Its time to amend PACE
When the Police and Criminal Evidence Act (PACE) was passed in Bermuda in December 2005 it represented a revolution in Bermudas criminal justice process.
As far back as 1992, Stephen Tumin, Chair of the Criminal Justice Review Board, had been critical of the lack of training in community policing. This was based on evidence from individuals in the community that stop and search procedures were handled insensitively by police, that individuals were being unfairly detained overnight in police cells, and that interviews by police needed to be recorded for accuracy and accountability. Tumins findings on the legal system, in part were as follows:
Within the legal structure of Bermuda, it was perceived that a great deal of work needed to be done by the police in developing the confidence of the community. Central to this was the necessity to make police accountable for their actions in respect of accused persons. Legislation which demanded clear and verifiable accounts of how people are treated whilst in police custody was essential. Police training would have to be improved to ensure that standards of practice were consistent with such requirements of accountability.
In fact, Tumins seventh recommendation called for the introduction of legislation along the lines of PACE in the United Kingdom.
In Bermuda, PACE sets out the powers the police may exercise in the course of their investigations, while also establishing safeguards for suspects.
An important component of the PACE regime is the Blue Book, which is the common name for the Codes of Practice issued under sections 62, 63 and 73. In great detail, the Codes regulate how the police are to exercise their powers. Right now, they cover the following (* indicates those Codes not yet operational):
Code A governs the exercise of all police powers to stop and search persons and vehicles and the requirements to record encounters with the public.
Code B governs the search of premises and seizing of property during the course of a criminal investigation.
*Code C, when it comes into force, will govern the detention, treatment and questioning of individuals in police custody.
Code D governs the processes used by police in the identification of persons connected with criminal investigations and the requirement to keep accurate and reliable records.
Code E governs audio and video recording of interviews of suspects and the conduct of such.
Code F governs conduct of police officers during interviews in special situations other than at a police station.
*Code G, when it comes into force, will govern the exercise of police powers of arrest.
The Codes specifically require that the Codes be readily available at all police stations for consultation by:
l police officers and civilian staff
l detained persons
l members of the public.
Indeed, in the foreword to the first edition of the Codes published in 2008, Senator Kim Wilson, Attorney-General and Minister for Justice stated: These Codes regulate police powers and procedures in the investigation of crime and set down safeguards and protections for members of the public. They also provide a clear statement of the rights of the individual and the powers of the police.
Copies of these Codes of Practice will be available at each police station for consultation by police officers, detained persons and members of the public.
However, it is important to note that there is no requirement for the police to inform suspects of the availability of the Codes or the suspects right to consult the Codes.
Availability is, of course, pointless if the fact of their existence is not known.
Once he has been detained for an interview, an accused has the right to obtain advice and representation from the duty counsel or Legal Aid Counsel (section 2A of the Legal Aid Act 1980). What the Codes offer is a halfway house for those who may, for whatever reason, not want a lawyer.
What happens if the Codes are not complied with? Failure on the part of a police officer to comply with any provision of the Codes does not in itself render the police officer liable to any criminal or civil proceedings (section 74(4) of PACE). However, section 93 of PACE does safeguard an accused from an unfair trial. Evidence which may have been obtained in contravention of the Codes may later be excluded by the Court if the admission of such evidence could adversely affect the fairness of the proceedings.
The Codes are an essential part of our fundamental right to the presumption of innocence guaranteed by the Bermuda Constitution. Therefore, it is time to amend PACE to enforce the intended impact of the Codes by
(a) expressly creating the right of a detained person to consult the Codes at any time
(b) informing a person brought to a police station of this right, and
(c) requiring that notices of the availability of the Codes be placed in prominent places throughout police stations.
Until such reforms are put in place, remember that if you find yourself detained by the police, it is your right to consult the Codes at any time.
In the meantime, you can review the Codes by going to: http://www.justice.bm/dom-law-int-con/dom-law/rel-bda-legislation/pace or http://www.gov.bm/portal/server.pt?open=512&objID=802&mode=2&in_hi_userid=2&cached=true
The Centre for Justice is an independent, non-governmental, non-profit, non-partisan organisation. Send questions and comments to email@example.com.
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