Abolition of PACE

The recent amendment of the Evidence Act would effectively abolish PACE. The amendment was passed on the 22nd February, 2007 in the House of Assembly.

Section 3 of the Evidence Act

The abolition of PACE is secured with the removal of section 3 of the Evidence Act Cap 158 of the Laws of St. Vincent and the Grenadines.{{more}} Section 3 states “whenever any question shall arise in any criminal or civil proceedings whatsoever in or before any court, court martial or tribunal, or before any person having by law, or by consent of parties, authority to hear, receive and examine evidence, touching the admissibility or sufficiency of any evidence, the competency or obligation of any witness to give evidence, the swearing of any witness, the form of oath or affirmation to be used by any witness, the admissibility of any question put to any witness, the admissibility or sufficiency of any document, writing, matter or thing tendered in evidence, such question shall, except as provided for in this Act, be decided according to the law and practice administered for the time being in England with such modifications as may be applicable and necessary in Saint Vincent and the Grenadines”. This means that sections 76 and 78 of PACE as applied in Thompson v the Queen are no longer effective in SVG.

Section 76 of PACE

Section 76 is an important section in PACE. It deals with confessions and the conditions under which these must be done by the police. A confession may be described as any statement wholly or partly adverse to the person who made it whether made to a person in authority or not and whether made in words or otherwise. Section 76 (1) states that in any proceeding 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 proceedings and is not excluded by the Court in pursuance of this section.

If the prosecution intends to proffer evidence of a confession and it could be represented to the court that the confession was or may have been obtained by oppression and was not voluntary it would not be admitted into evidence. Where the confession is challenged, the judge must conduct a voir dire (a trial within a trial) without the jury and must determine whether the evidence is admissible.

Before PACE the common law was applied in England whenever a confession was challenged. It is not unusual for common law principles to become part of statute and it is not unusual for their Lordships of the Privy Council to encourage the relevant authorities to clarify or legislate on a doubtful part of the law as they did in Thompson v the Queen.

The common law and PACE on confessions

Under the common law if the confession was obtained under conditions of oppression and could not be shown by the prosecution to be voluntary it would be excluded. When PACE was introduced in 1984 it retained the same rules but altered the test of voluntariness. The test under the common law was whether the confession had been obtained from the accused “by fear of prejudice or hope of advantage exercised or held out by a person in authority”. Under PACE the test is “whether the confession was or may have been obtained “in consequence of anything said or done likely to be said or done at the time of the confession to render the confession unreliable.” In short the judges must consider and evaluate the likely impact on the mind of the accused of all the circumstances at the time of the confessions. (Zander Q.C., 2005)

The Privy Council applied sections 76 and 78 of PACE and the lower court applied the Common Law and the Judges Rules and both came to the same conclusion that the confessions of the appellant in Thompson v the Queen were admissible.

• Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com