“I want to call my lawyer”… But can you?

(From KL Bar's Relevan August 2008)

Richard Wee Thiam Seng analyses the new section 28A of the Criminal Procedure Code which crystallises the right of a person under arrest to contact the person’s lawyer

How many times have you heard that on television? A scene from a criminal investigation series will flash an arrested person’s demands to see a lawyer. Does that right exist in Malaysia?

The new Section 28A

The Criminal Procedure Code (CPC) was amended in 2006 via the Criminal Procedure Code (Amendment) Act 2006 (ACT A1274) which came into force in September 2007, and among the more interesting amendments to the CPC is the addition of a new Section 28A, which reads:-

 

Rights of person arrested

 28A. (1) A person arrested without a warrant, shall be informed as soon as may be of the grounds of his arrest by the police officer making the arrest.

(2) A police officer shall before commencing any form of questioning or recording of any statement from the person arrested, inform the person that he may-

(a) communicate or attempt to communicate, with a relative or friend to inform of his whereabouts;

and

(b) communicate or attempt to communicate and consult with a legal practitioner of his choice.

(3) Where the person arrested wishes to communicate or attempt to communicate with the persons referred to in paragraphs (2)(a) and (b), the police officer shall, as soon as may be, allow the arrested person to do so.

(4) Where the person arrested has requested for a legal practitioner to be consulted the police officer shall allow a reasonable time-

(i) for the legal practitioner to be present to meet the person arrested at his place of detention;

and

(ii) for the consultation to take place. 

(5) The consultation under subsection (4b) shall be within the sight of a police officer and in circumstances, in so far as practicable, where their communication will not be over heard;

(6) The police officer shall defer any questioning or recording of any statement from the person arrested for a reasonable time until the communication or attempted communication under paragraph 2(b) or the consultation under subsection (4), has been made;

(7) The police officer shall provide reasonable facilities for the communication and consultation under this section and all such facilities provided shall be free of charge.

(8) The requirements under subsections (2) and (3) shall not apply where the police officer reasonably believes that-

(a) compliance with any of the requirements is likely to result in-

(i) an accomplice of the person arrested taking steps to avoid apprehension; or

 

(ii) the concealment, fabrication or destruction of evidence or the intimidation of a witness; or

(b) having regard to the safety of other persons the questioning or recording of any statement is so urgent that it should not be delayed.

(9) Subsection (8) shall only apply upon authorization by a police officer not below the rank of Deputy Superintendent of Police.

(10) The police officer giving the authorization under paragraph (9) shall record the grounds of belief of the police officer that the conditions specified under subsection (8) will arise and such record shall be made as soon as practicable.

(11) The investigating officer shall comply with the requirements under subsections (2), (3), (4), (5), (6) and (7) as soon as possible after conditions specified under subsection (4) have ceased to apply where the person arrested is still under detention under this section or under section 117.

Section 28A is a welcome addition to the law. It finally crystallises the right of an arrested person to call the person’s family or a lawyer. Our country, already independent for 50 years, only recognised this right on its 50^th anniversary. But better late then never, I suppose.

Before the enactment of Section 28A, Article 5 of the Federal Constitution was constantly referred to, as a general right to a solicitor when arrested. It is also interesting to note that Section 28A is similar to Sections 56 to 58 of the United Kingdom’s Police & Criminal Evidence Act 1984 (PACE). PACE will be discussed further below.

There are however 2 provisions in Section 28A which, it is submitted, would require judicial interpretation on the scope of police discretion and powers:-

1.    Section 28A (6)

2.    Section 28A (8)

 

Section 28A(6)

Section 28A (6) states that the police may wait for a ‘reasonable time’ for the arrival of the solicitor before commencing questioning of the arrested person. How long is this ‘reasonable time’?

Whilst it is virtually impossible to fix a specific time period to define what is ‘reasonable period’, but it would be logical to acknowledge that the police ought to wait for a few hours, at least for the arrival of the solicitor. There should also be safeguards built into the interrogation of an arrested person who has demanded for the presence of a solicitor, who is albeit late. It would be interesting to see how the Courts deal with this issue.

It is hoped that we will adopt similar Code of Practice under PACE, used in the United Kingdom, where the Code provides a guide to the police on the limitations of their powers when exercising their discretion.

Section 28A (8)

Section 28A (8) contains a provision which allows the police to deny any arrested person the right to contact a family member or lawyer if that allowance will lead to one of these circumstances:-

(a) compliance with any of the requirements is likely to result in-

(i) an accomplice of the person arrested taking steps to avoid apprehension; or

(ii) the concealment, fabrication or destruction of evidence or the intimidation of a witness; or

(b) having regard to the safety of other persons the questioning or recording of any statement is so urgent that it should not be delayed.

How far can this proviso be used by the police?

At the recent ‘Bersih’ and ‘Hindraf’ rallies, the police issued certificates under Section 28A (8) to deny the arrested persons their right to legal counsel, even though the lawyers were physically present at the police station to meet their clients.

It was unfortunate that this provision was so readily used at that time, when it is plain and obvious from the Section 28A, that subsection (4) is nothing more than an exception to the general rule. Over and above that, the constant usage of this exception would not only negate the true purpose of Section 28A of protecting the liberties of an arrested person, but is a fundamental breach of Article 5(3) of the Federal Constitution.

Section 28A (8) also uses general words to empower the police in discharging their duties under that provision. It allows a police officer who “reasonably believes” that allowing an arrested person to exercise the person’s rights in Section 28A (1) to (7) would “likely to result” in one of the given outcomes therein. How would these concepts be adjudicated? What principles would the Court apply when drawing the boundaries of these discretionary powers given to the police?

It is submitted that there are a few pertinent guiding principles to assist the Courts in drawing that said boundary.

First – Article 5(3) of the Federal Constitution. As our Federal Constitution is the highest authority of law, it should be the starting point in the decision making process of any Judge in deciding the scope of police discretion under Section 28A (8). Article 5(3) has long confirmed the right of any person arrested to have legal advice and representation when facing the criminal charges. The discretionary powers in Section 28A (8) must be subjected to the Federal Constitution.

Secondly –  in the case of Woolmington v. DPP[1935] AC 462, the House of Lords held that the prosecution bears a burden to prove beyond reasonable doubt. That decision also confirms the principle that an arrested person is innocent until proven otherwise. Based on that principle it is not acceptable that the exception of Section 28A (8) be regularly used. In Malaysia, the Woolminton rule has long been entrenched in our criminal matters (Mat v PP [1963] 1 LNS 82).

Over and above these 2 contentions, we should also take cognizance of the United Kingdom’s practice in this area. As mentioned earlier, PACE has a similar provision of conferring the right to arrested person to legal advice, and also provisions for their police to deny that right. However in the United Kingdom, PACE has many Codes of Practice governing the operation of PACE. If we refer to Code of Practise C of PACE, it is abundantly clear that the Code sets out the duties of the police in ensuring the arrested person is given the best opportunity to contact a solicitor. That Code went so far as to even suggest that the Investigating Police Officer should contact the Immigration Department when dealing with a foreigner despite PACE not requiring this be done.

It is hoped that Malaysia will adopt a similar Code of Practice as set out under PACE, where the Code provides a guide to the police on the limitations of their powers when exercising their discretion for this sub section and also the discretion referred to above in Section 28A (6) .

Some cases from the United Kingdom can give us some guidance on how Section 28A can be interpreted.

The Court of Appeal in Samuel (1988) QB 615 held a confession given by the accused person (the appellant at the Court of Appeal) was inadmissible, after the facts therein indicated that the police had not only held the accused person for six hours and refused him to a lawyer but when a lawyer did arrive (who was sent by his mother) that lawyer was refused access to him for a further three hours, during which time he confessed to the crime. The police offered a justification that by allowing the accused to see the lawyer may have triggered the escape of other suspects. The Court of Appeal held that the denial of access to legal advice was unjustified and the Court did consider the Codes of Practise in PACE.

In another Court of Appeal decision Alladice [1988] Crim LR 608, although there was a finding that the accused was denied access to a lawyer, the Court held that the interview was in fact properly conducted as there was no evidence that the accused was coerced or forced into making the statement. However the Court did rebuke the police and did consider the Code of Practice in PACE. The Court still did stress the importance of the accused having access to a lawyer.

It can be concluded that in the United Kingdom, and to a large extent the European Union; the right to have a solicitor present when being interviewed and also to communicate privately with a solicitor; is viewed extremely seriously by the UK and European Courts of Human Rights. Any unnecessary deprivation of that right may be viewed as a violation of Article 6 (the right to a fair trial) of the European Convention of Human Rights.

It is submitted that Section 28A (8) must not be liberally interpreted and if given the opportunity to comment on that provision, the Courts ought to discourage the application of that provision.

Further the police force must make all efforts not to take the easy way out of denying the arrested person’s fundamental right to see a lawyer. The officers must be educated and exposed to that said right.

Can you call your lawyer?

So we return to the question posed, can an arrested person call for his/her lawyer?

So long as the police force continues to actively rely on Sections 28A (8) & (9), then the purpose and intention of Section 28A would be defeated.

Instead the right to see one’s family or lawyer as per Section 28A (2), (3) & (4) be given an interpretation that is as liberal as possible. It would be incumbent upon our Courts to protect the liberties of the people, and interpret the provisions above bearing in mind that the person arrested or accused; is still very much innocent until the Court so orders otherwise.

Richard Wee Thiam Seng

(assisted by Yip Xiao Heng, a Law Student from KDU)