ACT No. LI of 2016 AN ACT to provide for legal assistance during detention and other rights to arrested persons.

I assent.

M ARIE- L OUISE

(L.S.)

C OLEIRO P RECA

President

28th November, 2016

ACT No. LI of 2016

AN ACT to provide for legal assistance during detention and

other rights to arrested persons.

BE IT ENACTED by the President, by and with the advice and

consent of the House of Representatives, in this present Parliament

assembled, and by the authority of the same as follows:-

(1) The short title of this Act is the Criminal Code Short title and

(Amendment No. 2) Act, 2016, and this Act shall be read and commencement.

construed as one with the Criminal Code, hereinafter referred to as Cap. 9.

"the Code".

(2) This Act shall come into force on such date as the Minister

responsible for Justice may by notice in the Gazette appoint, and

different dates may be so appointed for different provisions and

different purposes of this Act.

(3) A notice under sub-article (2) may make such transitory

provisions as appear to the Minister to be necessary or expedient in

connection with the provisions thereby brought into force and may

also delete the words "where possible in the opinion of the

interviewer" in articles 355AUA(8)(c) and (d), and in Schedule E of

the Criminal Code.

The heading of Sub-title IX of Title I of Part I of Book Substitution of

the heading of

Second of the Code shall be substituted by the following

Sub-title IX of

Title I of Part I

of Book Second

"Sub-title IX

of the Code.

Right to Legal Assistance and Other Rights during Detention".

Article 355AS of the Code shall be substituted by the

following

" Right to

355AS. (1) The suspect or accused person

consult a

shall, at his request, be allowed to consult a

medical

medical practitioner of his choice and, if such

practitioner.

medical practitioner is not readily available, any

other medical practitioner.

(2) Immediately upon arrest and without

undue delay, the Executive Police or any other law

enforcement or judicial authority shall inform the

suspect or an arrested 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

enforcement 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).".

Articles 355AT and 355AU of the Code shall be

substituted by the following

355AT. (1) This Sub-title transposes the

" Subject

matter of this

provisions of Directive 2013/48/EU of the

Sub-title.

European Parliament and of the Council of 22

October 2013 on the right of access to a lawyer in

criminal proceedings and in European arrest

warrant proceedings, and on the right to have a

third party informed upon deprivation of liberty

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).

(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 accused of

having committed a criminal offence

(hereinafter 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

procurator who is authorised by law to exercise

that respective profession in terms of law.

355AU. (1)This Sub-title applies to suspects

Scope of this

Sub-title.

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 judicial authority, by official notification or

otherwise, that they are suspected or accused of

having committed a criminal offence, and

irrespective of whether they are deprived of

liberty.

(2) This Sub-title applies until the

conclusion of the proceedings, which is

understood to mean the final determination of the

question whether the suspect or the accused

person has committed an offence, including,

where applicable, sentencing and 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) This Sub-title also applies, under the

same conditions as provided for in sub-article (1),

to persons other than the suspect or the accused

person who, in the course of questioning by the

Executive Police or by another law enforcement

or judicial authority, become suspects or accused

persons.

(5) Without prejudice to the right to a fair

trial, in respect 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 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 court having jurisdiction in criminal

matters

Provided that, in any event, this Sub-

title shall fully apply where the suspect or accused

person is deprived of liberty, irrespective of the

stage of the criminal proceedings.

355AUA. (1) The suspect or the accused

The right of

access to a

person shall have the right of access to a lawyer in

lawyer in

criminal

such time and in such a manner so as to allow him

proceedings.

to exercise his rights 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 assistance shall be

recorded in the custody record together with the

time when it was made unless the request is made

at a time when the person who makes it is at court

after being charged with an offence in which case

the request need 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 drawn up by the

Chamber of Advocates and the Chamber of Legal

Procurators and submitted on a yearly basis to the

Executive Police and to any other law

enforcement 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 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.

(5) Without prejudice to the provisions of

article 355AUI(3), any police officer who

indicates or attempts to indicate to a person

detained the advocate or legal procurator who

should be engaged during the detention of such

person, shall be guilty of an offence and shall be

punishable with a fine (ammenda) and this

without prejudice to any disciplinary proceedings

that may be taken against him as a consequence of

a finding of guilt in respect of such an offence or

in lieu of prosecution for such an offence in

accordance with any disciplinary regulations in

force from time to time.

(6) Where the person detained chooses not

to seek legal assistance the Executive Police,

investigating officer or any other law enforcement

or judicial investigating authority shall record this

fact in writing in the presence of two witnesses

and thereupon questioning may proceed

immediately. It shall not be admissible for the

prosecution to comment during any proceedings

before a court of justice of criminal jurisdiction on

the fact that the suspect or the accused person did

not avail himself of the right to legal assistance in

the course of his detention under arrest.

(7) Where in any proceedings before 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 circumstances existing at

the time the suspect or the accused person could

reasonably have been expected 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 considered as

evidence of guilt or as amounting to corroboration

of any evidence of guilt of the suspect or the

person accused.

(8) The right of access to a lawyer 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 procedures

which the Minister responsible for Justice

may by regulations establish, provided that

such procedures shall not prejudice the

effective exercise and essence of the right

concerned. Where a lawyer participates

during questioning, the fact that such

participation 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

interpreted as including a right of the lawyer

to hinder the questioning or to suggest

replies or other reactions to 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

questioning of the suspect or accused

person, shall where possible 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 questions and

answers, if any, are recorded on audiovisual

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 the scene

of an offence.

(9) General information to facilitate the

briefing of a lawyer by suspects or accused

persons shall be made available in terms of sub-

article (4) or such other procedure as the Minister

responsible 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 judicial authority shall ensure that

suspects or accused persons who are deprived of

liberty shall be in a position to exercise effectively

their right of access to a lawyer, unless they have

waived that right in accordance with article

355AUG. (11) In exceptional circumstances and only

at the pre-trial stage, a temporary derogation may

be made 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 undue delay after deprivation

of liberty.

(12) In exceptional circumstances and only

at the pre-trial stage, a temporary derogation from

the application of the rights provided for in sub-

article (8) may be made to the extent justified in

the light of the particular circumstances of the

case, on the basis of one of the following

compelling reasons

(a)

where there is an urgent need to

avert serious adverse consequences for the

life, liberty or physical integrity of a person;

(b) where immediate action by the

investigating authorities is imperative to

prevent substantial jeopardy to criminal

proceedings.

(13) For the purposes of this Sub-title, the

expression "pre-trial stage" means the stage

immediately prior to the filing of the bill of

indictment in the Criminal Court or, as the case

may be, before the Attorney General sends the

record of proceedings to the Court of Magistrates

as a Court of Criminal Judicature, in terms of

article 370(3), for the person accused to be tried

by that court.

355AUB. (1)

The

confidentiality

of

Confidentiality.

communication between suspects or accused

persons and their lawyer in the exercise of the

right of access to a lawyer provided for under this

Sub-title shall be respected.

(2) Such communication shall include

meetings,

correspondence,

telephone

conversations and any other form of

communication permitted by law.

355AUC. (1) Suspects or accused persons

The right to

have a third

who are deprived of liberty shall be informed,

person

informed of the

without undue delay, by the Executive Police or

deprivation of

by any other enforcement or judicial authority,

liberty.

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

person is reasonably suspected of being involved

in the offence being investigated. A record shall

be kept of the manner in which the Executive

Police or other law enforcement or judicial

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 liberty and of the

reasons therefor, 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 eighteen 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-

article (2) as well as the day and time at which the

information was given to such person or holder of

parental or other authority as aforesaid, shall be

entered in the detention record of the suspect or in

the record of the proceedings of the person

accused, as the case may be.

(4) It shall be permissible to temporarily

derogate from the application of the rights set out

in sub-articles (1) and (2) where justified in the

light of the particular circumstances of the case,

on the basis of one of the following compelling

reasons

(a)

where there is an urgent need to

avert serious adverse consequences for the

life, liberty 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 when the arrest was effected.

(5) Where a derogation from the

application 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 an authority responsible for the

protection or welfare of children, as designated

from time to time by the Minister responsible for

Justice by order in the Gazette, is informed

without undue delay of the deprivation of liberty

of the child.

355AUD. (1) The suspect or the accused

The right to

communicate,

person who is deprived of liberty shall have the

with third

persons, while

right to communicate without undue delay with at

deprived of

least one third person, such as a relative, friend or

liberty.

other person nominated by him.

(2) A Magistrate may, following a written

request from the Executive Police or any other

law enforcement authority or from another

authority other than a court exercising judicial

functions, limit or defer the exercise of the right

referred to in sub-article (1) in view of imperative

requirements or proportionate operational

requirements.

355AUE. (1) The suspect or the accused

The right to

communicate

person who is a non-national and who is deprived

with consular

authorities.

of liberty shall have the right to have the consular

authorities of his State of nationality informed of

the deprivation of liberty without undue delay and

to communicate with those authorities, if he so

wishes. However, where the suspect or accused

person has two or more 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 and correspond

with them and the right to have legal

representation arranged for by their consular

authorities, subject to the agreement of those

authorities and the wishes 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 force from

time to time, provided that such regulations or

procedures enable full effect to be given to the

purposes for which these rights are intended.

355AUF. (1) Any temporary derogation

General

conditions for

under article 355AUA(11) or (12) or under article

applying

temporary

355AUC(4) shall

derogations.

(a)

be proportionate and not go

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 fairness

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 Magistrate, which decision may be

subject 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 procedure with regard to the

determination of such an appeal. The filing of an

appeal shall not prevent the execution of the

decision of the Magistrate unless the Court of

Criminal Appeal 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.

355AUG. (1) Without prejudice to the

Waiver.

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 355AUA 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 during

the criminal proceedings, and shall be informed

about this possibility. Such a revocation shall have

effect only from the moment it is made.

355AUH. (1) A requested person shall have

The right of

access to a

the right of access to a lawyer upon arrest in Malta

lawyer in

European arrest

pursuant to a European arrest warrant.

warrant

proceedings.

(2) With regard to the content of the right

of access to a lawyer in Malta as the executing

Member State, a requested person shall have the

following rights in Malta

(a)

the right of access to a lawyer 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 lawyer to be

present and, in accordance with procedures

established by law, to participate during a

hearing of the requested person by the

competent executing judicial authority in

Malta. Where a lawyer participates during

the hearing, this shall be noted in the records

of the proceedings of the competent judicial

authority 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

apply, 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 Malta of a requested

person. The role of that lawyer in the issuing

Member State shall be to assist the lawyer in

Malta, as the executing Member State, by

providing that lawyer with information and advice

with a view to the effective exercise of the rights

of requested persons under Framework Decision

2002/584/JHA.

(5) Where a requested person wishes to

exercise the right to appoint a lawyer in the

issuing Member State and does not already 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 undue delay,

upon a request from a competent authority in the

executing Member State, provide the requested

persons with information to facilitate their

appointing a lawyer in Malta.

(7) The right of a requested person to

appoint a lawyer in the issuing Member State is

without prejudice to the time-limits set out in

Framework Decision 2002/584/JHA or the

obligation on the executing judicial authority in

Malta to decide, within those time-limits and the

conditions defined under that Framework

Decision, whether the person is to be surrendered.

355AUI. (1) The suspect or accused person

Remedies.

in criminal proceedings, and the requested

persons in European arrest warrant proceedings,

shall be entitled to seek redress in the event of a

breach of their rights under this Sub-title before

the courts of criminal jurisdiction which may be

seized of their case, or before a Magistrate. Such a

claim for redress shall be filed promptly and 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

Criminal Appeal as constituted under article 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

own procedure with regard to the hearing of such

an appeal.

(2) Without prejudice to the provisions of

this Code related to the admissibility of evidence,

the rights of the defence and the fairness of the

proceedings shall be respected in all criminal

proceedings, in the assessment of statements made

by suspects or accused persons or of evidence

obtained in breach of their right to a lawyer or in

cases where a derogation to this right was

authorised

in

accordance

with

article

355AUA(12).

355AUJ. (1) The Executive Police and any

Vulnerable

persons.

other law enforcement or judicial authority shall

ensure that the particular needs of vulnerable

suspects 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).

355AUK. Nothing in this Sub-title shall be

Non-regression

clause.

construed as limiting or derogating from any of

the rights 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 national

law which are enforceable in the courts of Malta

and which provide a higher level of protection.".

Immediately after paragraph (e) of article 534AB(1) of the

Code there shall be added the following paragraphs

"(f) the right to have a third party informed of the

suspect’s or the accused person’s deprivation of liberty;

(g) the right to communicate with third persons and

with consular authorities when the suspect or an arrested person

is deprived of his liberty;

(h) the right to be allowed to consult a medical

practitioner;

(i)

should the suspect or arrested person be illiterate,

the right to have the Letter of Rights read out and explained to

him.".

In article 658 of the Code, for the words "whether in

writing or orally, may be received in evidence against the person"

there shall be substituted the words "whether in writing, orally, by

audiovisual means or by other means, may be received in evidence

against or in favour of the person, as the case may be,".

In sub-article (1) of article 659 of the Code, for the words

"If a confession is reduced to writing" there shall be substituted the

words "Where it is not possible to record a confession by audiovisual

means in terms of article 355AUA(8)(e), if a confession is reduced to

writing".

Article 660 of the Code shall be substituted by the Substitution of

article 660 of

the Code.

660. It shall not be permissible to give in

" Confession to

be produced in

evidence only a part of an audiovisual recording

or of a written or oral statement against the

accused except in extraordinary circumstances

which the court may allow.".

Schedule E to the Code shall be amended as follows

Amendment of

Schedule E to

the Code.

(a)

the six paragraphs under the heading "A.

ASSISTANCE OF A LAWYER/ENTITLEMENT TO LEGAL

AID" in Part I thereof shall be substituted by the following

"You have the right to access a lawyer whilst in

detention. Such right begins from the moment of your

detention and before you are questioned.

You have the right to be provided with a list of

advocates and a list of legal procurators from which you

can choose one to assist you or to elect to be assisted by

the Advocate for Legal Aid. In the latter case, legal

assistance is free of charge. The police may not indicate

to you the name of the lawyer you may engage during

your arrest or detention.

Not less than one hour before the commencement of

questioning, you and your lawyer have the right to be

informed of the alleged offence about which you will be

questioned. Such information shall be provided to you

prior to the commencement of questioning, which time

shall not be less than one hour before questioning starts.

Upon detention, you have the right to meet in private

and communicate with the lawyer representing you,

including prior to questioning by the police.

You have the right for your lawyer to be present and

participate effectively when questioned.

All questioning, all answers given thereto and all the

proceedings related to the questioning of the suspect or

accused person are, where possible in the opinion of the

interviewer to be recorded by audiovisual means; you

have the right to be given a copy of the recording

following the conclusion of the questioning.

You have the right for your lawyer to attend the

following investigative or evidence-gathering acts

(i) identity parades;

(ii) confrontations;

(iii) reconstructions of the scene of an

offence.

The confidentiality of your communication with your

lawyer in the exercise of your right to access a lawyer

shall be respected.

Upon arrest you are to be informed of your right to

have at least one person, such as a relative, an employer

or any other person of your choice informed of your

deprivation of liberty.

If you are a child, that is, a person below the age of

eighteen years, a person entitled to exercise parental

authority, tutorship, curatorship or guardianship over

you is informed of your arrest or detention and the

reasons for such arrest or detention.";

(b) the words "Such delay may not be more than six

hours from the time of arrest." in the second paragraph under

the heading "F. INFORMING SOMEONE ELSE ABOUT

YOUR ARREST OR DETENTION/INFORMING YOUR

CONSULATE OR EMBASSY" in Part I thereof shall be

deleted; and

(c)

the six paragraphs under the heading "B.

ASSISTANCE OF A LAWYER" in Part II thereof shall be

substituted by the following

"You have the right to access a lawyer whilst in

detention. Such right begins from the moment of your

detention and before you are questioned.

You have the right to be provided with a list of

advocates and a list of legal procurators from which you

can choose one to assist you or to elect to be assisted by

the Advocate for Legal Aid. In the latter case, legal

assistance is free of charge. The police may not indicate

to you the name of the lawyer you may engage during

your arrest or detention.

Not less than one hour before the commencement of

questioning, you and your lawyer have the right to be

informed of the alleged offence about which you will be

questioned. Such information shall be provided to you

prior to the commencement of questioning, which time

shall not be less than one hour before questioning starts.

Upon detention, you have the right to meet in private

and communicate with the lawyer representing you,

including prior to questioning by the police.

You have the right for your lawyer to be present and

participate effectively when questioned.

All questioning, all answers given thereto and all the

proceedings related to the questioning of the suspect or

accused person are, where possible in the opinion of the

interviewer to be recorded by audiovisual means; you

have the right to be given a copy of the recording

following the conclusion of the questioning.

You have the right for your lawyer to attend the

following investigative or evidence-gathering acts

(i) identity parades;

(ii) confrontations;

(iii) reconstructions of the scene of a crime.

The confidentiality of your communication with your

lawyer in the exercise of your right to access a lawyer

shall be respected.

Upon arrest you are to be informed of your right to

have at least one person, such as a relative, an employer

or any other person of your choice informed of your

deprivation of liberty.

If you are a child, that is, a person below the age of

eighteen years, a person exercising parental authority,

tutorship, curatorship or guardianship over you is

informed of your arrest or detention and the reasons for

such arrest or detention.".

The Police Act shall be amended as follows

Consequential

amendments to

the Police Act.

(a)

article 67 thereof shall be deleted;

(b)

the Fourth Schedule thereto shall be amended as

(i) the fourth and fifth sub-paragraphs of paragraph

4 thereof, entitled "Caution" shall be deleted; and

(ii) immediately after paragraph 7 thereof there shall

be added the following new paragraph

"7A. Legal assistance during detention.

An arrested person shall benefit from the right

to legal assistance and from the rights listed in

article 355AUK(1) of the Criminal Code in terms

of the provisions of Sub-title IX of Title I of Part I

of Book Second of the Criminal Code and the

provisions contained in the said Sub-title shall

apply and be observed during the arrest, detention

and questioning of an arrested person.

The provisions of paragraphs 8, 9 and 10 of

this Schedule shall apply only in those situations

where a statement cannot be taken by audiovisual

means.".

Passed by the House of Representatives at Sitting No. 454 of the

23rd November, 2016.

A NĠLU F ARRUGIA

Speaker

R AYMOND S CICLUNA

Clerk of the House of Representatives

€1.98