Ref: ENV/8.9

12 November 2004

Ministry Circular

THE HISTORIC WRECKS ACT 2001

            I have been asked to confirm the official interpretation of section 14 of the Historic Wrecks Act 2001 as it applies to an “amnesty and abandonment of Crown claims”, I confirm this interpretation is in accordance with the advice given by the Attorney-General’s Chambers on 15^th July 2004 (ref: DFT 324).

2.         The Attorney-General’s Chambers advised as follows:

            “There is no need to amend section 14(2) of the Historic Wrecks Act 2001 because that provision no longer has any practical effect. This is because the Act has now been in force for more than six months. (Note: The Act was brought into effect on 31^st January 2003.) Consequently, any offence committed before the coming into force of the Act is statue barred by virtue of section 452 of the Criminal Code Act 1907 which imposes a six-month limit on the bringing of prosecutions of summary offences.”

3.         Section 14(1) of the Act provides for an amnesty for a period “within six months of the operative date” during which time “no prosecution of any person shall be laid in respect of any offence under section 9 of the Wreck and Salvage Act 1959”. The purpose of this amnesty was to encourage persons to come forward with their collections of maritime artefacts and make them available to the Custodian to photograph and record for the purposes of developing an accurate and comprehensive National Collection.

4.         The Historic Wrecks Act 2001 came into force on 31^st January 2003. Therefore, the six month amnesty expired on 31^st July 2003. However, the Custodian was not appointed until January 2004. As a consequence, the duties of the Custodian, that include the creation of a National Collection under section 12, did not commence until six months after the expiration of the amnesty.

5.         The time lapse prior to the appointment of the Custodian meant that collectors could not submit their artifacts for recording during the six-month amnesty period. Accordingly, interested parties have questioned whether the Act should be amended to introduce a new amnesty period now that the Custodian is in office. The Attorney-General’s Chambers has confirmed this is not necessary (see para. 2 above).

6.         In accordance with section 452 of the Criminal Code Act 1907 any summary offence that may have occurred had to be pursued for prosecution within six months – or by no later than 31^st July 2003. A further 18 months have passed, which means that any offence committed prior to the 31^st January 2003 effective date of the Act is now free from prosecution. Hence, there is no need to provide for another amnesty period.

7.         To summarize the position, collectors are free to come forward with any artefacts found before January 2003 for recording by the Custodian and for the development of a National Collection in the knowledge and with the comfort that they cannot be prosecuted. We have an opportunity now, in co-operation with local collectors, to create a meaningful and thorough National Collection designed to display Bermuda’s underwater cultural heritage.

8.         In closing, I must emphasize that this advisory does not suggest that artefacts have been collected in anything but a lawful way. The purpose is to confirm the interpretation of section 14 of the Act and to put people’s minds at rest about the threat of prosecution.

Brian Rowlinson

Permanent Secretary