L.S. 9.24 Regolamenti dwar il-Proċedura waqt l-Interrogazzjoni ta’ Persuni Suspettati u Persuni Akkużati

(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. 2.

(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 Citation and interpretation. Cap. 9. Procedure to be followed during an interview. Cap. 9 2 [ S.L.9.24 INTERVIEW OF SUSPECTS AND ACCUSED PERSONS (PROCEDURE) 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: (

1. a)cannot be reached by phone; or (
2. b)has previously indicated that he did not wish to be contacted; or (
3. c)has refused to provide legal assistance to the suspect or accused person; or (
4. 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. Cap. 9.

(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. Misbehaviour by lawyer. 3.

(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 INTERVIEW OF SUSPECTS AND ACCUSED PERSONS (PROCEDURE) [ S.L.9.24 3 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. 4. 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. Allegation of irregularity in the interview, etc. 5.

(1)Interviews shall take place in interview rooms which are adequately heated or cooled, as the case may be, and also adequately lit. Place and conduct of interview. 4 INTERVIEW OF SUSPECTS AND ACCUSED PERSONS (PROCEDURE) [ S.L.9.24

(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: (

1. a)the interviewer shall first ask questions to the suspect or accused person; (
2. 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; (
3. 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; (
4. 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; General information to be provided to the suspect or the accused person. Cap. 9. (
5. 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. 6.

(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. Rules to be followed when an interview is recorded by audiovisual means. 7.

(1)When an interview is recorded by audiovisual means, the following rules shall be followed: (

1. 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; INTERVIEW OF SUSPECTS AND ACCUSED PERSONS (PROCEDURE) [ S.L.9.24 (
2. 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; (
3. 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; (
4. 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: (
5. i)explain that the interview is being visually recorded, (
6. 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, (
7. iv)state the date, time of commencement and place of the interview, and (
8. 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; (
9. 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 (
10. 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 audiovisual means.

(4)When recordings of interviews are exhibited in court and the court orders their transcription in terms of sub-regulation

(3)5 6 [ S.L.9.24 INTERVIEW OF SUSPECTS AND ACCUSED PERSONS (PROCEDURE) 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).