Police Powers

13/10/2011
Police detect and investigate crimes, preserve public peace,
collect and present evidence to court and prosecute
offenders.
Section 346 Police Powers: Police prevent commission of
offence by immediate intervention. However, Police may
delay intervention in some cases.
Section 347 Police can prosecute only ex officio offences.
Section 350 Specific definitions for terms used in this
subject.
Powers of Police: power of arrest (arrest means physically
restrained).
1) Arrest by using force
2) Arrest by verbal order
When person is arrested certain rights are attached to
person (Habeas Corpus, for example, time limitation 48
hours). Police must explain arrest clearly (for person to
understand that he is under arrest). Arrest is an exception to
the right of freedom.

20/11/2011
There are 2 scenarios of arrest: - with a warrant (magistrate
have to issue a warrant)
- without a warrant

Section 355V and so on arrest
Police requests magistrate to issue a warrant (request may
be made in written or oral form). Police officer has to give
sufficient reasons and to convince magistrate to issue a
warrant. If magistrate obtaining information from Police and
if magistrate is not convinced it might require Police officer
to provide a record including information.
Law allows arrest without a warrant in some instances
(Section 355X). For example, if person is in the act of
committing a crime or person has just committed a crime or
about to commit a crime or Police has reasonable suspicion.
Police cannot arrest for commitment of contraventions or
crime punishable less than 1 year of imprisonment.
Section 355Y limitation of arrest, Police can arrest only if
person caught committing contravention.

02/11/2011
Arrest
Section 355X (3) if person obstruct, disturbs or disobeys
(knowingly or after a warning) a lawful order Police might
arrest that person. (Lawful order means order from
someone who has authority to give such orders).
There are situations which do no deal with criminal offences
but can be cause of arrest.
Section 355Z General Arrest Conditions
Section 355AB How arrest should be conducted
Section 355AC Arrest is unlawful unless person is
informed that he or she is arrested.
Whenever arrest is performed person should be taken into
police station. After 6 hours person should be transferred
into designated police station.
As soon as person is arrested there are certain right
attached (Habeas Corpus).
1) 48 hours rule
2) Consultation with a lawyer (right for legal advice)
Section 355AT right to consult with a lawyer 1 hour prior
to interrogation
Legal advice if taken court inferences are drawn, if not
taken then prosecution can point out that person did not
take legal advice and therefore knows of inferences.

10/11/2011
Rights of a person suspect
1) Legal advice
2) To be detained for not more than 48 hours
3) Right to medical assistance
4) Right not to be held In incommunicado
Right to contact ones family (as fear and stress may
force people to confess even if one is not guilty).
However, this phone call may warn police as one can
warn others or ask to destroy evidence.
By magistrates appropriate will this phone call might
be delayed for 36 hours.
There is no obligation of disclosure in Malta.

The power of Police to stop
In order to ascertain identity.
This power is exclusive to Police.

Police can search upon an arrest.
There are 2 types of search intimate and non-intimate
(non-intimate search includes search on person).
Conditions for strip search by person of the same sex
- and it must be done in a way
which secures ones privacy
and in a respectful way.
Intimate search search in any body cavity other than
mouth.
It can be force upon you through authorization of magistrate
who also will indicate a specialist who will perform intimate
search.
It must be held in a specific place due to health reasons.
Section 355AB
Section 355AQ
Section 355AR

17/11/2011
Other things Police can do when person is arrested:
Taking samples (intimate and non-intimate)
Non-intimate samples hair, scraping of nails, saliva, urine.
Police ask for persons consent, if person denies police can
contact magistrate to get permission to take non-intimate
sample by force.
Finger prints and palm prints can be taken in the same way
with ones consent or without (but they are not non-intimate
samples).
Intimate samples blood, semen and etc.
If Police is interested in taking intimate samples, they do not
need to speak to a person but to contact a magistrate and
explain reason of a need in taking such samples. If
magistrate is satisfied he must speak to suspect and explain
why sample will be taken and the use of these samples and
then the suspect has opportunity to speak to his lawyer. If
the suspect agrees samples are taken. If the suspect refuses
such samples cannot be taken but the refusal means that
inferences will be drawn.
Inference states that if one fails to give samples then what
police sought to prove is actually true.
Burden of proof might be put on defense then.
Other Police powers:
Search and Entry
Section 355E Police have power to enter any building and
to conduct search (warrant is required and issued by
magistrate, reasons for search are to be written down in the
warrant)
Any police officer may enter and perform search with the
warrant (regardless rank of officer).
Police also can collect evidence relating to another offence
(not one mentioned in warrant),(warrant automatically
allows to collect other evidences if any found).
Search cannot be carried out after the sunset unless
magistrate orders specific reasons.
Search must be carried out in respectful to moral dignity
way.
Fundamental right of privacy is included.
Before a search warrant is executed copy of such warrant
must be given to a person (whose place will be searched or
to the person who is present at the time).

24/11/2011
Section 355E entry without warrant
Situations: when person might escape, when person might
destroy evidences.
Section 355F police can open and break any window or
door when there is such need.
Section 355K police entry without a warrant; upon arrest
with reasonable suspicion that person committed a crime
police can search premises which this person occupies.
When police believe that person has committed crime they
do not need a warrant.
Section 355L When police are searching in premises they
cannot touch items subject to legal privilege.

Seizure and retention
Whenever police seize items they are obliged to give list of
item to person.
Section 355P perishables cannot be retained (in this case
police have to take photographs or film them).
Police can retain items as long as it is necessary.
Police are to seize items which are necessary for
investigation.
It include taking of data. Police lift data they need (for
example, they take only needed data and not the whole
server).
However, when it is needed they can take everything.
With respect of electronic devices, Police usually take the
whole device.
Section 355Q
Once item is seized and retained it might be returned to
rightful owner by magistrates request.

1/12/2011
Powers of magistrate
Police carries all prosecutions in court of magistrates. There
are 16 magistrates. Inquiring magister to preserve all
evidence (never establishes guilt). Inquiring magister is
involved only when there is a crime which punishment
exceeds 3 years.
Warrant of search
Police contact magister and explain that they have
reasonable suspicion and reasons for search and also the
crime they are investigating.
There are 3 copies of this warrant, one for police, one for
magister and one for the person whose premises will be
searched. There will be a list of things seized (copy of this
list will be handed to the person whose premises were
searched). Everything can be seized. Police also can give
photographs of items.
Warrant of arrest
Police contact magister and explain that they have
reasonable suspicion. There are also 3 copies of this
warrant.
Article 658 of Criminal Code
Confession of accused person cannot be received by fear,
promises, force and etc.

Drug ordinance if person reveals knowledge of drug
dealers to magister his punishment will be reduced.

15/12/2011
Section 658 of Criminal Code confession cannot be
received by threat, fear, promises and advantages.
Confession must be written down and brought as evidence.
It is necessary to be voluntary for confession and not
spontaneous.
Act of 2003 - introduced the right of legal advice (sections
came into effect 5 years after the promulgation of the act
(section 355AT person under arrest has a right for legal
advice 1 hour prior to interrogation; there are also
inferences which can be drawn as a result of using such
right; the right to legal advice during police interrogation
16
th
August 2009 by prof Aqulina;)