Between reel life and real life


  • In Your Face
  • Friday, 02 Dec 2016

What happens when you’re arrested? Do you have the right to remain silent and do you get a phone call?

YOU’VE been pulled over by the police and they tell you that you are under arrest. As you’re brought to the police station, you quickly realise that your real-life experience is not playing out in a similar way to what is shown in reel life.

You realise that no police officer has read you your rights, telling you that you have the right to remain silent. And when you realise, you begin to wonder just what rights you have when dealing with the police.

I’ve certainly wondered what really happens when someone is arrested, and I’ve definitely wondered what rights I have, should that be the case.

Do we really have a right to that one phone call? Do we really have a right to remain silent, and do we really have a right to a lawyer with us should we be questioned post-arrest?

According to criminal defence lawyer Shashi Devan, you do not have a right to remain silent as that right has been removed from the Criminal Procedure Code (CPC).

“There is no right to remain silent but there is a right not to self-incriminate. When I read the provisions, it states that the suspect has the right to refuse to answer questions that will incriminate themselves, but the first part of the same section states that the suspect must answer all questions truthfully,” said Shashi.

He also answered questions about the right of an arrested person to a phone call, saying that the CPC gives an arrested person the right to two phone calls.

“Suspects should get two phone calls and not one. One to family or a friend and one more to a lawyer of their choosing,” said Shashi, who pointed out that this right is provided for under Section 28A(2) of the CPC.

Section 28A(2) states that “a police officer shall before commencing any form of questioning or recording from any person arrested inform the person that he may communicate or attempt to communicate with a relative or friend to inform his whereabouts and communicate or attempt to communicate and consult with a legal practitioner of his choice”.

However, he said that in reality an arrested suspect would get only one phone call.

“In reality, the police will either inform the family themselves or they will allow the suspect to call the family or solicitor. The police will expect the suspect’s family to get a lawyer or the lawyer to inform the family. So it comes back to one phone call. Even, that is, if the police don’t call the family themselves,” said Shashi.

He added that the police can – and have – used Section 28A(8) to stop arrested individuals from contacting a lawyer, as Section 28A(8) provides police personnel with the right to deny a suspect their right to speak to a lawyer or contact their family if they have reasonable grounds to believe that the suspect will misuse the right to alert an accomplice or to order the destruction of evidence.

“Initially, the police thought they were smart to use this section to stop access to lawyers.

“But after many meetings with the police, and after constant complaints raised with them in the usage of 28A(8), the frequency reduced but the usage now is and when they please. They use it where they really don’t need to use it.

This Section is actually for cases such as kidnapping and abduction, because there is a sense of urgency in the matter, there is no real time to give access and consultation,” said Shashi.

He said that the police have gone on to use it in cases of gang fights and armed robbery.

“I can understand the usage in kidnapping cases. To some extent even murder cases, where the weapons may not be recovered on time or evidence may perish. When we train lawyers, we tell them that when Section 28A(8) applies, they should speak with the officer authorising the denial of access and ask why is there a need to deny access,” said Shashi.

He said that in circumstances where lawyers suspect the police are misusing Section 28A(8), lawyers will question the police on the grounds for using the powers provided for in that Section.

“We will want to know what are the reasons or grounds on which the Section applies. The reason we get to reason with them is because they use it arbitrarily. When we explain to the officer, we are able to convince them that lawyers are not a threat to investigation. That Section actually reads as if the lawyers will help dispose evidence and advise suspects to run away – but how can this be? Are they saying lawyers are actively covering up a crime?” asked Shashi.

He acknowledged that in serious cases such as murder, there could be instances where an investigation must be allowed in the absence of having consulted a lawyer.

“So in cases where it is arbitrarily used, such as gang robbery, we explain that we are not a threat and the crime does not justify usage of the provision and usually the police give in,” he said.

However, what about access to a quick trial and bail?

Shashi said that there were circumstances where the police could keep an arrested person for an extended period in a police lock-up on remand.

He used a hypothetical case of a 17-year-old Indian boy who was remanded for four days after being caught red-handed while stealing a pen.

“The boy will be kept in the lock-up for four days for investigation purposes, and this is just the beginning. When they need to keep the arrested person longer they will look for unsolved cases. They just have to take out any unsolved case that says that the suspect is an Indian person around 15-20 years old,” said Shashi.

He added that the police will say the case will have to be investigated.

“But it could be a case that is two or three years old. They will take that and apply for a fresh remand application under a new report. This is called the chain remand,” said Shashi.

He also explained another technique used to stretch remand orders – adding that this was one where a person could be arrested for car theft but find themselves being charged for armed robbery with a gang.

“The other technique is to send the arrested person to another police station once the initial remand period expires. They will ask the second police station to investigate the arrested person for any of their unsolved cases. But that is not right; you shouldn’t arrest first and investigate later for other offences,” he said.

So yes, it certainly looks like we get some rights should we be arrested and we might do well to know them, just in case.

Senior writer Tan Yi Liang’s In Your Face aims to prove that people have more positive power in their hands than they realise, and to challenge them. He can be reached at tanyl@thestar.com.my

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