Police and Criminal Evidence Act 2006
Title 8
Laws of Bermuda Item 38
1
BERMUDA
2006 : 1
POLICE AND CRIMINAL EVIDENCE ACT 2006
Date of Assent: 24 February 2006
Operative Date: 8 September 2008 (See specified Sections in RED to indicate Sections
in force); All other Sections effective by Notice in Gazette
ARRANGEMENT OF SECTIONS
PART I
INTRODUCTORY
1 Short title and
commencement
2 Interpretation
3 Meaning of "serious
arrestable offence"
4 Police officers performing
duties of higher rank
PART II
POWERS TO STOP AND
SEARCH
5 Power of police officer to
stop and search persons,
vehicles etc.
6 Provisions relating to
search under section 5
and other powers
7 Duty to make records
concerning searches
PART III
POWERS OF ENTRY, SEARCH
AND SEIZURE
Search warrants
8 Power of magistrate to
authorize entry and
search of premises
9 Special provisions as to
access
10 Meaning of "items subject
to legal privilege"
11 meaning of "excluded
material"
12 Meaning of "personal
records"
POLICE AND CRIMINAL EVIDENCE ACT 2006
2
13 Meaning of "journalistic
material"
14 Meaning of "special
procedure material"
15 Search warrants
safeguards
16 Execution of warrants
Entry and search without search
warrant
17 Entry for purpose of
arrest etc.
18 Entry and search after
arrest
19 General power of seizure
etc.
20 Extension of powers of
seizure to computerized
information
21 Access and copying
22 Retention
PART IV
ARREST
23 Arrest without warrant for
arrestable offences
24 General arrest conditions
25 Repeal of statutory powers
of arrest without warrant
or order
26 Fingerprinting of certain
offenders
27 Information to be given on
arrest
28 Voluntary attendance at
police station, etc.
29 Arrest elsewhere than at
police station
30 Arrest for further offence
31 Search upon arrest
PART V
DETENTION
Detention - conditions and
duration
32 Limitations on police
detention
33 Designated police stations
34 Custody officers at police
stations
35 Duties of custody officer
before charge
36 Guidance
37 Decision of the Director of
Public Prosecutions on
charging
38 Breach of bail following
release under section
35(7)(a)
39 Release under section
35(7)(a): further provision
40 Duties of custody officer
after charge
41 Responsibilities in relation
to person detained
42 Review of police detention
43 Use of telephone for
review under s.42
44 Limits on period of
detention without charge
45 Authorization of
continued detention by
chief inspector
46 Warrants of further
detention by Magistrates
Court
47 Extension of warrants of
further detention by
Magistrates Court
48 Detention before charge-
supplementary
49 Detention after charge
Title 8
Laws of Bermuda Item 38
3
Detention - miscellaneous
50 Power of arrest for failure
to answer to police bail
51 Bail after arrest
52 Records of detention
53 Savings
PART VI
QUESTIONING AND
TREATMENT OF PERSONS BY
POLICE
54 Abolition of certain powers
of police officers to search
persons
55 Searches of detained
persons
56 Searches and examination
to ascertain identity
57 Intimate searches
58 Information about rights
59 Right to remain silent
60 Right to have someone
informed when arrested
61 Access to legal advice
62 Tape-recording of
interviews
63 Visual recording of
interviews
64 Fingerprinting consent
65 Intimate samples
66 Other samples
67 Fingerprints and samples:
supplementary provisions
68 Testing for presence of
controlled drugs
69 Testing for presence of
controlled drugs:
supplementary
70 Destruction of fingerprints
and samples
71 Photographing of suspects
etc.
72 Interpretation
PART VII
CODES OF PRACTICE -
GENERAL
73 Codes of practice
74 Codes of practice -
supplementary
PART VIII
DOCUMENTARY EVIDENCE IN
CRIMINAL PROCEEDINGS
75 First-hand hearsay
76 Business etc. documents
77 Principles to be followed
by court
78 Statements in documents
that appear to have been
prepared for purposes of
criminal proceedings or
investigations
79 Proof of statements
contained in documents
80 Documentary evidence -
provisions supplementary
to this Part
PART IX
OTHER PROVISIONS ABOUT
DOCUMENTARY EVIDENCE IN
CRIMINAL PROCEEDINGS
81 Expert reports
82 Form of evidence and
glossaries
83 Evidence from computer
records
84 Provisions supplementary
to section 83
85 Microfilm copies
POLICE AND CRIMINAL EVIDENCE ACT 2006
4
86 Part IX - supplementary
PART X
EVIDENCE IN CRIMINAL
PROCEEDINGS - GENERAL
Convictions and acquittals
87 Proof of convictions and
acquittals
88 Conviction as evidence of
commission of offence
89 Provisions supplementary
to section 88
Confessions
90 Confessions
91 Confessions may be given
in evidence for co-accused
92 Confessions by mentally
handicapped persons
Miscellaneous
93 Exclusion of unfair
evidence
94 Time for taking accused’s
evidence
95 Competence and
compellability of accused’s
spouse
96 Rule where accused’s
spouse not compellable
97 Advance notice of expert
evidence in Supreme
Court
98 Part X - interpretation
PART XI
OTHER AND FINAL
PROVISIONS
99 Power of police officer to
use reasonable force
100 Use of force in making
arrest, etc.
101 Road checks
102 Repeals
103 Consequential
amendments
SCHEDULES
WHEREAS it is expedient to make provisions in relation to the
powers and duties of the police, persons in police detention, and criminal
evidence; and for connected matters in criminal proceedings:
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:⎯
PART I
INTRODUCTORY
Short title and commencement
1 (1) This Act may be cited as the Police and Criminal Evidence
Act 2006 and shall come into operation on such date as the Minister may
appoint by notice published in the Gazette.
(2) The Minister may appoint different days for different provisions.
Title 8
Laws of Bermuda Item 38
5
Interpretation
2 (1) In this Act —
"arrestable offence" has the meaning assigned to it by section 23;
"designated police station" has the meaning assigned to it by
section 33;
"document" means anything in which information of any
description is recorded;
"items subject to legal privilege" has the meaning assigned to it
by section 10;
"Minister" means the Minister of Justice;
“offshore installation” has the meaning given to it in section 8(6)
of the Merchant Shipping Act 2002;
“premises” includes any place and in particular, includes —
(a) any vehicle, vessel or aircraft;
(b) any offshore installation; and
(c) any tent or movable structure;
"recordable offence" means any offence to which regulations
under section 26(5) apply;
"serious arrestable offence" has the meaning given in section 3;
"vessel" includes any ship, boat, raft or other apparatus
constructed or adapted for floating on water.
(2) The expression "Magistrates Court inquiring into an offence
as examining magistrate" means a magistrate conducting an
examination of witnesses on an information for an indictable offence
under the Indictable Offences Act 1929.
(3) A person is in police detention for the purposes of this Act if
⎯
(a) he has been taken to a police station after being arrested
for an offence; or
(b) he is arrested at a police station after attending
voluntarily at the station or accompanying a police
officer to it,
and is detained there or is detained elsewhere in the charge of a police
officer, except that a person who is at a court after being charged is not
in police detention for those purposes.
POLICE AND CRIMINAL EVIDENCE ACT 2006
6
Meaning of "serious arrestable offence"
3 (1) This section has effect for determining whether an offence is
a serious arrestable offence for the purposes of this Act.
(2) The following arrestable offences are always serious ⎯
(a) an offence (whether at common law or under any
enactment) specified in Part I of Schedule 1 to this Act;
(b) an offence under an enactment specified in Part II of
Schedule 1;
(c) offences under sections 4, 5, 6(3), 7 or 11 of the Misuse
of Drugs Act 1972 (drug trafficking offences);
(d) offences under sections 43, 44 and 45 of the Proceeds of
Crime Act 1997 (certain money laundering offences);
(e) offences under sections 5, 6, 7 and 8 of the Anti-
Terrorism (Financial and Other Measures) Act 2004.
(3) Subject to subsection (4), any other arrestable offence is
serious only if its commission ⎯
(a) has led to any of the consequences specified in
subsection (5); or
(b) is intended or is likely to lead to any of those
consequences.
(4) An arrestable offence which consists of making a threat is
serious if carrying out the threat would be likely to lead to any of the
consequences specified in subsection (5).
(5) The consequences mentioned in subsections (3) and (4)
are ⎯
(a) serious harm to the security of Bermuda or to public
order;
(b) serious interference with the administration of justice or
with the investigation of offences or of a particular
offence;
(c) the death of any person;
(d) serious injury to any person;
(e) substantial financial gain to any person; and
(f) serious financial loss to any person.
(6) Loss is serious for the purposes of this section if, having
regard to all the circumstances, it is serious for the person who suffers
it.
Title 8
Laws of Bermuda Item 38
7
(7) In this section "injury" includes any disease and any
impairment of a person's physical or mental condition.
Police officers performing duties of higher rank
4 (1) For the purpose of any provision of this Act or any other Act
under which a power in respect of the investigation of offences or the
treatment of persons in police custody is exercisable only by or with the
authority of a police officer of at least the rank of chief inspector, an
officer of the rank of inspector shall be treated as holding the rank of
chief inspector if ⎯
(a) he has been authorized by an officer holding a rank
above the rank of chief inspector to exercise the power
or, as the case may be, to give his authority for its
exercise; or
(b) he is acting during the absence of an officer holding the
rank of chief inspector who has authorized him, for the
duration of that absence, to exercise the power or, as the
case may be, to give his authority for its exercise.
(2) For the purpose of any provision of this Act or any other Act
under which such a power is exercisable only by or with the authority of
an officer of at least the rank of inspector, an officer of the rank of
sergeant shall be treated as holding the rank of inspector if he has been
authorized by an officer of at least the rank of chief inspector to exercise
the power or, as the case may be, to give his authority for its exercise.
PART II
POWERS TO STOP AND SEARCH
Power of police officer to stop and search persons, vehicles etc.
5 (1) A police officer may exercise any power conferred by this
section —
(a) in any place to which at the time when he proposes to
exercise the power the public or any section of the public
has access, on payment or otherwise, as of right or by
virtue of express or implied permission; or
(b) in any other place to which people have ready access at
the time when he proposes to exercise the power but
which is not a dwelling.
(2) Subject to subsections (3) to (5), a police officer —
(a) may search —
(i) any person or vehicle;
POLICE AND CRIMINAL EVIDENCE ACT 2006
8
(ii) anything which is in or on a vehicle;
for stolen or prohibited articles; and
(b) may detain a person or vehicle for the purpose of such a
search.
(3) This section does not give a police officer power to search a
person or vehicle or anything in or on a vehicle unless he has reasonable
grounds for suspecting that he will find stolen or prohibited articles.
(4) If a person is in a garden or yard occupied with and used
for the purposes of a dwelling or on other land so occupied and used, a
police officer shall not search him in the exercise of the power conferred
by this section unless the police officer has reasonable grounds for
believing —
(a) that he does not reside in the dwelling; and
(b) that he is not in the place in question with the express
or implied permission of a person who resides in the
dwelling.
(5) If a vehicle is in a garden or yard occupied with and used
for the purposes of a dwelling or on other land so occupied and used, a
police officer shall not search the vehicle or anything in or on it in the
exercise of the power conferred by this section unless he has reasonable
grounds for believing —
(a) that the person in charge of the vehicle does not reside
in the dwelling; and
(b) that the vehicle is not in the place in question with the
express or implied permission of a person who resides in
the dwelling.
(6) If in the course of such a search a police officer discovers an
article which he has reasonable grounds for suspecting to be a stolen or
prohibited article he may seize it.
(7) An article is prohibited for the purposes of this Part of this
Act if it is ⎯
(a) an offensive weapon; or
(b) an article —
(i) made or adapted for use in the course of or in
connection with an offence to which this sub-
paragraph applies; or
(ii) intended by the person having it with him for such
use by him or by some other person.
(8) The offences to which subsection (7)(b)(i) applies are ⎯
Title 8
Laws of Bermuda Item 38
9
(a) burglary;
(b) theft;
(c) offences under section 365 of the Criminal Code Act
1907 (taking motor vehicle or other conveyance without
authority); and
(d) offences under section 369 of the Criminal Code Act
1907 (obtaining property by deception).
(9) In this Part “offensive weapon” means any article ⎯
(a) made or adapted for use for causing injury to or
incapacitating a person; or
(b) intended by the person having it with him for such use
by him or by some other person.
Provisions relating to search under section 5 and other powers
6 (1) A police officer who detains a person or vehicle in the
exercise —
(a) of the power conferred by section 5; or
(b) of any other power ⎯
(i) to search a person without first arresting him; or
(ii) to search a vehicle without making an arrest;
need not conduct a search if it appears to him subsequently —
(iii) that no search is required; or
(iv) that a search is impracticable.
(2) If a police officer contemplates a search, other than a search
of an unattended vehicle, in the exercise —
(a) of the power conferred by section 5; or
(b) of any other power —
(i) to search a person without first arresting him; or
(ii) to search a vehicle without making an arrest;
it shall be his duty, subject to subsection (4), to take reasonable steps
before he commences the search to bring to the attention of the
appropriate person —
(iii) if the police officer is not in uniform, documentary
evidence that he is a police officer; and
POLICE AND CRIMINAL EVIDENCE ACT 2006
10
(iv) whether he is in uniform or not, the matters
specified in subsection (3);
and the police officer shall not commence the search until he has
performed that duty.
(3) The matters referred to in subsection (2)(b)(iv) are —
(a) the police officer’s name and the name of the police
station to which he is attached;
(b) the object of the proposed search;
(c) the police officer’s ground for proposing to make it; and
(d) the effect of section 7(7) or (8), as may be appropriate.
(4) A police officer need not bring the effect of section 7(7) or (8)
to the attention of the appropriate person if it appears to the police
officer that it will not be practicable to make the record in section 7(1).
(5) In this section “the appropriate person” means —
(a) if the police officer proposes to search a person, that
person; and
(b) if he proposes to search a vehicle, or anything in or on a
vehicle, the person in charge of the vehicle.
(6) On completing a search of an unattended vehicle or
anything in or on such a vehicle in the exercise of any such power as is
mentioned in subsection (2) a police officer shall leave a notice —
(a) stating that he has searched it;
(b) giving the name of the police station to which he is
attached;
(c) stating that an application for compensation for any
damage caused by the search may be made to that
police station; and
(d) stating the effect of section 7(8).
(7) The police officer shall leave the notice inside the vehicle
unless it is not reasonably practicable to do so without damaging the
vehicle.
(8) The time for which a person or vehicle may be detained for
the purposes of such a search is such time as is reasonably required to
permit a search to be carried out either at the place where the person or
vehicle was first detained or nearby.
(9) Neither the power conferred by section 5 nor any other
power to detain and search a person without first arresting him or to
Title 8
Laws of Bermuda Item 38
11
detain and search a vehicle without making an arrest is to be
construed —
(a) as authorizing a police officer to require a person to
remove any of his clothing in public other than an outer
coat, jacket or gloves; or
(b) as authorizing a police officer not in uniform to stop a
vehicle.
(10) This section and section 5 apply to vessels and aircraft as
they apply to vehicles.
Duty to make records concerning searches
7 (1) Where a police officer has carried out a search in the
exercise of any such power as is mentioned in section 6(1), he shall make
a record of it in writing unless it is not practicable to do so.
(2) If —
(a) a police officer is required by subsection (1) to make a
record of a search; but
(b) it is not practicable to make the record on the spot,
he shall make it as soon as practicable after the completion of the
search.
(3) The record of a search of a person shall include a note of his
name, if the police officer knows it, but a police officer shall not detain a
person to find out his name.
(4) If a police officer does not know the name of the person
whom he has searched, the record of the search shall include a note
otherwise describing that person.
(5) The record of a search of a vehicle shall include a note
describing the vehicle.
(6) The record of a search of a person or a vehicle —
(a) shall state —
(i) the object of the search;
(ii) the grounds for making it;
(iii) the date and time when it was made;
(iv) the place where it was made;
(v) whether anything, and if so, what, was found;
POLICE AND CRIMINAL EVIDENCE ACT 2006
12
(vi) whether any, and if so what, injury to a person or
damage to property appears to the police officer to
have resulted from the search; and
(b) shall identify the police officer making it.
(7) If a police officer who conducted a search of a person made
a record of it, the person who was searched shall be entitled to a copy of
the record if he asks for it before the end of the period specified in
subsection (9).
(8) If —
(a) the owner of a vehicle which has been searched or the
person who was in charge of the vehicle at the time
when it was searched asks for a copy of the record of the
search before the end of the period specified in
subsection (9); and
(b) the police officer who conducted the search made a
record of it,
the person who made the request shall be entitled to a copy.
(9) The period mentioned in subsections (7) and (8) is the
period of 12 months beginning with the date on which the search was
made.
(10) The requirements imposed by this section with regard to
records of searches of vehicles shall apply also to records of searches of
vessels and aircraft.
PART III
POWERS OF ENTRY, SEARCH AND SEIZURE
Search warrants
Power of magistrate to authorize entry and search of premises
8 (1) If on an application made by a police officer a magistrate is
satisfied that there are reasonable grounds for believing —
(a) that a serious arrestable offence has been committed;
(b) that there is material on premises specified in the
application which is likely to be of substantial value
(whether by itself or together with other material) to the
investigation of the offence;
(c) that the material is likely to be relevant evidence;
(d) that it does not consist of or include items subject to
legal privilege, excluded material or special procedure
material; and
Title 8
Laws of Bermuda Item 38
13
(e) that any of the conditions specified in subsection (3)
applies,
he may issue a warrant authorizing a police officer to enter and search
the premises.
(2) A police officer may seize and detain anything for which a
search has been authorized under subsection (1).
(3) The conditions mentioned in subsection (1)(e) are ⎯
(a) that it is not practicable to communicate with any
person entitled to grant entry to the premises;
(b) that it is practicable to communicate with a person
entitled to grant entry to the premises but it is not
practicable to communicate with any person entitled
access to the evidence;
(c) that entry to the premises will not be granted unless a
warrant is produced;
(d) that the purposes of a search may be frustrated or
seriously prejudiced unless a police officer at the
premises can secure immediate entry to them.
(4) In this Act “relevant evidence”, in relation to an offence,
means anything that would be admissible in evidence at a trial for the
offence.
(5) The power to issue a warrant conferred by this section is in
addition to any such power otherwise conferred.
Special provisions as to access
9 (1) A police officer may obtain access to excluded material or
special procedure material for the purposes of a criminal investigation by
making an application under Schedule 2 and in accordance with that
Schedule.
(2) Subject to subsection (3), any Act passed before this Act
under which a search of premises for the purposes of a criminal
investigation could be authorized by the issue of a warrant to a police
officer shall cease to have effect so far as it relates to the authorization of
searches ⎯
(a) for items subject to legal privilege; or
(b) for excluded material; or
(c) for special procedure material consisting of documents
or records other than documents.
POLICE AND CRIMINAL EVIDENCE ACT 2006
14
(3) Nothing in subsection (2) applies to search warrants issued
under ⎯
(a) section 39 of the Proceeds of Crime Act 1997; or
(b) section 20 of the Anti-Terrorism (Financial and Other
Measures) Act 2004.
Meaning of “items subject to legal privilege”
10 (1) Subject to subsection (2), in this Part “items subject to legal
privilege” means —
(a) communications between a professional legal adviser
and his client or any person representing his client made
in connection with the giving of legal advice to the client;
(b) communications between a professional legal adviser
and his client or any person representing his client or
between such an adviser or his client or any such
representative and any other person made in connection
with or in contemplation of legal proceedings and for the
purposes of such proceedings; and
(c) items enclosed with or referred to in such
communications and made —
(i) in connection with the giving of legal advice; or
(ii) in connection with or in contemplation of legal
proceedings and for the purposes of such
proceedings,
when they are in the possession of a person who is entitled to possession
of them.
(2) Items held with the intention of furthering a criminal
purpose are not items subject to legal privilege.
Meaning of “excluded material”
11 (1) Subject to the following provisions of this section, in this
Act “excluded material” means —
(a) personal records which a person has acquired or created
in the course of any trade, business, profession or other
occupation or for the purposes of any paid or unpaid
office and which he holds in confidence;
(b) human tissue or tissue fluid which has been taken for
the purposes of diagnosis or medical treatment and
which a person holds in confidence;
(c) journalistic material which a person holds in confidence
and which consists —
Title 8
Laws of Bermuda Item 38
15
(i) of documents; or
(ii) of records other than documents.
(2) A person holds material other than journalistic material in
confidence for the purposes of this section if he holds it subject —
(a) to an express or implied undertaking to hold it in
confidence; or
(b) to a restriction on disclosure or an obligation of secrecy
contained in any enactment, including an enactment
contained in an Act passed after this Act.
(3) A person holds journalistic material in confidence for the
purposes of this section if —
(a) he holds it subject to such an undertaking, restriction or
obligation; and
(b) it has been continuously held (by one or more persons)
subject to such an undertaking, restriction or obligation
since it was first acquired or created for the purposes of
journalism.
Meaning of “personal records”
12 In this Part “personal records” means documentary and other
records concerning an individual (whether living or dead) who can be
identified from them and relating ⎯
(a) to his physical or mental health;
(b) to spiritual counselling or assistance given or to be given
to him; or
(c) to counselling or assistance given or to be given to him,
for the purposes of his personal welfare, by any
voluntary organization or by any individual who —
(i) by reason of his office or occupation has
responsibilities for his personal welfare; or
(ii) by reason of an order of a court has responsibilities
for his supervision.
Meaning of “journalistic material”
13 (1) Subject to subsection (2), in this Part “journalistic material”
means material acquired or created for the purposes of journalism.
(2) Material is only journalistic material for the purposes of this
Part if it is in the possession of a person who acquired or created it for
the purposes of journalism.
POLICE AND CRIMINAL EVIDENCE ACT 2006
16
(3) A person who receives material from someone who intends
that the recipient shall use it for the purposes of journalism is to be
taken to have acquired it for those purposes.
Meaning of “special procedure material”
14 (1) In this Act” special procedure material” means —
(a) material to which subsection (2) applies; and
(b) journalistic material, other than excluded material.
(2) Subject to the following provisions of this section, this
subsection applies to material other than items subject to legal privilege
and excluded material, in the possession of a person who —
(a) acquired or created it in the course of any trade,
business, profession or other occupation or for the
purpose of any paid or unpaid office; and
(b) holds it subject —
(i) to an express or implied undertaking to hold it in
confidence; or
(ii) to a restriction or obligation such as is mentioned
in section 11(2)(b).
(3) Where material is acquired —
(a) by an employee from his employer and in the course of
his employment; or
(b) by a company from an associated company,
it is only special procedure material if it was special procedure material
immediately before the acquisition.
(4) Where material is created by an employee in the course of
his employment, it is only special procedure material if it would have
been special procedure material had his employer created it.
(5) Where material is created by a company on behalf of an
associated company, it is only special procedure material if it would have
been special procedure material had the associated company created it.
(6) A company is to be treated as another’s associated company
for the purposes of this section if it falls under any of paragraphs (a) to
(d) of section 37(4) of the Trusts (Regulation of Trust Business) Act 2001.
Search warrants – safeguards
15 (1) This section and section 16 have effect in relation to the
issue to police officers under any enactment, including an enactment
contained in an Act passed after this Act, of warrants to enter and search
premises; and ⎯
Title 8
Laws of Bermuda Item 38
17
(a) a warrant is unlawful unless it complies with this
section; and
(b) an entry on or search of premises is unlawful unless it
complies with section 16.
(2) Where a police officer applies for any such warrant, it shall
be his duty —
(a) to state —
(i) the ground on which he makes the application; and
(ii) the enactment under which the warrant would be
issued;
(b) to specify the premises which it is desired to enter and
search; and
(c) to identify, so far as is practicable, the articles or
persons to be sought.
(3) An application for such a warrant shall be made ex parte
and supported by an information in writing.
(4) The police officer shall answer on oath any question that
the magistrate or judge hearing the application asks him.
(5) A warrant shall authorize an entry on one occasion only.
(6) A warrant —
(a) shall specify —
(i) the name of the person who applies for it;
(ii) the date on which it is issued;
(iii) the enactment under which it is issued; and
(iv) the premises to be searched; and
(b) shall identify, so far as is practicable, the articles or
persons to be sought.
(7) Two copies shall be made of a warrant.
(8) The copies shall be clearly certified as copies.
Execution of warrants
16 (1) A warrant to enter and search premises may be executed by
any police officer.
(2) Such a warrant may authorize persons to accompany any
police officer who is executing it.
POLICE AND CRIMINAL EVIDENCE ACT 2006
18
(3) A person so authorized has the same powers as the police
officer whom he accompanies in respect of ⎯
(a) the execution of the warrant, and
(b) the seizure of anything to which the warrant relates.
(4) But he may exercise those powers only in the company, and
under the supervision, of a police officer.
(5) Entry and search under a warrant shall be within one
month from the date of its issue.
(6) Entry and search under a warrant shall be at a reasonable
hour unless it appears to the police officer executing it that the purpose
of a search may be frustrated on an entry at a reasonable hour.
(7) Where the occupier of premises which are to be entered and
searched is present at the time when a police officer seeks to execute a
warrant to enter and search them, the police officer —
(a) shall identify himself to the occupier and, if not in
uniform, shall produce to him documentary evidence
that he is a police officer;
(b) shall produce the warrant to him; and
(c) shall supply him with a copy of it.
(8) Where —
(a) the occupier of such premises is not present at the time
when a police officer seeks to execute such a warrant;
but
(b) some other person who appears to the police officer to be
in charge of the premises is present,
subsection (7) shall have effect as if any reference to the occupier were a
reference to that other person.
(9) If there is no person present who appears to the police
officer to be in charge of the premises, he shall leave a copy of the
warrant in a prominent place on the premises.
(10) A search under a warrant may only be a search to the
extent required for the purpose for which the warrant was issued.
(11) A police officer executing a warrant shall make an
endorsement on it stating —
(a) whether the articles or persons sought were found; and
(b) whether any articles were seized, other than articles
which were sought.
(12) A warrant which —
Title 8
Laws of Bermuda Item 38
19
(a) has been executed; or
(b) has not been executed within the time authorized for its
execution,
shall be returned —
(i) if it was issued by a magistrate, to the appropriate
officer of the Magistrates Court; and
(ii) if it was issued by a judge, to the appropriate officer
of the Supreme Court.
(13) A warrant which is returned under subsection (12) shall be
retained for 12 months from its return by the appropriate officer.
(14) If during the period for which a warrant is to be retained the
occupier of the premises to which it relates asks to inspect it, he shall be
allowed to do so.
Entry and search without search warrant
Entry for purpose of arrest etc.
17 (1) Subject to the following provisions of this section, and
without prejudice to any other enactment, a police officer may enter and
search any premises for the purpose —
(a) of executing a warrant of arrest issued in connection
with or arising out of criminal proceedings;
(b) of arresting a person for an arrestable offence;
(c) of recapturing any person who is, or is deemed for any
purpose to be, unlawfully at large while liable to be
detained in a prison;
(d) of recapturing any person whatever who is unlawfully at
large and whom he is pursuing; or
(e) of saving life or limb or preventing serious damage to
property.
(2) Except for the purpose specified in paragraph (e) of
subsection (1) the powers of entry and search conferred by this section —
(a) are only exercisable if the police officer has reasonable
grounds for believing that the person whom he is
seeking is on the premises; and
(b) are limited, in relation to premises consisting of two or
more separate dwellings, to powers to enter and
search —
POLICE AND CRIMINAL EVIDENCE ACT 2006
20
(i) any parts of the premises which the occupiers of
any dwelling comprised in the premises use in
common with the occupiers of any other such
dwelling; and
(ii) any such dwelling in which the police officer has
reasonable grounds for believing that the person
whom he is seeking may be.
(3) The power of search conferred by this section is only a
power to search to the extent that is reasonably required for the purpose
for which the power of entry is exercised.
(4) Subject to subsection (5), all the rules of common law under
which a police officer has power to enter premises without a warrant are
hereby abolished.
(5) Nothing in subsection (4) affects any power of entry to deal
with or prevent a breach of the peace.
Entry and search after arrest
18 (1) Subject to the following provisions of this section, a police
officer may enter and search any premises occupied or controlled by a
person who is under arrest for an arrestable offence, if he has reasonable
grounds for suspecting that there is on the premises evidence, other
than items subject to legal privilege, that relates —
(a) to that offence; or
(b) to some arrestable offence which is connected with or
similar to that offence.
(2) A police officer may seize and retain anything for which he
may search under subsection (1).
(3) The power to search conferred by subsection (1) is only a
power to search to the extent that it is reasonably required for the
purpose of discovering such evidence.
(4) Subject to subsection (5), the powers conferred by this
section shall not be exercised unless an officer of the rank of inspector or
above has authorized them in writing.
(5) A police officer may conduct a search under subsection
(1) —
(a) before taking the person to a police station; and
(b) without obtaining an authorization under subsection (4),
if the presence of that person at a place other than a police station is
necessary for the effective investigation of the offence.
Title 8
Laws of Bermuda Item 38
21
(6) If a police officer conducts a search by virtue of subsection
(5), he shall inform an officer of the rank of inspector or above that he
has made the search as soon as practicable after he has made it.
(7) An officer who —
(a) authorizes a search; or
(b) is informed of a search under subsection (6), shall make
a record in writing —
(i) of the grounds for the search; and
(ii) of the nature of the evidence that was sought.
(8) If the person who was in occupation or control of the
premises at the time of the search is in police detention at the time the
record is to be made, the officer shall make the record a part of his
custody record.
General power of seizure etc.
19 (1) The powers conferred by subsections (2), (3) and (4) are
exercisable by a police officer who is lawfully on any premises.
(2) The police officer may seize anything which is on the
premises if he has reasonable grounds for believing —
(a) that it has been obtained in consequence of the
commission of an offence; and
(b) that it is necessary to seize it in order to prevent it being
concealed, lost, damaged, altered or destroyed.
(3) The police officer may seize anything which is on the
premises if he has reasonable grounds for believing —
(a) that it is evidence in relation to an offence which he is
investigating or any other offence; and
(b) that it is necessary to seize it in order to prevent the
evidence being concealed, lost, altered or destroyed.
(4) The police officer may require any information which is
contained in a computer and is accessible from the premises to be
produced in a form in which it can be taken away and in which it is
visible and legible if he has reasonable grounds for believing —
(a) that —
(i) it is evidence in relation to an offence which he is
investigating or any other offence; or
(ii) it has been obtained in consequence of the
commission of an offence; and
POLICE AND CRIMINAL EVIDENCE ACT 2006
22
(b) that it is necessary to do so in order to prevent it being
concealed, lost, tampered with or destroyed.
(5) The powers conferred by this section are in addition to any
power otherwise conferred.
(6) No power of seizure conferred on a police officer under any
enactment (including an enactment contained in an Act passed after this
Act) is to be taken to authorize the seizure of an item which the police
officer exercising the power has reasonable grounds for believing to be
subject to legal privilege.
Extension of powers of seizure to computerized information
20 (1) Every power of seizure which is conferred by an enactment
to which this section applies on a police officer who has entered premises
in the exercise of a power conferred by an enactment shall be construed
as including a power to require any information contained in a computer
and accessible from the premises to be produced in a form in which it
can be taken away and in which it is visible and legible.
(2) This section applies —
(a) to any enactment contained in an Act passed before this
Act;
(b) to sections 8, 16 and 18;
(c) to paragraph 13 of Schedule 2; and
(d) to any enactment contained in an Act passed after this
Act.
Access and copying
21 (1) A police officer who seizes anything in the exercise of a
power conferred by any enactment, including an enactment contained in
an Act passed after this Act shall, if so requested by a person showing
himself —
(a) to be the occupier of premises on which it was seized; or
(b) to have had custody or control of it immediately before
the seizure,
provide that person with a record of what he seized.
(2) The officer shall provide the record within a reasonable time
from the making of the request for it.
(3) Subject to subsection (8), if a request for permission to be
granted access to anything which —
(a) has been seized by a police officer; and
Title 8
Laws of Bermuda Item 38
23
(b) is retained by the police for the purpose of investigating
an offence,
is made to the officer in charge of the investigation by a person who had
custody or control of the thing immediately before it was so seized or by
someone acting on behalf of such a person, the officer shall allow the
person who made the request access to it under the supervision of a
police officer.
(4) Subject to subsection (8), if a request for a photograph or
copy of any such thing is made to the officer in charge of the
investigation by a person who had custody or control of the thing
immediately before it was so seized, or by someone acting on behalf of
such a person, the officer shall —
(a) allow the person who made the request access to it
under the supervision of a police officer for the purpose
of photographing or copying it; or
(b) photograph or copy it, or cause it to be photographed or
copied.
(5) A police officer may also photograph or copy, or have
photographed or copied, anything which he has power to seize, without a
request being made under subsection (4).
(6) Where anything is photographed or copied under
subsection (4)(b), the photograph or copy shall be supplied to the person
who made the request.
(7) The photograph or copy shall be so supplied within a
reasonable time from making of the request.
(8) There is no duty under this section to grant access to, or to
supply a photograph or copy of, anything if the officer in charge of the
investigation for the purposes of which it was seized has reasonable
grounds for believing that to do so would prejudice —
(a) that investigation;
(b) the investigation of an offence other than the offence for
the purposes of investigating which the thing was seized;
or
(c) any criminal proceedings which may be brought as a
result of —
(i) the investigation of which he is in charge; or
(ii) any such investigation as is mentioned in
paragraph (b).
POLICE AND CRIMINAL EVIDENCE ACT 2006
24
Retention
22 (1) Subject to subsection (4), anything which has been seized
by a police officer or taken away by an officer following a requirement
made by virtue of section 19 or 20 may be retained so long as is
necessary in all the circumstances.
(2) Without prejudice to the generality of subsection (1) —
(a) anything seized for the purposes of a criminal
investigation may be retained, except as provided by
subsection (4) —
(i) for use as evidence at a trial for an offence; or
(ii) for forensic examination or for investigation in
connection with an offence; and
(b) anything may be retained in order to establish its lawful
owner where there are reasonable grounds for believing
that it has been obtained in consequence of the
commission of an offence.
(3) Nothing seized on the ground that it may be used —
(a) to cause physical injury to any person;
(b) to damage property;
(c) to interfere with evidence; or
(d) to assist in escape from police detention or lawful
custody,
may be retained when the person from whom it was seized is no longer in
police detention or the custody of a court or is in the custody of a court
but has been released on bail.
(4) Nothing may be retained for either of the purposes
mentioned in subsection (2)(a) if a photograph or copy would be
sufficient for the purpose.
PART IV
ARREST
Arrest without warrant for arrestable offences
23 (1) The powers of summary arrest conferred by the following
subsections shall apply —
(a) to offences for which a person may be sentenced under
any provision of law to imprisonment for a term of twelve
months or more whether or not a fine is also payable;
and
(b) to the offences to which subsection (2) applies;
Title 8
Laws of Bermuda Item 38
25
and in this Act “arrestable offence” means any such offence.
(2) The offences to which this subsection applies are —
(a) an offence under section 39(1) of the Civil Aviation Act
1982 (trespass on aerodrome);
(b) an offence of contravening the following provisions of the
Air Navigation (Overseas Territories) Order 2001 ⎯
(i) article 63 (endangering safety of aircraft);
(ii) article 64 (endangering safety of any person or
property);
(iii) article 65 (drunkenness in aircraft);
(iv) article 68 (acting in a disruptive manner); or
(c) an offence under section 42(2) of the Road Traffic Act
1947 (failure to stop after accident) in respect of an
accident causing personal injury; and
(d) an offence under section 37 of the Liquor Licence Act
1974 (exclusion of drunken persons from licensed
premises).
(3) The powers of summary arrest conferred by the following
subsections shall also apply to the offences of —
(a) conspiring to commit any of the offences mentioned in
subsection (2) ;
(b) attempting to commit any such offence (other than an
offence under section 342 of the Criminal Code Act 1907
of taking and driving a motor vehicle without authority);
(c) inciting, aiding, abetting, counselling or procuring the
commission of any such offence;
and such offences are also arrestable offences for the purposes of this
Act.
(4) Any person may arrest without a warrant —
(a) anyone who is in the act of committing an arrestable
offence;
(b) anyone whom he has reasonable grounds for suspecting
to be committing such an offence.
(5) Where an arrestable offence has been committed, any
person may arrest without a warrant —
(a) anyone who is guilty of the offence;
POLICE AND CRIMINAL EVIDENCE ACT 2006
26
(b) anyone whom he has reasonable grounds for suspecting
to be guilty of it.
(6) Where a police officer has reasonable grounds for
suspecting that an arrestable offence has been committed, he may arrest
without a warrant anyone whom he has reasonable grounds for
suspecting to be guilty of the offence.
(7) A police officer may arrest without a warrant —
(a) anyone who is about to commit an arrestable offence;
(b) anyone whom he has reasonable grounds for suspecting
to be about to commit an arrestable offence.
(8) The Minister may, by order subject to affirmative resolution
procedure, amend subsection (2) so as to add to, or delete from, the list
of offences specified therein to which that subsection applies.
General arrest conditions
24 (1) Where a police officer has reasonable grounds for
suspecting that any offence which is not an arrestable offence has been
committed or attempted, or is being committed or attempted, he may
arrest the relevant person if it appears to him that service of a summons
is impracticable or inappropriate because any of the general arrest
conditions is satisfied.
(2) In this section “the relevant person” means any person
whom the police officer has reasonable grounds to suspect of having
committed or having attempted to commit the offence or of being in the
course of committing or attempting to commit it.
(3) The general arrest conditions are —
(a) that the name of the relevant person is unknown to, and
cannot be readily ascertained by, the officer;
(b) that the police officer has reasonable grounds for
doubting whether a name furnished by the relevant
person as his name is his real name;
(c) that —
(i) the relevant person has failed to furnish a
satisfactory address for service; or
(ii) the police officer has reasonable grounds for
doubting whether an address furnished by the
relevant person is a satisfactory address for service;
(d) that the police officer has reasonable grounds for
believing that arrest is necessary to prevent the relevant
person —
Title 8
Laws of Bermuda Item 38
27
(i) causing physical injury to himself or any other
person;
(ii) suffering physical injury;
(iii) causing loss of or damage to property;
(iv) committing an offence against public decency; or
(v) causing an unlawful obstruction of the highway;
(e) that the police officer has reasonable grounds for
believing that arrest is necessary to protect a child or
other vulnerable person from the relevant person.
(4) For the purposes of subsection (3) an address is a
satisfactory address for service if it appears to the police officer —
(a) that the relevant person will be at it for a sufficiently
long period for it to be possible to serve him with a
summons; or
(b) that some other person specified by the relevant person
will accept service of a summons for the relevant person
at it.
(5) Nothing in subsection (3)(d) authorizes the arrest of a
person under subparagraph (iv) of that paragraph except where members
of the public going about their normal business cannot reasonably be
expected to avoid the person to be arrested.
(6) This section shall not prejudice any power of arrest
conferred apart from this section.
Repeal of statutory powers of arrest without warrant or order
25 (1) Subject to subsection (2), so much of any Act passed before
this Act as enables a police officer —
(a) to arrest a person for an offence without a warrant; or
(b) to arrest a person otherwise than for an offence without
a warrant or an order of a court,
shall cease to have effect.
(2) Nothing in subsection (1) affects the enactments specified in
Schedule 3 (preserved powers of arrest).
Fingerprinting of certain offenders
26 (1) If a person ⎯
(a) has been convicted of a recordable offence;
POLICE AND CRIMINAL EVIDENCE ACT 2006
28
(b) has not at any time been in police detention for the
offence; and
(c) has not had his fingerprints taken ⎯
(i) in the course of the investigation of the offence
by the police; or
(ii) since the conviction,
any police officer may at any time not later than one month after the date
of the conviction require him to attend a police station in order that his
fingerprints may be taken.
(2) Where a person convicted of a recordable offence has
already had his fingerprints taken as mentioned in paragraphs (c)(i) or (ii)
of subsection (1), that fact (together with any time when he has been in
police detention for the offence) shall be disregarded for the purposes of
that subsection if ⎯
(a) the fingerprints taken on the previous occasion do not
constitute a complete set of his fingerprints; or
(b) some or all of the fingerprints taken on the previous
occasion are not of sufficient quality to allow satisfactory
analysis, comparison or matching.
(3) A requirement under subsection (1) ⎯
(a) shall give the person a period of at least 7 days within
which he must so attend; and
(b) may direct him to so attend at a specified time of day or
between specified times of day.
(4) Any police officer may arrest without warrant a person who
has failed to comply with a requirement under subsection (1).
(5) The Minister may by regulations subject to negative
resolution procedure make provision for recording in police records
convictions for such offences as are specified in the regulations.
Information to be given on arrest
27 (1) Subject to subsection (5), where a person is arrested,
otherwise than by being informed that he is under arrest, the arrest is
not lawful unless the person arrested is informed that he is under arrest
as soon as is practicable after his arrest.
(2) Where a person is arrested by a police officer, subsection (1)
applies regardless of whether the fact of the arrest is obvious.
(3) Subject to subsection (5), no arrest is lawful unless the
person arrested is informed of the ground for the arrest at the time of, or
as soon as is practicable after, the arrest.
Title 8
Laws of Bermuda Item 38
29
(4) Where a person is arrested by a police officer, subsection (3)
applies regardless of whether the ground for the arrest is obvious.
(5) Nothing in this section is to be taken to require a person to
be informed ⎯
(a) that he is under arrest; or
(b) of the ground for the arrest,
if it was not reasonably practicable for him to be so informed by reason
of his having escaped from arrest before the information could be given.
Voluntary attendance at police station etc.
28 Where for the purpose of assisting with an investigation a person
attends voluntarily at a police station or at any other place where a
police officer is present or accompanies a police officer to a police station
or any such other place without having been arrested ⎯
(a) he shall be entitled to leave at will unless he is placed
under arrest;
(b) he shall be informed at once that he is under arrest if a
decision is taken by a police officer to prevent him from
leaving at will.
Arrest elsewhere than at police station
29 (1) Subsection (2) applies where a person is, at any place other
than a police station ⎯
(a) arrested by a police officer for an offence; or
(b) taken into custody by a police officer after being arrested
for an offence by a person other than a police officer.
(2) The person shall be taken by a police officer to a police
station as soon as practicable after the arrest.
(3) Subject to subsections (4) and (6), the police station to
which an arrested person is taken under subsection (2) shall be a
designated police station.
(4) A police officer, who is working in a locality covered by a
police station which is not a designated police station, may take an
arrested person to any police station unless it appears to him that it may
be necessary to keep the arrested person in police detention for more
than six hours.
(5) Any police officer may take an arrested person to any police
station if ⎯
(a) either of the following conditions is satisfied ⎯
POLICE AND CRIMINAL EVIDENCE ACT 2006
30
(i) the police officer has arrested him without the
assistance of any other police officer and no other
police officer is available to assist him;
(ii) the police officer has taken him into custody from a
person other than a police officer without the
assistance of any other police officer and no other
police officer is available to assist him; and
(b) it appears to the police officer that he will be unable to
take the arrested person to a designated police station
without the arrested person injuring himself, the police
officer or some other person.
(6) If the first police station to which an arrested person is
taken after his arrest is not a designated police station, he shall be taken
to a designated police station not more than six hours after his arrival at
the first police station unless he is released previously.
(7) Nothing in subsection (2) prevents a police officer delaying
taking a person to a police station or releasing him on bail if the
condition in subsection (8) is satisfied.
(8) The condition is that the presence of the person at a place
(other than a police station) is necessary in order to carry out such
investigations as it is reasonable to carry out immediately.
(9) Where there is any such delay the reasons for the delay
shall be recorded when the person first arrives at the police station.
Arrest for further offence
30 Where ⎯
(a) a person ⎯
(i) has been arrested for an offence; and
(ii) is at a police station in consequence of that arrest;
and
(b) it appears to a police officer that, if he were released
from that arrest, he would be liable to arrest for some
other offence,
he shall be arrested for that other offence.
Search upon arrest
31 (1) A police officer may search an arrested person in any case
where the person to be searched has been arrested at a place other than
a police station, if a police officer has reasonable grounds for believing
that the arrested person may present a danger to himself or to others.
Title 8
Laws of Bermuda Item 38
31
(2) Subject to subsections (3) to (5), a police officer shall also
have power in any such case ⎯
(a) to search the arrested person for anything ⎯
(i) which he might use to assist him to escape from
lawful custody; or
(ii) which might be evidence relating to an offence; and
(b) to enter and search any premises in which he was when
arrested or immediately before he was arrested for
evidence relating to the offence for which he has been
arrested.
(3) The power to search conferred by subsection (2) is only a
power to search to the extent that is reasonably required for the purpose
of discovering any such thing or any such evidence.
(4) The powers conferred by this section to search a person are
not to be construed as authorising a police officer to require a person to
remove any of his clothing in public other than an outer coat, jacket or
gloves but they do authorize a search of a person's mouth.
(5) A police officer shall not search a person in the exercise of
the power conferred by subsection (2)(a) unless he has reasonable
grounds for believing that the person to be searched may have concealed
on him anything for which a search is permitted under that paragraph.
(6) A police officer shall not search premises in the exercise of
the power conferred by subsection (2)(b) unless he has reasonable
grounds for believing that there is evidence for which a search is
permitted under that paragraph on the premises.
(7) In so far as the power of search conferred by subsection
(2)(b) relates to premises consisting of two or more separate dwellings, it
is limited to a power to search ⎯
(a) any dwelling in which the arrest took place or in which
the person arrested was immediately before his arrest;
and
(b) any parts of the premises which the occupier of any
such dwelling uses in common with the occupiers of any
other dwellings comprised in the premises.
(8) A police officer searching a person in the exercise of the
power conferred by subsection (1) may seize and retain anything he
finds, if he has reasonable grounds for believing that the person
searched might use it to cause physical injury to himself or to any other
person.
POLICE AND CRIMINAL EVIDENCE ACT 2006
32
(9) A police officer searching a person in the exercise of the
power conferred by subsection (2)(a) may seize and retain anything he
finds, other than an item subject to legal privilege, if he has reasonable
grounds for believing ⎯
(a) that he might use it to assist him to escape from lawful
custody; or
(b) that it is evidence of an offence or has been obtained in
consequence of the commission of an offence.
PART V
DETENTION
Detention - Conditions and duration
Limitations on police detention
32 (1) A person arrested for an offence shall not be kept in police
detention except in accordance with the provisions of this Part of this
Act.
(2) Subject to subsection (3), if at any time a custody officer ⎯
(a) becomes aware, in relation to any person in police
detention, that the grounds for the detention of that
person have ceased to apply; and
(b) is not aware of any other grounds on which the
continued detention of that person could be justified
under the provisions of this Part of this Act,
it shall be the duty of the custody officer, subject to subsection (4), to
order his immediate release from custody.
(3) No person in police detention shall be released except on
the authority of a custody officer at the police station where his detention
was authorized or, if it was authorized at more than one station, a
custody officer at the station where it was last authorized.
(4) A person who appears to the custody officer to have been
unlawfully at large when he was arrested is not to be released under
subsection (2).
(5) A person whose release is ordered under subsection (2)
shall be released without bail unless it appears to the custody officer ⎯
(a) that there is need for further investigation of any matter
in connection with which he was detained at any time
during the period of his detention; or
(b) that, in respect of any such matter, proceedings may be
taken against him,
Title 8
Laws of Bermuda Item 38
33
and, if it so appears, he shall be released on bail.
(6) For the purposes of this Part a person who ⎯
(a) returns to a police station to answer to bail granted
under this Part; or
(b) is arrested under section 50,
is to be treated as arrested for an offence and that offence is the offence
in connection with which he was granted bail.
Designated police stations
33 (1) The Commissioner of Police shall designate the police
stations which, subject to sections 29(4) and (5), are to be the stations to
be used for the purpose of detaining arrested persons.
(2) The Commissioner of Police's duty under subsection (1) is to
designate police stations appearing to him to provide enough
accommodation for that purpose.
(3) The Commissioner of Police ⎯
(a) may designate a station which was not previously
designated; and
(b) may direct that a designation of a station previously
made shall cease to operate.
(4) In this Act "designated police station" means a police station
designated under this section.
Custody officers at police stations
34 (1) One or more custody officers shall be appointed for each
designated police station.
(2) A custody officer for a police station designated under
section 33(1) shall be appointed by the Commissioner of Police.
(3) No officer may be appointed a custody officer unless he is of
at least the rank of sergeant.
(4) An officer of any rank may perform the functions of a
custody officer at a designated police station if a custody officer is not
readily available to perform them.
(5) Subject to the following provisions of this section and to
section 35(2), none of the functions of a custody officer in relation to a
person shall be performed by an officer who at the time when the
function falls to be performed is involved in the investigation of an
offence for which that person is in police detention at that time.
POLICE AND CRIMINAL EVIDENCE ACT 2006
34
(6) Nothing in subsection (5) is to be taken to prevent a custody
officer ⎯
(a) performing any function assigned to custody officers ⎯
(i) by this Act; or
(ii) by a code of practice issued under this Act;
(b) carrying out the duty imposed on custody officers by
section 35; or
(c) doing anything in connection with the identification of a
suspect.
(7) Where an arrested person is taken to a police station which
is not a designated police station, the functions in relation to him which
at a designated police station would be the functions of a custody officer
shall be performed ⎯
(a) by an officer who is not involved in the investigation of
an offence for which he is in police detention, if such an
officer is readily available; and
(b) if no such officer is readily available, by the officer who
took him to the station or any other officer.
(8) References to a custody officer in the following provisions of
this Act include references to an officer other than a custody officer who
is performing the functions of a custody officer by virtue of subsection (4)
or (7).
(9) Where by virtue of subsection (7) an officer who took an
arrested person to a police station is to perform the functions of a
custody officer in relation to him, the officer shall inform an officer
who ⎯
(a) is attached to a designated police station; and
(b) is of at least the rank of inspector,
that he is to do so.
(10) The duty imposed by subsection (9) shall be performed as
soon as it is practicable to perform.
Duties of custody officer before charge
35 (1) Where a person is arrested for an offence ⎯
(a) without a warrant; or
(b) under a warrant not endorsed for bail,
the custody officer at each police station where he is detained after his
arrest shall determine whether he has before him sufficient evidence to
Title 8
Laws of Bermuda Item 38
35
charge that person with the offence for which he was arrested and may
detain him at the police station for such period as is necessary to enable
him to do so.
(2) If the custody officer determines that he does not have such
evidence before him, the person arrested shall be released either on bail
or without bail, unless the custody officer has reasonable grounds for
believing that his detention without being charged is necessary to secure
or preserve evidence relating to an offence for which he is under arrest or
to obtain such evidence by questioning him.
(3) If the custody officer has reasonable grounds for so
believing, he may authorize the person arrested to be kept in police
detention.
(4) Where a custody officer authorizes a person who has not
been charged to be kept in police detention, he shall, as soon as is
practicable, make a written record of the grounds for the detention.
(5) Subject to subsection (6), the written record shall be made
in the presence of the person arrested who shall at that time be informed
by the custody officer of the grounds for his detention.
(6) Subsection (5) shall not apply where the person arrested is,
at the time when the written record is made ⎯
(a) incapable of understanding what is said to him;
(b) violent or likely to become violent; or
(c) in urgent need of medical attention.
(7) Subject to section 44(5), if the custody officer determines
that he has before him sufficient evidence to charge the person arrested
with the offence for which he was arrested, the person arrested ⎯
(a) shall be released without charge and on bail for the
purpose of enabling the Director of Public Prosecutions
to make a decision under section 37;
(b) shall be released without charge and on bail but not for
that purpose;
(c) shall be released without charge and without bail; or
(d) shall be charged.
(8) The decision as to how a person is to be dealt with under
subsection (7) shall be that of the custody officer.
(9) Where a person is released under subsection (7)(a), it shall
be the duty of the custody officer to inform him that he is being released
POLICE AND CRIMINAL EVIDENCE ACT 2006
36
to enable the Director of Public Prosecutions to make a decision under
section 37.
(10) Where ⎯
(a) a person is released under subsection (7)(b) or (c); and
(b) at the time of his release a decision whether he should
be prosecuted for the offence for which he was arrested
has not been taken,
it shall be the duty of the custody officer so to inform him.
(11) If the person arrested is not in a fit state to be dealt with
under subsection (7), he may be kept in police detention until he is.
(12) The duty imposed on the custody officer under subsection
(1) shall be carried out by him as soon as practicable after the person
arrested arrives at the police station or, in the case of a person arrested
at the police station, as soon as practicable after the arrest.
(13) In this Part of this Act "endorsed for bail" means endorsed
with a direction for bail in accordance with section 13 of the Bail Act
2005.
Guidance
36 (1) The Director of Public Prosecutions may issue guidance ⎯
(a) for the purpose of enabling custody officers to decide
how persons should be dealt with under section 35(7) or
38(2); and
(b) as to the information to be sent to the Director of Public
Prosecutions under section 37(1).
(2) The Director of Public Prosecutions may from time to time
revise guidance issued under this section.
(3) Custody officers are to have regard to guidance under this
section in deciding how persons should be dealt with under section 35(7)
or 38(2).
(4) The Director of Public Prosecutions shall publish in such
manner as he thinks fit ⎯
(a) any guidance issued under this section; and
(b) any revisions made to such guidance.
(5) Guidance under this section may make different provision
for different cases, circumstances or areas.
Title 8
Laws of Bermuda Item 38
37
Decision of the Director of Public Prosecutions on charging
37 (1) Where a person is released on bail under section 35(7)(a),
an officer involved in the investigation of the offence shall, as soon as is
practicable, send to the Director of Public Prosecutions such information
as may be specified in guidance under section 36.
(2) The Director of Public Prosecutions shall decide whether
there is sufficient evidence to charge the person with an offence.
(3) If he decides that there is sufficient evidence to charge the
person with an offence, he shall decide whether or not the person should
be charged and, if so, the offence with which he should be charged.
(4) The Director of Public Prosecutions shall give written notice
of his decision to an officer involved in the investigation of the offence.
(5) If his decision is that there is not sufficient evidence to
charge the person with an offence a custody officer shall give the person
notice in writing that he is not to be prosecuted.
(6) If the decision of the Director of Public Prosecutions is that
the person should be charged with an offence, the person shall be
charged.
(7) For the purposes of this section, a person is to be charged
with an offence when he is in police detention after returning to a police
station to answer bail or is otherwise in police detention at a police
station.
Breach of bail following release under section 35(7)(a)
38 (1) This section applies where ⎯
(a) a person released on bail under section 35(7)(a) or
subsection (2)(b) is arrested under section 50 in respect
of that bail; and
(b) at the time of his detention following that arrest at the
police station mentioned in section 50(3), notice under
section 37(4) has not been given.
(2) The person arrested ⎯
(a) shall be charged; or
(b) shall be released without charge, either on bail or
without bail.
(3) The decision as to how a person is to be dealt with under
subsection (2) shall be that of a custody officer.
POLICE AND CRIMINAL EVIDENCE ACT 2006
38
(4) A person released on bail under subsection (2)(b) shall be
released on bail subject to the same conditions (if any) which applied
immediately before his arrest.
Release under section 35(7)(a): further provision
39 (1) Where a person is released on bail under section 35(7)(a) or
section 38(2)(b), a custody officer may subsequently appoint a different
time, or an additional time, at which the person is to attend at the police
station to answer bail.
(2) The custody officer shall give the person notice in writing of
the exercise of the power under subsection (1).
(3) The exercise of the power under subsection (1) shall not
affect the conditions (if any) to which bail is subject.
(4) Where a person released on bail under section 35(7)(a) or
38(2)(b) returns to a police station to answer bail or is otherwise in police
detention at a police station, he may be kept in police detention to enable
him to be dealt with in accordance with section 37 or 38 or to enable the
power under subsection (1) to be exercised.
(5) If the person is not in a fit state to enable him to be so dealt
with or to enable that power to be exercised, he may be kept in police
detention until he is.
(6) Where a person is kept in police detention by virtue of
subsection (4) or (5), section 35(1) to (3) and (7) (and section 42(8) so far
as it relates to section 32(1) to (3)) shall not apply to the offence in
connection with which he was released on bail under section 35(7)(a) or
38(2)(b).
Duties of custody officer after charge
40 (1) Where a person arrested for an offence otherwise than under
a warrant endorsed for bail is charged with an offence, the custody
officer shall order his release from police detention, either on bail or
without bail, unless ⎯
(a) his name or address cannot be ascertained or the
custody officer has reasonable grounds for doubting
whether a name or address furnished by him as his
name or address is his real name or address;
(b) the custody officer has reasonable grounds for believing
that the person arrested will fail to appear in court to
answer to bail;
(c) in the case of a person arrested for an imprisonable
offence, the custody officer has reasonable grounds for
believing that the detention of the person arrested is
necessary to prevent him from committing an offence;
Title 8
Laws of Bermuda Item 38
39
(d) in the case of a person who has attained the age of 18,
the custody officer has reasonable grounds for believing
that the detention of the person is necessary to enable a
sample to be taken from him under section 68;
(e) except in a case where (by virtue of subsection (12) of
section 66) that section does not apply, the custody
officer has reasonable grounds for believing that the
detention of the person is necessary to enable a sample
to be taken from him under that section;
(f) in the case of a person arrested for an offence which is
not an imprisonable offence, the custody officer has
reasonable grounds for believing that the detention of
the person arrested is necessary to prevent him from
causing physical injury to any other person or from
causing loss of or damage to property;
(g) the custody officer has reasonable grounds for believing
that the detention of the person arrested is necessary to
prevent him from interfering with the administration of
justice or with the investigation of offences or of a
particular offence; or
(h) the custody officer has reasonable grounds for believing
that the detention of the person arrested is necessary for
his own protection.
(2) If the release of a person arrested is not required by
subsection (1), the custody officer may authorize him to be kept in police
detention but shall not authorize a person to be kept in police detention
by virtue of subsection (1)(d) after the end of the period of six hours
beginning when he was charged with the offence.
(3) The custody officer, in taking the decisions required by
subsection (1)(b), (c) and (g), shall have regard to the same
considerations as those which a court is required to have regard to in
taking the corresponding decisions under paragraph 3 of Part I of
Schedule l to the Bail Act 2005.
(4) Where a custody officer authorizes a person who has been
charged to be kept in police detention, he shall, as soon as practicable,
make a written record of the grounds for the detention.
(5) Subject to subsection (6), the written record shall be made
in the presence of the person charged who shall at that time be informed
by the custody officer of the grounds for his detention.
(6) Subsection (5) shall not apply where the person charged is,
at the time when the written record is made ⎯
POLICE AND CRIMINAL EVIDENCE ACT 2006
40
(a) incapable of understanding what is said to him;
(b) violent or likely to become violent; or
(c) in urgent need of medical attention.
(7) In this section "imprisonable offence" means an offence
which is punishable with imprisonment.
Responsibilities in relation to persons detained
41 (1) Subject to subsections (2) and (4), it shall be the duty of the
custody officer at a police station to ensure ⎯
(a) that all persons in police detention at that station are
treated in accordance with this Act and any code of
practice issued under it and relating to the treatment of
persons in police detention; and
(b) that all matters relating to such persons which are
required by this Act or by such codes of practice to be
recorded are recorded in the custody records relating to
such persons.
(2) If the custody officer, in accordance with any code of
practice issued under this Act, transfers or permits the transfer of a
person in police detention ⎯
(a) to the custody of a police officer investigating an offence
for which that person is in police detention; or
(b) to the custody of an officer who has charge of that
person outside the police station,
the custody officer shall cease in relation to that person to be subject to
the duty imposed on him by subsection (1)(a), and it shall be the duty of
the officer to whom the transfer is made to ensure that he is treated in
accordance with the provisions of this Act and of any such codes of
practice as are mentioned in subsection (1).
(3) If the person detained is subsequently returned to the
custody of the custody officer, it shall be the duty of the officer
investigating the offence to report to the custody officer as to the manner
in which this section and the codes of practice have been complied with
while that person was in his custody.
(4) Where ⎯
(a) an officer of higher rank than the custody officer gives
directions relating to a person in police detention; and
(b) the directions are at variance ⎯
Title 8
Laws of Bermuda Item 38
41
(i) with any decision made or action taken by the
custody officer in the performance of a duty
imposed on him under this Part of this Act; or
(ii) with any decision or action which would but for the
directions have been made or taken by him in the
performance of such a duty,
the custody officer shall refer the matter at once to an officer of the rank
of superintendent or who is responsible for the police station for which
the custody officer is acting as custody officer.
Review of police detention
42 (1) Reviews of the detention of each person in police detention
in connection with the investigation of an offence shall be carried out
periodically in accordance with the following provisions of this section ⎯
(a) in the case of a person who has been arrested and
charged, by the custody officer; and
(b) in the case of a person who has been arrested but not
charged, by an officer of at least the rank of inspector
who has not been directly involved in the investigation.
(2) The officer to whom it falls to carry out a review is referred
to in this section as a "review officer".
(3) Subject to subsection (4) ⎯
(a) the first review shall be not later than six hours after the
detention was first authorized;
(b) the second review shall be not later than nine hours
after the first;
(c) subsequent reviews shall be at intervals of not more
than nine hours.
(4) A review may be postponed ⎯
(a) if, having regard to all the circumstances prevailing at
the latest time for it specified in subsection (3), it is not
practicable to carry out the review at that time;
(b) without prejudice to the generality of paragraph (a) ⎯
(i) if at that time the person in detention is being
questioned by a police officer and the review officer
is satisfied that an interruption of the questioning
for the purpose of carrying out the review would
prejudice the investigation in connection with
which he is being questioned; or
POLICE AND CRIMINAL EVIDENCE ACT 2006
42
(ii) if at that time no review officer is readily available.
(5) If a review is postponed under subsection (4) it shall be
carried out as soon as practicable after the latest time specified for it in
subsection (3).
(6) If a review is carried out after postponement under
subsection (4), the fact that it was so carried out shall not affect any
requirement of this section as to the time at which any subsequent
review is to be carried out.
(7) The review officer shall record the reasons for any
postponement of a review in the custody record.
(8) Subject to subsection (9), where the person whose detention
is under review has not been charged before the time of the review,
section 35(1) to (6) shall have effect in relation to him, but with the
modifications specified in subsection (9).
(9) The modifications are ⎯
(a) the substitution of references to the person whose
detention is under review for references to the person
arrested;
(b) the substitution of references to the review officer for
references to the custody officer; and
(c) in subsection (6), the insertion of the following
paragraph after paragraph (a) ⎯
"(aa) asleep;".
(10) Where a person has been kept in police detention by virtue
of section 35(11) or 39(5), section 35(1) to (6) shall not have effect in
relation to him but it shall be the duty of the review officer to determine
whether he is yet in a fit state.
(11) Where the person whose detention is under review has been
charged before the time of the review, section 40(1) to (6) shall have effect
in relation to him, with the modifications specified in subsection (12).
(12) The modifications are ⎯
(a) the substitution of a reference to the person whose
detention is under review for any reference to the person
arrested or to the person charged; and
(b) in subsection (6), the insertion of the following
paragraph after paragraph (a) ⎯
"(aa) asleep;".
(13) Where ⎯
Title 8
Laws of Bermuda Item 38
43
(a) an officer of higher rank than the review officer gives
directions relating to a person in police detention; and
(b) the directions are at variance ⎯
(i) with any decision made or action taken by the
review officer in the performance of a duty imposed
on him under this Part of this Act; or
(ii) with any decision or action which would but for the
directions have been made or taken by him in the
performance of such a duty,
the review officer shall refer the matter at once to an officer of the rank of
superintendent or who is responsible for the police station for which the
review officer is acting as review officer in connection with the detention.
(14) Before determining whether to authorize a person's
continued detention the review officer shall give ⎯
(a) that person (unless he is asleep); or
(b) any barrister and attorney representing him who is
available at the time of the review,
an opportunity to make representations to him about the detention.
(15) Subject to subsection (16), the person whose detention is
under review or his barrister and attorney may make representations
under subsection (14) either orally or in writing.
(16) The review officer may refuse to hear oral representations
from the person whose detention is under review if he considers that he
is unfit to make such representations by reason of his condition or
behaviour.
Use of telephone for review under s 42
43 (1) A review under section 42(1)(b) may be carried out by
means of a discussion, conducted by telephone, with one or more
persons at the police station where the arrested person is held.
(2) Where any review is carried out under this section by an
officer who is not present at the station where the arrested person is held
⎯
(a) any obligation of that officer to make a record in
connection with the carrying out of the review shall have
effect as an obligation to cause another officer to make
the record;
POLICE AND CRIMINAL EVIDENCE ACT 2006
44
(b) any requirement for the record to be made in the
presence of the arrested person shall apply to the
making of that record by that other officer; and
(c) the requirements under sections 42(14) and (15) for ⎯
(i) the arrested person; or
(ii) a barrister and attorney representing him,
to be given any opportunity to make representations (whether in writing
or orally) to that officer shall have effect as a requirement for that person,
or such a barrister and attorney, to be given an opportunity to make
representations in a manner authorized by subsection (3).
(3) Representations are made in a manner authorized by this
subsection ⎯
(a) in a case where facilities exist for the immediate
transmission of written representations to the officer
carrying out the review, if they are made either ⎯
(i) orally by telephone to that officer; or
(ii) in writing to that officer by means of those facilities;
and
(b) in any other case, if they are made orally by telephone to
that officer.
Limits on period of detention without charge
44 (1) Subject to the following provisions of this section and to
sections 45 and 46, a person shall not be kept in police detention for
more than 24 hours without being charged.
(2) The time from which the period of detention of a person is
to be calculated (in this Act referred to as "the relevant time") ⎯
(a) in the case of a person arrested outside Bermuda shall
be the time at which that person arrives at the first
police station to which he is taken in Bermuda;
(b) in the case of a person who ⎯
(i) attends voluntarily at a police station; or
(ii) accompanies a police officer to a police station
without having been arrested,
and is arrested at the police station, the time of his arrest;
(c) in any other case, except where subsection (5) applies,
the time at which the person arrested arrives at the first
police station to which he is taken after his arrest.
Title 8
Laws of Bermuda Item 38
45
(3) Subsection (2) shall have effect in relation to a person
arrested under section 30 as if every reference in it to his arrest or his
being arrested were a reference to his arrest or his being arrested for the
offence for which he was originally arrested.
(4) When a person who is in police detention is removed to
hospital because he is in need of medical treatment, any time during
which he is being questioned in hospital or on the way there or back by a
police officer for the purpose of obtaining evidence relating to an offence
shall be included in any period which falls to be calculated for the
purposes of this Part of this Act, but any other time while he is in
hospital or on his way there or back shall not be so included.
(5) Subject to subsection (6), a person who at the expiry of 24
hours after the relevant time is in police detention and has not been
charged shall be released at that time either on bail or without bail.
(6) Subsection (5) does not apply to a person whose detention
for more than 24 hours after the relevant time has been authorized or is
otherwise permitted in accordance with section 45 or 46.
(7) A person released under subsection (5) shall not be re-
arrested without a warrant for the offence for which he was previously
arrested unless new evidence justifying a further arrest has come to light
since his release; but this subsection does not prevent an arrest under
section 50.
Authorization of continued detention by chief inspector
45 (1) Where a police officer of the rank of chief inspector who is
responsible for the police station at which a person is detained has
reasonable grounds for believing that ⎯
(a) the detention of that person without charge is necessary
to secure or preserve evidence relating to an offence for
which he is under arrest or to obtain such evidence by
questioning him;
(b) an offence for which he is under arrest is an arrestable
offence; and
(c) the investigation is being conducted diligently and
expeditiously,
he may authorize the keeping of that person in police detention for a
period expiring at or before 36 hours after the relevant time.
(2) Where an officer such as is mentioned in subsection (1) has
authorized the keeping of a person in police detention for a period
expiring less than 36 hours after the relevant time, such an officer may
authorize the keeping of that person in police detention for a further
period expiring not more than 36 hours after the relevant time if the
POLICE AND CRIMINAL EVIDENCE ACT 2006
46
conditions specified in subsection (1) are still satisfied when he gives the
authorization.
(3) No authorization under subsection (1) shall be given in
respect of any person ⎯
(a) more than 24 hours after the relevant time; or
(b) before the second review of his detention under section
42 has been carried out.
(4) Where an officer authorizes the keeping of a person in police
detention under subsection (1), it shall be his duty ⎯
(a) to inform that person of the grounds for his continued
detention; and
(b) to record the grounds in that person's custody record.
(5) Before determining whether to authorize the keeping of a
person in detention under subsection (1) or (2), an officer shall give ⎯
(a) that person; or
(b) any barrister and attorney representing him who is
available at the time when it falls to the officer to
determine whether to give the authorization,
an opportunity to make representations to him about the detention.
(6) Subject to subsection (7), the person in detention or his
barrister and attorney may make representations under subsection (5)
either orally or in writing.
(7) The officer to whom it falls to determine whether to give the
authorization may refuse to hear oral representations from the person in
detention if he considers that he is unfit to make such representations
by reason of his condition or behaviour.
(8) Where ⎯
(a) an officer authorizes the keeping of a person in detention
under subsection (1); and
(b) at the time of the authorization he has not yet exercised
a right conferred on him by section 59, 60 or 61,
the officer ⎯
(i) shall inform him of that right;
(ii) shall decide whether he should be permitted to
exercise it;
(iii) shall record the decision in his custody record; and
Title 8
Laws of Bermuda Item 38
47
(iv) if the decision is to refuse to permit the exercise of
the right, shall also record the grounds for the
decision in that record.
(9) Where an officer has authorized the keeping of a person
who has not been charged in detention under subsection (1) or (2), he
shall be released from detention, either on bail or without bail, not later
than 36 hours after the relevant time, unless ⎯
(a) he has been charged with an offence; or
(b) his continued detention is authorized or otherwise
permitted in accordance with section 46.
(10) A person released under subsection (9) shall not be re-
arrested without a warrant for the offence for which he was previously
arrested unless new evidence justifying a further arrest has come to light
since his release; but this subsection does not prevent an arrest under
section 50.
Warrants of further detention by Magistrates Court
46 (1) Where, on an application on oath made by a police officer
and supported by an information, the Magistrates Court is satisfied that
there are reasonable grounds for believing that the further detention of
the person to whom the application relates is justified, it may issue a
warrant of further detention authorising the keeping of that person in
police detention.
(2) A court shall not hear an application for a warrant of
further detention unless the person to whom the application relates ⎯
(a) has been furnished with a copy of the information; and
(b) has been brought before the court for the hearing.
(3) The person to whom the application relates shall be entitled
to be legally represented at the hearing and, if he is not so represented
but wishes to be so represented ⎯
(a) the court shall adjourn the hearing to enable him to
obtain representation; and
(b) he may be kept in police detention during the
adjournment.
(4) A person's further detention is only justified for the
purposes of this section or section 47 if ⎯
(a) his detention without charge is necessary to secure or
preserve evidence relating to an offence for which he is
under arrest or to obtain such evidence by questioning
him;
POLICE AND CRIMINAL EVIDENCE ACT 2006
48
(b) an offence for which he is under arrest is a serious
arrestable offence; and
(c) the investigation is being conducted diligently and
expeditiously.
(5) Subject to subsection (7), an application for a warrant of
further detention may be made ⎯
(a) at any time before the expiry of 36 hours after the
relevant time; or
(b) in a case where ⎯
(i) it is not practicable for the Magistrates Court to
which the application will be made to sit at the
expiry of 36 hours after the relevant time; but
(ii) the court will sit during the 6 hours following the
end of that period,
at any time before the expiry of the said 6 hours.
(6) In a case to which subsection (5)(b) applies ⎯
(a) the person to whom the application relates may be kept
in police detention until the application is heard; and
(b) the custody officer shall make a note in that person's
custody record ⎯
(i) of the fact that he was kept in police detention for
more than 36 hours after the relevant time; and
(ii) of the reason why he was so kept.
(7) If ⎯
(a) an application for a warrant of further detention is made
after the expiry of 36 hours after the relevant time; and
(b) it appears to the Magistrates Court that it would have
been reasonable for the police to make it before the
expiry of that period,
the court shall dismiss the application.
(8) Where on an application such as is mentioned in subsection
(1) the Magistrates Court is not satisfied that there are reasonable
grounds for believing that the further detention of the person to whom
the application relates is justified, it shall be its duty ⎯
(a) to refuse the application; or
(b) to adjourn the hearing of it until a time not later than 36
hours after the relevant time.
Title 8
Laws of Bermuda Item 38
49
(9) The person to whom the application relates may be kept in
police detention during the adjournment.
(10) A warrant of further detention shall ⎯
(a) state the time at which it is issued;
(b) authorize the keeping in police detention of the person to
whom it relates for the period stated in it.
(11) Subject to subsection (12), the period stated in a warrant of
further detention shall be such period as the Magistrates Court thinks
fit, having regard to the evidence before it.
(12) The period shall not be longer than 36 hours.
(13) Any information submitted in support of an application
under this section shall state ⎯
(a) the nature of the offence for which the person to whom
the application relates has been arrested;
(b) the general nature of the evidence on which that person
was arrested;
(c) what inquiries relating to the offence have been made by
the police and what further inquiries are proposed by
them;
(d) the reasons for believing the continued detention of that
person to be necessary for the purposes of such further
inquiries.
(14) Where an application under this section is refused, the
person to whom the application relates shall forthwith be charged or,
subject to subsection (15), released, either on bail or without bail.
(15) A person need not be released under subsection (14) ⎯
(a) before the expiry of 24 hours after the relevant time; or
(b) before the expiry of any longer period for which his
continued detention is or has been authorized under
section 45.
(16) Where an application under this section is refused, no
further application shall be made under this section in respect of the
person to whom the refusal relates, unless supported by evidence which
has come to light since the refusal.
(17) Where a warrant of further detention is issued, the person
to whom it relates shall be released from police detention, either on bail
or without bail, upon or before the expiry of the warrant unless he is
charged.
POLICE AND CRIMINAL EVIDENCE ACT 2006
50
(18) A person released under subsection (17) shall not be re-
arrested without a warrant for the offence for which he was previously
arrested unless new evidence justifying a further arrest has come to light
since his release; but this subsection does not prevent an arrest under
section 50.
Extension of warrants of further detention by Magistrates Court
47 (1) On an application on oath made by a police officer and
supported by an information the Magistrates Court may extend a
warrant of further detention issued under section 46 if it is satisfied that
there are reasonable grounds for believing that the further detention of
the person to whom the application relates is justified.
(2) Subject to subsection (3), the period for which a warrant of
further detention may be extended shall be such period as the court
thinks fit, having regard to the evidence before it.
(3) The period shall not ⎯
(a) be longer than 36 hours; or
(b) end later than 96 hours after the relevant time.
(4) Where a warrant of further detention has been extended
under subsection (1), or further extended under this subsection, for a
period ending before 96 hours after the relevant time, on an application
such as is mentioned in that subsection the Magistrates Court may
further extend the warrant if it is satisfied as there mentioned; and
subsections (2) and (3) apply to such further extensions as they apply to
extensions under subsection (1).
(5) A warrant of further detention shall, if extended or further
extended under this section, be endorsed with a note of the period of the
extension.
(6) Subsections (2), (3), and (13) of section 46 shall apply to an
application made under this section as they apply to an application made
under that section.
(7) Where an application under this section is refused, the
person to whom the application relates shall forthwith be charged or,
subject to subsection (8), released, either on bail or without bail.
(8) A person need not be released under subsection (7) before
the expiry of any period for which a warrant of further detention issued
in relation to him has been extended or further extended on an earlier
application made under this section.
Detention before charge - supplementary
48 (1) In reckoning any period of time for the purposes of sections
44 and 45, no account shall be taken of any public holiday.
Title 8
Laws of Bermuda Item 38
51
(2) Any reference in this Part of this Act to a period of time or a
time of day is to be treated as approximate only.
(3) In sections 46 and 47 "Magistrates Court" means a court
sitting otherwise than in open court.
Detention after charge
49 (1) Where a person ⎯
(a) is charged with an offence; and
(b) after being charged is kept in police detention,
he shall be brought before the Magistrates Court in accordance with the
provisions of this section as soon as practicable and in any event not
later than the first sitting after he is charged with the offence.
(2) If the Magistrates Court is not due to sit either on the
relevant day or on the next day, the custody officer for the police station
at which he was charged shall inform the Senior Magistrate that there is
a person to whom subsection (1) applies.
(3) Subject to subsection (4), where the Senior Magistrate has
been informed under subsection (2) that there is a person to whom
subsection (1) applies, the Senior Magistrate shall arrange for the
Magistrates Court to sit not later than the day next following the relevant
day.
(4) Where the day next following the relevant day is a public
holiday the duty of the Senior Magistrate under subsection (3) is a duty
to arrange for the Magistrates Court to sit not later than the first day
after the relevant day which is not one of those days.
(5) Nothing in this section requires a person who is in hospital
to be brought before a court if he is not well enough.
(6) In this section "relevant day" means the day on which a
person is charged with an offence.
Detention — Miscellaneous
Power of arrest for failure to answer to police bail
50 (1) A police officer may arrest without a warrant any person
who, having been released on bail under this Part of this Act subject to a
duty to attend at a police station, fails to attend at that police station at
the time appointed for him to do so.
(2) A person who has been released on bail under section
35(7)(a) or 38(2)(b) may be arrested without warrant by a police officer if
the police officer has reasonable grounds for suspecting that the person
has broken any of the conditions of bail.
POLICE AND CRIMINAL EVIDENCE ACT 2006
52
(3) A person who is arrested under this section shall be taken
to the police station appointed as the place at which he is to surrender to
custody as soon as practicable after the arrest.
(4) For the purposes of ⎯
(a) section 29 (subject to the obligation in subsection (2)),
and
(b) section 30,
an arrest under this section shall be treated as an arrest for an offence.
Bail after arrest
51 (1) Subject to the following provisions of this section, a release
on bail of a person under this Part of this Act shall be a release on bail
granted in accordance with sections 4, 5, 7 and 8 of the Bail Act 2005 as
they apply to bail granted by a police officer.
(2) The normal powers to impose conditions of bail shall be
available to him where a custody officer releases a person on bail under
section 35(7)(a) or section 40(1) (including that subsection as applied by
section 42(11) but not in any other cases.
(3) In this subsection, "the normal powers to impose conditions
of bail" has the meaning given in section 4(4) of the Bail Act 2005.
(4) No application may be made under section 9 of the Bail Act
2005 if a person is released on bail under section 35(7)(a) or 38(2)(b).
(5) Subsection (6) applies where a person released on bail
under section 35(7)(a) or 38(2)(b) is on bail subject to conditions.
(6) The Magistrates Court may, on an application by or on
behalf of the person, vary the conditions of bail; and in this subsection
"vary" has the same meaning as in section 3(2) of the Bail Act 2005.
(7) Where the Magistrates Court varies the conditions of bail
under subsection (6), that bail shall not lapse but shall continue subject
to the conditions as so varied.
(8) Nothing in the Bail Act 2005 shall prevent the re-arrest
without warrant of a person released on bail subject to a duty to attend
at a police station if new evidence justifying a further arrest has come to
light since his release.
(9) Subject to subsections (10) and (11), in this Part of this Act
references to "bail" are references to bail subject to a duty ⎯
(a) to appear before the Magistrates Court at such time and
such place; or
(b) to attend at such police station at such time,
as the custody officer may appoint.
Title 8
Laws of Bermuda Item 38
53
(10) Where a custody officer grants bail to a person subject to a
duty to appear before the Magistrates Court, he shall appoint for the
appearance ⎯
(a) a date which is not later than the first sitting of the
court after the person is charged with the offence; or
(b) where he is informed by the Senior Magistrate that the
appearance cannot be accommodated until a later date,
that later date.
(11) Where a custody officer has granted bail to a person subject
to a duty to appear at a police station, the custody officer may give notice
in writing to that person that his attendance at the police station is not
required.
(12) Where a person who has been granted bail under this Part
and either has attended at the police station in accordance with the
grant of bail or has been arrested under section 50 is detained at a police
station, any time during which he was in police detention prior to being
granted bail shall be included as part of any period which falls to be
calculated under this Part of this Act.
(13) Where a person who was released on bail under this Part
subject to a duty to attend at a police station is re-arrested, the
provisions of this Part of this Act shall apply to him as they apply to a
person arrested for the first time; but this subsection does not apply to a
person who is arrested under section 50 or has attended a police station
in accordance with the grant of bail (and who accordingly is deemed by
section 32(6) to have been arrested for an offence).
Records of detention
52 The Commissioner of Police shall keep written records showing
on an annual basis ⎯
(a) the number of persons kept in police detention for more
than 24 hours and subsequently released without
charge;
(b) the number of applications for warrants of further
detention and the results of the applications; and
(c) in relation to each warrant of further detention ⎯
(i) the period of further detention authorized by it;
(ii) the period which the person named in it spent in
police detention on its authority; and
(iii) whether he was charged or released without
charge.
POLICE AND CRIMINAL EVIDENCE ACT 2006
54
Savings
53 Nothing in this Part of this Act shall affect ⎯
(a) the powers conferred on immigration officers by the
Bermuda Immigration and Protection Act 1956;
(b) any right of a person in police detention to apply for a
writ of habeas corpus or other prerogative remedy.
PART VI
QUESTIONING AND TREATMENT OF PERSONS BY POLICE
Abolition of certain powers of police officers to search persons
54 There shall cease to have effect any enactment passed before
this Act in so far as it authorizes ⎯
(a) any search by a police officer of a person in police
detention at a police station; or
(b) an intimate search of a person by a police officer;
and any rule of common law which authorizes a search such as is
mentioned in paragraph (a) or (b) is abolished.
Searches of detained persons
55 (1) The custody officer at a police station shall ascertain
everything which a person has with him when he is ⎯
(a) brought to the station after being arrested elsewhere or
after being committed to custody by an order or
sentence of a court; or
(b) arrested at the station or detained there, as a person
falling within section 32(6), under section 35.
(2) The custody officer may record or cause to be recorded all
or any of the things which he ascertains under subsection (1).
(3) In the case of an arrested person, any such record may be
made as part of his custody record.
(4) Subject to subsection (5), a custody officer may seize and
retain any such thing or cause any such thing to be seized and retained.
(5) Clothes and personal effects may only be seized if the
custody officer ⎯
(a) believes that the person from whom they are seized may
use them ⎯
(i) to cause physical injury to himself or any other
person;
Title 8
Laws of Bermuda Item 38
55
(ii) to damage property;
(iii) to interfere with evidence; or
(iv) to assist him to escape; or
(b) has reasonable grounds for believing that they may be
evidence relating to an offence.
(6) Where anything is seized, the person from whom it is seized
shall be told the reason for the seizure unless he is ⎯
(a) violent or likely to become violent; or
(b) incapable of understanding what is said to him.
(7) Subject to subsection (8), a person may be searched if the
custody officer considers it necessary to enable him to carry out his duty
under subsection (1) and to the extent that the custody officer considers
necessary for that purpose.
(8) A person who is in custody at a police station or is in police
detention otherwise than at a police station may at any time be searched
in order to ascertain whether he has with him anything which he could
use for any of the purposes specified in subsection (5)(a).
(9) Subject to subsection (10), a police officer may seize and
retain, or cause to be seized and retained, anything found on such a
search.
(10) A police officer may only seize clothes and personal effects
in the circumstances specified in subsection (5).
(11) An intimate search shall not be conducted under this
section.
(12) A search under this section shall be carried out by a police
officer.
(13) The police officer carrying out a search shall be of the same
sex as the person searched.
Searches and examination to ascertain identity
56 (1) If an officer of at least the rank of inspector authorizes it, a
person who is detained in a police station may be searched or examined,
or both ⎯
(a) for the purpose of ascertaining whether he has any mark
that would tend to identify him as a person involved in
the commission of an offence; or
(b) for the purpose of facilitating the ascertainment of his
identity.
POLICE AND CRIMINAL EVIDENCE ACT 2006
56
(2) An officer may only give an authorization under subsection
(1) for the purpose mentioned in paragraph (a) of that subsection if ⎯
(a) the appropriate consent to a search or examination that
would reveal whether the mark in question exists has
been withheld; or
(b) it is not practicable to obtain such consent.
(3) An officer may only give an authorization under subsection
(1) in a case in which subsection (2) does not apply if ⎯
(a) the person in question has refused to identify himself; or
(b) the officer has reasonable grounds for suspecting that
person is not who he claims to be.
(4) An officer may give an authorization under subsection (1)
orally or in writing but, if he gives it orally, he shall confirm it in writing
as soon as is practicable.
(5) Any identifying mark found on a search or an examination
under this section may be photographed ⎯
(a) with the appropriate consent; or
(b) if the appropriate consent is withheld or it is not
practicable to obtain it, without it.
(6) Where a search or an examination may be carried out
under this section, or a photograph may be taken under this section, the
only persons entitled to carry out the search or examination, or to take
the photograph, are police officers.
(7) A person shall not under this section carry out a search or
an examination of a person of the opposite sex or take a photograph of
any part of the body of a person of the opposite sex.
(8) An intimate search shall not be carried out under this
section.
(9) A photograph taken under this section ⎯
(a) may be used by, or disclosed to, any person for any
purpose related to the prevention or detection of crime,
the investigation of an offence or the conduct of a
prosecution; and
(b) after being so used or disclosed, may be retained but
shall not be used or disclosed except for a purpose so
related.
(10) In subsection (9) ⎯
(a) the reference to crime includes a reference to any
conduct which ⎯
Title 8
Laws of Bermuda Item 38
57
(i) constitutes one or more criminal offences (whether
under the law of Bermuda or of a country or
territory outside Bermuda); or
(ii) is, or corresponds to, any conduct which, if it all
took place in Bermuda, would constitute one or
more criminal offences; and
(b) the references to an investigation and to a prosecution
include references, respectively, to any investigation
outside Bermuda of any crime or suspected crime and to
a prosecution brought in respect of any crime in a
country or territory outside Bermuda.
(11) In this section ⎯
(a) references to ascertaining a person's identity include
references to showing that he is not a particular person;
and
(b) references to taking a photograph include references to
using any process by means of which a visual image may
be produced, and references to photographing a person
shall be construed accordingly.
(12) In this section "mark" includes features and injuries; and a
mark is an identifying mark for the purposes of this section if its
existence in any person's case facilitates the ascertainment of his
identity or his identification as a person involved in the commission of an
offence.
(13) Nothing in this section applies to a person arrested under
an extradition arrest power.
Intimate searches
57 (1) Subject to the following provisions of this section, if an
officer of at least the rank of inspector has reasonable grounds for
believing ⎯
(a) that a person who has been arrested and is in police
detention may have concealed on him anything which ⎯
(i) he could use to cause physical injury to himself or
others; and
(ii) he might so use while he is in police detention or in
the custody of a court; or
(b) that such a person ⎯
(i) may have a controlled drug concealed on him; and
POLICE AND CRIMINAL EVIDENCE ACT 2006
58
(ii) was in possession of it with the appropriate
criminal intent before his arrest;
he may authorize an intimate search of that person.
(2) An officer shall not authorize an intimate search of a person
for anything unless he has reasonable grounds for believing that it
cannot be found without his being intimately searched.
(3) An officer may give an authorization under subsection (1)
orally or in writing but, if he gives it orally, he shall confirm it in writing
as soon as is practicable.
(4) An intimate search which is only a drug offence search shall
be by way of examination by a suitably qualified person.
(5) Except as provided by subsection (4), an intimate search
shall be by way of examination by a suitably qualified person unless an
officer of at least the rank of inspector considers that this is not
practicable.
(6) An intimate search which is not carried out as mentioned in
subsection (5) shall be carried out by a police officer.
(7) A police officer shall not carry out an intimate search of a
person of the opposite sex.
(8) No intimate search may be carried out except ⎯
(a) at a police station;
(b) at a hospital;
(c) at a registered medical practitioner's surgery; or
(d) at some other place used for medical purposes.
(9) An intimate search which is only a drug offence search shall
not be carried out at a police station.
(10) If an intimate search of a person is carried out, the custody
record relating to him shall state ⎯
(a) which parts of his body were searched; and
(b) why they were searched.
(11) The information required to be recorded by subsection (10)
shall be recorded as soon as practicable after the completion of the
search.
(12) The custody officer at a police station may seize and retain
anything which is found on an intimate search of a person, or cause any
such thing to be seized and retained ⎯
(a) if he believes that the person from whom it is seized may
use it ⎯
Title 8
Laws of Bermuda Item 38
59
(i) to cause physical injury to himself or any other
person;
(ii) to damage property;
(iii) to interfere with evidence; or
(iv) to assist him to escape; or
(b) if he has reasonable grounds for believing that it may be
evidence relating to an offence.
(13) Where anything is seized under this section, the person
from whom it is seized shall be told the reason for the seizure unless he
is ⎯
(a) violent or likely to become violent; or
(b) incapable of understanding what is said to him.
(14) In this section ⎯
"the appropriate criminal intent" means an intent to commit an
offence under section 6(3) of the Misuse of Drugs Act 1972
(possession of controlled drug with intent to supply to
another);
"controlled drug" has the meaning given in section 3 of the
Misuse of Drugs Act 1972;
"drug offence search" means an intimate search for a controlled
drug which an officer has authorized by virtue of subsection
(1)(b); and
"suitably qualified person" means ⎯
(a) a registered medical practitioner; or
(b) a registered nurse.
Information about rights
58 A person who has been arrested shall be informed, as soon as he
is brought to a police station, of his rights under sections 59, 60 and 61.
Right to remain silent
59 A person who has been arrested is not obliged to say anything.
Right to have someone informed when arrested
60 (1) Where a person has been arrested and is being held in
custody in a police station or other premises, he shall be entitled, if he so
requests, to have one friend or relative or other person who is known to
him or who is likely to take an interest in his welfare told, as soon as is
POLICE AND CRIMINAL EVIDENCE ACT 2006
60
practicable except to the extent that delay is permitted by this section,
that he has been arrested and is being detained there.
(2) Delay is only permitted ⎯
(a) in the case of a person who is in police detention for a
serious arrestable offence; and
(b) if an officer of at least the rank of inspector authorizes it.
(3) In any case the person in custody shall be permitted to
exercise the right conferred by subsection (1) within 36 hours from the
relevant time, as defined in section 44(2).
(4) An officer may give an authorization under subsection (2)
orally or in writing but, if he gives it orally, he shall confirm it in writing
as soon as is practicable.
(5) Subject to subsection (6) an officer may only authorize delay
where he has reasonable grounds for believing that telling the named
person of the arrest ⎯
(a) will lead to interference with or harm to evidence
connected with a serious arrestable offence or
interference with or physical injury to other persons; or
(b) will lead to the alerting of other persons suspected of
having committed such an offence but not yet arrested
for it; or
(c) will hinder the recovery of any property obtained as a
result of such an offence.
(6) An officer may also authorize delay where he has reasonable
grounds for believing that ⎯
(a) the person detained for the serious arrestable offence
has benefited from his criminal conduct; and
(b) the recovery of the value of the property constituting the
benefit will be hindered by telling the named person of
the arrest.
(7) For the purposes of subsection (6) the question whether a
person has benefited from his criminal conduct is to be decided in
accordance with Part 2 of the Proceeds of Crime Act 1997.
(8) If a delay is authorized ⎯
(a) the detained person shall be told the reason for it; and
(b) the reason shall be noted on his custody record.
(9) The duties imposed by subsection (8) shall be performed as
soon as is practicable.
Title 8
Laws of Bermuda Item 38
61
(10) The rights conferred by this section on a person detained at
a police station or other premises are exercisable whenever he is
transferred from one place to another; and this section applies to each
subsequent occasion on which they are exercisable as it applies to the
first such occasion.
(11) There may be no further delay in permitting the exercise of
the right conferred by subsection (1) once the reason for authorising
delay ceases to subsist.
Access to legal advice
61 (1) A person arrested and held in custody in a police station or
other premises shall be entitled, if he so requests, to consult a barrister
and attorney privately at any time.
(2) Subject to subsection (3), a request under subsection (1)
and the time at which it was made shall be recorded in the custody
record.
(3) Such a request need not be recorded in the custody record
of a person who makes it at a time while he is at a court after being
charged with an offence.
(4) If a person makes such a request, he shall be permitted to
consult a barrister and attorney as soon as is practicable except to the
extent that delay is permitted by this section.
(5) In any case he shall be permitted to consult a barrister and
attorney within 36 hours from the relevant time, as defined in section
44(2).
(6) Delay in compliance with a request is only permitted ⎯
(a) in the case of a person who is in police detention for a
serious arrestable offence; and
(b) if an officer of at least the rank of superintendent
authorizes it.
(7) An officer may give an authorization under subsection (6),
and where he does so he shall give it in writing .
(8) Subject to subsection (9) an officer may only authorize delay
where he has reasonable grounds for believing that the exercise of the
right conferred by subsection (1) at the time when the person detained
desires to exercise it ⎯
(a) will lead to interference with or harm to evidence
connected with a serious arrestable offence or
interference with or physical injury to other persons; or
POLICE AND CRIMINAL EVIDENCE ACT 2006
62
(b) will lead to the alerting of other persons suspected of
having committed such an offence but not yet arrested
for it; or
(c) will hinder the recovery of any property obtained as a
result of such an offence.
(9) An officer may also authorize delay where he has reasonable
grounds for believing that ⎯
(a) the person detained for the serious arrestable offence
has benefited from his criminal conduct, and
(b) the recovery of the value of the property constituting the
benefit will be hindered by the exercise of the right
conferred by subsection (1).
(10) For the purposes of subsection (9) the question whether a
person has benefited from his criminal conduct is to be decided in
accordance with Part 2 of the Proceeds of Crime Act 1997.
(11) If delay is authorized ⎯
(a) the detained person shall be told the reason for it; and
(b) the reason shall be noted on his custody record.
(12) The duties imposed by subsection (11) shall be performed
as soon as is practicable.
(13) There may be no further delay in permitting the exercise of
the right conferred by subsection (1) once the reason for authorising
delay ceases to subsist.
Tape-recording of interviews
62 (1) It shall be the duty of the Minister ⎯
(a) to issue, by order, a code of practice in connection with
the tape-recording of interviews of persons suspected of
the commission of criminal offences which are held by
police officers at police stations; and
(b) to make an order requiring the tape-recording of
interviews of persons suspected of the commission of
criminal offences, or of such descriptions of criminal
offences as may be specified in the order, which are so
held, in accordance with the code as it has effect for the
time being.
(2) An order under subsection (1) shall be subject to the
negative resolution procedure.
Title 8
Laws of Bermuda Item 38
63
Visual recording of interviews
63 (1) The Minister shall have power ⎯
(a) to issue, by order, a code of practice for the visual
recording of interviews held by police officers at police
stations; and
(b) to make an order requiring the visual recording of
interviews so held, and requiring the visual recording to
be in accordance with the code for the time being in
force under this section.
(2) A requirement imposed by an order under this section may
be imposed in relation to such cases or police stations in such areas, or
both, as may be specified or described in the order.
(3) An order made under subsection (1) shall be subject to the
negative resolution procedure.
(4) In this section ⎯
(a) references to any interview are references to an interview
of a person suspected of a criminal offence; and
(b) references to a visual recording include references to a
visual recording in which an audio recording is
comprised.
Fingerprinting consent
64 (1) Except as provided by this section no person's fingerprints
may be taken without the appropriate consent.
(2) Consent to the taking of a person's fingerprints shall be in
writing if it is given at a time when he is at a police station.
(3) The fingerprints of a person detained at a police station may
be taken without the appropriate consent if ⎯
(a) he is detained in consequence of his arrest for a
recordable offence; and
(b) he has not had his fingerprints taken in the course of
the investigation of the offence by the police.
(4) Where a person mentioned in paragraph (a) of subsection (3)
or (5) has already had his fingerprints taken in the course of the
investigation of the offence by the police, that fact shall be disregarded
for the purposes of that subsection if ⎯
(a) the fingerprints taken on the previous occasion do not
constitute a complete set of his fingerprints; or
POLICE AND CRIMINAL EVIDENCE ACT 2006
64
(b) some or all of the fingerprints taken on the previous
occasion are not of sufficient quality to allow satisfactory
analysis, comparison or matching (whether in the case
in question or generally).
(5) The fingerprints of a person detained at a police station may
be taken without the appropriate consent if ⎯
(a) he has been charged with a recordable offence or
informed that he will be reported for such an offence;
and
(b) he has not had his fingerprints taken in the course of
the investigation of the offence by the police.
(6) The fingerprints of a person who has answered to bail at a
court or police station may be taken without the appropriate consent at
the court or station if ⎯
(a) the court; or
(b) an officer of at least the rank of inspector,
authorizes them to be taken.
(7) A court or officer may only give an authorization under
subsection (6) if ⎯
(a) the person who has answered to bail has answered to it
for a person whose fingerprints were taken on a previous
occasion and there are reasonable grounds for believing
that he is not the same person; or
(b) the person who has answered to bail claims to be a
different person from a person whose fingerprints were
taken on a previous occasion.
(8) An officer may give an authorization under subsection (6)
orally or in writing but, if he gives it orally, he shall confirm it in writing
as soon as is practicable.
(9) Any person's fingerprints may be taken without the
appropriate consent if he has been convicted of a recordable offence.
(10) In a case where by virtue of subsection (3), (5) or (9) a
person's fingerprints are taken without the appropriate consent ⎯
(a) he shall be told the reason before his fingerprints are
taken; and
(b) the reason shall be recorded as soon as is practicable
after the fingerprints are taken.
(11) If a person's fingerprints are taken at a police station,
whether with or without the appropriate consent ⎯
Title 8
Laws of Bermuda Item 38
65
(a) before the fingerprints are taken, an officer shall inform
him that they may be the subject of a speculative
search; and
(b) the fact that the person has been informed of this
possibility shall be recorded as soon as is practicable
after the fingerprints have been taken.
(12) If he is detained at a police station when the fingerprints
are taken, the reason for taking them and, in the case falling within
subsection (11), the fact referred to in paragraph (b) of that subsection
shall be recorded on his custody record.
(13) Where a person's fingerprints are taken electronically, they
shall be taken only in such manner, and using such devices, as the
Minister has approved for the purposes of electronic fingerprinting.
(14) The power to take the fingerprints of a person detained at a
police station without the appropriate consent shall be exercisable by
any police officer.
(15) Nothing in this section applies to a person arrested under
an extradition arrest power.
Intimate samples
65 (1) Subject to section 66 an intimate sample may be taken from
a person in police detention only ⎯
(a) if a police officer of at least the rank of inspector
authorizes it to be taken; and
(b) if the appropriate consent is given.
(2) An intimate sample may be taken from a person who is not
in police detention but from whom, in the course of the investigation of
an offence, two or more non-intimate samples suitable for the same
means of analysis have been taken which have proved insufficient ⎯
(a) if a police officer of at least the rank of inspector
authorizes it to be taken; and
(b) if the appropriate consent is given.
(3) An officer may only give an authorization under subsection
(1) or (2) if he has reasonable grounds ⎯
(a) for suspecting the involvement of the person from whom
the sample is to be taken in a recordable offence; and
(b) for believing that the sample will tend to confirm or
disprove his involvement.
POLICE AND CRIMINAL EVIDENCE ACT 2006
66
(4) An officer may give an authorization under subsection (1) or
(2) orally or in writing but, if he gives it orally, he shall confirm it in
writing as soon as is practicable.
(5) The appropriate consent shall be given in writing.
(6) Where ⎯
(a) an authorization has been given; and
(b) it is proposed that an intimate sample shall be taken in
pursuance of the authorization,
an officer shall inform the person from whom the sample is to be
taken ⎯
(i) of the giving of the authorization; and
(ii) of the grounds for giving it.
(7) The duty imposed by subsection (6)(ii) includes a duty to
state the nature of the offence in which it is suspected that the person
from whom the sample is to be taken has been involved.
(8) If an intimate sample is taken from a person ⎯
(a) the authorization by virtue of which it was taken;
(b) the grounds for giving the authorization; and
(c) the fact that the appropriate consent was given,
shall be recorded as soon as is practicable after the sample is taken.
(9) If an intimate sample is taken from a person at a police
station ⎯
(a) before the sample is taken, an officer shall inform him
that it may be the subject of a speculative search; and
(b) the fact that the person has been informed of this
possibility shall be recorded as soon as practicable after
the sample has been taken.
(10) If an intimate sample is taken from a person detained at a
police station, the matters required to be recorded by subsection (8) or
(9) shall be recorded in his custody record.
(11) In the case of an intimate sample which is a dental
impression, the sample may be taken from a person only by a registered
dentist.
(12) In the case of any other form of intimate sample, except in
the case of a sample of urine, the sample may be taken from a person
only by ⎯
(a) a registered medical practitioner; or
Title 8
Laws of Bermuda Item 38
67
(b) a registered health care professional.
(13) Where the appropriate consent to the taking of an intimate
sample from a person was refused without good cause, in any
proceedings against that person for an offence ⎯
(a) the court, in determining ⎯
(i) whether to commit that person for trial; or
(ii) whether there is a case to answer; and
(b) the court or jury, in determining whether that person is
guilty of the offence charged,
may draw such inferences from the refusal as appear proper.
(14) Nothing in this section applies to the taking of a specimen
for the purposes of any of the provisions of sections 35C, 35D, 35E, 35F
and 35G of the Road Traffic Act 1947.
Other samples
66 (1) Except as provided by this section, a non-intimate sample
shall not be taken from a person without the appropriate consent.
(2) Consent to the taking of a non-intimate sample shall be
given in writing.
(3) A non-intimate sample may be taken from a person without
the appropriate consent if two conditions are satisfied.
(4) The first is that the person is in police detention in
consequence of his arrest for a recordable offence.
(5) The second is that ⎯
(a) he has not had a non-intimate sample of the same type
and from the same part of the body taken in the course
of the investigation of the offence by the police; or
(b) he has had such a sample taken but it proved
insufficient.
(6) A non-intimate sample may be taken from a person without
the appropriate consent if ⎯
(a) he is being held in custody by the police on the authority
of a court; and
(b) an officer of at least the rank of inspector authorizes it to
be taken without the appropriate consent.
POLICE AND CRIMINAL EVIDENCE ACT 2006
68
(7) A non-intimate sample may be taken from a person
(whether or not he is in police detention or held in custody by the police
on the authority of a court) without the appropriate consent if ⎯
(a) he has been charged with a recordable offence or
informed that he will be reported for such an offence;
and
(b) either he has not had a non-intimate sample taken from
him in the course of the investigation of the offence by
the police or he has had a non-intimate sample taken
from him but either it was not suitable for the same
means of analysis or, though so suitable, the sample
proved insufficient.
(8) A non-intimate sample may be taken from a person without
the appropriate consent if he has been convicted of a recordable offence.
(9) An officer may only give an authorization under subsection
(6) if he has reasonable grounds ⎯
(a) for suspecting the involvement of the person from whom
the sample is to be taken in a recordable offence; and
(b) for believing that the sample will tend to confirm or
disprove his involvement.
(10) An officer may give an authorization under subsection (6)
orally or in writing but, if he gives it orally, he shall confirm it in writing
as soon as is practicable.
(11) An officer shall not give an authorization under subsection
(3) for the taking from any person of a non-intimate sample consisting of
a skin impression if ⎯
(a) a skin impression of the same part of the body has
already been taken from that person in the course of the
investigation of the offence; and
(b) the impression previously taken is not one that has
proved insufficient.
(12) Where ⎯
(a) an authorization has been given; and
(b) it is proposed that a non-intimate sample shall be taken
in pursuance of the authorization,
an officer shall inform the person from whom the sample is to be
taken ⎯
(i) of the giving of the authorization; and
(ii) of the grounds for giving it.
Title 8
Laws of Bermuda Item 38
69
(13) The duty imposed by subsection (12)(ii) includes a duty to
state the nature of the offence in which it is suspected that the person
from whom the sample is to be taken has been involved.
(14) If a non-intimate sample is taken from a person by virtue of
subsection (6) ⎯
(a) the authorization by virtue of which it was taken; and
(b) the grounds for giving the authorization,
shall be recorded as soon as is practicable after the sample is taken.
(15) In a case where by virtue of subsection (3), (7) or (8) a
sample is taken from a person without the appropriate consent ⎯
(a) he shall be told the reason before the sample is taken;
and
(b) the reason shall be recorded as soon as practicable after
the sample is taken.
(16) If a non-intimate sample is taken from a person at a police
station, whether with or without the appropriate consent ⎯
(a) before the sample is taken, an officer shall inform him
that it may be the subject of a speculative search; and
(b) the fact that the person has been informed of this
possibility shall be recorded as soon as practicable after
the sample has been taken.
(17) If a non-intimate sample is taken from a person detained at
a police station, the matters required to be recorded by subsection (14),
(15), (16) shall be recorded in his custody record.
(18) The power to take a non-intimate sample from a person
without the appropriate consent shall be exercisable by any police officer.
(19) Subsection (8) shall not apply to any person convicted
before this section comes into force.
(20) Where a non-intimate sample consisting of a skin
impression is taken electronically from a person, it shall be taken only in
such manner, and using such devices, as the Minister has approved for
the purpose of the electronic taking of such an impression.
(21) Nothing in this section applies to a person arrested under
an extradition arrest power.
Fingerprints and samples: supplementary provisions
67 (1) Where a person has been arrested on suspicion of being
involved in a recordable offence or has been charged with such an
POLICE AND CRIMINAL EVIDENCE ACT 2006
70
offence or has been informed that he will be reported for such an offence,
fingerprints or samples or the information derived from samples taken
under any power conferred by this Part of this Act from the person may
be checked against —
(a) other fingerprints or samples to which the person
seeking to check has access and which are held by or on
behalf of any one or more relevant law-enforcement
authorities or which are held in connection with or as a
result of an investigation of an offence;
(b) information derived from other samples if the
information is contained in records to which the person
seeking to check has access and which are held as
mentioned in paragraph (a).
(2) In subsection (1) "relevant law-enforcement authority"
means ⎯
(a) the Bermuda Police Service;
(b) any person with functions in any country or territory
outside Bermuda which ⎯
(i) correspond to those of a police force; or
(ii) otherwise consist of or include the investigation of
conduct contrary to the law of that country or
territory, or the apprehension of persons guilty of
such conduct;
(c) any person with functions under any international
agreement which consist of or include the investigation
of conduct which is ⎯
(i) unlawful under the law of one or more places;
(ii) prohibited by such an agreement; or
(iii) contrary to international law,
or the apprehension of persons guilty of such conduct.
(3) Where ⎯
(a) fingerprints or samples have been taken from any
person in connection with the investigation of an offence
but otherwise than in circumstances to which
subsection (1) applies; and
(b) that person has given his consent in writing to the use
in a speculative search of the fingerprints or of the
samples and of information derived from them,
Title 8
Laws of Bermuda Item 38
71
the fingerprints or, as the case may be, those samples and that
information may be checked against any of the fingerprints, samples or
information mentioned in paragraph (a) or (b) of that subsection.
(4) A consent given for the purposes of subsection (2) shall not
be capable of being withdrawn.
(5) Where a sample of hair other than pubic hair is to be taken
the sample may be taken either by cutting hairs or by plucking hairs
with their roots so long as no more are plucked than the person taking
the sample reasonably considers to be necessary for a sufficient sample.
(6) Where any power to take a sample is exercisable in relation
to a person the sample may be taken in a prison.
(7) Where ⎯
(a) the power to take a non-intimate sample under section
66(8) is exercisable in relation to any person who is
detained under Part III of the Mental Health Act 1968 in
pursuance of a hospital order or an interim hospital
order made following his conviction for the recordable
offence in question; or
(b) the power to take a non-intimate sample under section
64(8) is exercisable in relation to any person,
the sample may be taken in the hospital in which he is detained under
that Part of that Act.
(8) Expressions used in subsection (7) and in the Mental
Health Act 1968 have the same meaning as in that Act.
(9) Any police officer may, within the allowed period, require a
person who is neither in police detention nor held in custody by the
police on the authority of a court to attend a police station in order to
have a sample taken where ⎯
(a) the person has been charged with a recordable offence
or informed that he will be reported for such an offence
and either he has not had a sample taken from him in
the course of the investigation of the offence by the
police or he has had a sample so taken from him but
either it was not suitable for the same means of analysis
or, though so suitable, the sample proved insufficient; or
(b) the person has been convicted of a recordable offence
and either he has not had a sample taken from him
since the conviction or he has had a sample taken from
him (before or after his conviction) but either it was not
suitable for the same means of analysis or, though so
suitable, the sample proved insufficient.
POLICE AND CRIMINAL EVIDENCE ACT 2006
72
(10) The period allowed for requiring a person to attend a police
station for the purpose specified in subsection (9) is ⎯
(a) in the case of a person falling within paragraph (a), one
month beginning with the date of the charge or of his
being informed as mentioned in that paragraph or one
month beginning with the date on which the appropriate
officer is informed of the fact that the sample is not
suitable for the same means of analysis or has proved
insufficient, as the case may be;
(b) in the case of a person falling within paragraph (b), one
month beginning with the date of the conviction or one
month beginning with the date on which the appropriate
officer is informed of the fact that the sample is not
suitable for the same means of analysis or has proved
insufficient, as the case may be.
(11) A requirement under subsection (9) ⎯
(a) shall give the person at least 7 days within which he
shall so attend; and
(b) may direct him to attend at a specified time of day or
between specified times of day.
(12) Any police officer may arrest without a warrant a person
who has failed to comply with a requirement under subsection (9).
(13) In this section "the appropriate officer" is ⎯
(a) in the case of a person falling within subsection (9)(a),
the officer investigating the offence with which that
person has been charged or as to which he was informed
that he would be reported;
(b) in the case of a person falling within subsection (9)(b),
the officer in charge of the police station from which the
investigation of the offence of which he was convicted
was conducted.
Testing for presence of controlled drugs
68 (1) A sample of urine or a non-intimate sample may be taken
from a person in police detention for the purpose of ascertaining whether
he has any specified controlled drug in his body if the following
conditions are met.
(2) The first condition is ⎯
(a) that the person concerned has been charged with a
trigger offence; or
Title 8
Laws of Bermuda Item 38
73
(b) that the person concerned has been charged with an
offence and a police officer of at least the rank of
inspector, who has reasonable grounds for suspecting
that the misuse by that person of any specified
controlled drug caused or contributed to the offence, has
authorized the sample to be taken.
(3) The second condition is that the person concerned has
attained the age of 16.
(4) The third condition is that a police officer has requested the
person concerned to give the sample.
(5) Before requesting the person concerned to give a sample, an
officer shall ⎯
(a) warn him that if, when so requested, he fails without
good cause to do so he may be liable to prosecution; and
(b) in a case within subsection (2)(b), inform him of the
giving of the authorization and of the grounds in
question.
(6) In the case of a person who has not attained the age of
18 ⎯
(a) the making of the request under subsection (4);
(b) the giving of the warning and (where applicable) the
information under subsection (5); and
(c) the taking of the sample,
shall not take place except in the presence of an appropriate adult.
(7) A sample may be taken under this section only by a person
prescribed by regulations made by the Minister.
(8) Regulations made under this section are subject to negative
resolution procedure.
(9) Information obtained from a sample taken under this
section may be disclosed ⎯
(a) for the purpose of informing any decision about granting
bail in criminal proceedings (within the meaning of the
Bail Act 2005) to the person concerned;
(b) where the person concerned is in police detention or is
remanded in or committed to custody by an order of a
court or has been granted such bail, for the purpose of
informing any decision about his supervision;
POLICE AND CRIMINAL EVIDENCE ACT 2006
74
(c) where the person concerned is convicted of an offence,
for the purpose of informing any decision about the
appropriate sentence to be passed by a court and any
decision about his supervision or release;
(d) for the purpose of ensuring that appropriate advice and
treatment is made available to the person concerned.
(10) A person who fails without good cause to give any sample
which may be taken from him under this section shall be guilty of an
offence.
(11) In relation to a person who has not attained the age of 16,
this section applies only where arrangements for the taking of samples
under this section from persons who have not attained the age of 16
have been made.
(12) In this section "appropriate adult", in relation to a person
who has not attained the age of 16, means ⎯
(a) his parent or guardian; or
(b) if no person falling within paragraph (a) is available, any
responsible person aged 18 or over who is not a police
officer or a person employed by the Police Service.
Testing for presence of controlled drugs: supplementary
69 (1) A person guilty of an offence under section 68 shall be liable
on summary conviction to imprisonment for three months, or to a fine of
$500, or to both.
(2) A police officer may give an authorization under section
68(2)(b) orally or in writing but, if he gives it orally, he shall confirm it in
writing as soon as is practicable.
(3) If a sample is taken under section 68 by virtue of an
authorization, the authorization and the grounds for the suspicion shall
be recorded as soon as is practicable after the sample is taken.
(4) If the sample is taken from a person detained at a police
station, the matters required to be recorded by subsection (3) shall be
recorded in his custody record.
(5) Section 65(14) shall apply for the purposes of section 68 as
it does for the purposes of that section; and section 68 does not
prejudice the generality of sections 65 and 66.
(6) In section 68 ⎯
"controlled drug" has the meaning given in section 3 of the
Misuse of Drugs Act 1972;
"misuse" has the same meaning as in section 1(2) of the
Misuse of Drugs Act 1972; and
Title 8
Laws of Bermuda Item 38
75
"trigger offence" means ⎯
(a) an offence under the following provisions of the
Misuse of Drugs Act 1972 ⎯
(i) section 5 (restriction on production and supply
of controlled drugs);
(ii) section 6(2) (possession of controlled drug);
(iii) section 6(3) (possession of controlled drug with
intent to supply);
(b) an offence under the following provisions of the
Criminal Code Act 1907 ⎯
(i) section 287 (murder):
(ii) section 305 (wounding with intent to do
grievous bodily harm);
(iii) section 306 (doing grievous bodily harm);
(iv) section 311 (serious assault);
(v) section 338 (robbery);
(vi) section 339 (burglary);
(vii) section 325 (serious sexual assault).
(7) The Minister may by order subject to affirmative resolution
procedure amend the definition of 'trigger offence' in subsection (6).
Destruction of fingerprints and samples
70 (1) Where ⎯
(a) fingerprints or samples are taken from a person in
connection with the investigation of an offence; and
(b) subsection (3) does not require them to be destroyed,
the fingerprints or samples may be retained after they have fulfilled the
purposes for which they were taken but shall not be used by any person
except for purposes related to the prevention or detection of crime, the
investigation of an offence or the conduct of a prosecution.
(2) In subsection (1) ⎯
(a) the reference to using a fingerprint includes a reference
to allowing any check to be made against it under
section 67(1) or (3) and to disclosing it to any person;
(b) the reference to using a sample includes a reference to
allowing any check to be made under section 67(1) or (3)
POLICE AND CRIMINAL EVIDENCE ACT 2006
76
against it or against information derived from it and to
disclosing it or any such information to any person;
(c) the reference to crime includes a reference to any
conduct which ⎯
(i) constitutes one or more criminal offences (whether
under the law of Bermuda or of a country or
territory outside Bermuda); or
(ii) is, or corresponds to, any conduct which, if it all
took place in Bermuda, would constitute one or
more criminal offences; and
(d) the references to an investigation and to a prosecution
include references, respectively, to any investigation
outside Bermuda of any crime or suspected crime and to
a prosecution brought in respect of any crime in a
country or territory outside Bermuda.
(3) If ⎯
(a) fingerprints or samples are taken from a person in
connection with the investigation of an offence; and
(b) that person is not suspected of having committed the
offence,
they shall, except as provided in the following provisions of this section,
be destroyed as soon as they have fulfilled the purpose for which they
were taken.
(4) Samples and fingerprints are not required to be destroyed
under subsection (3) if ⎯
(a) they were taken for the purposes of the investigation of
an offence of which a person has been convicted; and
(b) a sample or, as the case may be, fingerprint was also
taken from the convicted person for the purposes of that
investigation.
(5) Subject to subsection (6), where a person is entitled under
subsection (3) to the destruction of any fingerprint or sample taken from
him (or would be but for subsection (4)), neither the fingerprint nor the
sample, nor any information derived from the sample, shall be used ⎯
(a) in evidence against the person who is or would be
entitled to the destruction of that fingerprint or sample;
or
(b) for the purposes of the investigation of any offence;
and subsection (2) applies for the purposes of this subsection as it
applies for the purposes of subsection (1).
Title 8
Laws of Bermuda Item 38
77
(6) Where a person from whom a fingerprint or sample has
been taken consents in writing to its retention ⎯
(a) that sample need not be destroyed under subsection (3);
(b) subsection (5) shall not restrict the use that may be
made of the fingerprint or sample or, in the case of a
sample, of any information derived from it; and
(c) that consent shall be treated as comprising a consent for
the purposes of section 67(3);
and a consent given for the purpose of this subsection shall not be
capable of being withdrawn.
(7) For the purposes of subsection (6) it shall be immaterial
whether the consent is given at, before or after the time when the
entitlement to the destruction of the fingerprint or sample arises.
(8) If fingerprints are destroyed ⎯
(a) any copies of the fingerprints shall also be destroyed;
and
(b) any police officer controlling access to computer data
relating to the fingerprints shall make access to the data
impossible, as soon as it is practicable to do so.
(9) A person who asks to be allowed to witness the destruction
of his fingerprints or copies of them shall have a right to witness it.
(10) If ⎯
(a) subsection (8)(b) falls to be complied with; and
(b) the person to whose fingerprints the data relate asks for
a certificate that it has been complied with,
such a certificate shall be issued to him, not later than the end of the
period of three months beginning with the day on which he asks for it, by
the Commissioner of Police or a person authorized by him or on his
behalf for the purposes of this section.
Photographing of suspects etc.
71 (1) A person who is detained at a police station may be
photographed ⎯
(a) with the appropriate consent; or
(b) if the appropriate consent is withheld or it is not
practicable to obtain it, without it.
POLICE AND CRIMINAL EVIDENCE ACT 2006
78
(2) A person proposing to take a photograph of any person
under this section ⎯
(a) may, for the purpose of doing so, require the removal of
any items or substance worn on or over the whole or any
part of the head or face of the person to be
photographed; and
(b) if the requirement is not complied with, may remove the
items or substance himself.
(3) Where a photograph may be taken under this section, the
only persons entitled to take the photograph are police officers.
(4) A photograph taken under this section ⎯
(a) may be used by, or disclosed to, any person for any
purpose related to the prevention or detection of crime,
the investigation of an offence or the conduct of a
prosecution; and
(b) after being so used or disclosed, may be retained but
shall not be used or disclosed except for a purpose so
related.
(5) In subsection (4) ⎯
(a) the reference to crime includes a reference to any
conduct which ⎯
(i) constitutes one or more criminal offences (whether
under the law of Bermuda or of a country or
territory outside Bermuda); or
(ii) is, or corresponds to, any conduct which, if it all
took place in Bermuda, would constitute one or
more criminal offences; and
(b) the references to an investigation and to a prosecution
include references, respectively, to any investigation
outside Bermuda of any crime or suspected crime and to
a prosecution brought in respect of any crime in a
country or territory outside Bermuda.
(6) References in this section to taking a photograph include
references to using any process by means of which a visual image may
be produced; and references to photographing a person shall be
construed accordingly.
(7) Nothing in this section applies to a person arrested under
an extradition arrest power.
Interpretation
72 (1) In this Part ⎯
Title 8
Laws of Bermuda Item 38
79
"analysis", in relation to a skin impression, includes comparison
and matching;
"appropriate consent" means ⎯
(a) in relation to a person who has attained the age of 18
years, the consent of that person;
(b) in relation to a person who has not attained that age but
has attained the age of 16 years, the consent of that
person and his parent or guardian; and
(c) in relation to a person who has not attained the age of
16 years, the consent of his parent or guardian;
"extradition arrest power" means any warrant of arrest issued
under the Extradition Act 1989 of the United Kingdom as
extended to Bermuda by the Extradition (Overseas
Territories) Order 2002;
"fingerprints", in relation to any person, means a record (in any
form and produced by any method) of the skin pattern and
other physical characteristics or features of ⎯
(a) any of that person's fingers; or
(b) either of his palms;
"intimate sample" means ⎯
(a) a sample of blood, semen or any other tissue fluid, urine
or pubic hair;
(b) a dental impression;
(c) a swab taken from a person's body orifice other than the
mouth;
"intimate search" means a search which consists of the physical
examination of a person's body orifices other than the mouth;
"non-intimate sample" means ⎯
(a) a sample of hair other than pubic hair;
(b) a sample taken from a nail or from under a nail;
(c) a swab taken from any part of a person's body including
the mouth but not any other body orifice;
(d) saliva;
(e) a skin impression;
POLICE AND CRIMINAL EVIDENCE ACT 2006
80
"registered dentist" means a dental practitioner registered under
the Dental Practitioners Act 1950;
"registered health care professional" means a person (other than
a medical practitioner) who is ⎯
(a) a registered nurse; or
(b) a registered member of a health care profession which is
designated for the purposes of this paragraph by an
order made by the Minister;
"skin impression", in relation to any person, means any record
(other than a fingerprint) which is a record (in any form and
produced by any method) of the skin pattern and other
physical characteristics or features of the whole or any part of
his foot or of any other part of his body;
"speculative search", in relation to a person's fingerprints or
samples, means such a check against other fingerprints or
samples or against information derived from other samples as
is referred to in section 67(1);
"sufficient" and "insufficient", in relation to a sample, means
(subject to subsection (2)) sufficient or insufficient (in point of
quantity or quality) for the purpose of enabling information to
be produced by the means of analysis used or to be used in
relation to the sample.
(2) References in this Part of this Act to a sample's proving
insufficient include references to where, as a consequence of ⎯
(a) the loss, destruction or contamination of the whole or
any part of the sample;
(b) any damage to the whole or a part of the sample; or
(c) the use of the whole or a part of the sample for an
analysis which produced no results or which produced
results some or all of which shall be regarded, in the
circumstances, as unreliable,
the sample has become unavailable or insufficient for the purpose of
enabling information, or information of a particular description, to be
obtained by means of analysis of the sample.
(3) The Minister may by order subject to negative resolution
procedure designate a health care profession for the purposes of
paragraph (b) of the definition of "registered health care profession".
Title 8
Laws of Bermuda Item 38
81
PART VII
CODES OF PRACTICE - GENERAL
Codes of practice
73 (1) The Minister shall issue codes of practice in connection
with ⎯
(a) the exercise by police officers of statutory powers ⎯
(i) to search a person without first arresting him; or
(ii) to search a vehicle without making an arrest;
(b) the detention, treatment, questioning and identification
of persons by police officers;
(c) searches of premises by police officers; and
(d) the seizure of property found by police officers on
persons or premises.
(2) Codes shall (in particular) include provision in connection
with the exercise by police officers of powers under section 66.
(3) Such codes and revisions of codes shall be made by order
subject to the affirmative resolution procedure.
Codes of practice - supplementary
74 (1) In this section, "code" means a code of practice under section
62, 63 or 73.
(2) The Minister may at any time revise the whole or any part of
a code.
(3) A code may be made, or revised, so as to ⎯
(a) apply only in relation to one or more specified areas;
(b) have effect only for a specified period;
(c) apply only in relation to specified offences or
descriptions of offender.
(4) Before issuing a code, or any revision of a code, the Minister
shall consult ⎯
(a) the Chief Justice;
(b) Commissioner of Police;
(c) the Bar Council; and
(d) such other persons as he thinks fit.
POLICE AND CRIMINAL EVIDENCE ACT 2006
82
(5) A code may include transitional or saving provisions.
(6) Persons other than police officers who are charged with the
duty of investigating offences or charging offenders shall in the discharge
of that duty have regard to any relevant provision of a code.
(7) A failure on the part ⎯
(a) of a police office to comply with any provision of a code;
or
(b) of any person other than a police officer who is charged
with the duty of investigating offences or charging
offenders to have regard to any relevant provision of a
code in the discharge of that duty,
shall not of itself render him liable to any criminal or civil proceedings.
(8) In all criminal and civil proceedings any code shall be
admissible in evidence; and if any provision of a code appears to the
court or tribunal conducting the proceedings to be relevant to any
question arising in the proceedings it shall be taken into account in
determining that question.
PART VIII
DOCUMENTARY EVIDENCE IN CRIMINAL PROCEEDINGS
First-hand hearsay
75 (1) Subject to subsection (4), a statement made by a person in
a document shall be admissible in criminal proceedings as evidence of
any fact of which direct oral evidence by him would be admissible if ⎯
(a) the requirements of one of the paragraphs of
subsection (2) are satisfied; or
(b) the requirements of subsection (3) are satisfied.
(2) The requirements mentioned in subsection (1)(a) are ⎯
(a) that the person who made the statement is dead or by
reason of his bodily or mental condition unfit to attend
as a witness;
(b) that ⎯
(i) the person who made the statement is outside
Bermuda; and
(ii) it is not reasonably practicable to secure his
attendance; or
(c) that all reasonable steps have been taken to find the
person who made the statement, but that he cannot be
found.
Title 8
Laws of Bermuda Item 38
83
(3) The requirements mentioned in subsection (1)(b) are ⎯
(a) that the statement was made to a police officer or some
other person charged with the duty of investigating
offences or charging offenders; and
(b) that the person who made it does not give oral evidence
through fear or because he is kept out of the way.
(4) Subsection (1) does not render admissible a confession
made by an accused person that would not be admissible under section
90.
Business etc. documents
76 (1) Subject to subsections (3) and (4), a statement in a
document shall be admissible in criminal proceedings as evidence of any
fact of which direct oral evidence would be admissible, if the following
conditions are satisfied ⎯
(a) the document was created or received by a person in the
course of a trade, business, profession or other
occupation, or as the holder of a paid or unpaid office;
and
(b) the information contained in the document was supplied
by a person (whether or not the maker of the statement)
who had, or may reasonably be supposed to have had,
personal knowledge of the matters dealt with.
(2) Subsection (1) applies whether the information contained in
the document was supplied directly or indirectly but, if it was supplied
indirectly, only if each person through whom it was supplied received
it ⎯
(a) in the course of a trade, business, profession or other
occupation; or
(b) as the holder of a paid or unpaid office.
(3) Subsection (1) does not render admissible a confession
made by an accused person that would not be admissible under section
90.
(4) A statement prepared otherwise than in accordance with
section 5 of the Criminal Justice (International Cooperation) (Bermuda)
Act 1994, or under section 81 or 82, for the purposes ⎯
(a) of pending or contemplated criminal proceedings; or
(b) of a criminal investigation,
shall not be admissible by virtue of subsection (1) unless ⎯
POLICE AND CRIMINAL EVIDENCE ACT 2006
84
(i) the requirements of one of the paragraphs of
subsection (2) of section 75 are satisfied;
(ii) the requirements of subsection (3) of that section
are satisfied; or
(iii) the person who made the statement cannot
reasonably be expected (having regard to the time
which has elapsed since he made the statement
and to all the circumstances) to have any
recollection of the matters dealt with in the
statement.
Principles to be followed by court
77 (1) If, having regard to all the circumstances ⎯
(a) the Supreme Court ⎯
(i) on a trial on indictment; or
(ii) on an appeal from the Magistrates Court;
(b) the Court of Appeal on a criminal appeal; or
(c) the Magistrates Court on a trial of an information,
is of the opinion that in the interests of justice a statement which is
admissible by virtue of section 75 or 76 nevertheless ought not to be
admitted, it may direct that the statement shall not be admitted.
(2) Without prejudice to the generality of subsection (1), it shall
be the duty of the court to have regard ⎯
(a) to the nature and source of the document containing the
statement and to whether or not, having regard to its
nature and source and to any other circumstances that
appear to the court to be relevant, it is likely that the
document is authentic;
(b) to the extent to which the statement appears to supply
evidence which would otherwise not be readily available;
(c) to the relevance of the evidence that it appears to supply
to any issue which is likely to have to be determined in
the proceedings; and
(d) to any risk, having regard in particular to whether it is
likely to be possible to controvert the statement if the
person making it does not attend to give oral evidence in
the proceedings, that its admission or exclusion will
result in unfairness to the accused or, if there is more
than one, to any of them.
Title 8
Laws of Bermuda Item 38
85
Statements in documents that appear to have been prepared for
purposes of criminal proceedings or investigations
78 Where a statement which is admissible in criminal proceedings
by virtue of section 75 or 76 appears to the court to have been prepared,
otherwise than in accordance with section 5 of the Criminal Justice
(International Cooperation) (Bermuda) Act 1994 or under section 81 or
82, for the purposes ⎯
(a) of pending or contemplated criminal proceedings; or
(b) of a criminal investigation,
the statement shall not be given in evidence in any criminal proceedings
without the leave of the court, and the court shall not give leave unless it
is of the opinion that the statement ought to be admitted in the interests
of justice; and in considering whether its admission would be in the
interests of justice, it shall be the duty of the court to have regard ⎯
(i) to the contents of the statement;
(ii) to any risk, having regard in particular to whether
it is likely to be possible to controvert the statement
if the person making it does not attend to give oral
evidence in the proceedings, that its admission or
exclusion will result in unfairness to the accused
or, if there is more than one, to any of them; and
(iii) to any other circumstances that appear to the court
to be relevant.
Proof of statements contained in documents
79 Where a statement contained in a document is admissible as
evidence in criminal proceedings, it may be proved ⎯
(a) by the production of that document; or
(b) (whether or not that document is still in existence) by
the production of a copy of that document, or of the
material part of it,
authenticated in such manner as the court may approve; and it is
immaterial for the purposes of this section how many removes there are
between a copy and the original.
Documentary evidence - provisions supplementary to this Part
80 (1) Nothing in this Part shall prejudice ⎯
(a) the admissibility of a statement not made by a person
while giving oral evidence in court which is admissible
otherwise than by virtue of this Part; or
POLICE AND CRIMINAL EVIDENCE ACT 2006
86
(b) any power of a court to exclude at its discretion a
statement admissible by virtue of this Part.
(2) Where a statement is admitted as evidence in criminal
proceedings by virtue of this Part of this Act ⎯
(a) any evidence which, if the person making the statement
had been called as a witness, would have been
admissible as relevant to his credibility as a witness
shall be admissible for that purpose in those
proceedings;
(b) evidence may, with the leave of the court, be given of any
matter which, if that person had been called as a
witness, could have been put to him in cross-
examination as relevant to his credibility as a witness
but of which evidence could not have been adduced by
the cross-examining party; and
(c) evidence tending to prove that that person, whether
before or after making the statement, made (whether
orally or not) some other statement which is inconsistent
with it shall be admissible for the purpose of showing
that he has contradicted himself.
(3) A statement which is given in evidence by virtue of this Part
shall not be capable of corroborating evidence given by the person
making it.
(4) In estimating the weight, if any, to be attached to such a
statement, regard shall be had to all the circumstances from which any
inference can reasonably be drawn as to its accuracy or otherwise.
(5) Without prejudice to the generality of any enactment
conferring power to make them, rules of court may make such provision
as appears to the authority making any of them to be necessary or
expedient for the purposes of this Part.
(6) (1) In this Part ⎯
"copy" in relation to a document, means anything onto which
information recorded in the document has been copied, by
whatever means and whether directly or indirectly; and
"statement" means any representation of fact, however made.
(7) For the purposes of this Part, evidence which, by reason of
a defect of speech or hearing, a person called as a witness gives in
writing or by signs shall be treated as given orally.
Title 8
Laws of Bermuda Item 38
87
PART IX
OTHER PROVISIONS ABOUT DOCUMENTARY EVIDENCE IN
CRIMINAL PROCEEDINGS
Expert reports
81 (1) An expert report shall be admissible as evidence in criminal
proceedings, whether or not the person making it attends to give oral
evidence in those proceedings.
(2) If it is proposed that the person making the report shall not
give oral evidence, the report shall only be admissible with the leave of
the court.
(3) For the purpose of determining whether to give leave, the
court shall have regard ⎯
(a) to the contents of the report;
(b) to the reasons why it is proposed that the person making
the report shall not give oral evidence;
(c) to any risk, having regard in particular to whether it is
likely to be possible to controvert statements in the
report if the person making it does not attend to give oral
evidence in the proceedings, that its admission or
exclusion will result in unfairness to the accused or, if
there is more than one, to any of them; and
(d) to any other circumstances that appear to the court to
be relevant.
(4) An expert report, when admitted, shall be evidence of any
fact or opinion of which the person making it could have given oral
evidence.
(5) Where the proceedings mentioned in subsection (1) are
proceedings before the Magistrates Court inquiring into an offence as
examining magistrates, this section shall have effect with the omission
of ⎯
(a) in subsection (1) the words "whether or not the person
making it attends to give oral evidence in those
proceedings"; and
(b) subsections (2) to (4).
(6) In this section "expert report" means a written report by a
person dealing wholly or mainly with matters on which he is (or would if
living be) qualified to give expert evidence.
POLICE AND CRIMINAL EVIDENCE ACT 2006
88
Form of evidence and glossaries
82 For the purpose of helping members of juries to understand
complicated issues of fact or technical terms, Supreme Court Rules may
make provision ⎯
(a) as to the furnishing of evidence in any form,
notwithstanding the existence of admissible material
from which the evidence to be given in that form would
be derived; and
(b) as to the furnishing of glossaries for such purposes as
may be specified,
in any case where the court gives leave for, or requires, evidence or a
glossary to be so furnished.
Evidence from computer records
83 (1) In any proceedings, a statement in a document produced by
a computer shall not be admissible as evidence of any fact stated therein
unless it is shown ⎯
(a) that there are no reasonable grounds for believing that
the statement is inaccurate because of improper use of
the computer;
(b) that at all material times the computer was operating
properly, or if not, that any respect in which it was not
operating properly or was out of operation was not such
as to affect the production of the document or the
accuracy of its contents; and
(c) that any relevant conditions specified in rules of court
under subsection (2) are satisfied.
(2) Provision may be made by rules of court requiring that in
any proceedings where it is desired to give a statement in evidence by
virtue of this section such information concerning the statement as may
be required by the rules shall be provided in such form and at such time
as may be so required.
Provisions supplementary to section 83
84 (1) In any proceedings where it is desired to give a statement in
evidence in accordance with section 83, a certificate ⎯
(a) identifying the document containing the statement and
describing the manner in which it was produced;
(b) giving such particulars of any device involved in the
production of that document as may be appropriate for
the purpose of showing that the document was produced
by a computer;
Title 8
Laws of Bermuda Item 38
89
(c) dealing with any of the matters mentioned in subsection
(1) of section 83; and
(d) purporting to be signed by a person occupying a
responsible position in relation to the operation of the
computer,
shall be evidence of anything stated in it; and for the purposes of this
subsection it shall be sufficient for a matter to be stated to the best of
the knowledge and belief of the person stating it.
(2) Notwithstanding subsection (1), a court may require oral
evidence to be given of anything of which evidence could be given by a
certificate under that subsection.
(3) Any person who in a certificate tendered under subsection
(1) in the Magistrates Court, the Supreme Court or the Court of Appeal
makes a statement which he knows to be false or does not believe to be
true shall be guilty of an offence and liable ⎯
(a) on summary conviction to imprisonment for a term of six
months or to a fine of $12,000, or to both;
(b) on conviction on indictment to imprisonment for a term
of two years or to a fine of $10,000, or to both.
(4) In estimating the weight, if any, to be attached to a
statement regard shall be had to all the circumstances from which any
inference can reasonably be drawn as to the accuracy or otherwise of the
statement and, in particular ⎯
(a) to the question whether or not the information which the
information contained in the statement reproduces or is
derived from was supplied to the relevant computer, or
recorded for the purpose of being supplied to it,
contemporaneously with the occurrence or existence of
the facts dealt with in that information; and
(b) to the question whether or not any person concerned
with the supply of information to that computer, or with
the operation of that computer or any equipment by
means of which the document containing the statement
was produced by it, had any incentive to conceal or
misrepresent the facts.
(5) For the purposes of subsection (4), information shall be
taken to be supplied to a computer whether it is supplied directly or
(with or without human intervention) by means of any appropriate
equipment.
(6) For the purpose of deciding whether or not a statement is
so admissible the court may draw any reasonable inference ⎯
POLICE AND CRIMINAL EVIDENCE ACT 2006
90
(a) from the circumstances in which the statement was
made or otherwise came into being; or
(b) from any other circumstances, including the form and
contents of the document in which the statement is
contained.
(7) Provision may be made by rules of court for supplementing
the provisions of section 81 or this section.
Microfilm copies
85 In any proceedings the contents of a document may (whether or
not the document is still in existence) be proved by the production of an
enlargement of a microfilm copy of that document or of the material part
of it, authenticated in such manner as the court may approve.
Part IX - supplementary
86 (1) In this Part ⎯
"copy", in relation to a document, means anything onto which
information recorded in the document has been copied,
by whatever means and whether directly or indirectly;
"proceedings" means criminal proceedings;
"statement" means any representation of fact, however made.
(2) Nothing in this Part shall prejudice any power of a court to
exclude evidence (whether by preventing questions from being put or
otherwise) at its discretion.
PART X
EVIDENCE IN CRIMINAL PROCEEDINGS - GENERAL
Convictions and acquittals
Proof of convictions and acquittals
87 (1) Where in any proceedings the fact that a person has in
Bermuda been convicted or acquitted of an offence is admissible in
evidence, it may be proved by producing a certificate of conviction or, as
the case may be, of acquittal relating to that offence, and proving that
the person named in the certificate as having been convicted or acquitted
of the offence is the person whose conviction or acquittal of the offence is
to be proved.
(2) For the purposes of this section, a certificate of conviction
or of acquittal ⎯
(a) shall, as regards a conviction or acquittal on indictment,
consist of a certificate, signed by the proper officer of the
Title 8
Laws of Bermuda Item 38
91
court where the conviction or acquittal took place, giving
the substance and effect (omitting the formal parts) of
the indictment and of the conviction or acquittal; and
(b) shall, as regards a conviction or acquittal on a summary
trial, consist of a copy of the conviction or of the
dismissal of the information, signed by the proper officer
of the Magistrates Court,
and a document purporting to be a duly signed certificate of conviction
or acquittal under this section shall be taken to be such a certificate
unless the contrary is proved.
(3) In subsection (2) "proper officer" means ⎯
(a) in relation to the Magistrates Court, the Senior
Magistrate; and
(b) in relation to the Supreme Court, the Registrar of the
Supreme Court.
(4) The method of proving a conviction or acquittal authorized
by this section shall be in addition to and not to the exclusion of any
other authorized manner of proving a conviction or acquittal.
Conviction as evidence of commission of offence
88 (1) In any proceedings the fact that a person other than the
accused has been convicted of an offence by or before any court in
Bermuda shall be admissible in evidence for the purpose of proving,
where to do so is relevant to any issue in those proceedings, that that
person committed that offence, whether or not any other evidence of his
having committed that offence is given.
(2) In any proceedings in which by virtue of this section a
person other than the accused is proved to have been convicted of an
offence by or before any court in Bermuda, he shall be taken to have
committed that offence unless the contrary is proved.
(3) In any proceedings where evidence is admissible of the fact
that the accused has committed an offence, in so far as that evidence is
relevant to any matter in issue in the proceedings for a reason other than
a tendency to show in the accused a disposition to commit the kind of
offence with which he is charged, if the accused is proved to have been
convicted of the offence by or before any court in Bermuda, he shall be
taken to have committed that offence unless the contrary is proved.
(4) Nothing in this section shall prejudice ⎯
(a) the admissibility in evidence of any conviction which
would be admissible apart from this section; or
POLICE AND CRIMINAL EVIDENCE ACT 2006
92
(b) the operation of any enactment whereby a conviction or
a finding of fact in any proceedings is for the purposes of
any other proceedings made conclusive evidence of any
fact.
Provisions supplementary to section 88
89 (1) Where evidence that a person has been convicted of an
offence is admissible by virtue of section 88, then without prejudice to
the reception of any other admissible evidence for the purpose of
identifying the facts on which the conviction was based ⎯
(a) the contents of any document which is admissible as
evidence of the conviction; and
(b) the contents of the information, complaint, indictment or
charge-sheet on which the person in question was
convicted,
shall be admissible in evidence for that purpose.
(2) Where in any proceedings the contents of any document are
admissible in evidence by virtue of subsection (1), a copy of that
document, or of the material part of it, purporting to be certified or
otherwise authenticated by or on behalf of the court or authority having
custody of that document shall be admissible in evidence and shall be
taken to be a true copy of that document or part unless the contrary is
shown.
(3) Nothing in section 86 shall be construed as rendering
admissible in any proceedings evidence of any conviction other than a
subsisting one.
Confessions
Confessions
90 (1) In any proceedings a confession made by an accused person
may be given in evidence against him in so far as it is relevant to any
matter in issue in the proceedings and is not excluded by the court in
pursuance of this section.
(2) If, in any proceedings where the prosecution proposes to
give in evidence a confession made by an accused person, it is
represented to the court that the confession was or may have been
obtained ⎯
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was
likely, in the circumstances existing at the time, to
render unreliable any confession which might be made
by him in consequence thereof,
Title 8
Laws of Bermuda Item 38
93
the court shall not allow the confession to be given in evidence against
him except in so far as the prosecution proves to the court beyond
reasonable doubt that the confession (notwithstanding that it may be
true) was not obtained as aforesaid.
(3) In any proceedings where the prosecution proposes to give
in evidence a confession made by an accused person, the court may of
its own motion require the prosecution, as a condition of allowing it to do
so, to prove that the confession was not obtained as mentioned in
subsection (2).
(4) The fact that a confession is wholly or partly excluded in
pursuance of this section shall not affect the admissibility in evidence ⎯
(a) of any facts discovered as a result of the confession; or
(b) where the confession is relevant as showing that the
accused speaks, writes or expresses himself in a
particular way, of so much of the confession as is
necessary to show that he does so.
(5) Evidence that a fact to which this subsection applies was
discovered as a result of a statement made by an accused person shall
not be admissible unless evidence of how it was discovered is given by
him or on his behalf.
(6) Subsection (5) applies ⎯
(a) to any fact discovered as a result of a confession which
is wholly excluded in pursuance of this section; and
(b) to any fact discovered as a result of a confession which
is partly so excluded, if the fact is discovered as a result
of the excluded part of the confession.
(7) Nothing in Part IX shall prejudice the admissibility of a
confession made by an accused person.
(8) In this section "oppression" includes torture, inhuman or
degrading treatment, and the use or threat of violence (whether or not
amounting to torture).
(9) Where the proceedings mentioned in subsection (1) are
proceedings before the Magistrates Court inquiring into an offence as
examining magistrates, this section shall have effect with the omission
of ⎯
(a) in subsection (1), the words "and is not excluded by the
court in pursuance of this section"; and
(b) subsections (2) to (6) and (8).
POLICE AND CRIMINAL EVIDENCE ACT 2006
94
Confessions may be given in evidence for co-accused
91 (1) In any proceedings a confession made by an accused person
may be given in evidence for another person charged in the same
proceedings (a co-accused) in so far as it is relevant to any matter in
issue in the proceedings and is not excluded by the court in pursuance
of this section.
(2) If, in any proceedings where a co-accused proposes to give
in evidence a confession made by an accused person, it is represented to
the court that the confession was or may have been obtained ⎯
(a) by oppression of the person who made it; or
(b) in consequence of anything said or done which was
likely, in the circumstances existing at the time, to
render unreliable any confession which might be made
by him in consequence thereof,
the court shall not allow the confession to be given in evidence for the co-
accused except in so far as it is proved to the court on the balance of
probabilities that the confession (notwithstanding that it may be true)
was not so obtained.
(3) Before allowing a confession made by an accused person to
be given in evidence for a co-accused in any proceedings, the court may
of its own motion require the fact that the confession was not obtained
as mentioned in subsection (2) to be proved in the proceedings on the
balance of probabilities.
(4) The fact that a confession is wholly or partly excluded in
pursuance of this section shall not affect the admissibility in evidence ⎯
(a) of any facts discovered as a result of the confession; or
(b) where the confession is relevant as showing that the
accused speaks, writes or expresses himself in a
particular way, of so much of the confession as is
necessary to show that he does so.
(5) Evidence that a fact to which this subsection applies was
discovered as a result of a statement made by an accused person shall
not be admissible unless evidence of how it was discovered is given by
him or on his behalf.
(6) Subsection (5) applies ⎯
(a) to any fact discovered as a result of a confession which
is wholly excluded in pursuance of this section; and
(b) to any fact discovered as a result of a confession which
is partly so excluded, if the fact is discovered as a result
of the excluded part of the confession.
Title 8
Laws of Bermuda Item 38
95
(7) In this section "oppression" includes torture, inhuman or
degrading treatment, and the use or threat of violence (whether or not
amounting to torture).
Confessions by mentally handicapped persons
92 (1) Without prejudice to the general duty of the court at a trial
on indictment to direct the jury on any matter on which it appears to the
court appropriate to do so, where at such a trial ⎯
(a) the case against the accused depends wholly or
substantially on a confession by him; and
(b) the court is satisfied ⎯
(i) that he is mentally handicapped; and
(ii) that the confession was not made in the
presence of an independent person,
the court shall warn the jury that there is special need for caution before
convicting the accused in reliance on the confession, and shall explain
that the need arises because of the circumstances mentioned in
paragraphs (a) and (b).
(2) In any case where at the summary trial of a person for an
offence it appears to the court that a warning under subsection (1) would
be required if the trial were on indictment, the court shall treat the case
as one in which there is a special need for caution before convicting the
accused on his confession.
(3) In this section ⎯
"independent person" does not include a police officer;
"mentally handicapped", in relation to a person, means that
he is in a state of arrested or incomplete development of
mind which includes significant impairment of
intelligence and social functioning.
Miscellaneous
Exclusion of unfair evidence
93 (1) In any proceedings the court may refuse to allow evidence
on which the prosecution proposes to rely to be given if it appears to the
court that, having regard to all the circumstances, including the
circumstances in which the evidence was obtained, the admission of the
evidence would have such an adverse effect on the fairness of the
proceedings that the court ought not to admit it.
POLICE AND CRIMINAL EVIDENCE ACT 2006
96
(2) Nothing in this section shall prejudice any rule of law
requiring a court to exclude evidence.
(3) This section shall not apply in the case of proceedings
before the Magistrates Court inquiring into an offence as examining
magistrates.
Time for taking accused's evidence
94 If at the trial of any person for an offence ⎯
(a) the defence intends to call two or more witnesses to the
facts of the case; and
(b) those witnesses include the accused,
the accused shall be called before the other witness or witnesses unless
the court in its discretion otherwise directs.
Competence and compellability of accused's spouse
95 (1) In any proceedings the wife or husband of a person charged
in the proceedings shall, subject to subsection (4), be compellable to give
evidence on behalf of that person.
(2) In any proceedings the wife or husband of a person charged
in the proceedings shall, subject to subsection (4), be compellable ⎯
(a) to give evidence on behalf of any other person charged in
the proceedings but only in respect of any specified
offence with which that other person is charged; or
(b) to give evidence for the prosecution but only in respect of
any specified offence with which any person is charged
in the proceedings.
(3) In relation to the wife or husband of a person charged in
any proceedings, an offence is a specified offence for the purposes of
subsection (2) if ⎯
(a) it involves an assault on, or injury or a threat of injury
to, the wife or husband or a person who was at the
material time under the age of 18;
(b) it is a sexual offence alleged to have been committed in
respect of a person who was at the material time under
that age; or
(c) it consists of attempting or conspiring to commit, or of
aiding, abetting, counselling, procuring or inciting the
commission of, an offence falling within paragraph (a) or
(b).
Title 8
Laws of Bermuda Item 38
97
(4) No person who is charged in any proceedings shall be
compellable by virtue of subsection (1) or (2) to give evidence in the
proceedings.
(5) References in this section to a person charged in any
proceedings do not include a person who is not, or is no longer, liable to
be convicted of any offence in the proceedings (whether as a result of
pleading guilty or for any other reason).
(6) In any proceedings a person who has been but is no longer
married to the accused shall be compellable to give evidence as if that
person and the accused had never been married.
(7) Where in any proceedings the age of any person at any time is
material for the purposes of subsection (3), his age at the material time
shall for the purposes of that provision be deemed to be or to have been
that which appears to the court to be or to have been his age at that
time.
(8) In subsection (3)(b) "sexual offence" means an offence under
sections 180, 181, 182, 182A, 182B, 184, 185, 188, 189, 323, 324, 325,
326 of the Criminal Code Act 1907.
Rule where accused's spouse not compellable
96 The failure of the wife or husband of a person charged in any
proceedings to give evidence in the proceedings shall not be made the
subject of any comment by the prosecution.
Advance notice of expert evidence in Supreme Court
97 (1) Rules of court may make provision for ⎯
(a) requiring any party to proceedings before the court to
disclose to the other party or parties any expert evidence
which he proposes to adduce in the proceedings; and
(b) prohibiting a party who fails to comply in respect of any
evidence with any requirement imposed by virtue of
paragraph (a) from adducing that evidence without the
leave of the court.
(2) Rules made by virtue of this section may specify the kinds
of expert evidence to which they apply and may exempt facts or matters
of any description specified in the rules.
Part X - interpretation
98 (1) In this Part ⎯
"confession" includes any statement wholly or partly adverse
to the person who made it, whether made to a person in
POLICE AND CRIMINAL EVIDENCE ACT 2006
98
authority or not and whether made in words or
otherwise;
"proceedings" means criminal proceedings.
(2) Nothing in this Part shall prejudice any power of a court to
exclude evidence (whether by preventing questions from being put or
otherwise) at its discretion.
PART XI
OTHER AND FINAL PROVISIONS
Power of police officer to use reasonable force
99 Where any provision of this Act ⎯
(a) confers a power on a police officer; and
(b) does not provide that the power may only be exercised
with the consent of some person, other than a police
officer,
the officer may use reasonable force, if necessary, in the exercise of the
power.
Use of force in making arrest etc.
100 (1) A person may use such force as is reasonable in the
circumstances in the prevention of crime, or in effecting or in assisting in
the lawful arrest of offenders or suspected offenders or of persons
unlawfully at large.
(2) Subsection (1) shall replace the rules of common law on the
question when force used for a purpose mentioned in that subsection is
justified by that purpose.
Road checks
101 (1) This section shall have effect in relation to the conduct of
road checks by police officers for the purpose of ascertaining whether a
vehicle is carrying ⎯
(a) a person who has committed an offence other than a
road traffic offence or a vehicle excise offence;
(b) a person who is a witness to such an offence;
(c) a person intending to commit such an offence; or
(d) a person who is unlawfully at large.
(2) For the purposes of this section, a road check consists of
the exercise in a locality of the power conferred by section 30 of the Road
Traffic Act 1947 in such a way as to stop, during the period for which its
Title 8
Laws of Bermuda Item 38
99
exercise in that way in that locality continues, all vehicles or vehicles
selected by any criterion.
(3) Subject to subsection (5), there may only be such a road
check if a police officer of the rank of superintendent or above authorizes
it in writing.
(4) An officer may only authorize a road check under
subsection (3) ⎯
(a) for the purpose specified in subsection (1)(a), if he has
reasonable grounds ⎯
(i) for believing that the offence is a serious
arrestable offence; and
(ii) for suspecting that the person is, or is about to
be, in the locality in which vehicles would be
stopped if the road check were authorized;
(b) for the purpose specified in subsection (1)(b), if he has
reasonable grounds for believing that the offence is a
serious arrestable offence;
(c) for the purpose specified in subsection (1)(c), if he has
reasonable grounds ⎯
(i) for believing that the offence would be a serious
arrestable offence; and
(ii) for suspecting that the person is, or is about to
be, in the locality in which vehicles would be
stopped if the road check were authorized;
(d) for the purpose specified in subsection (1)(d), if he has
reasonable grounds for suspecting that the person is, or
is about to be, in that locality.
(5) An officer below the rank of superintendent may authorize
such a road check if it appears to him that it is required as a matter of
urgency for one of the purposes specified in subsection (1).
(6) If an authorization is given under subsection (5), it shall be
the duty of the officer who gives it ⎯
(a) to make a written record of the time at which he gives it;
and
(b) to cause an officer of the rank of superintendent or
above to be informed that it has been given.
(7) The duties imposed by subsection (6) shall be performed as
soon as it is practicable to do so.
POLICE AND CRIMINAL EVIDENCE ACT 2006
100
(8) An officer to whom a report is made under subsection (6)
may, in writing, authorize the road check to continue.
(9) If such an officer considers that the road check should not
continue, he shall record in writing ⎯
(a) the fact that it took place; and
(b) the purpose for which it took place.
(10) An officer giving an authorization under this section shall
specify the locality in which vehicles are to be stopped.
(11) An officer giving an authorization under this section, other
than an authorization under subsection (5) ⎯
(a) shall specify a period, not exceeding seven days, during
which the road check may continue; and
(b) may direct that the road check ⎯
(i) shall be continuous; or
(ii) shall be conducted at specified times,
during that period.
(12) If it appears to an officer of the rank of superintendent or
above that a road check ought to continue beyond the period for which it
has been authorized he may, from time to time, in writing specify a
further period, not exceeding seven days, during which it may continue.
(13) Every written authorization shall specify ⎯
(a) the name of the officer giving it;
(b) the purpose of the road check; and
(c) the locality in which vehicles are to be stopped.
(14) The duties to specify the purposes of a road check imposed
by subsections (9) and (13) include duties to specify any relevant serious
arrestable offence.
(15) Where a vehicle is stopped in a road check, the person in
charge of the vehicle at the time when it is stopped shall be entitled to
obtain a written statement of the purpose of the road check if he applies
for such a statement not later than the end of the period of twelve
months from the day on which the vehicle was stopped.
(16) Nothing in this section affects the exercise by police officers
of any power to stop vehicles for purposes other than those specified in
subsection (1).
Title 8
Laws of Bermuda Item 38
101
Repeals
102 The enactments mentioned in Schedule 4 are repealed to the
extent specified therein.
Consequential amendments
103 (1) The Minister may by order amend any enactment as he
thinks fit in consequence of this Act and the repeal of the enactments
mentioned in Schedule 4.
(2) An order made under this section shall be subject to the
affirmative resolution procedure.
SCHEDULES
SCHEDULE 1 (section 3(2))
SERIOUS ARRESTABLE OFFENCES
PART I
OFFENCES MENTIONED IN SECTION 3(2)(a)
1. Treason.
2. Murder.
3. Manslaughter.
4. Kidnapping.
PART II
OFFENCES MENTIONED IN SECTION 3(2)(b)
Criminal Code Act 1907
5. Section 180 (carnal knowledge of girl under 14 years).
6. Section 181 (unlawful carnal knowledge of girl between 14 years
and 16 years).
7. Section 182A (sexual exploitation of young person).
8. Section 182B (sexual exploitation of young person by person in
position of trust).
9. Section 224 (causing explosion likely to endanger life).
10. Section 229 (use of petrol bomb with intent to cause injury or
damage).
POLICE AND CRIMINAL EVIDENCE ACT 2006
102
11. Section 323 (sexual assault).
12. Section 325 (serious sexual assault).
13. Section 326 (aggravated sexual assault).
Firearms Act 1973
14. Section 15 (possession of firearms with intent to injure).
15. Section 16(1) (use of firearms and imitation firearms to resist
arrest).
16. Section 17(1) (carrying firearms with criminal intent).
Aviation Security Act 1982 of the UK (as extended to Bermuda by the
Aviation Security and Piracy (Overseas Territories) Order 2000
17. Section 1 (hijacking of aircraft).
Road Traffic Act 1947
18. Section 34 (causing death by reckless or dangerous driving).
Maritime Security Act 1997
19. Section 3 (hijacking of ships).
SCHEDULE 2 (section 9(1))
SPECIAL PROCEDURE
Making of orders by judge
1. If on an application made by a police officer a judge is satisfied
that one or other of the sets of access conditions is fulfilled, he may
make an order under paragraph 4.
2. The first set of access conditions is fulfilled if —
(a) there are reasonable grounds for believing —
(i) that a serious arrestable offence has been
committed;
(ii) that there is material which consists of special
procedure material or includes special procedure
material and does not also include excluded
material on premises specified in the application;
Title 8
Laws of Bermuda Item 38
103
(iii) that the material is likely to be of substantial value
(whether by itself or together with other material) to
the investigation in connection with which the
application is made; and
(iv) that the material is likely to be relevant evidence;
(b) other methods of obtaining material —
(i) have been tried without success; or
(ii) have not been tried because it appeared that they
were bound to fail; and
(c) it is in the public interest, having regard —
(i) to the benefit likely to accrue to the investigation if
the material is obtained; and
(ii) to the circumstances under which the person in
possession of the material holds it,
that the material should be produced or that access to it should be
given.
3. The second set of access conditions is fulfilled if —
(a) there are reasonable grounds for believing that there is
material which consists of or includes excluded material
or special procedure material on premises specified in
the application;
(b) but for section 9(2) a search of the premises for that
material could have been authorized by the issue of a
warrant to a police officer under an enactment other
than this Schedule; and
(c) the issue of such a warrant would have been
appropriate.
4. An order under this paragraph is an order that the person who
appears to the judge to be in possession of the material to which the
application relates shall —
(a) produce it to a police officer for him to take away; or
(b) give a police officer access to it,
not later than the end of the period of seven days from the date of the
order or the end of such longer period as the order may specify.
5. Where the material consists of information contained in a
computer ⎯
POLICE AND CRIMINAL EVIDENCE ACT 2006
104
(a) an order under paragraph 4(a) shall have effect as an
order to produce the material in a form in which it can
be taken away and in which it is visible and legible; and
(b) an order under paragraph 4(b) shall have effect as an
order to give a police officer access to the material in a
form in which it is visible and legible.
6. For the purposes of sections 21 and 22, material produced in
pursuance of an order under paragraph 4(a) shall be treated as if it were
material seized by a police officer.
Notices of applications for orders
7. An application for an order under paragraph 4 shall be made
inter partes.
8. Notice of an application for such an order may be served on a
person either by delivering it to him or by leaving it at his proper address
or by sending it by post to him in a registered letter.
9. Such a notice may be served —
(a) on a body corporate, by serving it on the body’s secretary
or clerk or other similar officer; and
(b) on a partnership, by serving it on one of the partners.
10. For the purposes of this Schedule, the proper address of a
person, in the case of secretary or clerk or other similar officer of a body
corporate, shall be that of the registered or principal office of that body,
in the case of a partner of a firm shall be that of the principal office of the
firm, and in any other case shall be the last known address of the person
to be served.
11. Where notice of an application for an order under paragraph 4
has been served on a person, he shall not conceal, destroy, alter or
dispose of the material to which the application relates except —
(a) with the leave of a judge; or
(b) with the written permission of a police officer;
until —
(i) the application is dismissed or abandoned; or
(ii) he has complied with an order under paragraph 4
made on the application.
Issue of warrants by judge
12. If on an application made by a police officer a judge —
(a) is satisfied —
Title 8
Laws of Bermuda Item 38
105
(i) that either set of access conditions is fulfilled; and
(ii) that any of the further conditions set out in
paragraph 14 is also fulfilled; or
(b) is satisfied —
(i) that the second set of access conditions is fulfilled;
and
(ii) that an order under paragraph 4 relating to the
material has not been complied with,
he may issue a warrant authorizing a police officer to enter and search
the premises.
13. A police officer may seize and retain anything for which a search
has been authorized under paragraph 12.
14. The further conditions mentioned in paragraph 12(a)(ii) are —
(a) that it is not practicable to communicate with any
person entitled to grant entry to the premises to which
the application relates;
(b) that it is practicable to communicate with a person
entitled to grant entry to the premises but it is not
practicable to communicate with any person entitled to
grant access to the material;
(c) that the material contains information which —
(i) is subject to a restriction or obligation such as is
mentioned in section 11(2)(b); and
(ii) is likely to be disclosed in breach of it if a warrant
is not issued;
(d) that service of notice of an application for an order under
paragraph 4 may seriously prejudice the investigation.
15. (1) If a person fails to comply with an order under paragraph 4,
a judge may deal with him as if he had committed a contempt of the
Supreme Court.
(2) Any enactment relating to contempt of the Supreme Court
shall have effect in relation to such a failure as if it were such a
contempt.
Costs
16. The costs of any application under this Schedule and of anything
done or to be done in pursuance of an order made under it shall be in
the discretion of the judge.
POLICE AND CRIMINAL EVIDENCE ACT 2006
106
SCHEDULE 3 (section 25 (2))
PRESERVED POWERS OF ARREST
Section 246 of the Criminal Code Act 1907 (preventing breach of the
peace).
Section 24 of the Summary Offences Act 1926.
SCHEDULE 4 (section 102)
REPEALS
Short Title Extent of Repeal
Evidence Act 1905 In the heading to section 16 the
words "and their husbands or
wives".
In section 16 (b) the words "and
the wife or husband, as the case
may be, of the person so
charged".
In section 16(1)(a) the words "or of
the wife or husband, as the case,
may be".
Section 16(1)(c).
Section 17.
Sections 43 to 43D
Criminal Code Act 1907 Section 116(2).
Section 131.
Sections 2401 to 245.
Sections 252
Sections 4532 to 469.
Police Act 1974 Section 32A
Police Amendment Act 2003 The whole Act
1 Also 242 & 243
2 Also 454, 455, 456, 457, 458, 460 & 463
