Regulations, 2017

L.N. 102 of 2017

CRIMINAL CODE

(CAP. 9)

Interview of Suspects and Accused Persons (Procedure)

Regulations, 2017

IN EXERCISE of the powers conferred by article

355AUA(8)(c) of the Criminal Code, the Minister for Justice, Culture

and Local Government has made the following regulations:-

(1)

The title of these regulations is the Interview of

Suspects and Accused Persons (Procedure) Regulations, 2017.

(2) For the purposes of these regulations and of Sub-title IX of

Title I of Part I of Book Second of the Criminal Code which

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 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) "questioning", in accordance with the said Directive, does not

include preliminary questioning by the police or by another law

enforcement authority the purpose of which is to identify the person

concerned, to verify the possession of weapons or other similar safety

issues or to determine whether an investigation should be started, for

example in the course of a road-side check, or during regular random

checks when a suspect or accused person has not yet been identified.

(1)

No police officer should, at any time, do or say

anything with the intention of dissuading a suspect or accused person

who is entitled to legal assistance in accordance with the provisions

of Sub-Title IX of Title 1 of Part I of Book Second of the Criminal

Code from obtaining legal assistance.

(2) A suspect or accused person who elects for legal assistance

may not be interviewed or continue to be interviewed until he has

received such legal assistance unless there are lawfully authorised

delays made in terms of these regulations.

(3) If a lawyer has been contacted and has agreed to provide

legal assistance to a suspect or an accused person, he should attend at

the place where the suspect or accused person is detained or arrested

promptly but not later than two hours after he has consented to

provide legal assistance. Should two hours elapse from the time when

the lawyer has agreed to provide legal assistance and the lawyer shall

not have arrived at the place where legal assistance is required

without such delay having been authorised by a Police officer not

below the rank of Superintendent, awaiting further for the lawyer’s

arrival shall be considered to cause unreasonable delay to the process

of investigation. In such circumstances, the investigating officer shall

request the Duty Advocate for Legal Aid to attend instead of the said

lawyer so that the interview shall commence. Once the interview has

commenced, it shall be the Duty Advocate for Legal Aid who shall

assist the suspect or accused person and the lawyer who did not arrive

within two hours from when he consented to provide legal assistance

shall not be allowed in the room where the interview is taking place

so as not to interrupt the interview from continuing in terms of law.

(4) An investigating officer shall request the participation of

the Duty Advocate for Legal Aid when a lawyer of choice of the

suspect or accused person

(a)

cannot be reached by phone; or

(b)

has previously indicated that he did not wish to be

contacted; or

(c)

has refused to provide legal assistance to the

suspect or accused person; or

(d)

obstructs the proper questioning of the suspect or

of the accused person.

(5) Prior to the commencement of the interview the suspect or

the accused person shall have the right to meet in private or to

communicate by telephone with the lawyer representing him for a

maximum of one hour, unless a Police officer not below the rank of

Superintendent authorises a longer period for such consultation.

(6) During an interview, the suspect or accused person’s

lawyer shall have the right to put questions to the suspect or the

accused person subject to the provisions of the Criminal Code. Any Cap. 9.

replies given by the suspect or the accused person to his lawyer and

any observations which the said lawyer may want to place on record

related to the questions made, the answers given, the conduct of the

interview, the wellbeing of the suspect or the accused person and any

other information which the lawyer considers necessary not to

prejudice the right to a fair trial enjoyed by the suspect or the accused

person in terms of law, shall also be recorded by the interviewer in

writing or by audiovisual means.

(7) Where the suspect or accused person decides that he does

not want legal assistance or has changed his mind about wanting legal

assistance, the interview may be started or continued in the absence of

a lawyer. A record shall be made of this fact during the interview

either through audiovisual means or in writing when no audiovisual

means are used and in the presence of the interviewer and one

witness.

(1)

It shall not be lawful for a lawyer to conduct

himself in such a way as to hinder the interviewer from being able

properly to put questions to the suspect or accused person or for the

lawyer to interrupt the interview from taking place. Nor shall it be

lawful for a lawyer to answer questions on his client’s behalf or to act

in any manner which prevents, interferes with or unreasonably

obstructs the proper questioning of the suspect or the accused person

or the suspect’s or accused person’s responses from being recorded or

in any manner hinders any investigative or evidence gathering act.

(2) The interviewer, if he is of the view that the lawyer is

misbehaving during the interview, shall warn the lawyer that if the

latter does not behave properly, then the interviewer would have to

request the lawyer to leave or be removed from the room where the

interview is taking place, if need be by force.

(3) The interview shall, in such a case, be suspended and

another lawyer or the Duty Advocate for Legal Aid shall be called in

to replace the said lawyer. The interview shall then continue in the

presence of the other lawyer or of the Duty Advocate for Legal Aid

Provided that the substitution of a lawyer by another

lawyer or by the Duty Advocate for Legal Aid shall only be allowed

once in the course of an interview unless a Police Officer not below

the rank of Superintendent authorises further substitutions or unless

such further substitutions are authorised by the duty Magistrate.

Where a substitution for the reasons provided for in this regulation

occurs or where the suspect or accused person requests legal

assistance after the regular commencement of the interview, the

interviewing officer shall not be, notwithstanding the other provisions

of these regulations, under an obligation to interrupt the interview by

reason of the said substitution or late request for more than thirty

minutes.

(4) In those cases where a lawyer has been requested to leave

the interview, due to the serious nature of such decision, the

interviewer shall inform the duty Magistrate in writing after the

interview has been concluded. The Magistrate shall carry out an

investigation and, should he come to the conclusion that there was

misbehaviour on the part of the lawyer, he shall report the matter to

the Committee for Advocates and Legal Procurators of the

Commission for the Administration for Justice for any disciplinary

action it might wish to take against the said lawyer.

Should the lawyer allege that there has been any Allegation of

irregularity in the interview, or that there was misconduct on the part irregularity

the interview,

of the interviewer, he shall file a report in writing with the duty etc.

Magistrate within forty-eight hours from the conclusion of the

interview or from when he was asked to leave the interview or when

he decided to leave the interview. The Magistrate shall investigate

such report and take such action as he may deem pertinent in the

circumstances and, without prejudice to the generality of the

foregoing, he shall, if he considers it to be justified, file his report in

the acts of the proceedings relative to the suspect or accused person or

report the matter to the Commissioner of Police and the Attorney

General or take both such measures.

(1)

Interviews shall take place in interview rooms Place and

which are adequately heated or cooled, as the case may be, and also conduct

interview.

adequately lit.

(2) The suspect or accused person, including his lawyer, shall

not be required to stand during the interview but shall be asked to sit.

(3) The interview shall be conducted in the following manner

(a)

the interviewer shall first ask questions to the

suspect or accused person;

(b)

unless he decides to exercise his right to silence,

the suspect or accused person shall reply to the questions made

to him or to such questions which do not incriminate him;

(c)

the lawyer shall, if he deems it proper so to do, ask

questions to the suspect or accused person after the interviewer

has concluded the interview or make any observations which the

lawyer may want to place on record related to the questions

made, the answers given, the conduct of the interview, the

wellbeing of the suspect or the accused person and any other

information which the lawyer considers necessary not to

prejudice the right to a fair trial enjoyed by the suspect or the

accused person in terms of law;

(d)

the lawyer shall refrain from interrupting the

interviewer from asking questions during the conduct of the

interview unless the interviewer expressly permits the

interruption;

(e)

the purpose of the interview is to establish the truth

with regard to the commission or otherwise of a criminal

offence. It is therefore out of place and prohibited during the

interview to enter into legal debates or legal pleadings as these

are to be reserved during court proceedings.

(1)

In addition to what is provided by article

355AUA(4) of the Criminal Code, the suspect or accused person

shall, prior to deciding whether to seek legal assistance, be informed

of the identity of the Duty Advocate for Legal Aid so that the suspect

or accused person may decide whom to choose, should he elect to be

assisted by a lawyer, that is, whether to select a lawyer of his own

choice or the Duty Advocate for Legal Aid.

(2) Should the suspect refuse to select a lawyer of his own

choice or the Duty Advocate for Legal Aid, it shall be lawful for the

Investigating Officer to proceed with the questioning as if the suspect

has declined to be represented during questioning.

(1)

When an interview is recorded by audiovisual

means, the following rules shall be followed

(a)

cameras shall be placed in the interview room so as

to ensure coverage of as much of the room as is practically

possible whilst the interviews are taking place;

(b)

a sign or indicator which is visible to the suspect or

the accused person shall be shown when the visual recording

equipment is recording;

(c)

when the suspect or accused person is brought into

the interview room, the interviewer shall without delay, but in

the sight of the suspect or accused person, load the recording

equipment and set it to record. The recording media shall be

unwrapped or otherwise opened in the presence of the suspect

or accused person;

(d)

the interviewer shall then inform the suspect or

accused person formally about the audiovisual recording and

point out the sign or indicator which shows that the recording

equipment is activated and recording. The interviewer shall

(i)

explain that the interview is being visually

recorded,

(ii) give his name and rank or designation, and

that of any other interviewer present,

(iii) ask the suspect or accused and his lawyer, to

identify themselves,

(iv) state the date, time of commencement and

place of the interview, and

(v) state that the suspect or accused person will

be given at the end of the interview an original recording

of the interview for his records;

(e)

interruptions during an interview shall be recorded

so that the recording shall constitute an authentic and faithful

rendering of whatever happened during the interview; and

(f)

should a suspect or accused person misbehave

during an interview, such misbehaviour shall also be recorded

and it shall be adduced in evidence so as to constitute an

authentic and faithful rendering of whatever happened during

the interview.

(2) Where audiovisual means are resorted to for recording an

interview, any such recording shall be admissible in evidence, without

the need of any other formalities, 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.

(3) No transcription need be made of the recording when used

in proceedings before any court of justice unless the court directs

otherwise for reasons to be stated in its decree authorising the

transcription. 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 audio-

visual means.

(4) When recordings of interviews are exhibited in court and

the court orders their transcription in terms of sub-regulation (3) the

said transcription shall be made by the Registrar of Courts and a copy

thereof shall be given to all the parties to the proceedings.

(5) It shall not be lawful for the court to order the Executive

Police to do the transcription mentioned in sub-regulation (3).

B

€0.63