Criminal Code (Cap. 9), article 355Z

355Z. The general arrest conditions are - (a) that the identity of the person is unknown or cannot be readily ascertained by the police officer; or (b) there is a doubt whether the particulars furnished by the person are true; or (c) that the person has not furni shed a satisfactory address for service, or there are doubts about whether the address provided is satisfact ory for service, or that at least some other person may according to law receive service on his behalf at the address given; or CRIMINAL CODE [CAP. 9. 221 (d) that the arrest is necessa ry to prevent the person - (i) causing physical harm to himself or to any other person; or (ii) suffering physical injury; or (iii) causing loss or d amage to property; or (iv) committing an offence against public decency; or (v) causing an unlawful obstruction on any public road; or (e) that the police officer h as reasonable grounds for believing that the arrest is necessary to protect a child or any other vulnerable person. Conduct towards person arrested. Added by: III.2002.74. 355AB. The officer or any other person authorised by law making an arrest shall not use any harshness, bond or other mea ns of restraint unless indispensabl y required to secure, or render ed necessary by the in subordination of the person arrested. Information to be given on arrest. Added by: III.2002.74. 355AC. (1) When a person is arrest ed, the arrest is not lawful unless the person arrested is informed that he is under arrest, even though the arrest may be obvious. (2) The arrest is not lawful unless the person arrested is informed at the time of his arres t or detention, in a language that he understands, of the reasons fo r his arrest or detention: Provided that if an interpreter is necessary and is not readily available or if it is otherwise impracticable to comply with the provisions of this sub-article at the time of the person’s arrest or detention, such provisions shall be complied with as soon as practicable: Provided further that, in any case, where the arrest is made by a private person under the provisions of article 355V the gi ving of the information may be delayed until the person arrested is taken over by the Police. Attendance at a police station or office. Added by: III.2002.74. 355AD. (1) Where, in the course of an investigation, a person attends voluntarily a t, or accompanies a police officer to, a p olice station or office, that person shall be free to leave at any ti me, unless and until he is informed that he is under arrest. (2) Where an inspector of Poli ce has a reasonable suspicion that the person who attended voluntarily at the police station or office may have committed an offence subject to imprisonment, h e may arrest such person forthwith without warrant and inform him accordingly. The time of the arrest shall be immediately record ed and immediate notice thereof sh all be given to a Magistrate. (3) The Police may, orally or by a notice in writing, require an y person to attend at the police s tation or other place indicated by them to give such information and to produce such documents as the Police may require and if tha t person so attends at the pol ice station or place indicated to hi m he shall be deemed to have attended that police station or other place voluntarily. The wr itten notice referred to in this sub-article shall contain a warning of the 222 CAP . 9.] CRIMINAL CODE consequences of failure to comp ly, as are mentioned in sub-arti cle (5). (4) Any person who is considered by the police to be in possession of any information or document relevant to any investigation has a legal obligation to comply with a request f rom the police to attend at a police station to give as required an y such information or document: Provided that no person is bound to supply any information or document which tends to incriminate him. (5) A person who fails to comply with a notice in writing as is referred to in sub-article (3) or who fails, upon being so requ ested, even if only orally, to accompany voluntarily a police officer to a police station or other place i ndicated by the police officer f or any purpose mentioned in the said s ub-article (3) shall be guilty o f a contravention punishable with detention and shall be liable to be arrested immediately under warrant. (6) The notice mentioned in sub-article (3) may be served with urgency in cases where the int erests of justice so require. (7) A person who attends voluntarily as mentioned in sub- article (3) may be kept apart from any other person, but shall not be kept in any place normally used for the detention of arrested persons. Arrest outside police stations or offices. Added by: III.2002.74. 355AE. (1) When a police officer arrests a person at a place other than a police station the arrested person shall be taken to the nearest police station and where the arresting officer is an of ficer below the rank of inspector he shall forthwith report the arres t to an officer not below the rank of ins pector. In any case the inspec tor or officer in charge of that police station shall also be informed . (2) Where there are grounds for the continuation of the arrest the person arrested shall be taken to a designated police stati on as soon as practicable and in no case later than six hours from th e time of the arrest. (3) The taking of an arrested p erson to a police station in accordance with the foregoing provisions of this article may be delayed if that person’s presence is required elsewhere for the purpose of any investigatio n which may be necessary. (4) Where a person is released following arrest the police officer ordering release shall record in writing the fact stati ng reasons. Search on arrested person. Added by: III.2002.74. 355AF. (1) A police officer may immediately search the person arrested: (a) if the police officer has reasonable grounds for believing that the arrested person may present a danger to himself or others; or (b) for anything which the arrested person might use to assist him to escape from custody; or (c) for anything which might be evidence related to an CRIMINAL CODE [CAP. 9. 223 offence. (2) The provisions of article 353 of this Code shall apply to searches under this article. Sub-title VII WARRANTS Police to execute warrants of arrest or search. Added by: III.2002.74. 355AG . (1) Saving the provisions of article 666, it is the duty of the Police to execute any warrant or order of arrest or search that may, in the cases prescribed by law, be issued or given by any other competent authority. (2) Any such warrant or order shall set forth the nature of the offence, the name of the person, if known, by whom the offence is alleged to have been committed and, in the case of a search warrant, it shall indicate the place where the search is to be carried out. (3) Once a warrant or order of ar rest or search has been issued any police officer may execu te the warrant or order. Procedure for warrants. Added by: III.2002.74. 355AH. (1) Whenever according to law the carrying out of an act by the police requires the issue of a warrant by a Magistrate a police officer may apply in perso n to a Magistrate requesting t he issue of the appropriate warrant stating the grounds for the re quest and giving the Magistrate all such information that will enable the Magistrate to decide on the reque st. Before deciding whether to issue the warrant the Magistrate may require the police officer to confirm on oath the information supplied by him and the warrant shall only be issued upon the Ma gistrate being satisfied that sufficient grounds for the issue of the warrant exist. (2) In cases of urgency, the request for the issue of the warran t and the warrant may be com municated even by facsimile: Pr ovided that, as soon as pr acticable, the original warrant shall be delivered f or record purposes. (3) Any warrant issued by a Magistrate shall be issued in favour of the Commissioner of Police and may be executed by any police officer. (4) Whenever a police officer reque sts the issue of a warrant of arrest or search from a Magistrate in accordance with the provisions of this Code and the Magistrate refuses to issue the warrant the Police may request the issue of the same warrant fr om a Judge who ordinarily sits in the Criminal Court. Copies of warrants. Added by: III.2002.74. 355AI. Except in the case of a warrant transmitted by facsimile, any warrant shall be drawn upon in three signed copies one of which shall be retained by the M agistrate while the others shal l be delivered to the police officer who shall retain one copy for h is records and shall cause the other one to be served on the perso n 224 CAP . 9.] CRIMINAL CODE entitled to be served with it: Provided that where a police officer comes upon a person against whom a warrant of arrest has been issued and, although not in possession of a copy of the warrant, the police officer know s that the warrant has been so issued, the officer shall arrest that p erson and shall serve him with the copy of the warrant at the first opportunity. Report of arrest. Added by: III.2002.74. Amended by: III.2024.5. 355AJ. ( 1 ) W h e r e a n y p e r s o n i s a r r e s t e d , w h e t h e r w i t h o r without a warrant, the arrestin g police officer or his superior shall, as soon as practicable and unless the person arrested has been released within six hours from a rrest, inform a Magistrate, giv ing all details as to time and place where the person is being held . (2) The Magistrate may order that the person arrested be transferred to another pl ace with immediate effect. (3) Any person arrested in pursuance of any provision of this Code and who has not been brought before a court within forty- eight hours of his arre st shall be released. (4) Notwithstanding the provisions of sub-article (3) where the arresting police officer has suffi cient reasons for believing t hat the person arrested has committed a crime liable to a maximum punishment exceeding twelve (12) years imprisonment and that th e continuation of the arrest of the person beyond forty-eight (48 ) hours is necessary to obtain rele vant evidence or to preserve relevant evidence, the arresting officer may by means of an application confirmed on oath and supported by information request a Magistrate to issue a warrant authorising the keeping of the person arrested under further detention: Provided that for the purposes of this sub-article: "arresting police officer" and "a rresting officer" mean a polic e officer in the grade of Inspector or higher who is in charge of the investigation of the person arrested; "a crime liable to a maximum punishment exceeding twelve (12) years imprisonment" means a crime liable to a maximum punishment exceeding twelve ( 12) years imprisonment without considering any increase in punis hment due to concurrent crimes and punishments, aggravating circumstances, aggravation of the punishment, any previous conviction or the continuous nature of the crime; "information" means information about: (a) the time of arrest and the nature of the crime for which the person under arrest has been arrested; (b) the evidence on which tha t person was arrested; and (c) the special reasons for believing the continued detention of that person to be necessary. CRIMINAL CODE [CAP. 9. 225 (5) A Magistrate shall not accede to a request filed in accordance with sub-a rticle (4) unless: (a) t h e p e r s o n a r r e s t e d h a s b e e n f u r n i s h e d w i t h t h e information and has been brought before the Magistrate for a hearing; and (b) the Magistrate is satisfied that the investigation is being conducted diligen tly and expeditiously. (6) An application for a warran t in accordance with sub-article (4) may be made at any time before the expiry of the first thir ty-six (36) hours from the time of arrest if the person is still under arrest. (7) Where upon an application in accordance with sub-article (4) the Magistrate is not satisfied that there are sufficient r easons to believe that the further detention of the person arrested beyon d forty-eight (48) hours is justified he may refuse the applicati on or adjourn the hearing until a time not later than forty-eight (48 ) hours from the time of the arrest. (8) Where the Magistrate is satisfied that there are sufficient reasons to believe that the further detention of the person arr ested is justified he shall issue a wa rrant of further detention for such period not exceeding a further forty-eight (48) hours as the Magistrate deems fit. (9) A person released after a war rant for further detention is issued or has expired in his res pect, shall not be re-arrested without a warrant to be issued by a Magistrate for the offence for whic h he was previously arrested unless, s ince the person’s release, fre sh evidence has been discovered or an examination or analysis of existing evidence has been made which could not reasonably have been made before his release. (10) (a) At the hearing held for the purposes of sub-article (4 ), the person under arrest shall have the right to be assisted by an a dvocate or by a legal procurator and that hearing shall: (i) be held with closed doors; (ii) be subject to such orders as the Magistrate may give to all persons present at the said hearing for the purpose of protecting the confidentiality of information on the investigation; (iii) be held summarily in such manner that, in all, the period of the first forty-eight (48) hours provided in sub-articl e (3) is not exceeded; (iv) end with the decree of the Magistrate which shall be delivered at the end of the hearing. (b) The decision of the Magistrate given in accordance with this sub-article shall not be subject to appeal and shall be executable forthwith. Immediate orders. Added by: III.2002.74. 355AK. Any order of a competent authority touching on the rights of the individual arising from the provisions of this Su b-title shall be carried out without delay, and for such purpose may be communicated even by facsimile or telephone, under such conditions as to guarantee its authenticity. 226 CAP . 9.] CRIMINAL CODE Sub-title VIII DETENTION Right to release. Added by: III.2002.74. 355AL. (1) It shall be duty of the custody officer to order the immediate release from custody of any person in police detentio n in the circumstances mentioned in article 355AJ(3) or where the custody officer becomes aware th at the grounds for the detentio n of that person have ceased to apply and there are no other lawful grounds on which the continued detention of that person could b e justified. (2) Before ordering the release from custody of a person under sub-article (1) the custody officer shall inform the investigat ing officer and a Magistrate and the final decision shall be taken by the Magistrate. (3) A person whose release is ordered under the provisions of sub-article (1) shall be released unconditionally unless it app ears 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 proceedings may be taken against him in respect of such matter, and if it so appears, he shall be released subject to the condi tions, reduced to writing and signed by the person to be released, tha t he will not attempt or do anything to leave Malta without the auth ority of the investigating officer und er whose authority he was arres ted and that he will attend at such police station at such time as the custody officer may appoint and, or that he will attend before the Court of Magistrates at such time and such place as the court m ay appoint. (4) Where a custody officer has granted bail to a person subject to a duty not to attempt or do anything to leave Malta without authority or to appear at a police station, the custody officer may give notice in writing to that person that the condition not to attempt or do anything to leave Malta without authority no long er applied or that his attendance at the police station is not req uired. (5) Any person who fails to comply with any condition imposed upon him upon his release as provided in sub-article (3 ) shall be guilty of a contravention. (6) A police officer may arrest without a warrant any person who, having been conditionally released under sub-article (3) subject to a duty not to attempt or do anything to leave Malta without authority or to attend a police station or subject to a duty to appear before the Court of Magis trates, attempts or does anythi ng to leave Malta without authority or fails to attend at that pol ice station or before the Court of Magistrates at the time appointe d for CRIMINAL CODE [CAP. 9. 227 him to do so. (7) For the purposes of this Sub- title a person who returns to a police station to answer to bail or is arrested under sub-artic le (6) shall be treated as arrested for the offence under sub-article (5) and for the offence in connection w ith which he was granted bail an d the provisions of this article shall apply to such person. (8) The conditions made under sub-article (3) shall not remain in force for more than three months from the date on which they were imposed unless they are ren ewed by a Magistrate for furthe r periods of three months each per iod upon an application by the Police which shall be served for his reply upon the person on w hom the conditions were imposed. (9) At any time during which the conditions made under sub- article (3) are in force the person on whom those conditions we re imposed may by an application to be served on the Police for a reply request a Magistrate that those conditions be removed or modified. (10) The Minister may issue guidelines to be followed by custody officers in the exercise of their discretion to impose conditions under sub-article (3). Requirement of custody officer. Added by: III.2002.74. 355AM. (1) At every designate d place of detention the Commissioner shall appoint one or more custody officers not bel ow the rank of sergeant who, in matters of detention, shall comply with any orders of a Magistrate. (2) Any officer of any rank may perform the functions of a custody officer at a designated place of detention if a custody officer is not readily av ailable to perform them. (3) Where the custody officer who is called upon to carry out any of his functions with respect to a person in police detenti on is, at the time when the function fa lls to be performed, involved i n the investigation of an offence for which the person is in police detention such function shall be carried out by another custody officer or, if no such other custody officer is available, by t he next most senior police officer who ha ppens to be available at the t ime. (4) In this article and elsewhere in this Sub-title "designated place of detention" means such pl ace designated by the Minister where a person may be detain ed for more than six hours. Functions of custody officer. Added by: III.2002.74. 355AN. The custody officer shall perform such functions as may be assigned to him by this Code or by any other law. Functions of custody officer at a place other than a designated place of detention. Added by: III.2002.74. 355AO. Where an arrested person is taken to a police station which is not a designated place of detention the functions in relation to him which would otherwise fall to be performed by a custody officer sha ll be performed: (a) by an officer not below the rank of sergeant who is not involved in the investigation of an offence for which the arrested person is in detention, if such an officer is readily available; and 228 CAP . 9.] CRIMINAL CODE (b) if no such officer is readily available, by the officer who took the arrested person to the police station or by the most senior police offi cer at the police station at the time. Intimate searches of the person detained. Added by: III.2002.74. 355AP. Where the arresting officer or the custody officer has a reasonable suspicion that the person arrested may have conceale d on his person any drug the unlawful possession of which would constitute a criminal o ffence or any other item which a custody officer is authorised by this Code or by any other law to seize from the possession of an arrested pe rson, the said officer may requ est a Magistrate to order an intimate search of the person arrested. Experts to be appointed. Added by: III.2002.74. 355AQ. (1) Upon a request for an order under article 355AP the Magistrate shall appoint an expert to carry out the search unde r such safeguards as he may consid er necessary for the purpose of decency and to report to him on his findings. A copy of the rep ort shall be communicated without delay to the arresting or custody officer as the case may be. (2) A person shall not be appointed an expert for the purpose of carrying out an intimate search on a person of the opposite sex unless the expert is a medical practitioner and the person to b e searched consents t hereto in writing. Seizure. Added by: III.2002.74. 355AR. Anything found as a result o f an intimate search under the foregoing articles may be temporarily retained by the exper t and may subsequently be seized by order of the Magistrate, and a receipt therefore shall be given to the detained person. The Magistrate may authorise the delivery against receipt of anythi ng so seized to the police officer in vestigating the person intima tely searched. Sub-title IX Substituted by: LI.2016.2. RIGHT TO LEGAL ASSISTANCE AND OTHER RIGHTS DURING DETENTION Right to consult a medical practitioner. Added by: III.2002.74. Substituted by: LI.2016.3. 355AS. (1) The suspect or accused person shall, at his request, be allowed to consult a medical practitioner of his choice and, if such medical practitioner is not readily available, any other m edical practitioner. (2) Immediately upon arrest and without undue delay, the Executive Police or any other law enforcement or judicial autho rity shall inform the suspect or an a rrested person of such a right. (3) A record shall be kept that the suspect or accused person has been duly informed of such right by the Executive Police or by any other law enforcemen t or judicial authority. (4) The words "the suspect" and "the accused person" in this article have the same meaning assigned to them by article 355AT(2). CRIMINAL CODE [CAP. 9. 229 Subject matter of this Sub-title. Added by: III.2002.74. Substituted by: LI.2016.4. Amended by: XVIII.2020.3. 355AT. (1) This Sub-title transposes the provisions of Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arr est warrant proceedings, and on the right to have a third party informed upon deprivation of libert y and to communicate with third persons and with consular authorities while deprived of liberty, published in the Official Journal of the European Union on 6 November 2013 (L 294/1) and the provisions of Directive 2016/1919/EU of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accuse d persons in criminal proceedings a nd for requested persons in Eu ropean arrest warrant proceedings. (2) This Sub-title lays down minimum rules concerning the rights of: (a) the suspect (hereinafter in this Sub-title referred to as "the suspect"), that is, a person who is detained or arrested by the Executive Police or any other law enforcement or judicial authority where such person has not been charged before a court of justice of criminal jurisdiction and who is being questioned by the Executive Police or any other authority as aforesaid in relation to any criminal offence; (b) a person charged or accuse d of having committed a criminal offence (hereinaft er referred to in this Sub- title as "the accused person"); (c) a person subject to proceedings pursuant to Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA) published in the Official Journal on 18 July 2002 (L 190/1), hereinafter referred to as "the European arrest warrant proceedings". (3) The persons mentioned in sub-article (2) shall enjoy the following rights: (a) to have access to a lawyer; (b) to have a third party informed of the deprivation of their liberty; and (c) to communicate with third persons and with consular authorities whilst deprived of their liberty. (4) For the purpose of this Sub-title, the expression "lawyer" means an advocate or a legal pro curator who is authorised by la w to exercise that resp ective profession in terms of law. (5) For the purpose of this Sub-title, the expression "legal aid " means funding by the Minister, of the assistance of a lawyer, e nabling the exercise of the right of access to a lawyer. 230 CAP . 9.] CRIMINAL CODE Scope of this Sub-title. Added by: III.2002.74. Substituted by: LI.2016.4. Amended by: XVIII.2020.4. 355AU. (1) This Sub-title applies to suspects or accused persons in criminal proceedings from the time when they are made aware by the Executive Police or by any other law enforcement or judi cial authority, by official notification or otherwise, that they are suspected or accused of having committed a criminal offence, an d irrespective of whether the y are deprived of liberty. (2) This Sub-title applies until the conclusion of the proceedings, which is understood to mean the final determinatio n of the question whether the suspect or the accused person has committed an offence, including, where applicable, sentencing a nd the resolution of any appeal. (3) This Sub-title applies also to persons subject to European arrest warrant proceedings in terms of Framework Decision 2002/ 584/JHA referred to in article 355AT(2)( c) (hereinafter referred to as "the requested persons") from the time of their arrest in accordance with article 355AUJ. (4) The provisions relating to legal aid under this Sub-title shall apply: (a) to suspects and accused persons in criminal proceedings who have a right of access to a lawyer pursuant to this S ub-title and who are: (i) deprived of liberty; (ii) required to be assisted by a lawyer by law; or (iii) required or permitted to attend an investigative or evidence-gathering act, including as a minimum the following: (A) identity parades; (B) confrontations; (C) reconstructions of the scene of a crime; and (b) to a requested person upon an arrest under article 355AUT(2)(c) persons who have a right of access to a lawyer under this Sub-title; (c) under the same conditions as provided for in paragraph (a), to persons who were not initially suspects or accused persons but become suspects or accused persons in the course of questioning by the police or by another law enforcement authority. (5) This Sub-title also applies, under the same conditions as provided for in sub-article (1), to persons other than the susp ect or the accused person who, in th e course of questioning by the Executive Police or by another law enforcement or judicial authority, become susp ects or accused persons. (6) W ithout pr ejudice to the r ight to a fair trial, in r espect of minor offences - (a) where the law provides for the imposition of a sanction by an authority other than a court having jurisdiction in criminal matters, and the imposition of such a CRIMINAL CODE [CAP. 9. 231 sanction may be appealed or referred to such a court; or (b) where deprivation of liberty cannot be imposed as a sanction, this Sub-title shall only apply to the proceedings before a cou rt having jurisdiction in criminal matters: Provided that, in any event, this Sub-title shall fully apply where the suspect or accused p erson is deprived of liberty, irrespective of the stage o f the criminal proceedings. The right of access to a lawyer in criminal proceedings. Added by: LI.2016.4. 355AUA. (1) The suspect or the accused person shall have the right of access to a lawyer in s uch time and in such a manner s o as to allow him to exercise his r ights of defence practically and effectively. (2) The suspect or the accused person shall have access to a lawyer without undue delay. In any event, the suspect or the accused person shall have access to a lawyer from whichever of the following points in time is the earliest: (a) before they are questioned by the Executive Police or by another law enforcement or judicial authority in respect of the commission of a criminal offence; (b) upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with sub-article (8)(e); (c) without undue delay after deprivation of liberty; (d) where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court. (3) A request for legal assista nce shall be recorded in the custody record together with the time when it was made unless t he request is made at a time when t he person who makes it is at co urt after being charged with an offe nce in which case the request n eed not be so recorded. (4) Once a request for legal assistance is made, the suspect or the accused person shall be provided with a list of lawyers dra wn up by the Chamber of Advocates and the Chamber of Legal Procurators and submitt ed on a yearly basis to the Executive Po lice and to any other law enforcemen t and judicial authority, from which the suspect or the accused person may select a lawyer of his own choice. Alternatively, the suspect or the accused person ma y elect to be assisted by the Advo cate for Legal Aid in which cas e the Advocate for Legal Aid shall assign a lawyer for this purpose. (5) Without prejudice to the provisions of article 355AUI(3), any police officer who indicates or attempts to indicate to a p erson detained the advocate or legal procurator who should be engaged during the detention of such person, shall be guilty of an offe nce and shall be punishable with a fine ( ammenda ) and this without prejudice to any disciplinary pr oceedings that may be taken aga inst 232 CAP . 9.] CRIMINAL CODE him as a consequence of a finding of guilt in respect of such a n offence or in lieu of prosecuti on for such an offence in accord ance with any disciplinary regulatio ns in force from time to time. (6) Where the person detained chooses not to seek legal assistance the Executive Police, investigating officer or any o ther law enforcement or judicial investigating authority shall recor d this fact in writing in the presence of two witnesses and thereupon questioning may proceed immediate ly. It shall not be admissible for the prosecution to comment during any proceedings before a cour t of justice of criminal jurisdiction on the fact that the suspec t or the accused person did not avail himself of the right to legal assi stance in the course of his detention under arrest. (7) Where in any proceedings b efore a court of justice of criminal jurisdiction against a person for an offence, evidence is given that the suspect or the accused person - (a) at any time before he was charged with the offence, on being questioned by the Executive Police or by any other law enforcement or judicial authority trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or (b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circum stances existing at the time th e suspect or the accused person coul d reasonably have been expect ed to mention when so questioned, charged or informed, as the case may be, no inference may be drawn from the suspect’s or the accused person’s failure to mention facts which may be consider ed as evidence of guilt or as amounting to corroboration of any evidence of guilt of the susp ect or the person accused. (8) The right of access to a lawye r shall entail the following: (a) the suspect or the accused person, if he has elected to exercise his right to legal assistance, and his lawyer, shall be informed of the alleged offence about which the suspect or the accused person is to be questioned. Such information shall be provided to the suspect or the accused person prior to the commencement of questioning, which time shall not be less than one hour before questioning starts; (b) the suspect or the accused person shall have the right to meet in private and communicate with the lawyer representing him, including prior to questioning by the police or by another law enforcement or judicial authority; (c) the suspect or the accused person shall have the right for his lawyer to be present and participate effectively when questioned. Such participation may be regulated in accordance with proced ures which the Minister responsible for Justice may by regulations establish, CRIMINAL CODE [CAP. 9. 233 provided that such procedures shall not prejudice the effective exercise and essence of the right concerned. Where a lawyer participate s during questioning, the fact that such participatio n has taken place shall be noted using where possible in the opinion of the interviewer audiovisual means in terms of paragraph (d): Provided that the right of the lawyer to participate effectively shall not be int erpreted as including a right of the lawyer to hinder the questioning or to suggest replies or other reactions t o the questioning and any questions or other remarks by the lawyer shall, except in exceptional circumstances, be made after the Executive Police or other investigating or judicial authority shall have declared that it has no further questions; (d) questioning, all answers given thereto and all the proceedings related to the qu estioning of the suspect or accused person, shall where po ssible in the opinion of the interviewer be recorded by audio-visual means and in such case a copy of the recording shall be handed over to the suspect or the accused person following the conclusion of the questioning. Any such recording shall be admissible in evidence, unless the suspect or the accused person alleges and proves that the recording is not the original recording and that it has been tampered with. No transcription need be made of the recording when used in proceedings before any court of justice of criminal jurisdiction, nor need the suspect or the accused person sign any written statement made following the conclusion of the questioning once all the ques tions and answers, if any, are recorded on au diovisual means; (e) the suspect or the accused person shall have the right for his lawyer to attend the following investigative or evidence-gathering acts if the suspect or accused person is required or permitted to attend the act concerned: (i) identity parades; (ii) confrontations; (iii) reconstructions of t he scene of an offence. (9) General information to facilitate the briefing of a lawyer b y suspects or accused persons shall be made available in terms of sub-article (4) or such other procedure as the Minister respons ible for Justice may by regulations establish. (10) Notwithstanding the provisions of this Sub-title concerning the mandatory presence of a lawyer, the Executive Police or any other law enforcement or judic ial authority shall ensure that suspects or accused persons who are deprived of liberty shall b e in a position to exercise effectivel y their right of access to a l awyer, unless they have waived that right in accordance with article 234 CAP . 9.] CRIMINAL CODE 355AUG . (11) In exceptional circumstances and only at the pre-trial stag e, a temporary derogation may be m ade from the application of the right provided for in sub-article (2)( c) where the geographical remoteness of the suspect or the accused person makes it impossible to ensure the right of access to a lawyer without un due delay after depriv ation of liberty. (12) In exceptional circumstances a nd only at the pre-trial stag e, a temporary derogation from the application of the rights provi ded for in sub-article (8) may be made to the extent justified in t he light of the particular circumstances o f the case, on the basis of on e of the following compelling reasons: (a) where there is an urgent n eed to avert serious adverse consequences for the life, l iberty or physical integrity of a person; (b) where immediate action by the investigating authorities is imperative to prevent substantial jeopardy to crimi nal proceedings. (13) For the purposes of this Sub-title, the expression "pre-tri al stage" means the stage immediatel y prior to the filing of the b ill of indictment in the Criminal Court or, as the case may be, before the Attorney General sends the record of proceedings to the Court o f Magistrates as a Court of Crimin al Judicature, in terms of arti cle 370(3), for the person accuse d to be tried by that court. Confidentiality. Added by: LI.2016.4. 355AUB. (1) The confidentiality of communication between suspects or accused persons and their lawyer in the exercise of the right of access to a lawyer prov ided for under this Sub-title s hall be respected. (2) Such communication sh all include meetings, correspondence, teleph one conversations and any other form of communication permitted by law. The right to have a third person informed of the deprivation of liberty. Added by: LI.2016.4. 355AUC. (1) Suspects or accused pe rsons who are deprived of liberty shall be informed, without undue delay, by the Executiv e Police or by any other enforcemen t or judicial authority, that they have the right to have at least one person, such as a relative or an employer or any other person of their choice, nominated by them , informed of their deprivation of liberty without undue delay if they so wish, unless such other pers on is reasonably suspected of be ing involved in the offence being in vestigated. A record shall be k ept of the manner in which the Executive Police or other law enforcement or judicia l authority concerned has discharged its duty under this article. (2) If the suspect or accused person is a child, at least one person having parental authority, tutorship, curatorship or guardianship in respect of the child shall be informed as soon as possible of the deprivation of lib erty and of the reasons there for, unless it would be contrary to the best interests of the child to do so, in which case another appropriate adult shall be informed. For the purposes of this article, a person below the age of eightee n CRIMINAL CODE [CAP. 9. 235 years shall be considered to be a child. (3) In all cases, the details of the person mentioned in sub- article (1) or of the holder of parental authority, tutorship, curatorship or guardianship over the child mentioned in sub-art icle (2) as well as the day and time at which the information was gi ven to such person or holder of paren tal or other authority as afor esaid, shall be entered in the detention record of the suspect or in t he record of the proceedings of the person accused, as the case ma y be. (4) It shall be permissible to temporarily derogate from the application of the rights set out in sub-articles (1) and (2) w here justified in the light of the particular circumstances of the c ase, on the basis of one of the fo llowing compelling reasons: (a) where there is an urgent need to avert serious adverse consequences for the life, l iberty or physical integrity of a person; (b) where there is an urgent need to prevent a situation where criminal proceedings could be substantially jeopardised: Provided that in any such case, the delay shall not be later than six hours from the time wh en the arrest was effected. (5) Where a derogation from the ap plication of the right set out in sub-article (2) is made, the Executive Police or other law enforcement or judicial authority concerned shall ensure that a n authority responsible for the protection or welfare of children , as designated from time to time by the Minister responsible for Ju stice by order in the Gazette, is infor med without undue delay of the deprivation of liberty of the child. The right to communicate, with third persons, while deprived of liberty. Added by: LI.2016.4. 355AUD. (1) The suspect or the accused person who is deprived of liberty shall have the right t o communicate without undue de lay with at least one third person, s uch as a relative, friend or o ther person nominated by him. ( 2 ) A M a g i s t r a t e m a y , f o l l o w i n g a w r i t t e n r e q u e s t f r o m t h e Executive Police or any other law enforcement authority or from another authority other than a court exercising judicial functi ons, limit or defer the exercise of the right referred to in sub-art icle (1) in view of imperative requireme nts or proportionate operational requirements. The right to communicate with consular authorities. Added by: LI.2016.4. 355AUE. (1) The suspect or the accused person who is a non- national and who is deprived of liberty shall have the right to have the consular authorities of his State of nationality informed o f the deprivation of liberty without undue delay and to communicate with those authorities, if he so wishes. However, where the sus pect or accused person has two or m ore nationalities, he may choose which consular authorities, if any, are to be informed of the deprivation of liberty and with which he wishes to communicate. (2) Suspects or accused persons shall also have the right to be visited by their consular authorities, the right to converse an d 236 CAP . 9.] CRIMINAL CODE correspond with them and the right to have legal representation arranged for by their consular a uthorities, subject to the agre ement of those authorities and the wis hes of the suspects or accused persons concerned. (3) The exercise of the rights laid down in this article may be regulated by such regulations to be made by the Minister responsible for Justice or by such procedures as may be in forc e from time to time, provided that such regulations or procedures enable full effect to be given t o the purposes for which these rights are intended. General conditions for applying temporary derogations. Added by: LI.2016.4. 355AUF. (1) Any temporary derogation under article 355AUA(11) or (12) or under article 355AUC(4) shall: (a) be proportionate and not g o beyond what is necessary; (b) be strictly limited in time; (c) not be based exclusively on the type or the seriousness of the alleged offence; and (d) not prejudice the overall fa irness of the proceedings. (2) Temporary derogations under article 355AUA(11) or (12) may be authorised only by a duly reasoned decision taken on a case-by-case basis by a Magistra te, which decision may be subje ct to appeal to the Court of Criminal Appeal as constituted under article 418 by application to be filed within two working days from when the decision is given. The Court of Criminal Appeal shall regulate its own proced ure with regard to t he determination of such an appeal. The filing of an appeal shall not prevent the execut ion of the decision of the Magistrate unless the Court of Criminal App eal otherwise orders. The duly reasoned decision shall be recorded in the relative acts of the proceedings. (3) Temporary derogations under article 355AUC(4) may be authorised, only on a case-by-case basis, by a Magistrate. Waiver. Added by: LI.2016.4. 355AUG . (1) Without prejudice to the provisions of this Sub-title requiring the mandatory presence or assistance of a lawyer, in relation to any waiver of a right as referred to in articles 35 5AUA and 355AUH: (a) the suspect or accused person shall be provided, orally or in writing, with clear and sufficient information in simple and understandable language about the content of the right concerned and the possible consequences of waiving it; (b) the waiver shall be given voluntarily and unequivocally. (2) The waiver, which can be made in writing or orally, shall be noted as well as the circumstances under which the waiver was given, using any recording procedure permitted by law. (3) The suspect or accused person may revoke a waiver subsequently at any point duri ng the criminal proceedings, and shall be informed about this possibility. Such a revocation sha ll CRIMINAL CODE [CAP. 9. 237 have effect only from the moment it is made. The right of access to a lawyer in European arrest warrant proceedings. Added by: LI.2016.4. Amended by: XVIII.2020.5. 355AUH. (1) A requested person shall have the right of access to a lawyer upon arrest in Malta pursuant to a European arrest warrant.The requested person may elect to be assisted by the Advocate for Legal Aid in which case the Advocate for Legal Aid shall assign a lawyer for this purpose. (2) With regard to the content of the right of access to a lawye r in Malta as the executing Member State, a requested person shal l have the following rights in Malta: (a) the right of access to a lawye r in such time and in such a manner as to allow the requested person to exercise his rights effectively and in any event without undue delay from deprivation of liberty; (b) the right to meet and communicate with the lawyer representing him; (c) the right for his lawye r to be present and, in accordance with procedures established by law, to participate during a hearing of the requested person by the competent executing judi cial authority in Malta. Where a lawyer participates during the hearing, this shall be noted in the record s of the proceedings of the competent judicial a uthority in Malta. (3) The rights provided for in articles 355AUB, 355AUC, 355AUD, 355AUE, 355AUG , and, where a temporary derogation under article 355AUC(4) is applied, in article 355AUF, shall ap ply, mutatis mutandis , to European arrest warrant proceedings in Malta as the executing Member State. (4) The competent authority in Malta as the executing Member State shall, without undue delay after deprivation of liberty, inform requested persons that they have the right to appoint a lawyer in the issuing Member State, that is, a Member State of the European Union which has issued a European arrest warrant with a view to the arrest and surrender by Malt a of a requested person. The ro le of that lawyer in the issuing Membe r State shall be to assist the lawyer in Malta, as the executing Member State, by providing that lawy er with information and advice with a view to the effective exerci se of the rights of requested persons under Framework Decision 2002/ 584/JHA . ( 5 ) W h e r e a r e q u e s t e d p e r s o n w i s h e s t o e x e r c i s e t h e r i g h t t o appoint a lawyer in the issuing Member State and does not alrea dy have such a lawyer, the competent authority in Malta as the executing Member State shall promptly inform the competent authority in the issuing Member State. (6) The competent authority in Malta as the issuing Member State in European arrest warrant proceedings shall, without und ue delay, upon a request from a comp etent authority in the executi ng Member State, provide the request ed persons with information to facilitate their appointing a lawyer in Malta. (7) The right of a requested person to appoint a lawyer in the 238 CAP . 9.] CRIMINAL CODE issuing Member State is without prejudice to the time-limits se t out in Framework Decision 2002/584/JHA or the obligation on the executing judicial authority in Malta to decide, within those t ime- limits and the conditions defined under that Framework Decision , whether the person i s to be surrendered. Remedies. Added by: LI.2016.4. 355AUI. (1) The suspect or accused person in criminal proceedings, and the requested persons in European arrest warra nt proceedings, shall be entitled to seek redress in the event of a breach of their rights under this Sub-title before the courts o f criminal jurisdiction which may be seized of their case, or bef ore a Magistrate. Such a clai m for redress shall be filed promptly an d the court seized with the claim shall have authority to grant such redress as it deems appropriate, which redress shall be granted without undue delay. There shall be a right of appeal from a decision to grant or to deny such redress to the Court of Crimi nal Appeal as constituted under arti cle 418. The said appeal shall be made by application to be filed within eight working days from the decision and the Court of Criminal Appeal shall regulate its ow n procedure with reg ard to the hearing of such an appeal. (2) Without prejudice to the provisions of this Code related to the admissibility of evidence, t he rights of the defence and th e fairness of the proceedings sha ll be respected in all criminal proceedings, in the assessment of statements made by suspects o r accused persons or of evidence obtained in breach of their righ t to a lawyer or in cases where a deroga tion to this right was authori sed in accordance with a rticle 355AUA(12). Vulnerable persons. Added by: LI.2016.4. Amended by: XVIII.2020.6. 355AUJ. (1) The Executive Police and any other law enforcement or judicial authority shall ensure that the particu lar needs of vulnerable suspects, vulnerable requested persons and vulnerable accused persons are taken into account in the application of the provisions of this Sub-title. (2) The Minister responsible for Justice may make regulations to give better effect to the provisions of this article. (3) For the purposes of this Sub-title, the expression "vulnerable person" shall have the same meaning assigned to it by article 208AC(2). Non-regression clause. Added by: LI.2016.4. 355AUK. Nothing in this Sub-title shall be construed as limiting or derogating from any of the rig hts and procedural safeguards that are ensured under the Constitution , the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights, or other relevant provisions of international or nation al law which are enforceable in the courts of Malta and which provide a higher level of protection. Sub-title X TAKING OF SAMPLES, FI NGERPRINTING AND OTHER CRIMINAL CODE [CAP. 9. 239 INVESTIGATIVE PROCEDURES Samples under authorisation. Added by: III.2002.74. Amended by: XXIV .2014.45. 355A V . The investigating officer may in person, by application or by facsimile, request a Magis trate to authorise the necessar y procedure - (a) where he has reasonable grounds to require the taking of intimate samples from the person arrested; or (b) to take photographs, a film, video recording or electronic image of intimate parts of the body of the person arrested; or (c) where the person arrested withholds his consent for any procedure which the investigating officer may carry out according to law with the consent of the person arrested and the provisions of the proviso to article 355BB shall, mutatis mutandis , apply: Provided that where the request falls under paragraph ( a), the provisions of article 355AW shall apply and, if the request falls under paragraph ( b), the provisions of article 355AP shall mutatis mutandis apply. Intimate samples by consent. Added by: III.2002.74. 355AW. Subject to the provisions of articles 355A V and 355AX, an intimate sample may be taken from a person arrested only if his appropriate consent is given. When consent for intimate sample is refused. Added by: III.2002.74. 355AX. (1) Upon a request under article 355A V( a), the Magistrate shall obtain all such information from the investiga ting officer to enable him to decide on whether the request is justi fied or not. (2) Where the Magistrate decides that the request is justified h e shall visit the person arrested to request his consent and befo re asking for his consent he shall explain to him: (a) the nature of the request and the reasons thereof; (b) the consequences of giving his consent and of refusing consent as provided in article 355AZ; and (c) that he is entitled to consult a lawyer or legal procurator before deciding whether or not to give his consent. (3) Where the person arrested requests to consult a lawyer or legal procurator under sub-article (2) the magistrate shall mak e a record of the fact, date and time of the request and, subject t o the provisions of sub-article (4) sha ll allow the person arrested t o consult with a lawyer or legal procurator for such time as the magistrate may deem appropriate in the circumstances of the cas e. (4) The magistrate may, on a just ified objection by the Police, delay any communication with an advocate or legal procurator if the interests of justice so req uire or when any of the events mentioned in article 355AT(5) is likely to occur if such communication is allowed immediately: Provided that where the pers on arrested has requested to 240 CAP . 9.] CRIMINAL CODE consult a lawyer or legal procurator his consent can only be requested after such cons ultation has taken place. Applicable procedure for samples. Added by: III.2002.74. 355AY. Where an intimate sample is to be taken under these articles the provisions of article 355AP shall apply. Inferences from refusal. Added by: III.2002.74. 355AZ. Where the appropriate consent to the taking of an intimate sample from a person was refused without a good cause, in any proceedings against the person for an offence, those who ha ve to judge of the facts may draw such inferences from the refusal as appear proper and the refusal ma y, on the basis of such inferen ces, be treated as, or as capable of amounting to corroboration of a ny evidence against the person in re lation to which the refusal is material. Samples with the consent or at the request of the person arrested. Added by: III.2002.74. Amended by: XXIV .2014.46. 355BA. (1) The investigating officer may, with the appropriate consent in writing of the perso n arrested, cause to be taken: (a) fingerprints, palm-prints, other prints or hand-writing samples from the person arrested; (b) photographs of the person arrested or of non-intimate parts of his body; (c) non-intimate samples from the person arrested. (2) The person arrested may request in writing that: (a) his fingerprints, palm-prints, other prints or hand- writing samples, (b) photographs of his person or of non-intimate parts of his body, (c) non-intimate samples from his person, be taken and any such request shall be complied with by the investigating officer with the as sistance of any competent pers on as may be necessary. (3) The person arrested may also request in writing the investigating officer to carry o ut any of the procedures mentio ned in article 355A V(a) and ( b), and any such request shall be referred without delay to a Magistrate. T he Magistrate shall authorise t he procedure requested after verifying the request made by the per son arrested and the provisions of article 355AP shall apply where appropriate. Samples from persons other than arrested persons. Added by: III.2002.74. Amended by: XXIV .2014.47. 355BB. Samples from a person other than a person arrested may only be taken with that pers on’s prior consent in writing: Provided that in the event that the person, other than the person arrested, withholds his consent to the taking of a sampl e, whether intimate or non-intimate, a Magistrate’s authorisation may also be obtained upon an application and, saving the provisions of article 355AZ, such authorization shall also cover the taking o f any proportionate and necessary measur es, including the use of forc e, by the Executive Police to giv e effect to such authorization. CRIMINAL CODE [CAP. 9. 241 Samples at the request of persons other than arrested persons. Added by: III.2002.74. 355BC. The provisions of article 355BA shall mutatis mutandis apply to any person, not being an arrested person, who makes a request for the carryin g out in his respect of any procedure re ferred to in that article provided the request is made in writing and contains a declaration that the person making the request has r eason to believe that there is the likelihood that the failure to car ry out the requested procedure is likely to result in his being arrested o r detained. Use of specimens. Added by: XXIV .2014.48. 355BD. The Commissioner of Police may make use of specimens, which would have been taken in criminal proceedings, for the purposes of subseque nt criminal proceedings. Added by: III.2002.75. Sub-title XI POWERS AND DUTIES OF T HE POLICE IN RESPECT OF COURT PROCEEDINGS Production of evidence before court. Amended by: L.N. 46 of 1965; LVIII.1974.68; VIII.1990.3; III.2002.76.