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 VIII
DETENTION

355AL. (1) It shall be duty of the custody officer to order the immediate release from custody of any person in police detention in the circumstances mentioned in article 355AJ(3) or where the custody officer becomes aware that the grounds for the detention of that person have ceased to apply and there are no other lawful grounds on which the continued detention of that person could be justified.

(2) Before ordering the release from custody of a person under subarticle (1) the custody officer shall inform the investigating officer and a Magistrate and the final decision shall be taken by the Magistrate.

(3) A person whose release is ordered under the provisions of subarticle (1) shall be released unconditionally unless it appears to the custody officer -
(a) that there is need for further investigation of any matter in connection with which he was detained at any time during the period of his detention; or
(b) that proceedings may be taken against him in respect of such matter,
and if it so appears, he shall be released subject to the conditions, reduced to writing and signed by the person to be released, that he will not attempt or do anything to leave Malta without the authority of the investigating officer under whose authority he was arrested and that he will attend at such police station at such time as the custody officer may appoint and, or that he will attend before the Court of Magistrates at such time and such place as the court may appoint.

(4) Where a custody officer has granted bail to a person subject to a duty not to attempt or do anything to leave Malta without authority or to appear at a police station, the custody officer may give notice in writing to that person that the condition not to attempt or do anything to leave Malta without authority no longer applied or that his attendance at the police station is not required.

(5) Any person who fails to comply with any condition imposed upon him upon his release as provided in subarticle (3) shall be guilty of a contravention.

(6) A police officer may arrest without a warrant any person who, having been conditionally released under subarticle (3) subject to a duty not to attempt or do anything to leave Malta without authority or to attend a police station or subject to a duty to appear before the Court of Magistrates, attempts or does anything to leave Malta without authority or fails to attend at that police station or before the Court of Magistrates at the time appointed for him to do so.

(7) For the purposes of this sub-title a person who returns to a police station to answer to bail or is arrested under subarticle (6) shall be treated as arrested for the offence under subarticle (5) and for the offence in connection with which he was granted bail and the provisions of this article shall apply to such person.

(8) The conditions made under subarticle (3) shall not remain in force for more than three months from the date on which they were imposed unless they are renewed by a Magistrate for further periods of three months each period upon an application by the Police which shall be served for his reply upon the person on whom the conditions were imposed.

(9) At any time during which the conditions made under subarticle (3) are in force the person on whom those conditions were imposed may by an application to be served on the Police for a reply request a Magistrate that those conditions be removed or modified.

(10) The Minister may issue guidelines to be followed by custody officers in the exercise of their discretion to impose conditions under subarticle (3).


355AM. (1) At every designated place of detention the Commissioner shall appoint one or more custody officers not below the rank of sergeant who, in matters of detention, shall comply with any orders of a Magistrate.

(2) Any officer of any rank may perform the functions of a custody officer at a designated place of detention if a custody officer is not readily available to perform them.

(3) Where the custody officer who is called upon to carry out any of his functions with respect to a person in police detention is, at the time when the function falls to be performed, involved in the investigation of an offence for which the person is in police detention such function shall be carried out by another custody officer or, if no such other custody officer is available, by the next most senior police officer who happens to be available at the time.

(4) In this article and elsewhere in this sub-title "designated place of detention" means such place designated by the Minister where a person may be detained for more than six hours.


355AN. The custody officer shall perform such functions as may be assigned to him by this Code or by any other law.


355AO. Where an arrested person is taken to a police station which is not a designated place of detention the functions in relation to him which would otherwise fall to be performed by a custody officer shall be performed:
(a) by an officer not below the rank of sergeant who is not involved in the investigation of an offence for which the arrested person is in detention, if such an officer is readily available; and
(b) if no such officer is readily available, by the officer who took the arrested person to the police station or by the most senior police officer at the police station at the time.


355AP. Where the arresting officer or the custody officer has a reasonable suspicion that the person arrested may have concealed on his person any drug the unlawful possession of which would constitute a criminal offence or any other item which a custody officer is authorised by this Code or by any other law to seize from the possession of an arrested person, the said officer may request a Magistrate to order an intimate search of the person arrested.


355AQ. (1) Upon a request for an order under article 355AP the Magistrate shall appoint an expert to carry out the search under such safeguards as he may consider necessary for the purpose of decency and to report to him on his findings. A copy of the report shall be communicated without delay to the arresting or custody officer as the case may be.

(2) A person shall not be appointed an expert for the purpose of carrying out an intimate search on a person of the opposite sex unless the expert is a medical practitioner and the person to be searched consents thereto in writing.


355AR. Anything found as a result of an intimate search under the foregoing articles may be temporarily retained by the expert and may subsequently be seized by order of the Magistrate, and a receipt therefore shall be given to the detained person. The Magistrate may authorise the delivery against receipt of anything so seized to the police officer investigating the person intimately searched.

PART IV
PROVISIONS APPLICABLE TO RETURN OF OFFENDERS TO ALL
COUNTRIES

15.* (1) A person arrested in pursuance of a warrant under article 14 shall (unless previously discharged under subarticle (3) of that article) be brought as soon as practicable and in any case not later than forty-eight hours from his arrest before the Court of Magistrates (Malta) as a court of criminal inquiry (in this Act referred to as the court of committal) which shall have for the purposes of proceedings under this section the same powers, as nearly as may be, including power to remand in custody or on bail, as the said court has when sitting as aforesaid.
(2) Where the person arrested is in custody by virtue of a provisional warrant and no authority to proceed has been received in respect of him, the court of committal may fix a reasonable period (of which the court shall give notice to the Minister) after which he will be discharged from custody unless such an authority has been received.
(3) Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any evidence tendered in support of the request for the return of that person or on behalf of that person, that the offence to which the authority relates is an extraditable offence and it is further satisfied -
(a) where the person is accused of the offence, that the evidence would be sufficient to warrant his trial for that offence if it had been committed within the jurisdiction of the Courts of Criminal Justice of Malta;
(b) where the person is alleged to be unlawfully at large after conviction of the offence, that he has been so convicted and appears to be so at large,
the court shall, unless his committal is prohibited by any other provision of this Act, commit him to custody to await his return thereunder; but if the court is not so satisfied or if the committal of that person is so prohibited, the court shall discharge him from custody:
Provided that notwithstanding any order discharging him from custody such person shall remain in custody until the expiration of three working days from any such order and, where an appeal has been entered by the Attorney General, until the appeal is disposed of or abandoned, or the Attorney General consents to the release of such person.
(4) Where a person has been brought before a court of committal as provided in subarticle (1), the provisions of article 401(1) of the Criminal Code shall apply as if the words "one Cap. 9. month" wherever they occur therein were substituted with the words "two months" and as if the words "three months" in the proviso thereto were substituted with the words "six months".
(5) Where the person arrested declares before the court of committal that he is willing to be extradited, the said court upon being satisfied of the voluntariness of such declaration shall commit him to custody to await his return and all the provisions of this Act for his extradition shall be deemed to be satisfied and the Minister shall thereupon, notwithstanding any other provision of this Act but saving the provisions of article 21(2) and (4) thereof, by warrant order him to be returned to the requesting country. No appeal shall lie from the decision of the court committing the person to custody under the provisions of this subarticle.

PART IV
PROVISIONS APPLICABLE TO RETURN OF OFFENDERS TO ALL
COUNTRIES

17. (1) Any person remanded or committed for custody under
article 15 shall be committed to prison and shall be treated as a person awaiting trial.
(2) Such person shall be deemed to be in legal custody from the moment that he is so remanded or committed until he is beyond the jurisdiction of the Courts of Criminal Justice of Malta.

SECOND SCHEDULE
(Article 16)
Articles of the ICC Treaty referred to in the Act
Article 92
Provisional arrest
.......... omissis ..........
3.A person who is provisionally arrested may be released from custody if the requested State has not received the request for surrender and the documents supporting the request as specified in Article 91 within the time limits specified in INTERNATIONAL CRIMINAL COURT [CAP. 453. 15 the Rules of Procedure and Evidence. However, the person may consent to surrender before the expiration of this period if permitted by the law of the requested State. In such a case, the requested State shall proceed to surrender the person to the Court as soon as possible.