INTERVIEW OF SUSPECTS AND ACCUSED PERSONS (PROCEDURE)

SUBSIDIARY LEGISLATION 9.24

INTERVIEW OF SUSPECTS AND ACCUSED

PERSONS (PROCEDURE)

13th April, 2017

LEGAL NOTICE 102 of 2017.

(1) The title of these regulations is the Interview of

Suspects and Accused Persons (Procedure) Regulations.

(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 th e tim e wh en 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 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 Comm ittee for Adv ocat es and Legal Procurato rs of t he

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

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

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

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 which

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

adequately lit.

INTERVIEW OF SUSPECTS AND ACCUSED PERSONS

(PROCEDURE)

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

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

(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).