Evidence Act 1984 (PACE).

BAIL 1. One of the most bitter complaints made against the Police concerns the matter of Bail. It was alleged that the Police are most reluctant to grant bail to a suspect before charge and continually instruct prosecuting counsel to oppose bail as a matter of course after charge when the citizen appears in court.

2. These charges were piously denied by the Police. But from the answers given to us by members of the Police at both formal and informal interactive sessions, we have gained the impression that far too many Police officers, from an inverted and convoluted form of reasoning, proceed upon the assumption that once the subject has found his way into police custody, the onus lies upon him to make out a case for the grant of bail, rather than upon the Police to make out a case for its refusal.

3. We have every confidence that, in the present circumstances, where prosecuting counsel are now appearing in the Summary Courts, legally trained prosecutors will proceed upon the correct legal premise, and oppose bail only where the circumstances of the case appear to warrant such a course. It will then be left to the presiding magistrate to rule upon the application for the refusal of bail after hearing defence counsel or the defendant in person if he is unrepresented.

4. But there still remains the question of Bail by the Police at Police Stations. Part VI of the Bill entitled "The Prosecution of Offenders Act 2000'' deals with the matter of bail. Clause 60 of the Bill sets out the duties of an arresting police officer and very correctly in our view, enjoins the arresting officer that it is his duty, as soon as is practicable, to release the person from custody unconditionally or release the person under the conditions set out in the Bill, which also contains provisions to be applied by Magistrates in Court proceedings, and allows for an appeal to the Supreme Court.

5. We were provided with a copy of the Fifth Draft of the Bill. This suggests that it has already been the subject of much study and amendment. We would respectfully recommend that if further study is required, the process be accelerated and the bill passed into law, and brought into force as soon as conveniently possible. The passage of this bill has the potential for removing, or at least alleviating, one of the most persistent obstacles to good relations between the police and those attorneys practising at the criminal bar.

*** LEGAL AID 1. Mr. Peter Scott Miller explained the legal aid arrangements currently in existence in Bermuda. There appears to be a pressing need to extend the range of the legal aid cover to include the period between the moment when a person is arrested and the time when that person is charged with an offence. We accordingly recommend that the legal aid legislation be reviewed and possibly amended accordingly.

*** INTRODUCING PACE 1. Every lawyer who took part in the Commission's proceedings expressed dissatisfaction with the manner in which the Police responded to their requests for access to, or for information concerning their clients who were being held by the Police without charge. These included Dame Lois Browne Evans the current Attorney General, Miss Shirley D. Simmons, a member of the Commission and Mr. Richard Hector Q.C., counsel to the Commission.

2. The only lawyer who claimed that he received unimpeded access to his clients was Mr. Mark Pettingill. But he is at once a prominent defence counsel as well as the Attorney of Record for the Bermuda Police Association. Such is his good fortune that no less a person than Mr. Vic Richmond, then a Superintendent of Police, intervened personally while a suspect's written statement was being taken by a constable, to permit Mr. Pettingill to speak to that suspect, even though that suspect had earlier in that same statement declared that she did not need a lawyer at that stage of the interview. That suspect's declaration was no impediment to Mr. Pettingill who was permitted by Mr. Richmond to speak to the suspect on the telephone.

3. But it formed an insurmountable hurdle for Mr. Warner who was then an attorney in good standing and who had called at the station soon after. Mr.

Warner reported to Mr. Richmond that he had been engaged by the 18-year-old suspect's mother to represent her. Relying on the suspect's statement that she did not need a lawyer since she would speak the truth, Mr. Richmond could render no more effective assistance to Mr. Warner than to invite him to leave the Police Station and to refuse his request to have access to the suspect.

Mr. Richmond defended that decision by saying that he could not accommodate a multiplicity of lawyers. It made no difference to him that several anxious family members acting independently of each other, could retain a lawyer to represent a suspect: especially in those critical hours following detention by the Police without charge. It was reported to us that the statement in question was not admitted in evidence.

4. Ironically, these events were evidenced before the Commission by material produced by Mr. Richmond in the course of his rebuttal of what he called attacks against the Police. One of the allegations to which he was responding was the complaint made by Mr. Telemaque, whose written presentation was adopted and endorsed by the Bermuda Bar Association as the Association's presentation, that certain lawyers were favoured by the Police, that certain lawyers were not so favoured, that the Police actually contacted certain lawyers to represent persons held in their custody, or suggested to such persons which lawyer they should retain, and actively sought to dissuade certain persons from seeking legal representation, or refused them telephone or other access to their lawyers.

5. It is clear from reading the Georges Report of August 1997 that a sufficiency of material surfaced before that Commission to warrant their consideration of the need for the introduction of PACE to Bermuda. Their observations and recommendations, with which we are in full agreement, are so lucidly set out at pages 43 to 45 of that Report that we can do no better than to repeat them in full: 6. "Before bringing this Report to a close we should mention the Police and Criminal Evidence Act 1984 (PACE) which was brought in force in England in January 1985. Mr. Coxall, the Commissioner of Police, favoured its introduction as did all the practitioners who gave evidence before us. We do not think that PACE falls within our terms of reference, if they are given a normal interpretation. Nevertheless, there are two areas of PACE which were proposed as worthy of consideration (i) procedures for the arrest and detention of suspected persons, and (ii) questioning and interviewing of persons, including persons detained by the police. There was no complaint that Mr. Wilson's rights in either of these areas had been infringed or threatened with infringement. Since the issue has been agitated we think we should comment.

7. PACE lays down conditions in which arrested persons are detained in police stations which have been designated as approved detention centres. It lays down the duties of the supervisor, known as the custody officer, and ensures the rights of the detained person to inform friends and have access to a lawyer. Strict rules as to the need for continuing detention insure a review to be carried out six hours following arrest or detention; at nine hours following the first review, and subsequent reviews at nine hour intervals. A detained person who has not been charged must be allowed to leave after 24 hours unless authorisation in writing is given by a Superintendent of Police extending his detention to 36 hours. Further detention must be on application to a Court.

8. PACE also allows for a code of practice in connection with the tape recording of interviews with persons suspected of criminal offences, and the means by which such `tapes' are secured, copied, and made available to the Court. Lawyers representing the detained person may also be present.

9. The provisions in PACE for the arrest and detention of suspected persons are detailed. Careful study would be needed to adapt these provisions to local conditions. We can only recommend further study.

As regards the recording of interviews of suspects by police officers the Commissioner informed us that a pilot project had been planned but had not yet been implemented. A suitable interview room had been identified and prepared and the equipment was available.

10. We are satisfied that the implementation of such procedure will make it more difficult to complain of police pressures to extract confessions from persons held in their custody.

11. Our inquiries reveal that legislation is in the course of preparation for presentation to Parliament in November 1997 to provide the legal authorisation for the procedure. It should be treated as a matter of the highest priority.'' 12. The only footnote that we would wish to add is that all parties concerned, including the senior officers of Police, have once again expressed the need for a form of PACE Legislation to be brought into force in Bermuda at the earliest possible date. PACE would provide a statutory framework for the guidance of the Police. It would remove the grey areas of Police discretion which has been the cause of such bitter complaint for so long. And hopefully, it would result in the improvement of the relationship between the Police service and members of the Defence Bar. For members of the Police Service and Defence Counsel are all engaged in the pursuit of fairness to the Public at large whom the Police represent, and to those persons with whom the Police are required to deal in the investigation and prosecution of serious criminal offences.

13. Mr. Raymond Moore, Parliamentary Counsel for the Attorney General has kindly advised us that to the best of his knowledge there have been two legislative initiatives adopting concepts from PACE. The first is the Police Complaints Authority Act 1998 which, though based on New Zealand Legislation, gives effect in substance to Part IX of PACE and came into force on 5th October 1998.

14. The second is the Police Amendment Act 1998 which provides for a Code of Practice on tape recording of interviews with persons suspected of the Commission of Indictable offences. This Act is not yet in force. Mr. Moore has been led to believe that the Police now have in place the facilities to enable the Act to be brought into force.

15. But visits to the relevant Police facilities have satisfied us that the Police do not now possess the relevant equipment, nor are the required interview rooms set up, nor is the requisite audio equipment and sound proofing in place. In short, the requirements of a "designated Police facility'' as defined in Section 2(6) of the Act do not at the moment exist.

16. PACE Code C, deals comprehensively with "The Detention, Treatment and questioning of Persons by Police Officers''. The following portions of Code C illustrate their main purpose: 1. 1 All persons in custody must be dealt with expediently and released as soon as the need for detention has ceased to apply.

1. 1a A custody officer is required to perform the functions specified in this code as soon as is practicable. A custody officer shall not be in breach of this code in the event of delay provided that the delay is justifiable and that every reasonable step is taken to prevent unnecessary delay. The custody record shall indicate where a delay has occurred and the reason why.

1. 2 This code of practice must be readily available at all police stations for consultation by police officers, detained persons and members of the public.'' 17. PACE gives guidance in areas which have caused difficulty for even the most well meaning police officers. It sets out procedures and practices for dealing with persons who voluntarily attend at a police station. It provides for a custody officer who is charged with certain important responsibilities.

It points out what is to be done in the areas of Detention, Charge and Release.

18. It provides for the treatment of Special Categories of Persons; the considerations affecting the decision to detain or release suspected persons, and the calculation of the time of detention. It details the very important responsibilities devolving upon the custody officer during a person's detention both before and after charge.

19. PACE also deals specifically within the English context of a person's Right of Access to a Solicitor. A person who is arrested and held in custody at a police station has a right, at his request to consult and communicate privately with a solicitor at any time. The police are obliged to inform the detainee of the availability of a duty solicitor if such a scheme is in force.

20. If a person, whether under arrest or voluntarily at a police station, requests to see a solicitor he must be permitted to do so as soon as practicable. No attempt should be made to dissuade a suspect from obtaining legal advice. Wrongful denial of access to a solicitor may lead to the exclusion of the evidence. A suspect may not be refused access to a solicitor simply because the police fear that the solicitor will advise the suspect not to answer questions. Reminders of the right to legal advice must be given before interviews are commenced or recommenced.

21. PACE also deals with the sensitive matter of searches of the person and more importantly of strip searches and intimate searches. Strip searches involve the removal of more than the outer clothing whereas intimate searches involve searches of bodily orifices other than the mouth. Carefully drafted procedures are set out in the Act and in Code C to ensure that all of these procedures are conducted professionally and with as little impairment as possible to the dignity of the suspect. Thus, strip and intimate searches can only be conducted by members of the same sex as the suspect, or only by medical personnel where specified. The rare exceptional circumstances where a police constable may act are clearly defined.

22. The other code which may usefully be adopted here is Code D: The Identification of Persons by Police Officers. Under this rubric also falls the Identification by dental impressions or body samples. These rules have become necessary because of the significant advances of scientific knowledge which have taken place in recent years and which are continuing apace. The progress made in the development of DNA technology has resulted in the increasing use of this investigative tool for the purpose of eliminating the innocent from further suspicions as well as for assisting in the proof of guilt. Perhaps, its most spectacular success has been with the demonstration of the complete innocence of persons who have been wrongfully convicted, and the rescue from the execution chambers of persons who should never have been there.

Mark Pettingill: He was the only lawyer who claimed that he received unimpeded access to his clients.