POLICE AND CRIMINAL EVIDENCE AMENDMENT ACT 2009 BERMUDA 2009 : 33

Transcription

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 Amends section Inserts section 64A 12 Amends section Amends section Amends section Substitutes section Repeals section 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

2 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) (iii) in paragraph (b) by deleting specified in the application and substituting mentioned in subsection (1A) ; and 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 2

3 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) 3

4 (i) (ii) by deleting and at the end of subparagraph (i) and inserting it at the end of subparagraph (ii); and 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) (ii) as many sets of premises which it is desired to enter and search as it is reasonably practicable to specify; the person who is in occupation or control of those premises, if known, 4

5 (iii) (iv) and any other premises which it is desired to enter and search; why it is necessary to search more premises than those specified under sub-paragraph (i); and 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 5

6 (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 6

7 (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 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 7

8 (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 Section 67(7)(a) of the principal Act is amended by deleting made. Amends section Section 72(1) of the principal Act is amended in the definition of intimate sample by inserting the following paragraph next after paragraph (c) 8

9 (d) a swab taken from any part of a person s genital area;. Amends section Section 74 of the principal Act is amended by repealing subsection (7a). Substitutes section 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 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 ; 9

10 (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. 10