Police and Criminal Evidence Amendment Act 2009
POLICE AND CRIMINAL EVIDENCE AMENDMENT ACT 2009
1
BERMUDA
2009 : 33
POLICE AND CRIMINAL EVIDENCE AMENDMENT ACT 2009
[Date of Assent: 15 July 2009]
[Operative Date: 7 September 2009]
ARRANGEMENT OF SECTIONS
1 Short title
2 Amends section 2
3 Amends section 8
3A Amends section 9
4 Inserts section 14A
5 Amends section 15
6 Amends section 16
7 Amends section 17
8 Amends section 18
9 Amends section 19
10 Amends section 31
11 Inserts section 64A
12 Amends section 67
13 Amends section 72
14 Amends section 74
15 Substitutes section 83
16 Repeals section 84
17 Amends Schedule 2
18 Commencement
WHEREAS it is expedient to amend the Police and Criminal
Evidence Act 2006;
Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:
Short title
1 This Act may be cited as the Police and Criminal Evidence
Amendment Act 2009.
POLICE AND CRIMINAL EVIDENCE AMENDMENT ACT 2009
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Amends section 2
2 Section 2 of the Police and Criminal Evidence Act 2006 (in this
Act referred to as the “principal Act”) is amended in subsection (1) by
inserting the following definition in its proper alphabetical position—
““indictable offence” means any offence in respect of which an
accused person is triable on indictment whether or not he is
also triable summarily;”.
Amends section 8
3 Section 8 of the principal Act is amended─
(a) in subsection (1)—
(i) in paragraph (a) by deleting “a serious
arrestable” and substituting “an indictable”;
(ii) in paragraph (b) by deleting “specified in the
application” and substituting “mentioned in
subsection (1A)”; and
(iii) in paragraph (e) by inserting the following words
next after the word “applies”—
“in relation to each set of premises specified in
the application”;
(b) by inserting the following subsections next after
subsection (1)─
“(1A) The premises referred to in subsection (1)(b)
are─
(a) one or more sets of premises specified in
the application (in which case the
application is for a “specific premises
warrant”); or
(b) any premises occupied or controlled by a
person specified in the application,
including such sets of premises as are so
specified (in which case the application is
for an “all premises warrant”).
(1B) If the application is for an all premises
warrant, the Magistrate must also be satisfied─
(a) that, because of the particulars of the
offence referred to in subsection (1)(a),
there are reasonable grounds for
suspecting that it is necessary to search
premises occupied or controlled by the
POLICE AND CRIMINAL EVIDENCE AMENDMENT ACT 2009
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person in question which are not specified
in the application in order to find the
material referred to in paragraph (b) of
that subsection; and
(b) that it is not reasonably practicable to
specify in the application all the premises
which he occupies or controls and which
might need to be searched.
(1C) The warrant may authorise entry to and
search of premises on more than one occasion if, on the
application, the Magistrate is satisfied that it is
necessary to authorise multiple entries in order to
achieve the purpose for which he issues the warrant.
(1D) If it authorises multiple entries, the number of
entries authorised may be unlimited, or limited to a
maximum.”; and
(c) in subsection (3)(b) by inserting next after the word
“entitled”, in the second place where it occurs, the words
“to grant”.
Amends section 9
3A Section 9 of the principal Act is amended by inserting the
following subsection next after subsection (1)—
“(1A) Notwithstanding subsection (1), where a police officer
applies for an order to obtain access to excluded material or
special procedure material under section 37 or 41 of the
Proceeds of Crime Act 1997, the application procedure under
Schedule 2 shall not apply.”.
Inserts section 14A
4 The principal Act is amended by inserting the following section
next after section 14—
“Abolition of power of Justices of the Peace to issue warrant
14A Any power given under any enactment to a Justice of the
Peace to issue a warrant for entry and search of any premises
shall be read and construed as a power given to a Magistrate.”.
Amends section 15
5 Section 15 of the principal Act is amended─
(a) in subsection (2)(a)—
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(i) by deleting “and” at the end of subparagraph (i)
and inserting it at the end of subparagraph (ii);
and
(ii) by inserting the following subparagraph next
after subparagraph (ii)—
“(iii) if the application is for a warrant
authorising entry and search on more
than one occasion, the ground on which
he applies for such a warrant, and
whether he seeks a warrant authorising
an unlimited number of entries, or (if
not) the maximum number of entries
desired;”;
(b) by inserting the following subsections next after
subsection (2)─
“(2A) An application to a Magistrate for a search
warrant or production order under Schedule 2, must be
supported by a signed written authority from a police
officer of the rank of Inspector or above, and must be
presented to the Magistrate with the written information
in support of the application.
(2B) If the case is an urgent application to a
Magistrate and a police officer of the rank of Inspector or
above is not readily available, the next most senior
officer on duty can give the written authority.
(2C) The matters which must be specified pursuant
to subsection (2)(b) are─
(a) if the application is for a specific premises
warrant made by virtue of section 8(1A)(a) or
paragraph 12 or 12A of Schedule 2, each set
of premises which it is desired to enter and
search;
(b) if the application is for an all premises
warrant made by virtue of section 8(1A)(b) or
paragraph 12 or 12A of Schedule 2─
(i) as many sets of premises which it is
desired to enter and search as it is
reasonably practicable to specify;
(ii) the person who is in occupation or
control of those premises, if known,
POLICE AND CRIMINAL EVIDENCE AMENDMENT ACT 2009
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and any other premises which it is
desired to enter and search;
(iii) why it is necessary to search more
premises than those specified under
sub-paragraph (i); and
(iv) why it is not reasonably practicable
to specify all the premises which it
is desired to enter and search.”;
(c) in subsection (5) by inserting “, unless it specifies that it
authorises multiple entries”, next after the word “only”;
(d) by inserting the following subsection next after
subsection (5)─
“(5A) If it specifies that it authorises
multiple entries, it must also specify whether
the number of entries authorised is
unlimited, or limited to a specified
maximum.”;
(e) in subsection (6)(a), by repealing subparagraph (iv) and
substituting the following subparagraph—
“(iv) each set of premises to be searched,
or (in the case of an all premises
warrant) the person who is in
occupation or control of the
premises to be searched, together
with any premises under his
occupation or control which can be
specified and which are to be
searched; and”; and
(f) by repealing subsection (7) and substituting the
following subsection ─
“(7) Two copies shall be made of a specific
premises warrant which specifies only one
set of premises and does not authorise
multiple entries; and as many copies as are
reasonably required may be made of any
other kind of warrant.”.
Amends section 16
6 Section 16 of the principal Act is amended—
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(a) in subsection (3) by deleting “so authorised” and
substituting “authorised in a warrant to accompany any
police officer who is executing the warrant”;
(b) by repealing subsections (4) and (5) and substituting the
following subsections—
“(4) A person authorised in a warrant to accompany
any police officer who is executing a warrant may
exercise the powers he has under the warrant only in the
company, and under the supervision of a police officer.
(4A) If the warrant is an all premises warrant, no
premises which are not specified in it may be entered or
searched unless a police officer of at least the rank of
Inspector has in writing authorised them to be entered.
(4B) No premises may be entered or searched for a
second or any subsequent time under a warrant which
authorises multiple entries unless a police officer of at
least the rank of Inspector has in writing authorised that
entry to those premises.
(4C) The validity of a warrant for entry and search
issued under section 8 or Schedule 2 shall expire three
months from the date of issue of the warrant.
(5) The validity of a warrant for entry and search
issued under an enactment other than section 8 or
schedule 2 shall expire one month from the date of issue
of the warrant.”; and
(c) by inserting the following subsection next after
subsection (10)—
“(10A) A warrant shall be returned to the Magistrates
Court if it was issued by a Magistrate, or to the Supreme
Court, if it was issued by a Judge—
(a) when it has been executed; or
(b) in the case of a specific premises warrant
which has not been executed, or an all
premises warrant, or any warrant
authorising multiple entries, upon the
expiration of the period of three months
referred to in subsection (4C) or sooner.”.
Amends section 17
7 Section 17(1) of the principal Act is amended by deleting
paragraph (a) and substituting the following paragraph—
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“(a) of executing a warrant of arrest issued in connection
with or arising out of an arrestable offence;”.
Amends section 18
8 Section 18(1)(b) of the principal Act is amended by inserting the
word “other”, next after the word “some”.
Amends section 19
9 Section 19 of the principal Act is amended by deleting “believing”
wherever it occurs and substituting “suspecting”.
Amends section 31
10 Section 31 of the principal Act is amended in subsection (4) by
inserting next after the word “jacket”, the words “, helmet, headgear”.
Inserts section 64A
11 The principal Act is amended by inserting the following section
next after section 64—
“Impressions of footwear
64A (1) Except as provided by this section, no impression of a
person’s footwear may be taken without the appropriate consent.
(2) Consent to the taking of an impression of a person’s
footwear must be in writing if it is given at a time when he is at a
police station.
(3) Where a person is detained at a police station, an
impression of his footwear may be taken without the appropriate
consent if—
(a) he is detained in consequence of his arrest for a
recordable offence, or has been charged with a
recordable offence, or informed that he will be
charged for a recordable offence; and
(b) he has not had an impression taken of his
footwear in the course of the investigation of the
offence by the police.
(4) Where a person mentioned in subsection (3)(a) has
already had an impression taken of his footwear in the course of
the investigation of the offence by the police, that fact shall be
disregarded for the purposes of that subsection if the impression
of his footwear taken previously is—
(a) incomplete; or
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(b) is not of sufficient quality to allow satisfactory
analysis, comparison or matching (whether in
the case in question or generally).
(5) If an impression of a person’s footwear is taken at a
police station, whether with or without the appropriate consent—
(a) before it 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 is
practicable after the impression has been taken,
and if he is detained at a police station, the
record shall be made on his custody record.
(6) In a case where by virtue of subsection (3), an
impression of a person’s footwear is taken without the
appropriate consent—
(a) he shall be told the reason before it is taken;
and
(b) the reason shall be recorded on his custody
record as soon as is practicable after the
impression is taken.
(7) The power to take an impression of the footwear of a
person detained at a police station without the appropriate
consent shall be exercisable by any police officer or a person
employed in the Bermuda Police Service.
(8) Nothing in this section applies to any person—
(a) arrested or detained under any law relating to
terrorism; or
(b) arrested or detained under any law pertaining to
extradition.”.
Amends section 67
12 Section 67(7)(a) of the principal Act is amended by deleting
“made”.
Amends section 72
13 Section 72(1) of the principal Act is amended in the definition of
“intimate sample” by inserting the following paragraph next after
paragraph (c) —
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“(d) a swab taken from any part of a person’s genital
area;”.
Amends section 74
14 Section 74 of the principal Act is amended by repealing
subsection (7a).
Substitutes section 83
15 Section 83 of the principal Act is repealed and the following
section is substituted—
“Evidence from computer records
83 In any proceedings, a statement in a document produced by
a computer shall be presumed to be evidence of any fact
therein.”.
Repeals section 84
16 Section 84 of the principal Act is repealed.
Amends Schedule 2
17 Schedule 2 to the principal Act is amended—
(a) in paragraph 2(a)(i) by deleting “a serious arrestable”
and inserting “an indictable”;
(b) in paragraph 4 by deleting “be in possession” and
substituting “have custody or control”;
(c) by inserting the following paragraph next after
paragraph 12—
“12A The Magistrate may not issue an all premises
warrant unless he is satisfied that—
(a) there are reasonable grounds for suspecting that
it is necessary to search premises occupied or
controlled by the person in question which are
not specified in the application, as well as those
which are, in order to find the material in
question; and
(b) it is not reasonably practicable to specify all the
premises which he occupies or controls which
might need to be searched.”;
(d) in paragraph 15 by deleting “Supreme” wherever it
occurs and substituting “Magistrates”;
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(e) by deleting “judge” wherever it occurs and substituting
“Magistrate”.
Commencement
18 (1) This Act shall come into force on such day as the Minister
may appoint by Notice published in the Gazette.
(2) A Notice made under subsection (1) may appoint different
days for different provisions of this Act to come into force.
