Criminal Code of the Republic of Malta (1854, as amended up to 2016) (excerpts related to Judicial and Prosecution Systems) (English)
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BOOK SECOND
LAWS OF CRIMINAL PROCEDURE
PART I
OF THE AUTHORITIES TO WHICH THE ADMINISTRATION
OF CRIMINAL JUSTICE IS ENTRUSTED
Title I
OF THE POWERS AND DUTIES OF THE EXECUTIVE POLICE
IN RESPECT OF CRIMINAL PROSECUTIONS
GENERAL
346. (1) It is the duty of the Police to preserve public order and peace, to prevent and to detect and investigate offences, to collect evidence, whether against or in favour of the person suspected of having committed that offence, and to bring the offenders, whether principals or accomplices, before the judicial authorities.
(2) Notwithstanding the generality of subarticle (1), where authorised by law and in the manner so provided, the Police may delay its immediate intervention for the prevention of the commission of an offence.
Complaint by the injured party.
347. The Police shall not institute criminal proceedings, except on the complaint of the injured party, in cases where the law does not allow criminal proceedings to be instituted without such complaint.
Tendering of assistance when required by head of household.
348. Where the head of any household requires an officer of the Police to proceed to such house in order to ascertain any offence which has been committed or to secure the evidence relating thereto, the officer shall proceed thither with all convenient speed taking with him witnesses where practicable.
Powers according to law.
349. (1) A police officer shall only have such powers as are vested in him by law and to the extent authorised by law and in this provision the word law has the same meaning assigned to it in article 124 of the Constitution.
Omission of precaution, formality or requirement not a bar to admissibility of evidence.
(2) The omission of any precaution, formality or requirement prescribed under this Title shall be no bar to proving, at the trial, in any manner allowed by law, the facts to which such precaution, formality or requirement relates.
Definitions.
350. (1) In this Title, and subject to the provisions of subarticle (2):
"appropriate consent" means -
(a) in relation to a person who has attained the age of eighteen years, the consent of that person;
(b) in relation to a person who has not attained the age of eighteen years but has attained the age of fourteen years, the consent of that person and the consent of his parent or guardian;
(c) in relation to a person who has not attained the age of fourteen years, the consent of his parent or guardian;
"designated police station" means a police station designated by the Minister responsible for the Police by a notice published in the Gazette;
"excluded material" means:
(a) personal records acquired or created by a person in the course of any trade, business, profession or other occupation, or for purposes of any paid or unpaid office and which he holds in confidence;
(b) human tissue or tissue fluid which has been taken for the purpose of diagnosis or medical treatment and which a person holds in confidence;
(c) journalistic material which a person holds in confidence;
"intimate sample" means a sample of blood, semen or any other tissue fluid, or pubic hair, and includes a swab taken from a person’s body orifice other than the mouth;
"intimate search" means a search which consists of the physical examination of a person’s body orifices other than the mouth;
"items subject to legal privilege" means any communication between a professional legal adviser and his client or any person representing his client and any document or record enclosed with or referred to in such communication and made in connection with the
giving of legal advice or in connection with or in contemplation of legal proceedings and for the purposes of such proceedings, but the expression does not include items held with the intention of furthering a criminal purpose;
"journalistic material" means material in the possession of a person who acquired or created it for the purposes of journalism and a person who receives material from someone who intends that the recipient shall use it for the purposes of journalism is to be
taken to have acquired it for those purposes;
"non-intimate sample" means -
(a) a sample of hair other than pubic hair;
(b) a sample taken from a nail or from under a nail;
(c) a swab taken from any part of a person’s body including the mouth but not any other body orifice;
(d) urine or saliva;
(e) a footprint or a similar impression of any part of a person’s body other than a part of his hand;
"personal records" means documentary and other records concerning an individual (whether living or dead) who can be identified from them and relating -
(a) to his physical or mental health; or
(b) to spiritual counselling or assistance given or to be given to him; or
(c) to counselling or assistance given or to be given to him, for the purposes of his personal welfare, by any voluntary organisation or by any individual who by reason of his office or occupation has responsibilities for his personal welfare or by reason of an order of a court has responsibilities for his supervision.
(2) For the purpose of this article:
(a) a person holds journalistic material in confidence if -
(b) a person holds material other than journalistic material in confidence if he holds it subject -
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(i) he holds it subject to such an undertaking, restriction or obligation; and
(ii) it has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism;
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(i) to an express or implied undertaking to hold it in confidence; or
(ii) to a restriction on disclosure or an obligation of secrecy contained in this Code or in any other law.
Sub-title I
POWER TO STOP AND SEARCH
Power to stop and search.
351. (1) A police officer may, in a public place, or in any place to which the public is admitted, even against payment of an entrance fee, search any person or vehicle, if he has a reasonable suspicion that the search will discover the possession of things, which are prohibited, stolen or acquired as the result of any offence whatsoever, or which may be used or may have been used in the commission of an offence or which may serve in the investigation of an offence.
(2) For the purposes of subarticle (1), the Police may stop a person or a vehicle until the search is performed and shall seize any thing discovered during the search and the possession of which is prohibited or which may be connected with an offence.
Warrant.
352. Where the search to be performed is required in an unattended vehicle and it is not possible to obtain the attendance of its registered owner, then a police officer may only carry out the search if he has a warrant from a superior officer not below the rank of an inspector.
Limitation as to search, etc.
353. Except in urgent cases and when a person is apprehended in flagrante delicto nothing in this Title authorises the search of a person by a police officer of the opposite sex, or that a search be conducted by a police officer not in uniform unless clearly identified by the production of a police identity card.
Report on search.
354. Anything seized as a result of a search under the preceding articles of this title shall be preserved and the Police carrying out the search shall draw up a report stating all the particulars of the search and including a detailed list of the things so seized.
Sub-title II
ROAD CHECKS
Conditions for road checks.
355. The Police may organise a road check where there are reasonable grounds for believing that a check on vehicles in or passing through a locality may lead to -
(a) the arrest of a person who has committed or is reasonably suspected of having committed or of being about to commit a serious crime, not being a crime punishable under the Press Act; or
(b) the discovery of anything the possession of which is prohibited or restricted by law or which is connected in any way whatsoever with the commission of a serious crime or which is evidence of any such crime; or
(c) the arrest of any person whose arrest has been ordered by a court or any other lawful authority or who is otherwise unlawfully at large; or
(d) the ascertainment that a person is not abiding by a condition lawfully imposed on him by a court; or
(e) the ascertainment of violations of any law regarding motor vehicles or traffic regulation:
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Provided that for the purposes of this article "serious crime" means any crime liable to the punishment of imprisonment.
Exercise of road check.
355A. (1) For the duration of the road check the Police may stop all or any vehicles passing through or in the locality where the road check is being organised.
(2) Where a vehicle has been stopped in pursuance of the provisions of this sub-title that vehicle may be searched by the Police.
Authorisation.
355B. A road check under this sub-title may only be organised upon an authorisation in writing by a police officer not below the rank of Inspector unless the matter admits of no delay in which case such authorisation may be given orally by a police officer not below the rank of sergeant and reduced to writing as soon as practicable.
Evidence of other offences.
355C. Notwithstanding anything contained in the preceding articles of this sub-title, where in the course of a road check, evidence is found of the commission of an offence other than that in respect of which the road check was organised, the Police shall also be entitled to investigate such offence and where appropriate to institute proceedings for that offence.
Saving of other laws.
355D. The provisions of this sub-title shall be without prejudice to any power vested in the Police by any other law to stop vehicles for purposes other than those mentioned in this sub-title.
Sub-title III
POWERS OF ENTRY, SEARCH AND SEIZURE UNDER WARRANT
Conditions for search of premises, etc.
355E. (1) Saving the cases where the law provides otherwise, no police officer shall, without a warrant from a Magistrate, enter any premises, house, building or enclosure for the purpose of effecting any search therein or arresting any person who has committed or is reasonably suspected of having committed or of being about to commit any offence unless -
(a) the offence is a crime other than a crime punishable under the Press Act and there is imminent danger that the said person may escape or that the corpus dialect or the means of proving the offence will be suppressed; or
(b) the person is detected in the very act of committing a crime other than a crime punishable under the Press Act; or
(c) the intervention of the Police is necessary in order to prevent the commission of a crime other than a crime punishable under the Press Act; or
(d) the entry is necessary for the execution of any warrant or order issued by any other competent authority in the cases prescribed by law; or
(e) the arrest is for the purpose of apprehending a person who is unlawfully at large after escaping from lawful arrest or detention.
(2) The expression "enclosure" does not include any plot of land enclosed by rubble walls.
Subsidiary powers of Police in execution of warrants.
355F. In cases where a police officer is empowered to enter into any of the places mentioned in the last preceding article, it shall be lawful for such officer to open or break any door or window, if, after giving notice of his office and object, he cannot otherwise obtain entry.
Scope of search and of search warrant.
355G. (1) Any entry and search warrant issued under this Subtitle and any search or seizure made under the provisions of this Sub-title shall not extend to legal privilege or to any excluded material.
(2) An entry and search warrant issued under this Sub-title shall be deemed to have been granted to the police officer or officers executing it.
(3) Without prejudice to the right of obtaining a new warrant for the same purpose, an entry and search warrant may not be executed after the lapse of one month from the date of issue.
Times for execution of warrant.
355H. No warrant of entry and search may be executed after sunset unless the Magistrate has otherwise authorised in the warrant, or unless the executing Police officer has reasonable cause to believe that the purpose of the entry and search will be frustrated if the execution of the warrant is delayed.
Copy of warrant to person.
355I. The executing officer shall hand over a copy of the warrant to the person occupying and present at the place searched or to any other person who appears to the said officer to be in charge of the same place and who happens to be present during the search. If there is no person present who appears to the executing officer to be in charge of the premises the copy of the warrant shall be left in an easily visible place on the premises.
Limitation.
355J. A search under a warrant may only be a search to the extent required for the purpose for which the warrant was issued: Provided that if, in the course of the search, offences other than the offence or offences mentioned in the warrant are discovered, the search may extend to the extent required for the purposes of such other offences.
Sub-title IV
POWERS OF ENTRY AND SEARCH WITHOUT WARRANT
Cases admitting of no delay.
355K. Any police officer may enter and search without a warrant any premises, house, building or enclosure in the circumstances laid down in article 355E(1)(a) to (e).
Entry and search after arrest.
355L. (1) The Police have the power to enter and search any premises, house, building or enclosure used, occupied or controlled, even temporarily, by a person who is under arrest, if they have reasonable grounds for suspecting that there is evidence, other than items subject to legal privilege, that relates to the offence or a connected offence, and such search shall be limited to the extent that is reasonably necessary for discovering suchevidence:
Provided that if offences other than the offence or offences for which the person was arrested are discovered in the course of the search then the search may extend to the extent required for the purposes of such other offences.
(2) Without prejudice to the provisions of Sub-title V, the Police may in the course of a search carried out in pursuance of the provisions of subarticle (1) seize and retain anything not subject to legal privilege and which constitutes relevant evidence for the purpose of any offence mentioned in the same subarticle.
Limitation.
355M. (1) The powers mentioned in article 355L may be exercised by a police officer not below the rank of inspector or by officers of a lower rank if so authorised in writing by an officer not below the rank of inspector.
(2) Where the police officers on the scene are all below the rank of inspector and the matter admits of no delay and the person occupying or in control of the premises is present and his presence is necessary for the effective investigation of the offence, the said police officers may proceed to enter and search the premises without the authorisation in writing referred to in subarticle (1).
Report by officer.
355N. A police officer who has exercised any of the powers mentioned in articles 355K and 355L shall, as soon as practicable, draw up a report of the entry and search without warrant, stating the grounds for which it was exercised, and describing the results of the search.
Connection of offences.
355O. For the purposes of this Sub-title there is connection between offences when -
(a) the facts of the offences are substantially the same; or
(b) an offence has served as a means for the commission of another offence; or
(c) the proof of an offence or of a circumstance thereof has a bearing on the proof of another offence or of a circumstance thereof.
Sub-title V
SEIZURE AND RETENTION
General rules of seizure.
355P. The Police, when lawfully on any premises, may seize anything which is on the premises if they have reasonable grounds for believing that it has been obtained in consequence of the commission of an offence or that it is evidence in relation to an offence and that it is necessary to seize it to prevent it being concealed, lost, damaged, altered or destroyed.
Computer data.
355Q. The Police may, in addition to the power of seizing a computer machine, require any information which is contained in a computer to be delivered in a form in which it can be taken away and in which it is visible and legible.
Receipt for thing seized.
355R. The Police shall always issue to the person on the premises or in control of the thing seized a receipt for anything seized and on request by any such person, the Police shall, against payment and within a reasonable time, supply to him photographs, or a film, video recording or electronic image or copies of the thing seized, unless the investigating officer has reasonable grounds for believing that this would be prejudicial to the investigation or to any criminal proceedings that may be instituted as a result thereof.
Retention.
355S. (1) Anything which has been lawfully seized by the Police may be retained so long a s i s necessary in all the circumstances.
(2) Without prejudice to the generality of the aforesaid, anything lawfully seized by the Police under this Code may be retained for use as evidence at the trial or for forensic examination or any other aspect of the investigation, or in order to establish the thing’s lawful owner.
(3) The Commissioner shall provide for the proper custody of anything seized.
Restitution to owner.
355T. A person who is the rightful owner of a thing seized and retained may, unless criminal proceedings in the course of which the thing seized has been exhibited or is to be exhibited are pending before any court, make an application to a Magistrate for its restitution, and the Magistrate may, after hearing the Police, by a decree order its release either unconditionally, or under such conditions as may be necessary to preserve the evidential aspects of the thing.
Photographs.
355U. Unless a thing is liable to forfeiture, nothing shall be retained if a photograph, film, video recording or electronic image or a copy of the thing would be sufficient:
Provided that before releasing the thing the Police may, where they deem so necessary, apply to a Magistrate for a repertus to be drawn up and the provisions of Title II of Part II of Book Second of this Code shall apply.
Sub-title VI
POWERS OF ARREST AND DETENTION
Arrest under warrant.
355V. Where there are lawful grounds for the arrest of a person, the Police may request a warrant of arrest from a Magistrate, unless in accordance with any provision of law the arrest in question may be made without a warrant.
Arrest by private persons.
355W. (1) Any person not being a police officer may arrest without warrant anyone who is in the act of committing or has just committed any crime concerning the peace and honour of families and morals, any crime of wilful homicide or bodily harm, or any crime of theft or of wilful unlawful entry or damage to property.
(2) The person making any arrest under subarticle (1) shall without delay inform the Police of the fact of the arrest and shall exercise such power only until it is strictly necessary for the Police to take over the person arrested.
Arrest by police without warrant.
355X.(1) Any police officer may arrest without warrant anyone who is in the act of committing or has just committed a crime punishable with imprisonment, or whom he reasonably suspects to be about to commit or of having just committed such a crime.
(2) Any police officer may also proceed to the arrest of any person who knowingly, or after due warning, obstructs or disturbs him in the execution of his duties, or disobeys his lawful orders.
(3) The powers mentioned in subarticles (1) and (2) shall only be exercised until it is strictly necessary for the police officer to convey the person arrested to a police station and deliver him to a superior officer not below the rank of sergeant.
(4) The provisions of this article shall not apply to any crime punishable under the Press Act.
Arrest for minor offences.
355Y. (1) In the case of contraventions, or of crimes not subject to the punishment of imprisonment, excepting always the crimes punishable under the Press Act, it shall be lawful for the Police to proceed to the arrest of any person without a warrant, provided that -
(a) the person be detected in the very act of committing the offence; or
(b) the arrest be necessary to prevent the commission of an offence in respect of which the Police may institute criminal proceedings without the complaint of the injured party; and
(c) in either of the cases mentioned in paragraphs (a) or
(b) one of the conditions mentioned in article 355Z is satisfied.
(2) A person shall be deemed to be detected in the very act of committing an offence, if he is caught, either in the act of committing the offence, or while being pursued by the injured party or by the public hue and cry.
General arrest conditions.
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 furnished a satisfactory address for service, or there are doubts about whether the address provided is satisfactory for service, or that at least some other person may according to law receive service on his behalf at the address given; or
(d) that the arrest is necessary to prevent the person -
(e) that the police officer has reasonable grounds for believing that the arrest is necessary to protect a child or any other vulnerable person.
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(i) causing physical harm to himself or to any other person; or
(ii) suffering physical injury; or
(iii) causing loss or damage to property; or
(iv) committing an offence against public decency; or
(v) causing an unlawful obstruction on any public road; or
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Conduct towards person arrested.
355AB. The officer or any other person authorised by law making an arrest shall not use any harshness, bond or other means of restraint unless indispensably required to secure, or rendered necessary by the insubordination of the person arrested.
Information to be given on arrest.
355AC. (1) When a person is arrested, 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 arrest or detention, in a language that he understands, of the reasons for 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 giving of the information may be delayed until the person arrested is taken over by the Police.
Attendance at a police station or office.
355AD. (1) Where, in the course of an investigation, a person attends voluntarily at, or accompanies a police officer to, a police station or office, that person shall be free to leave at any time, unless and until he is informed that he is under arrest.
(2) Where an inspector of Police has a reasonable suspicion that the person who attended voluntarily at the police station or office may have committed an offence subject to imprisonment, he may arrest such person forthwith without warrant and inform him accordingly. The time of the arrest shall be immediately recorded and immediate notice thereof shall be given to a Magistrate.
(3) The Police may, orally or by a notice in writing, require any person to attend at the police station or other place indicated by them to give such information and to produce such documents as the Police may require and if that person so attends at the police station or place indicated to him he shall be deemed to have attended that police station or other place voluntarily. The written notice referred to in this subarticle shall contain a warning of the consequences of failure to comply, as are mentioned in subarticle (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 from the police to attend at a police station to give as required any 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 subarticle (3) or who fails, upon being so requested, even if only orally, to accompany voluntarily a police officer to a police station or other place indicated by the police officer for any purpose mentioned in the said subarticle (3) shall be guilty of a contravention punishable with detention and shall be liable to be arrested immediately under warrant.
(6) The notice mentioned in subarticle (3) may be served with urgency in cases where the interests of justice so require.
(7) A person who attends voluntarily as mentioned in subarticle (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.
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 officer below the rank of inspector he shall forthwith report the arrest to an officer not below the rank of inspector. In any case the inspector 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 station as soon as practicable and in no case later than six hours from the time of the arrest.
(3) The taking of an arrested person 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 investigation which may be necessary.
(4) Where a person is released following arrest the police officer ordering release shall record in writing the fact stating reasons.
Search on arrested person.
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 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.
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 arrest or search has been issued any police officer may execute the warrant or order.
Procedure for warrants.
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 person to a Magistrate requesting the issue of the appropriate warrant stating the grounds for the request and giving the Magistrate all such information that will enable the Magistrate to decide on the request. 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 Magistrate being satisfied that sufficient grounds for the issue of the warrant exist.
(2) In cases of urgency, the request for the issue of the warrant and the warrant may be communicated even by facsimile:
Provided that, as soon as practicable, the original warrant shall be delivered for 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 requests 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 from a Judge who ordinarily sits in the Criminal Court.
Copies of warrants.
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 Magistrate while the others shall be delivered to the police officer who shall retain one copy for his records and shall cause the other one to be served on the person 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 knows that the warrant has been so issued, the officer shall arrest that person and shall serve him with the copy of the warrant at the first opportunity.
Report of arrest.
355AJ. (1) Where any person is arrested, whether with or without a warrant, the arresting police officer or his superior shall, as soon as practicable and unless the person arrested has been released within six hours from arrest, inform a Magistrate, giving 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 place 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 fortyeight hours of his arrest shall be released.
Immediate orders.
355AK. Any order of a competent authority touching on the rights of the individual arising from the provisions of this sub-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.
Sub-title VIII
DETENTION
Right to release.
355AL. (1) It shall be duty of the custody officer to order the immediate release from custody of any person in police detention in the circumstances mentioned in article 355AJ(3) or where the custody officer becomes aware that the grounds for the detention of that person have ceased to apply and there are no other lawful grounds on which the continued detention of that person could be justified.
(2) Before ordering the release from custody of a person under subarticle (1) the custody officer shall inform the investigating 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 subarticle (1) shall be released unconditionally unless it appears 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 conditions, reduced to writing and signed by the person to be released, that he will not attempt or do anything to leave Malta without the authority of the investigating officer under whose authority he was arrested 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 may 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 longer applied or that his attendance at the police station is not required.
(5) Any person who fails to comply with any condition imposed upon him upon his release as provided in subarticle (3) shall be guilty of a contravention.
(6) A police officer may arrest without a warrant any person who, having been conditionally released under subarticle (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 Magistrates, attempts or does anything to leave Malta without authority or fails to attend at that police station or before the Court of Magistrates at the time appointed for 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 subarticle (6) shall be treated as arrested for the offence under subarticle (5) and for the offence in connection with which he was granted bail and the provisions of this article shall apply to such person.
(8) The conditions made under subarticle (3) shall not remain in force for more than three months from the date on which they were imposed unless they are renewed by a Magistrate for further periods of three months each period upon an application by the Police which shall be served for his reply upon the person on whom the conditions were imposed.
(9) At any time during which the conditions made under subarticle (3) are in force the person on whom those conditions were 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 subarticle (3).
Requirement of custody officer.
355AM. (1) At every designated place of detention the Commissioner shall appoint one or more custody officers not below 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 available 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 detention is, at the time when the function falls to be performed, involved in 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 the next most senior police officer who happens to be available at the time.
(4) In this article and elsewhere in this sub-title "designated place of detention" means such place designated by the Minister where a person may be detained for more than six hours.
Functions of custody officer.
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.
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 shall 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
(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 officer at the police station at the time.
Intimate searches of the person detained.
355AP. Where the arresting officer or the custody officer has a reasonable suspicion that the person arrested may have concealed on his person any drug the unlawful possession of which would constitute a criminal offence 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 person, the said officer may request a Magistrate to order an intimate search of the person arrested.
Experts to be appointed.
355AQ. (1) Upon a request for an order under article 355AP the Magistrate shall appoint an expert to carry out the search under such safeguards as he may consider necessary for the purpose of decency and to report to him on his findings. A copy of the report 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 be searched consents thereto in writing.
Seizure.
355AR. Anything found as a result of an intimate search under the foregoing articles may be temporarily retained by the expert 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 anything so seized to the police officer investigating the person intimately searched.
Sub-title IX
RIGHTS OF PERSONS DETAINED
Right to inform friends and to medical assistance.
355AS. (1) It shall be the duty of the Police to inform without undue delay the person arrested or detained of his right to request that a relative or friend be informed of the fact of his arrest and of his whereabouts unless such relative or friend is reasonably suspected of being involved in the offence being investigated. If the person arrested avails himself of such right the relative or friend shall without undue delay be informed accordingly and a record as provided in subarticles (2) and (3) shall be kept of the way the Police discharged their duty under this subarticle.
(2) In all cases the following information shall be entered in the detention record of the person detained:
(a) the day and time in which the detained person was informed of his right under this article;
(b) whether the detained person chose to avail himself of that right or not;
(c) if the detained person chose to avail himself of that right, the details of the relative or friend informed of the detained person’s arrest and whereabouts together with the day and time in which the information was given; if such relative or friend was not so informed the reasons for this.
(3) The arrested or detained person shall be requested to sign the record referred to in subarticle (2) and should he refuse to do so an entry shall be entered in the record to this effect.
(4) Notwithstanding the provisions of subarticle (1), the investigating officer may by application to a Magistrate request that he be authorised to delay informing a relative or friend of the detained person if there are reasonable grounds for suspecting that the giving of such information may be prejudicial to the investigation or to the recovery of things, or that it may alert other persons who are connected with the offence and are still not in Police custody. Such a delay shall not be later than six hours from the time when the arrest was effected.
(5) An arrested person shall, at his request, be allowed to consult a medical adviser of his choice provided that such medical adviser is readily available.
(6) The application referred to in subarticle (4) may be communicated to the Magistrate by facsimile:
Provided that, as soon as practicable, the original application shall be delivered for record purposes.
Right to legal advice.
355AT.* (1) Subject to the provisions of subarticle (3), a person arrested and held in police custody at a police station or other authorised place of detention shall, if he so requests, be allowed as soon as practicable to consult privately with a lawyer or legal procurator, in person or by telephone, for a period not exceeding one hour. As early as practical before being questioned the person in custody shall be informed by the Police of his rights under this subarticle.
(2) A request made under subarticle (1) shall be recorded in the custody record together with the time that 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.
*this article is not yet in force.
(3) Subject to the provisions of subarticle (7), compliance with a request under subarticle (1) may be delayed if the person making the request is in police detention for a crime and if an officer not below the rank of superintendent authorises such delay.
(4) An authorisation under subarticle (3) may be given orally or in writing but if it is given orally it shall be confirmed in writing as soon as it is practicable.
(5) An officer may only authorise delay where he has reasonable grounds for believing that the exercise of the right conferred by subarticle (1) at the time when the person detained desires to exercise it -
(a) will lead to interference with or harm to evidence connected with the offence being investigated or interference with or physical injury to other persons; or;
(b) will lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or
(c) will hinder the recovery of any property obtained as a result of such an offence; or
(d) in the case of a person detained for an offence of drug trafficking, bribery, or money laundering, will hinder the recovery of the value of that person’s proceeds from the offence.
(6) Where delay has been authorised as provided in subarticle (5) the Police may immediately proceed to question the detained person.
(7) The delay mentioned in subarticle (3) shall in no case exceed thirty-six hours from the time of the arrest.
(8) Any police officer who tries 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.
(9) Where the person detained chooses not to seek legal assistance the investigating officer shall record this fact in writing in the presence of two witnesses and thereupon questioning may proceed immediately.
Inferences from failure to mention facts.
355AU.* (1) Where in any proceedings against a person for an offence, evidence is given that the accused -
(a) at any time before he was charged with the offence, on being questioned by the police 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 accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subarticle (2) shall apply if it is shown that the accused had received legal advice before being questioned, charged or informed as aforesaid.
*this article is not yet in force
(2) Where this subarticle applies -
(a) a Court of Magistrates as court of criminal inquiry in making a decision under article 401(2);
(b) the court or jury, in determining whether the person charged or accused is guilty of the offence charged, may draw such inferences from the failure as appear proper, which inferences may not by themselves be considered as evidence of guilt but may be considered as amounting to corroboration of any evidence of guilt of the person charged or accused.
(3) In criminal proceedings against any person for an offence the prosecution shall not, without the permission of the court for reasons which it considers just, comment on the fact that that person did not request the assistance of a lawyer or a legal procurator in the course of police investigations before those proceedings.
Sub-title X
TAKING OF SAMPLES, FINGERPRINTING AND OTHER INVESTIGATIVE PROCEDURES
Samples under authorisation.
355AV. The investigating officer may in person, by application or by facsimile, request a Magistrate to authorise the necessary 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:
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.
355AW. Subject to the provisions of articles 355AV 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.
355AX. (1) Upon a request under article 355AV(a), the Magistrate shall obtain all such information from the investigating officer to enable him to decide on whether the request is justified or not.
(2) Where the Magistrate decides that the request is justified he shall visit the person arrested to request his consent and before 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 subarticle (2) the magistrate shall make a record of the fact, date and time of the request and, subject to the provisions of subarticle (4) shall allow the person arrested to consult with a lawyer or legal procurator for such time as the magistrate may deem appropriate in the circumstances of the case.
(4)§ The magistrate may, on a justified objection by the Police, delay any communication with an advocate or legal procurator if the interests of justice so require 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 person arrested has requested to consult a lawyer or legal procurator his consent can only be requested after such consultation has taken place.
Applicable procedure for samples.
355AY. Where an intimate sample is to be taken under these articles the provisions of article 355AP shall apply.
Inferences from refusal.
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 have to judge of the facts may draw such inferences from the refusal as appear proper and the refusal may, on the basis of such inferences, be treated as, or as capable of amounting to corroboration of any evidence against the person in relation to which the refusal is material.
* this paragraph is not yet in force.
† this paragraph is not yet in force.
‡ this subarticle is not yet in force.
§ this subarticle is not yet in force.
**this article is not yet in force.
Samples with the consent or at the request of the person arrested.
355BA. (1) The investigating officer may, with the appropriate consent in writing of the person arrested, cause to be taken:
(a) fingerprints, palm-prints 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 or other prints,
(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 assistance of any competent person as may be necessary.
(3) The person arrested may also request in writing the investigating officer to carry out any of the procedures mentioned in article 355AV(a) and (b), and any such request shall be referred without delay to a Magistrate. The Magistrate shall authorise the procedure requested after verifying the request made by the person arrested and the provisions of article 355AP shall apply where appropriate.
Samples from persons other than arrested persons.
355BB. Samples from a person other than a person arrested may only be taken with that person’s prior consent in writing:
Provided that for the taking of an intimate sample a Magistrate’s authorisation must also be obtained upon application.
Samples at the request of persons other than arrested persons.
355BC. The provisions of article 355BA shall mutatis mutandis apply to any person, not being an arrested person, who makes a request for the carrying out in his respect of any procedure referred to in that article provided the request is made in writing and contains a declaration that the person making the request has reason to believe that there is the likelihood that the failure to carry out the requested procedure is likely to result in his being arrested or detained.
POWERS AND DUTIES OF THE POLICE IN RESPECT
OF COURT PROCEEDINGS
Production of evidence before court.
356. (1) It is the duty of the Executive Police to bring as soon as possible before the court, and, where practicable, together with the offender, all the evidence that may have been collected in respect of the offence.
(2) It is the duty of police prosecuting officers to disclose to the defence such evidence which may appear to favour the person charged and which the police, for any reason, might not have the intention to produce before the court as evidence for the prosecution.
Collection of further evidence and its production before court.
(3) The Executive Police shall, even after the accused has been brought before the court, continue to collect and furnish to the Court of Magistrates or, after his committal for trial, to the Attorney General, any further information that can be obtained in respect of the offence.
Preservation of articles connected with the offence.
357. Where an officer of the Executive Police discovers any weapon, document, trace or vestige or any other thing relating to an offence, he shall take steps to establish and ensure the existence and the preservation thereof in the state in which it was found until he shall have reported the matter to the Court of Magistrates, and, if unable to establish and ensure such existence or preservation, he shall observe the same procedure provided for the drawing up of a "repertus".
Duties of the Police in respect of criminal proceedings.
358. (1) It is the duty of the Police to issue and to serve citations summoning persons to appear before the Court of Magistrates, in matters within the jurisdiction of such court.
(2) In summary proceedings for offences within the jurisdiction of the Court of Criminal Judicature, it shall not be the duty of the Police to serve on the person charged notice of the date of hearing apart from the first sitting of the proceedings.
Executive Police to execute warrants of arrest or search.
359. (1) Saving the provisions of article 666, it is the duty of the Executive 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.
Contents of warrant.
(2) Any such warrant or order shall set forth the nature of the offence and the name of the person, if known, by whom the offence is alleged to have been committed.
Summoning of person accused when not arrested.
360. (1) Where there are not sufficient grounds according to law for the arrest of any person charged with an offence, the Executive Police shall, by an order in writing, summon such person to appear before the Court of Magistrates.
Contents of summons.
(2) The summons shall contain a clear designation of the person summoned and a brief statement of the facts of the charge together with such particulars as to time and place as it may be necessary or practicable to give. It shall also contain an intimation that, in default of appearance, the person summoned shall be arrested by warrant of the court and arraigned on such day as may be stated in the warrant.
Service of affidavits together with summons.
360A. (1) In summary proceedings for offences within the jurisdiction of the Court of Magistrates as a court of criminal judicature under article 370(1) the police may, together with the summons or at any time thereafter, serve upon the accused copies of any affidavits made by a public officer or by an employee or officer of a body corporate established by law and who is to be produced as a witness for the prosecution in those proceedings as well as any document to be produced in evidence in the same proceedings and if the accused desires to cross-examine any person whose affidavit has been served upon him as aforesaid he shall, not later than fifteen days before the first sitting following the service of the affidavit, give notice thereof to the Commissioner of Police by registered letter whereupon the person to be cross-examined shall be summoned to give evidence in the proceedings:
Provided that for the purposes of this subarticle the word "document" shall have the same meaning assigned to it by article 558(2):
Provided further that where it results that it was not possible for the accused to give notice to the Commissioner of Police within the time provided aforesaid such notice of the desire to cross-examine may be given during the first sitting immediately after the service of the affidavit in which case the person to be cross-examined shall be summoned to give evidence in the following sitting.
(2) The person whose affidavit was served on the accused as provided in subarticle (1) shall not be summoned to testify in the proceedings if the accused fails to give notice of the intention to cross-examine that person as provided in that subarticle and the said affidavit shall be admissible in evidence as proof of its contents in those proceedings in the same way as if it had been testimony given viva voce in the presence of the accused.
Term for service of summons.
361. Except in urgent cases, the summons shall be served on the person summoned at least two working days previous to the day fixed for his appearance.
Mode of effecting service.
362. (1) The summons shall be delivered to the person whose appearance is required, and if such person cannot conveniently be met with, the summons shall be delivered at his usual place of abode. In either case, the officer serving the same shall make a report thereof to the court.
(2) The Minister responsible for justice after consulting with the Minister responsible for the police may make regulations providing, in summary proceedings as those mentioned in article 360A(1), for the service of the summons and of any accompanying documents, and of any other act of the proceedings, by post or in any other manner as may be provided in the regulations.
(3) Where the person to whom a summons or other act of the proceedings is addressed in accordance with any regulations made under subarticle (2) refuses to receive it the court may by means of a decree upon an application by the Police and after examining the certificate of service declare that person to have been duly served with the summons or with that other act and make an order for his arrest.
(4) Where any person, other than the person to whom a summons or other act of the proceedings is addressed, refuses to receive the summons or that other act personally the court may, upon an application by the Police and after examining the certificate of service and satisfying itself that that person is a person in whose hands the summons or that other act may be lawfullly served, sentence that person to a fine (ammenda):
Provided that the Court may, at any time, on just cause being shown, remit the fine (ammenda).
Time and place for service of summons.
363. No summons may be served between seven o’clock in the evening and seven o’clock in the morning or on Sundays or public holidays or in churches during religious service, except where the urgency of the case does not admit of any delay.
Urgent cases.
364. Where the urgency of the case does not admit of any delay the person may be summoned to appear forthwith or at a given time during the same day. If the person fails to appear, he may, upon a warrant of the court, be arrested and brought before it.
Subpoenaing of witnesses.
365. (1) The Executive Police shall summon, in writing, the witnesses whose attendance is required before the Court of Magistrates, whether for the prosecution or for the accused.
(2) The provisions contained in the last preceding three articles shall apply to the subpoenas of witnesses.
(3) The subpoenas referred to in this article and the summons referred to in article 360 shall be signed by an officer of the Executive Police not below the rank of sub-inspector or be stamped with a facsimile of such a signature.
Judgment, etc., to be carried out by Executive Police.
Fines to be levied by registrar.
366. It is the duty of the Executive Police to carry out, besides the warrants or orders referred to in article 359, every judgment or order of the Court of Magistrates:
Provided that fines (multa and ammenda) shall be levied by the registrar of that court.