to requiring the child in respect of whom the order is made to be under the supervision of a pro bation officer, require the child to comply during the whole or any part of the probation period with such requirements as the court, having regard to the circumstances of the case, considers necessary for securing the good conduct of the child or for preventing a repetition by him of the same offence or the commission by him of other offences:

Provided that (without prejudice to the power of the court to make an order under section 16(d)) the payment of sums by way of dam ages for injury or compensation for loss shall not be included among the requirements of a probation order.

(4) Before making a probation order the court shall explain to the child in simple language the effect of the proposed order, including any additional requirements proposed to be inserted therein under sub section (3) or under section 19, and shall in like manner explain to the child that if he fails to comply with the requirements of the order or commits during the probation period an offence punishable with impris onment he will be liable to be sentenced for the original offence; and if the child is not less than fourteen years of age the court shall not make the order unless the child expresses his willingness to comply with the requirements thereof.

(5) The court by which a probation order is made shall forth with give copies of the order to a probation officer assigned to the court and the probation officer assigned to the court shall give a copy to the child and a copy to the probation officer responsible for the supervision of the child and, if (as mentioned in section 19) the child is required by the order to reside in an approved hostel, a copy to the person in charge of the hostel.

Probation order; requirements as to residence

19 Without prejudice to the generality of section 18(3), a probation order made by a court under this Act may include requirements relating to the residence the probationer:

Provided that�

(a) before any such requirements are included in a proba tion order the court shall consider the home surround ings of the probationer; and

(b) where a probation order requires the probationer to re side in an approved hostel, the name of the approved hostel and the period for which the probationer is re quired to reside shall be specified in the order, and that period shall not extend beyond three years from the date of the order or beyond the date on which the probationer attains the age of seventeen years, whichever is the ear lier date.

Duties of probation officers

20 (1) Without prejudice to any special directions that may be given by the court, it shall be the duty of a probation officer to enquire into the circumstances or home surroundings of any child charged be fore a court with a view to assisting the court in determining the most suitable way of dealing with the case.

(2) Where a probation order has been made by a court under this Act it shall be the duty of the probation officer under whose supervision the probationer has been placed�

(a) subject to any directions that may be given by the court, to supervise the probationer, having regard to the re quirements of the order;

(b) to advise, assist and befriend the probationer, and, where necessary, to find him suitable employment; and

Probation orders; discharge and amendment

21 (1) This section shall have effect in relation to the discharge, amendment and review of a probation order made by a court under this Act.

(2) The court may at any time, upon application made by the probation officer or by the probationer, by order discharge the probation order.

(3) Subject to this section, the court may at any time, upon ap plication made by the probation officer or by the probationer, by order amend the probation order by cancelling any of the requirements thereof or by inserting therein (either in addition to or in substitution for any such requirement) any requirement which could be included in the pro bation order if it were then being made by the court in accordance with the foregoing provisions of this part:

Provided that�

(a) the court shall not amend the probation order so as to reduce the probation period to a period of less than one year, or so as to extend the probation period beyond the end of three years, from the date of the original order;

(b) the court shall not amend the probation order so that the probationer is thereby required to reside in an ap proved hostel for any period exceeding the period pro vided in section 19.

(4) Where the court proposes to amend a probation order under this section, otherwise than on the application of the probationer, it shall summon the probationer to appear before the court; and if the proba tioner is not less than fourteen years of age, the court shall not amend his probation order unless the probationer expresses his willingness to comply with the requirements of the order if amended as proposed:

Provided that this subsection shall not apply to an order can celling a requirement of the probation order or reducing the period of any such requirement.

(5) Where the probation order, whether as originally made or as amended under this section, required the probationer to reside in an ap proved hostel for a period extending beyond six months from the date of the order as originally made or of the amending order, the probation offi cer shall, as soon as may be after the expiration of six months after that date, report to the court on the case, and on the receipt of any such re port the court shall review the probation order for the purpose of consid ering whether to cancel the requirement as to residence or reduce the pe riod thereof, and may, if it thinks fit, amend the order accordingly with out the necessity for any application in that behalf.

(6) Where under section 23 or section 24 a probationer is sen tenced for the offence in respect of which the probation order was made, the probation order shall cease to have effect.

(7) In this section "the probation officer", in relation to a pro bationer, means the probation officer who for the time being is supervis ing the probationer.

Continuance when probationer ceases to be a child

22 Subject to section 23 and section 24, where a probation order has been made by a Family Court in respect of a person (then being a child) and the person ceases to be a child, the probation order (unless under section 21 it has been discharged or has otherwise ceased to have effect) shall nevertheless continue in force and a Family Court shall not be deprived of jurisdiction in relation to the order.

[section 22 amended by 1998 : 38 effective by notice in Official Gazette]

Probation order; breach of requirement

23 (1) Where a probation order has been made by a court under this Act and at any time during the probation period it appears on infor mation to a magistrate that the probationer has failed to comply with any of the requirements of the order, the magistrate may issue a summons requiring the probationer to appear at the time and place specified therein or may, if the information is on oath, issue a warrant for the ar rest of the probationer; and any summons or warrant issued under this section shall direct the probationer to appear or be brought before a Family Court:

Provided that where a warrant is issued for the arrest of the pro bationer section 38 shall have effect.

(2) Where a probationer appears or is brought before a Family Court under subsection (1) and it is proved to the satisfaction of the court that the probationer has failed to comply with any of the re quirements of the probation order, then�

(a) without prejudice to the continuance of the probation order, the court may impose on the probationer a fine not exceeding $168; or

(b) the court may deal with the probationer in accordance with the following provisions of this section.

(3) Where the probation order was made by a Family Court, the following provisions shall have effect�

(a) if the probationer is still a child, the Family Court may deal with him, for the offence in respect of which the probation order was made, in any way in which the court could deal with him if it had just convicted him of that offence;

(b) if the probationer has ceased to be a child�

(i) if the offence in respect of which the probation order was made is an offence which (in the case of persons other than children) is triable sum marily, the Family Court may deal with the probationer, for that offence, in any way in which a court of summary jurisdiction could deal with him if it had just convicted him of that offence;

(ii) if the offence in respect of which the probation order was made is an offence which (in the case of persons other than children) is triable on in dictment the Family Court may deal with the probationer for that offence in any way in which the Supreme Court could deal with him if he had just been convicted before it of that offence:

Provided that, notwithstanding that the offence is punishable with a term exceeding one year or is punishable with whipping, the Family Court shall not sentence the probationer for a term exceeding one year or to be whipped.

(4) Where the probation order was made by the Supreme Court, the Family Court may commit the probationer to custody or release him on bail (with or without sureties) until he can be brought or appear before the Supreme Court; and if the Family Court so deals with the probationer�

(a) the Chairman of the Family Court shall send to the Registrar of the Supreme Court a certificate signed by him certifying that the probationer has failed to comply with such of the requirements of the probation order as may be specified in the certificate, together with such other particulars of the case as may be desirable; and a certificate purporting to be so signed shall be admissible before the Supreme Court as evidence of the failure; and

(b) where the probationer is brought or appears before the Supreme Court and it is proved to the satisfaction of the Supreme Court that he has failed to comply with any of the requirements of the probation order, the Supreme Court may deal with him, for the offence in respect of which the probation order was made, in any way (according to whether the probationer is still a child or has ceased to be a child) in which that court could deal with him if he had just been convicted before it of that offence.

(5) Section 24 relates to the ways of dealing with a person�

(a) in respect of whom (while a child) a probation order has been made by a court under this Act; and

(b) who is convicted by or before a court in Bermuda of an offence punishable with imprisonment committed during the probation period;

and nothing in this section shall have effect in relation thereto.

[section 23 amended by 1998 : 38 effective by notice in Official Gazette]

Conditional discharge or probation order; commission of further of fence

24 (1) Where an order for conditional discharge or a probation or der (hereinafter in this section, as respects an order of either such kind, referred to as "the order") has been made by a court under this Act in re spect of a person, then being a child, and it appears to a magistrate (where the order was made by a Family Court) or to a judge (where the order was made by the Supreme Court) that the person in whose case the order was made has, as a result of criminal proceedings insti tuted not later than twelve months after the date of the expiration of the order, been convicted by or before a court in Bermuda of an offence punishable with imprisonment committed during the period of condi tional discharge or during the period of probation (hereinafter in this section referred "a further offence") and has been dealt with for that of fence, the magistrate or (as the case may be) a judge may issue a sum mons requiring that person (hereinafter in this section referred to as "the person subject to the order") to appear at the place and time specified therein or may issue a warrant for his arrest:

Provided that a magistrate shall not issue such a summons ex cept on information and shall not issue such a warrant except on infor mation on oath.

(2) A summons or warrant issued under this section shall di rect the person subject to the order to appear or be brought before the court by which the order was made:

Provided that where a warrant is issued for the arrest of the per son subject to the order section 38 shall have effect.

(3) Where the order was made by a Family Court and the person subject to the order accordingly appears or is brought before a Family Court and it is proved to the satisfaction of the court that he has been convicted and dealt with for a further offence�

(a) if the person subject to the order is still a child, the Family Court may deal with him, for the offence in respect of which the order was made, in any way in which the court could deal with him if it had just con victed him of that offence;

(b) if the person subject to the order has ceased to be a child, then�

(i) if the offence in respect of which the order was made is an offence which (in the case of persons other than children) is triable summarily, the Family Court may deal with him, for that of fence, in any way in which a court of summary jurisdiction could deal with him if it had just convicted him of that offence;

(ii) if the offence in respect of which the order was made is an offence which (in the case of persons other than children) is triable on indictment, the Family Court may deal with the person sub ject to the order for that offence in any way in which the Supreme Court could deal with him if he had just been convicted before it of that of fence:

Provided that, notwithstanding that the offence is punishable with a term exceeding one year or is punishable with whipping, the Family Court shall not sentence the person subject to the order for a term exceeding one year or to be whipped.

(4) Where the order was made by the Supreme Court and the person subject to the order accordingly appears or is brought before the Supreme Court, and it is proved to the satisfaction of the Supreme Court that he has been convicted and dealt with for a further offence, then the Supreme Court may deal with him, for the offence in respect of which the order was made, in any way (according to whether he is still a child or has ceased to be a child) in which that court could deal with him if he had just been convicted before it of that offence.

(5) Notwithstanding anything in the foregoing provisions of this section, where the order was made by a Family Court and the person subject to the order has been convicted of a further offence by the Supreme Court, the Supreme Court may thereupon deal with him in ac cordance with the following provisions�

(a) if the person subject to the order is still a child, the Supreme Court may deal with him, for the offence in re spect of which the order was made, in any way in which a Family Court could deal with him if it had just con victed him of that offence;

(b) if the person subject to the order has ceased to be a child, then�

(i) if the offence in respect of which the order was made is an offence which (in the case of persons other than children) is triable summarily, the Supreme Court may deal with him in any way in which a court of summary jurisdiction could deal with him if it had just convicted him of that offence;

(ii) if the offence in respect of which the order was made is an offence which (in the case of persons other than children) is triable on indictment, the Supreme Court may deal with him in any way in which it could deal with him if he had just been convicted before it of that offence.

[section 24 amended by 1998 : 38 effective by notice in Official Gazette]

Security for good behaviour

25 When a child is convicted by or before a court of an offence�

(a) the court may order the parent or guardian of the child to give security for his good behaviour;

(b) the court may allow any person who consents to do so to give security for the good behaviour of the child.

Court may order parent to pay

26 (1) Where a child is convicted of an offence by a court and the court decides to impose a fine, or to order the payment of damages or compensation or costs, the court may in any case, and shall if the child is under the age of fourteen years, order that the fine, damages, compen sation or costs be paid by the parent or guardian of the child instead of by the child or, if the child is over the age of fourteen years, the court may order that any part of the fine, damages, compensation or costs be so paid by the parent or guardian of the child:

Provided that the foregoing provisions of this subsection shall not have effect�

(a) where the court is satisfied that the parent or guardian cannot be found; or

(b) as respects the payment of a fine, where the parent or guardian shows to the satisfaction of the court that he has not conduced to the commission of the offence by neglecting to exercise due care of the child.

(2) An order may be made by a court under this section against a parent or guardian, who, having been required to attend the court, has failed to do so; but, subject as aforesaid, no such order shall be made without giving the parent or guardian an opportunity of being heard.

(3) Any sums ordered to be paid by a parent or guardian by way of a fine, damages, compensation or costs under this section may be recovered from the parent or guardian as if the order has been made on the conviction of the parent or guardian of the offence of which the child was convicted.

Committal to care under Protection of Children Act 1943

27 [deleted]

[section 27 deleted by 1998 : 38 effective by notice in Official Gazette]

Imposition on child of sentence of whipping

28 (1) This section shall have effect in relation to the imposition by a court on a child of a sentence of whipping, as mentioned in section 16(h).

(2) As respects the number of strokes that may be ordered to be inflicted, the following provisions shall have effect�

(a) the number of strokes shall not in any case exceed twelve and shall not in the case of a child under the age of fourteen exceed six;

(b) where at any sitting of the court a child is convicted, whether at one hearing or at separate hearings, of two or more offences punishable (in the case of a child) with whipping, then if the court sentences the child to be whipped for more than one of the offences, the total number of strokes shall not exceed the number of strokes specified in paragraph (a);

(3) As respects the execution of the sentence�

(a) the sentence shall not be executed unless the child has been examined by a medical practitioner and the medi cal practitioner has certified that the child is physically fit to undergo the whipping to which he has been sen tenced;

(b) subject as aforesaid, and subject to the provisions of the law for the time being in force relating to appeals in criminal matters, the sentence shall be executed pri vately as soon as practicable in some convenient place, not being a prison;

(c) the instrument to be used in the execution of the sen tence shall be a birch rod of a type and pattern approved by the Minister;

(d) the sentence shall be executed by a police officer in the presence of a police officer of a rank not lower than the rank of sergeant and also in the presence, if he desires to be present, of the parent or guardian of the child.

(4) As respects limitations of the powers of the court other than those hereinbefore mentioned, the following provisions shall have effect�

(a) where at any sitting of the court a child has been sen tenced to be whipped, then he shall not again be sen tenced to be whipped at any subsequent sitting of the court beginning within seven days after the termination of the sitting at which he was sentenced to be whipped as aforesaid;

(b) where at any sitting of the court a child has been sen tenced to be whipped for an offence, he shall not be sentenced to be whipped at any subsequent sitting of the court on conviction of any other offence, if criminal pro ceedings in respect of that other offence were instituted before the day on which he was sentenced to be whipped as aforesaid.

(5) Where a child has been sentenced to be whipped for any offence he shall not, for that offence, be sentenced to any other punish ment.

(6) In this section "sitting"�

(a) in relation to a Family Court, means any period dur ing which that court sits during the course of one day or, excluding public holidays, from day to day to deal with matters before that court;

(b) in relation to the Supreme Court, means any regular or special criminal session of that court, or any sitting of that court in the exercise of its criminal jurisdiction (whether original or appellate) for the purpose of dealing with a particular cause or matter.

[section 28 amended by 1998 : 38 effective by notice in Official Gazette]

[29 to 34 repealed by 1982:47]

Sentences of detention

35 (1) A person detained under section 5, or under section 16(j) shall, while so detained, be deemed to be in lawful custody.

(2) The Governor, after giving due consideration to any recom mendations which may be made by the Board, may at any time release on licence a person so detained as aforesaid subject to such conditions as may be specified in the licence; and the Governor may at any time vary any such conditions.

(3) The Governor may at any time by order recall to such place as may be specified in the order a person released on licence under this section, but without prejudice to the power of the Governor again to re lease him on licence; and where any person is so recalled his licence shall cease to have effect and he shall, if at large, be deemed to be un lawfully at large.

(4) Notwithstanding anything in subsections (2) and (3), where a person is sentenced to be detained under section 16(j) he shall not, af ter the expiration of the period specified in the sentence, be detained in any place, nor, if released on licence, shall he be subject to any condi tions specified in the licence, or be ordered by the Governor to be re called to any place.

(5) In the exercise of his powers under this section the Gover nor shall act after consultation with the Advisory Committee on the Pre rogative of Mercy established under section 23 of the Constitution [title 2 item 1].

Prohibition of combined sentences

36 Where a person is sentenced for any offence to be detained un der section 5, or under section 16(j), he shall not, for that offence, be sentenced to any other punishment.

Relation of sentences of detention to corrective training and im prisonment

37 Where a person who is sentenced under section 5 to be detained in the care of the Director or during Her Majesty's pleasure, or under section 16(j) to be detained for a period specified in the sentence, or who is being so detained as aforesaid, in respect of a conviction of an offence has been sentenced in respect of a conviction of another offence to the care of the Director or to undergo corrective training or to be imprisoned, then while that person is so detained as aforesaid that latter sentence shall, to the extent that it requires him to be detained in the care of an approved society or in a senior training school or to be im prisoned, cease to have effect.

[section 37 amended by 1998 : 38 effective by notice in Official Gazette]

Arrests under warrant

38 Where�

(a) a person who is a probationer is arrested under the au thority of a warrant issued under section 23(1) and he cannot be brought forthwith before a Family Court; or

(b) a person subject to an order for conditional discharge is arrested under the authority of a warrant issued under section 24(1) and he cannot be brought forthwith before the court by which the order was made,

the warrant shall have effect as if it directed the person to be brought before a magistrate; and the magistrate before whom the person is brought shall commit him to custody or release him on bail (with or without sureties) until he can be brought or appear before the appropri ate court.

[section 38 amended by 1998 : 38 effective by notice in Official Gazette]

Arrest without warrant

39 Where any person, whether a police officer or not, arrests a child without a warrant he shall cause the child to be delivered with as little delay as possible to a police officer of a rank not lower than the rank of inspector or to a police officer in charge of a police station; and the police officer to whom the child is so delivered shall enquire into the case and, unless the offence for which the child has been arrested appears to the police officer to be of too serious a nature to justify such a course, the officer shall release the child on a recognizance being entered into by the child or by some other person, with or without sureties, to secure the appearance of the child before a magistrate at a time and place specified in the recognizance.

Parent may attend court

40 (1) Where a child charged with any offence is brought before a court or is for any other reason brought before a court, the parent or guardian of the child may attend at the court by or before which the case is heard or determined during all stages of the proceedings and shall, if he can be found, be required so to attend at court unless the court is satisfied that it would be unreasonable to require his attendance.

(2) Where a child is arrested, the police officer in charge of the police station to which he is brought or some other police officer shall cause the parent or guardian of the child, if he can be found, to be warned to attend at the court before which the child is to appear.

(3) The parent or guardian whose attendance is to be required under this section shall be the parent or guardian having the actual pos session and control of the child:

Provided that if that person is not the father of the child, the at tendance of the father of the child may also be required.

(4) For the purposes of enforcing the attendance of a parent or guardian under this section, a court shall have the like powers as it has in relation to enforcing the attendance of a witness.

Detention of child pending determination of charge

41 Where at any stage of any criminal proceedings taken against a child he is committed to custody pending the determination of the charge preferred against him, he shall not be detained in a prison but where practicable he shall be detained in a residential home operated under the Children Act 1998 [title 27 item 6] and where it is not practicable to detain him in such place he shall be detained in a police station:

Provided that where it appears to a magistrate or other authority by whom the child is committed to custody�

(a) that the child is a male and is not under fifteen years of age; and

(b) that the child is charged with a serious offence involving violence to the person; and

(c) that it is inexpedient in the circumstances that the child should be detained in a residential home operated under the Children Act 1998 [title 27 item 26] or in a police station,

then the court or other authority may order the child to be detained in a senior training school or in a prison.

[section 41 amended by 1998 : 38 effective by notice in Official Gazette]

PART III
YOUNG PERSONS CONVICTED OF OFFENCES

Interpretation of Part III

42 In this Part�

"punishable with imprisonment", in relation to an offence, means punishable with imprisonment otherwise than only in default of payment of a sum of money or for failing to do or abstain from doing anything required to be done or to be left undone;

"term of imprisonment" includes two or more consecutive terms of imprisonment.

Corrective training

43 (1) Where a young person is convicted of an offence punishable with imprisonment, the court may sentence him to undergo corrective training.

(2) Subject to section 81, where the Supreme Court sentences a young person to undergo corrective training, and the offence in respect of which the sentence is imposed is an offence punishable with whip ping, the Supreme Court may also sentence the young person to be whipped.

(3) Subject as aforesaid, where the court sentences a young person to undergo corrective training the court shall not sentence him, for that offence, to any other punishment.

Removal to senior training school

44 Subject to the law for the time being in force relating to appeals in criminal matters, where a young person is sentenced to undergo cor rective training, he shall be removed forthwith to a senior training school and shall be received and detained therein and shall be dealt with as provided in Part IV:

Provided that where a young person is sentenced to be whipped he shall first be removed to a prison and detained there until after the execution of the sentence of whipping.

Relation between sentences of corrective training and sentences of imprisonment; two or more offences

45 (1) Where during the course of a particular criminal session of the Supreme Court a young person is convicted before the Supreme Court of two or more offences punishable with imprisonment, and the Supreme Court in respect of one or more of the offences sentences the young person to undergo corrective training, and in respect of any other one or more of the offences sentences the young person to imprison ment�

(a) if the term of imprisonment (apart from any remission) which the young person is required to serve by reason of the sentence or sentences of imprisonment amounts to three years or more, the sentence or sentences of cor rective training shall not be carried into effect;

(b) if the said term of imprisonment amounts to less than three years, the sentence or sentences of imprisonment shall not be carried into effect.

(2) Subject to section 46, where a young person has been con victed by a court of summary jurisdiction of two or more offences pun ishable with imprisonment, if in respect of one or more such offences he is sentenced to a term of imprisonment and in respect of another such offence he is sentenced to undergo corrective training, then the sentence or sentences of imprisonment shall cease to have effect or, as the case may be, shall not be carried into effect.

(3) Subsection (2) shall only apply if, at the time of the second or subsequent conviction, the young person is serving a sentence of im prisonment or, as the case may be, undergoing corrective training.

Sentences of corrective training where convicted while serving term of imprisonment

46 Where a young person who is serving a term of imprisonment is convicted of an offence punishable with imprisonment, then, in relation to a sentence of corrective training, the following provisions shall have effect, that is to say�

(a) if at the date of the conviction the remainder of the term of imprisonment (apart from any remission) amounts to one year or more the court shall not sentence him to undergo corrective training;

(b) if at the date of the conviction the remainder of the term of imprisonment (apart from any remission) amounts to

years before the expiration of the term of imprisonment; or

(ii) in the case of a person transferred to prison un der section 59(2), the aggregate of the terms served by him in a senior training school and in prison shall not exceed three years.

(2) Notwithstanding anything in subsection (1) or in section 62 a person transferred to a senior training school in pursuance of subsec tion (1) shall not be liable to be recalled to or be detained in a senior training school after the date upon which the remainder of his term of imprisonment (apart from any remission) which he was serving at the time of his transfer would otherwise have expired.

Period of corrective training

61 (1) Subject to section 59(2), a person sentenced to undergo cor rective training shall, unless sooner released under section 62, be de tained in a senior training school for a period not extending beyond 3 years after the date of his sentence; and such period, in relation to a per son sentenced to undergo corrective training, is in this Part referred to as his "maximum period of corrective training".

(2) A person, upon the expiration of his maximum period of corrective training, shall, subject to section 62, be released.

Release; supervision and recall to senior training school

62 (1) The Governor, after giving due consideration to any recom mendations which may be made�

(a) [repealed by 1982:47]

(b) in the case of a person detained in a senior training school, by the Board or by the Commissioner of Prisons,

may release an inmate of a senior training school who is undergoing cor rective training at any time after the expiration of nine months from the date of sentence.

(2) A person shall, after his release from a senior training school and until the expiration of one year from the date of the expiration of his maximum period of corrective training, be under the supervision of such person or body of persons as may be specified in a notice to be given to him by the Board on his release, and shall, while under that su pervision, comply with such requirements as the Governor may direct to be so specified to him:

Provided that the Governor may at any time vary or cancel any of such requirements or may order that a person who is under supervision as aforesaid shall cease to be under supervision.

(3) If before the expiration of one year from the date of the expi ration of his maximum period of corrective training the Governor is sat isfied that a person who is under supervision after his release from a se nior training school under subsection (1) has failed to comply with any requirement for the time being specified in the notice given to him under subsection (2), the Governor may by order recall him to a senior training school; and thereupon he shall, subject to this Part, be liable to be de tained in a senior training school and to undergo corrective training therein until the expiration of his maximum term of corrective training, or until the expiration of six months from the date of his being taken into custody under the order, whichever is the later and, if at large, shall be deemed to be unlawfully at large:

Provided that�

(a) any such order shall, at the expiration of one year from the date of the expiration of his maximum term of cor rective training, cease to have effect in respect of a per son released from a senior training school unless that person is then in custody or is being detained thereun der; and

(b) the Governor may at any time release a person who is detained in a senior training school under this subsec tion; and the foregoing provisions of this section shall have effect in the case of a person so released as they have effect in the case of a person released under sub section (1).

(4) In the exercise of his powers under this section the Gover nor shall act after consultation with the Advisory Committee on the Pre rogative of Mercy established under section 23 of the Constitution [title 2 item 1].

Commutation of death sentence to sentence of corrective training

63 Where Her Majesty, or the Governor acting on Her Majesty's be half, pardons any person who has been sentenced to death on condition that he undergoes corrective training, that person shall be deemed to have been sentenced, by the court before which he was convicted, to un dergo corrective training:

Provided that in any such case�

(a) the maximum period of corrective training shall be such period, not exceeding the period which expires on the day when the person directed to undergo corrective training attains the age of twenty-four years, as the Gov ernor may specify as a condition of the pardon; and

(b) section 35 shall apply with respect to the release on li cence of any such person in the place of any provisions of this Act which have effect with respect to the release under supervision of inmates of a senior training school.

Inmate taken outside for judicial or other purposes

64 (1) The Commissioner of Prisons�

(a) if he is satisfied that the attendance of an inmate of the school is desirable at any place in Bermuda in the inter ests of justice or for the purposes of any public enquiry, may direct the inmate to be taken to that place;

(b) if he is satisfied that an inmate of the school requires medical, dental or surgical treatment of any description, may direct the inmate to be taken to a hospital or other suitable place for the purpose of the treatment;

and where an inmate of a senior training school is directed under this subsection to be taken to any place he shall, unless the Commissioner of Prisons otherwise directs, be kept in custody while being so taken, while at that place and while being taken back to the senior training school in which he is required in accordance with law to be detained.

(2) The Commissioner of Prisons may, subject to any general or special directions given by the Minister, arrange for inmates of the school to work or to engage in recreation outside the school in which they are ordinarily detained; and where any inmates do so work or engage in recreation they shall be kept in custody at all times while outside the school.

(3) Senior training school rules may make provision for the temporary absence from a senior training school of inmates of the school granted leave of absence; and any such rules shall make provision for declaring that any inmate who fails to return to the senior training school in accordance with the leave of absence granted to him shall be deemed to be unlawfully at large.

(4) Nothing in the foregoing provisions of this section shall derogate from or abridge any power of the Supreme Court, or a judge, to order, in pursuance of section 6 of the Evidence Act 1905 [title 8 item 10], that an inmate of a senior training school is to be brought before the Supreme Court.

Commissioner may release temporarily on compassionate grounds

64A (1) Where the Commissioner of Prisons is satisfied that it is de sirable to permit an inmate of a senior training school to be absent from the school on compassionate or other personal grounds, the Commis sioner of Prisons may authorize the temporary release of such inmate from the school for such period and subject to such conditions as he may specify.

(2) The Commissioner of Prisons shall not authorize the tempo rary release of an inmate of a senior training school for a period in excess of 48 hours without the prior approval of the Minister.

(3) Where it appears to the Commissioner of Prisons necessary to do so, he may on authorizing the temporary release of an inmate of a senior training school under this section direct that such inmate shall be kept in the custody of some person designated by the Commissioner of Prisons during his absence from the school.

(4) Any inmate of a senior training school who is released un der this section shall comply with any condition specified under subsec tion (1) and shall return to the school at the expiration of the period for which he was released and an inmate who fails to comply with any such condition or to return to such school in accordance with this subsection shall be deemed to be unlawfully at large.

Persons unlawfully at large

65 (1) Any person who, having been sentenced to undergo correc tive training, or otherwise having been ordered to be committed to and detained in a senior training school, is unlawfully at large, may be ar rested by a police officer without warrant and taken to the place in which he is required in accordance with law to be detained,

(2) Where any person sentenced to undergo corrective training is unlawfully at large at any time during his maximum period of correc tive training, then, unless the Governor otherwise directs, no account shall be taken, in calculating the period for which he is liable to be de tained in a senior training school, of any time during which, being un lawfully at large, he is absent from a senior training school:

Provided that where a person unlawfully at large as aforesaid is not arrested and again detained until after he has attained the age of twenty-four years, he may, if the Governor so orders, be committed to a prison and be detained therein for such term not longer than the re mainder of his maximum period of corrective training as the Governor
may direct.

Lawful custody

66 Any person who has been sentenced to undergo corrective training or who has otherwise been ordered to be committed to and de tained in a senior training school shall be deemed to be in lawful custody while he is confined in, or being taken to or from any senior training school and while he is working, or is for any other reason, outside the senior training school in the custody or under the control of some other person.

Punishment of offences against senior training school rules

67 (1) Senior training school rules shall set out the acts and omis sions by inmates of senior training schools which constitute offences against discipline, the procedure for dealing therewith, and subject as hereinafter in this Act provided, the punishments therefor.

(2) Senior training school rules shall make provision for en suring that an inmate charged with an offence against the rules shall be given a proper opportunity of presenting his case.

(3) Without prejudice to anything in section 68, (which relates to the imposition of corporal punishment on inmates of a senior training school), and subject to any provision of senior training school rules with respect to the fitness of an inmate to undergo such a punishment�

(a) [repealed by 1982:47]

(b) the Commissioner of Prisons may in respect of an of fence against discipline committed by an inmate of a se nior training school impose one or more of the following punishments�

(i) removal of an inmate from his house;

(ii) deprivation or postponement of privileges;

(iii) reduction in grade or delay in promotion to a higher grade;

(iv) confinement to a room for a period not exceeding fourteen days or, where the inmate is found guilty of mutiny or incitement to mutiny, or of personal violence to a senior training school offi cer, for a period not exceeding twenty-eight days;

(v) restricted diet (as prescribed by senior training school rules) for a period not exceeding fourteen days;

(vi) stoppage of earnings for a period not exceeding twenty-eight days.

(4) Without prejudice to anything in section 68, senior training school rules shall provide for rendering reports of punishments imposed under this section to the Governor and to the Minister not less frequently than once in each fortnight.

(5) The Governor acting after consultation with the Minister may remit or mitigate any punishment imposed under this section.

Corporal punishment for offences against senior training school rules

68 (1) Except as provided by this section senior training school rules shall not authorize the infliction of corporal punishment upon the inmates of a senior training school for offences against the rules.

(2) Subject to section 81, senior training school rules may au thorize the infliction of corporal punishment for mutiny, incitement to mutiny or personal violence to a senior training school officer when committed by an inmate of a senior training school who is undergoing corrective training.

(3) Senior training school rules shall not authorize the infliction of corporal punishment on an inmate under this section except by order of the Board made at a meeting of the Board, and no such order shall be made except after an enquiry in which the evidence is given on oath:

Provided that the Governor may, if he thinks fit in any particular case, direct that the functions exercisable as aforesaid by the Board shall be exercised by a magistrate appointed in that behalf.

(4) Subject to section 81, the punishment which may be in flicted on an inmate under such an order as aforesaid shall not exceed�

(a) in the case of an inmate appearing to the Board or mag istrate to be not under the age of eighteen years, eigh teen strokes of the cat-o'-nine-tails or twenty-four strokes of the cane or birch rod; or

(b) in the case of an inmate appearing to them or him to be under that age, but not under the age of sixteen years, eighteen strokes of the cane or birch rod; or

(c) in the case of an inmate appearing to them or him to be under the age of sixteen years, twelve strokes of the cane or birch rod;

and if corporal punishment is so inflicted then no further punishment by way of confinement to a room or restricted diet shall be imposed.

(5) Where an order for the infliction of corporal punishment has been made under this section, a copy of the notes of the evidence given at the enquiry, a copy of the order and a statement of the grounds on which it was made shall forthwith be transmitted to the Governor and to the Commissioner of Prisons; and the Governor may direct that the order shall be confirmed or modified or annulled; and the order shall not be carried into execution until the Governor has given directions with re spect thereto.

(6) An annulment by the Governor of such an order as afore said shall not prejudice any power to impose another punishment for the offence in respect of which the order was made.

(7) Any such corporal punishment as aforesaid shall be carried into execution in a prison in accordance with the law for the time being in force relating to the regulation of prisons.

(8) In the exercise of his powers under this section the Gover nor shall act after consultation with the Minister.

Photographing and finger-printing of convicted inmates

69 (1) Any inmate of a senior training school detained therein by reason of his conviction of an offence may be photographed and mea sured, and may be required to have his finger-prints taken, either by a senior training school officer or by a police officer acting under the direc tion of the senior training school officer for the time being in charge of the school.

(2) Any person acting in pursuance of subsection (1) may use reasonable force for the purpose.

(3) Any photographs, measurements and finger prints taken in pursuance of subsection (1) or (2) shall be transmitted to the Commis sioner of Police, who shall cause them to be indexed in a register in such manner as he may from time to time direct.

(4) For the purposes of this section the expression "fingerprints" includes palm-prints and foot-prints.

Aiding escape from senior training school

70 Any person who�

(a) aids any inmate of a senior training school (whether or not within a senior training school) in escaping or at tempting to escape from lawful custody; or

(b) conveys, or causes to be conveyed, any instrument or article into a senior training school or into any other place in which an inmate thereof is for the time being in lawful custody, with intent to facilitate the escape of such inmate therefrom,

commits an offence against this Act:

Punishment on conviction on indictment: imprisonment for 3 years;

Punishment on summary conviction : imprisonment for 6 months or a fine of $1,680 or both such imprisonment and fine.

Conveying prohibited articles into senior training school

71 Any person who�

(a) conveys or introduces, or attempts to convey or intro duce, or causes to be conveyed or introduced, any arti cle, commodity or thing into a senior training school in contravention of senior training school rules; or

(b) conveys or attempts to convey, or causes to be conveyed any article, commodity or thing to an inmate of a senior training school (whether or not within a senior training school) in contravention of senior training school rules; or

(c) enters or attempts to enter into communication with an inmate of a senior training school (whether or not within a senior training school) in contravention of senior training school rules,

commits an offence against this Act:

Punishment on conviction on indictment: imprisonment for 12 months;

Punishment on summary conviction: imprisonment for 6 months or a fine of $840 or both such imprisonment and fine.

Interpretation of sections 70 and 71

72 For the purposes of sections 70 and 71 a person shall be deemed to convey or introduce an article into a senior training school if he con veys it to an inmate of the senior training school outside the

Bermuda Consolidated Legislation

Young Offenders Act 1950