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
Sub-title IX
RIGHTS OF PERSONS DETAINED
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.
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.
(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.
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.
(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.
EDIT.