The Malta Independent 12 May 2021, Wednesday

‘You are under arrest’ – Know your rights

Sunday, 2 May 2021, 07:45 Last update: about 10 days ago

Nadia Attard

Being arrested by the Police can prove to be a confusing experience to some, and not so confusing to others. Nonetheless, it is equally important to be aware beforehand of the rights you are afforded by Law at the moment of your arrest.

Upon arrest and without undue delay, you must be informed:

#1 – That you are under arrest

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Yes, as basic as it sounds, it is imperative that you are told that you are under arrest – if this is not done then that arrest is an unlawful one.

#2 – The reasons of your arrest

The arrest is not lawful unless you are informed, at the time of your arrest, the reasons for the same. Such reasons must be given to you in a language that you understand.

#3 – That you have a right to consult a medical practitioner

Immediately upon arrest and without undue delay, you must be informed of this right. If you want to, you will be allowed to consult a medical practitioner of your choice. 

#4 – That you have a right to inform at least one person of your arrest

Immediately upon arrest and without undue delay, you must be informed of this right. If you are a minor (that is below 18 years of age), at least one person having parental authority, tutorship, curatorship or guardianship in your respect has to be informed of your arrest.

#5 – That you have a right to communicate with consular authorities

If you are a non-Maltese national and you have been arrested, you have a right to inform the consular authorities of your State about your arrest.

#6 – That you have a right to legal assistance

This is by far one of the most important rights that you are afforded upon arrest. As the law stands today, you have the right to a lawyer as soon as you have been arrested and the lawyer chosen by yourself can be with you all along the way, including during your interrogation. In fact, the right of access to a lawyer shall entail the following:

(a)    You and your lawyer will be informed about what you will be questioned about and this more than one hour prior to your interrogation.

(b)   You shall have the right to meet privately with your lawyer prior to your interrogation.

(c)    Your lawyer can be present and can participate effectively during your interrogation.

(d)   Your interrogation will, where possible, be recorded by audio-visual means and you are to be handed a copy of the recording at the end of the same interrogation.

(e)    If identity parades, confrontations or any reconstructions of the crime scene are held, you and your lawyer have a right to be present for the same.

#7 – That you have a right to disclosure of evidence

This is also a relatively new right under Maltese Law. If you have been arrested, then the Police are under a legal obligation to hand over to you or your lawyer the following:

(a)    Any documents in the possession of the Police which are related to your case and which are essential to challenge effectively the lawfulness of your arrest, as well as

(b)   All material evidence in the possession of the Police, both in your favour or against you, and this in order to safeguard the fairness of the proceedings and to suitably prepare your defence. This evidence will be given to you or to your lawyer free of charge and in due time. Where further material evidence comes into the possession of the Police, access shall be granted to it in due time to allow for it to be considered by you or by your lawyer.

However, a Court may refuse access to certain materials if it believes that such access may lead to a serious threat to the life or the fundamental rights of another person or if such refusal is strictly necessary to safeguard an important public interest or where it could prejudice an ongoing investigation or national security.

 

What happens then?

You can only be detained under arrest for a period of 48 hours according to Maltese Law. Following that, the Police are obliged to either formally charge you before a Court of Law or else release you, with or without police bail.

 

Dr Nadia Attard LL.D is an advocate

 

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