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©The Sun (Used by permission)
by Edmund Bon

ON Sept 7, the government brought into force much-anticipated changes to our criminal procedure law. There has been some confusion over these important amendments, and the outline here seeks to clarify the matter.

In this two-part article, I propose to discuss four main improvements which particularly impact everyday justice being administered by our criminal courts and law enforcement officials.

I. Rights on arrest

Despite the constitutional guarantee in Article 5 that everyone on arrest is entitled to obtain legal advice and be defended by his/her lawyer, it is frequently the case that persons arrested would be denied such access in practice. The police usually cite the danger of jeopardising investigations for the denial. When this happens, it becomes difficult to protect the rights of the person arrested. Allegations of brutality and coercive methods used by the police are commonly made, and without access to a lawyer or family members, an undesirable shield is formed to insulate questionable techniques of interrogation.

Parliament has recognised this problem, and made the following changes to clearly entrench the Article 5 guarantee.

» When a person is arrested, the police must inform him/her of the grounds of arrest and before commencing any questioning, inform him/her that he/she may contact a relative or friend or lawyer.

» If the person arrested wishes to contact a relative or friend or lawyer, the police must allow the person to do so.

» If he/she has requested for a lawyer, the police must allow a reasonable time for the lawyer to be present, and to meet and consult with the person arrested.

» The consultation must be done within the sight of the police and as far as practicable, where their conversation will not be heard.

» The police must provide facilities free of charge for the consultation.

» The police must defer any questioning for a reasonable time until the consultation with the person’s lawyer has been made.

• Exceptions to the above (i.e. when the police may deny the opportunity for the person arrested to consult with his/her relative or friend or lawyer) are as follows:

where the police reasonably believes that the consultation will allow an accomplice to avoid being caught; or,

• where consultation will result in the concealment, fabrication or destruction of evidence or the intimidation of a witness; or,

• having regard to the safety of others, the questioning of the person arrested is so urgent that it cannot be delayed.

» These exceptions only apply by an authorisation of an officer not below the rank of Deputy Superintendent who must write down the reasons for applying the exceptions.

» Once the reasons for the exceptions no longer apply, the investigating officer must allow the consultation as soon as possible.

II. Detention by the police

The general rule is that the police must complete their investigations within 24 hours of arrest (section 28 of the Criminal Procedure Code). If they are unable to do so (and this should only be considered an exception), the police may ask for further detention of the person arrested. The police must then bring the person before a magistrate for a remand hearing. It used to be the case that for any offence, the magistrate may authorise the detention for a further period of up to 14 days (section 117 of the Criminal Procedure Code). Long remand periods have been identified as a contributing cause to ill-treatment, poor emotional and physical health of those detained, and shockingly, deaths in custody.

» The amendments have shortened the periods the police may hold a person for investigations and reduced the powers of the magistrate to order further detention:

• if the offence being investigated is punishable with imprisonment of less than 14 years (such as theft or causing hurt), the maximum period is four days during the first detention and three days during the second detention; and,

• if the offence being investigated is punishable with death or imprisonment of 14 years or more (such as murder or drug trafficking), the maximum period is seven days during the first detention and seven days during the second detention.

For an extension of the first detention, the police must again seek authorisation from the magistrate at the expiry of the first period.

» At remand hearings, the magistrate must take into account the periods of prior detention and allow representations by the person arrested or his/her lawyer to reduce the detention period.

Edmund Bon is the Chairperson of the Human Rights and National Young Lawyers committees of the Bar Council, and Secretariat member of Suaram. These views do not necessarily reflect those of the said organisations.

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