Police Complaints Authority Act 1998

Link to law: http://www.bermudalaws.bm/Laws/Annual%20Laws/1998/Acts/Police%20Complaints%20Authority%20Act%201998.pdf

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Police Complaints Authority Act 1998
POLICE COMPLAINTS AUTHORITY ACT 1998

1

BERMUDA
1998 : 29

POLICE COMPLAINTS AUTHORITY ACT 1998

[Date of Assent 13 July 1998]

[Operative Date 5 October 1998]

ARRANGEMENT OF SECTIONS

1 Short title
2 Interpretation
3 Act to bind Crown
4 Police Complaints

Authority
5 Functions of the Authority
6 Commissioner to notify

Authority of incidents
involving death or serious
injury

7 Making a complaint
8 Commissioner to notify

Authority of complaints
9 Authority to notify

Commissioner of
complaints

10 Action upon receipt of
complaint

11 Informal resolution of
complaint

12 Authority may decide to
take no action on
complaint

13 Subsequent powers in
relation to complaint

14 Commissioner to report to
Authority on police
investigation of complaint

15 Commissioner to provide
information and
assistance at request of
Authority

16 Preservation of evidence
17 Proceedings of Authority
18 Powers of Authority in

relation to investigations

POLICE COMPLAINTS AUTHORITY ACT 1998

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19 Protection and privileges
of witnesses, etc.

20 Procedure after
investigation by Authority

21 Procedure after
investigation by police

22 Implementation of
recommendations of
Authority

23 Parties to be informed
24 Adverse comment
25 Authority and staff to

maintain secrecy

26 Privilege
27 Annual report
28 Offences
29 Wasting time of police or

Authority
30 Consequential

amendment
31 Saving for disciplinary

powers under Police Act
32 Transitional
33 Commencement

SCHEDULE

WHEREAS it is expedient to establish a Police Complaints
Authority and to make better provision for the investigation and
resolution of complaints against the police:

Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:

Short title
1 This Act may be cited as the Police Complaints Authority Act
1998.

Interpretation
2 In this Act—

"the Authority" means the Police Complaints Authority
established under section 4;

"the Commissioner" means the Commissioner of Police;

"complaint" means any complaint about the conduct of an officer
which is submitted—

(a) by a member of the public; or

(b) on behalf of a member of the public and with his written
consent;

"the Minister" means the Minister responsible for police matters;

"officer" means a police officer of the Bermuda Police Service;

POLICE COMPLAINTS AUTHORITY ACT 1998

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Act to bind Crown
3 This Act binds the Crown.

Police Complaints Authority
4 (1) There is established a body to be known as the Police
Complaints Authority.

(2) The Authority shall consist of a Chairman who shall be a
barrister and five members.

(3) The Chairman and members of the Authority shall be
appointed by the Governor after consultation with the Minister.

(4) Fees shall be paid to the Chairman and members of the
Authority in accordance with the provisions of the Government
Authorities (Fees) Act 1971.

(5) The Minister shall provide such staff support and other
services as the Authority may require to perform its functions.

(6) The provisions of the Schedule have effect with regard to the
constitution of, and other matters concerning, the Authority.

Functions of the Authority
5 (1) The functions of the Authority are—

(a) to receive complaints alleging any misconduct, neglect of
duty or negligent performance of duty by an officer;

(b) where it is satisfied that there are reasonable grounds to
carry out an investigation in the public interest, of its
own initiative, to conduct its own investigation or to
direct and supervise an investigation of any incident
involving death or serious injury;

(c) to take such action in respect of complaints, incidents
and other matters as is contemplated by this Act.

(2) In the course of taking action in respect of any complaint
the Authority may direct and supervise an investigation of any apparent
misconduct, or neglect or negligent performance of duty by an officer
which appears to the Authority to relate to the complaint,
notwithstanding that the complaint itself does not refer to that
misconduct or neglect or negligent performance of duty.

(3) Nothing in subsection (1) shall authorize the Authority to
investigate any matter relating to the terms and conditions of service of
an officer.

POLICE COMPLAINTS AUTHORITY ACT 1998

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Commissioner to notify Authority of incidents involving death or
serious injury
6 Where an officer acting in the execution of his duty causes, or
appears to have caused, death or serious injury to any person, the
Commissioner shall, as soon as practicable, give to the Authority a
written notice setting out particulars of the incident in which the death
or serious injury was caused.

Making a complaint
7 (1) A complaint may be made either orally or in writing.

(2) A complaint made orally shall be reduced to writing as soon
as practicable.

(3) A complaint may be made to an officer or to the Authority.

(4) It is the duty of an officer on receipt of a complaint to
transmit the complaint forthwith to the Commissioner.

(5) Notwithstanding any provision in any enactment, where any
letter appearing to be written by or on behalf of—

(a) a person in custody on a charge or after conviction of
any offence; or

(b) a patient of a hospital within the meaning of the Mental
Health Act 1968,

is addressed to the Authority, the person for the time being in charge of
the place or institution where the person is in custody or is a patient
shall immediately forward the letter, unopened, to the Authority.

Commissioner to notify Authority of complaints
8 Immediately on receipt of it the Commissioner shall notify the
Authority of every complaint received by the police, other than a
complaint notified to the Commissioner by the Authority.

Authority to notify Commissioner of complaints
9 Immediately on receipt of it the Authority shall notify the
Commissioner of every complaint received by it, other than a complaint
notified to it by the Commissioner.

Action upon receipt of complaint
10 (1) On receiving or being notified of a complaint, the Authority
may do one or more of the following:

(a) defer action until the receipt of a report from the
Commissioner on a police investigation of the complaint;

POLICE COMPLAINTS AUTHORITY ACT 1998

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(b) direct and supervise a police investigation of the
complaint;

(c) conduct its own investigation, whether or not a police
investigation is or has been undertaken;

(d) request the Commissioner to seek an informal resolution
of the complaint;

(e) decide pursuant to section 12 to take no action on the
complaint.

(2) The Authority shall, as soon as practicable, advise the
Commissioner and the complainant of the procedure it proposes to adopt
under subsection (1).

Informal resolution of complaint
11 (1) Where the Authority gives a direction under section 10(1)(d),
the Commissioner shall appoint an officer to resolve the complaint
informally.

(2) If the officer is able to resolve the complaint informally, he
shall advise the Commissioner of the resolution, and the terms thereof,
and the Commissioner shall inform the Authority accordingly.

(3) If the officer is not able to resolve the complaint informally,
he shall so advise the Commissioner and the Authority, and the
Commissioner shall cause a formal investigation of the complaint to be
conducted.

Authority may decide to take no action on complaint
12 (1) The Authority may decide to take no action, or, as the case
may require, no further action, on any complaint if

(a) the complaint relates to a matter of which the person
alleged to be aggrieved has had knowledge for more than
12 months before the complaint was made; or

(b) in the opinion of the Authority

(i) the subject-matter of the complaint is trivial;

(ii) the complaint is frivolous or vexatious or is not
made in good faith;

(iii) the person alleged to be aggrieved does not
desire that action be taken or, as the case may
be, continued; or

POLICE COMPLAINTS AUTHORITY ACT 1998

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(iv) there is in all the circumstances an adequate
alternative remedy or right of appeal, which it
would be reasonable for the person alleged to be
aggrieved to exercise.

(2) The Authority may decide not to take any further action on
a complaint if, in the course of the investigation of the complaint by the
Authority or the police, or as a result of the Commissioner's report on a
police investigation, it appears to the Authority that, having regard to all
the circumstances of the case, any further action is unnecessary or
inappropriate.

(3) In any case where the Authority decides to take no action,
or no further action, on a complaint, it shall inform the complainant of
that decision and the reasons for it.

Subsequent powers in relation to complaint
13 The Authority may at any time

(a) review a police investigation of a complaint;

(b) decide to conduct its own investigation of a complaint;

(c) give such directions to the Commissioner concerning the
investigation as it thinks fit;

(d) direct the Commissioner to re-open an investigation, and
thereafter direct and supervise the investigation;

(e) direct the Commissioner to reconsider his proposals for
action on a complaint;

(f) decide, in accordance with section 12, to take no further
action on the complaint;

(g) decide that no action by the Authority is required on the
ground that it considers that the outcome of a police
investigation is satisfactory.

Commissioner to report to Authority on police investigation of
complaint
14 (1) The Commissioner shall as soon as practicable, and in no
case later than 21 days after the completion of a police investigation of a
complaint, report to the Authority—

(a) whether the complaint has been upheld and, if so, what
action has been taken or is proposed to be taken to
rectify the matter;

POLICE COMPLAINTS AUTHORITY ACT 1998

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(b) whether the complaint has been resolved informally
pursuant to section 11 and, if so, the terms on which it
has been resolved.

(2) When reporting to the Authority under this section, the
Commissioner shall supply to the Authority accompanying material
sufficient to enable the Authority to assess the adequacy of the police
investigation.

(3) The Commissioner may consult the Authority on any police
proposals for action on a complaint before reporting to the Authority
under this section.

Commissioner to provide information and assistance at request of
Authority
15 (1) The Commissioner shall, whenever the Authority so
requests, provide to the Authority all such information and assistance as
is necessary for the proper performance by the Authority of its functions
in relation to the investigation of any complaint or incident under this
Act.

(2) Where the Authority supervises and directs a police
investigation of a complaint, the Commissioner shall, whenever the
Authority so requests, provide to the Authority—

(a) any or all information in the possession or under the
control of the police that is relevant to the complaint;

(b) a report on the progress of the investigation.

Preservation of evidence
16 The Commissioner shall, in respect of any complaint, take such
steps as appear to him to be desirable for the purpose of obtaining or
preserving evidence relevant to the complaint.

Proceedings of Authority
17 (1) Before proceeding to investigate any complaint under this
Act the Authority shall inform the Commissioner, the complainant (if
any), and, unless the interests of justice otherwise require, any person
alleged to be aggrieved (if not the complainant) of its intention to make
the investigation.

(2) Every investigation by the Authority under this Act shall be
conducted in private.

(3) Subject to section 24, the Authority may hear or obtain
information from such persons as it thinks fit, including, where it
considers that cultural matters are a factor relevant to a complaint or

POLICE COMPLAINTS AUTHORITY ACT 1998

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investigation, information from such persons as the Authority thinks
have knowledge or experience in those matters.

(4) The Chairman shall determine matters of procedure and
admissibility of evidence.

Powers of Authority in relation to investigations
18 (1) The Authority may require any person who in its opinion is
able to give information relating to any matter under investigation by the
Authority to furnish such information, and to produce such documents
or things in the possession or under the control of that person, as in the
opinion of the Authority are relevant to the subject-matter of the
investigation.

(2) The Authority may summon before it and examine on oath
any person who in its opinion is able to give any information relating to
the matter under investigation, and may for the purpose administer an
oath to any person so summoned.

(3) Every such examination by the Authority shall be deemed
to be a judicial proceeding within the meaning of section 119 of the
Criminal Code (which relates to perjury).

(4) For the purpose of this section the Authority shall have the
powers of a judge of the Supreme Court.

Protection and privileges of witnesses, etc.
19 (1) Except as provided in subsection (2), every person shall
have the same privileges in relation to the giving of information to the
Authority, the answering of questions put by the Authority, and the
production of documents and things to the Authority, as witnesses have
in any court.

(2) Where the Authority requires any person to give any
information or produce any document or thing, and compliance with that
requirement would breach an obligation of secrecy or non-disclosure
imposed on that person by or under any enactment,—

(a) the existence of the obligation shall not constitute a
ground for refusal or failure to give the information or
produce the document or thing, as the case may be; and

(b) compliance with any such requirement is not a breach of
the relevant obligation of secrecy or non-disclosure, or of
the enactment or provision by which that obligation is
imposed.

POLICE COMPLAINTS AUTHORITY ACT 1998

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(3) No person shall be liable to prosecution for an offence
against any enactment, other than section 28 or 29, by reason of that
person's compliance with any requirement of the Authority under section
18.

(4) Except in proceedings for perjury within the meaning of the
Criminal Code in respect of sworn testimony given before the Authority,
or for an offence against section 28 or 29,—

(a) no statement made or answer given by any person in the
course of any investigation by or proceedings before the
Authority shall be admissible in evidence against that or
any other person in any court or in any inquiry or other
proceeding; and

(b) no evidence in respect of proceedings before the
Authority shall be given against any person.

(5) Where the attendance of any person is required by the
Authority under section 18, the person shall be entitled to the same fees
and expenses as a witness in a court of summary jurisdiction.

Procedure after investigation by Authority
20 (1) Where the Authority itself undertakes an investigation
under this Act it shall form an opinion on whether or not any decision,
recommendation, act, omission or conduct, which was the subject-
matter of the investigation was contrary to law, unreasonable,
unjustified, unfair, or undesirable.

(2) The Authority shall convey its opinion, with reasons, to the
Commissioner, and may make such recommendations as it thinks fit,
including a recommendation that disciplinary or criminal proceedings be
considered or instituted against any member of the police.

Procedure after investigation by police
21 (1) Where, pursuant to section 14, the Commissioner reports to
the Authority on a police investigation of a complaint, the Authority shall
consider the report and determine whether or not any act, omission,
decision, recommendation or conduct which was the subject of the
investigation was contrary to law, unreasonable, unjustified, unfair or
undesirable.

(2) The Authority—

(a) shall indicate to the Commissioner whether or not it
agrees with the Commissioner's decision or proposed
decision in respect of the complaint;

POLICE COMPLAINTS AUTHORITY ACT 1998

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(b) may, where it does not so agree, make such
recommendations, supported by its reasons for them, as
it thinks fit and it may recommend that disciplinary or
criminal proceedings be instituted against an officer.

Implementation of recommendations of Authority
22 (1) The Commissioner, as soon as practicable after receiving
any recommendation under section 21(2), shall—

(a) notify the Authority of the action proposed to be taken to
give effect to the recommendation; and

(b) where the proposed action departs from or does not
implement the recommendation, the reasons therefor
together with the Commissioner's comments.

(2) If, within a reasonable time after a recommendation is
made, no action is taken which seems to the Authority to be adequate
and appropriate, the Authority shall require the Commissioner to
comment on the recommendation and, after considering any comments
made by the Commissioner, may—

(a) send a copy of its opinion and recommendations on the
matter, together with the comments of the
Commissioner, to the Minister and to the Governor; and

(b) where it considers it appropriate, transmit to the
Minister for tabling in both Houses of the Legislature
such report on the matter as it thinks fit.

(3) The Minister shall, as soon as practicable after receiving a
report under subsection (2)(b), lay the report before both Houses of the
Legislature.

Parties to be informed
23 Where the Authority conducts its own investigation or directs
and supervises the investigation of a complaint, it shall in every case
inform the parties concerned, as soon as practicable after the conclusion
of the investigation, of the result of the investigation.

Adverse comment
24 The Authority shall not—

(a) in any opinion or recommendation given under section
20 or 21; or

(b) in any report under section 22,

POLICE COMPLAINTS AUTHORITY ACT 1998

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make any comment that is adverse to any person unless that person has
been given an opportunity to be heard.

Authority and staff to maintain secrecy
25 (1) The Authority, and every person acting under the direction
of the Authority, shall maintain secrecy in respect of all matters that
come to their knowledge in the exercise of their functions, and shall not
communicate any such matter to any person except for the purpose of
carrying out their functions under this Act.

(2) Notwithstanding subsection (1), the Authority may disclose
such matters as in the opinion of the Authority ought to be disclosed—

(a) for the purposes of carrying out an investigation or other
duty of the Authority under this Act; or

(b) in order to establish grounds for the Authority's
conclusions and recommendations.

Privilege
26 (1) No proceedings, civil or criminal, shall lie against the
Authority, or against any person acting under the direction of the
Authority, for anything done or reported or said by the Authority or
person in the course of the exercise or intended exercise of their
functions under this Act, unless it is shown that the Authority or person
acted in bad faith.

(2) No member of the Authority or person acting under the
direction of the Authority, shall be called to give evidence in any court, or
in any proceedings of a judicial nature, in respect of anything coming to
their knowledge in the exercise of their functions under this Act.

(3) Anything said or any information given or any document or
thing produced by any person in the course of any investigation
conducted by, or proceedings before, the Authority under this Act shall
be privileged in the same manner as if the investigation or proceedings
were proceedings in a court.

Annual report
27 (1) Without limiting the right of the Authority to report at any
time under section 22, the Authority shall in each year furnish to the
Minister and to the Governor a report on the exercise of its functions
under this Act.

(2) The Minister shall lay a copy of every such report before
both Houses of the Legislature as soon as practicable after the date on
which it is furnished to him.

POLICE COMPLAINTS AUTHORITY ACT 1998

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Offences
28 Any person who—

(a) obstructs, hinders or resists a member or servant of the
Authority or any person acting under the direction of the
Authority in exercise of their powers under this Act;

(b) without reasonable excuse, refuses or fails to comply
with any requirement of the Authority under this Act;

(c) makes any statement or gives any information to the
Authority or to any person acting under the direction of
the Authority knowing that the statement or information
is false or misleading;

(d) discloses information in contravention of section 25,

is guilty of an offence and liable on summary conviction to a fine not
exceeding $2,000.

Wasting time of police or Authority
29 Any person who makes a frivolous, vexatious or malicious
complaint thereby wasting the time of the police or the Authority is guilty
of an offence and liable on summary conviction to a fine not exceeding
$3,000 or imprisonment for a term not exceeding three months.

Consequential amendment
30 The First Schedule to the Government Authorities (Fees) Act
1971 is amended by the deletion of the words "Police Complaints Review
Board" and the substitution of the words "Police Complaints Authority".

Saving for disciplinary powers under Police Act
31 Nothing in this Act shall be construed to affect the powers of the
police to deal with disciplinary matters under the Police (Discipline)
Orders 1975.

Transitional
32 Any complaint that was filed before the commencement of this
Act shall be dealt with under the procedures in operation on the date the
complaint was filed.

Commencement
33 This Act comes into operation on such day as the Minister may
appoint by notice published in the Gazette.

POLICE COMPLAINTS AUTHORITY ACT 1998

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SCHEDULE (section 4(6))

1. The Chairman and members of the Authority shall hold
office for such term not exceeding five years as may be
specified in their respective instruments of appointment.

2. The Governor may appoint one of the members as
Deputy Chairman and he shall act as Chairman in the
absence of the Chairman.

3. The Chairman, Deputy Chairman and members of the
Authority are eligible for re-appointment.

4. At a meeting of the Authority the quorum shall be three.

5. Any question for decision by the Authority shall be
decided by a majority of the members (including the
Chairman) present and voting.

6. Each member (including the Chairman) has one vote
except that, in the event of a tie, the Chairman or
Deputy Chairman, as the case may be, has a casting
vote.

7. An act of the Authority is not invalid by reason only of a
vacancy in the Authority's membership or a defect in a
member's appointment.

8. Subject to this Act, the Authority may regulate its own
procedure.

9. The expenses of the Authority shall be met out of funds
to be appropriated annually by the Legislature.