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RIGHT OF ACCUSED PERSON TO CONSULT AND TO BE DEFENDED BY A LEGAL PRACTITIONER, REVISITED* by SRIMURUGAN [2006] 3 CLJ xlv MALAYSIA Introduction

Winston Churchill once said that the true measure of a civilised society lies in how it treats people accused of crimes. Although our Federal Constitution confers every citizen accused of a crime with certain fundamental rights, these rights would be meaningless unless judges, being guardians of our fundamental rights and liberty, give effect to them. In this article the scope and extent of the right of an arrested person to consult and to be defended by a legal practitioner of his choice will be examined. The Federal Constitution confers every citizen with certain fundamental rights consequent upon his or her arrest. These fundamental rights are enshrined in art. 5 of the Federal Constitution. The Right to Consult a Legal Practitioner Article 5(3) of the Federal Constitution provides that: Where a person is arrested ? shall be allowed to consult and be defended by a legal practitioner of his choice. Further s. 255 of the Criminal Procedure Code also states that: Subject ? to any express provision of law to the contrary, every person accused before any criminal Court may of right be defended by an advocate. The need for an accused person to be represented by a lawyer is nowhere better stated than in the moving words of Mr. Justice Sutherland in Powell v. Alabama1: The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise

inadmissible. He lacks both the skill and knowledge adequately to prepare his defence, even though he has a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. In State of Punjab v. Ajaib Singh2, Das J in delivering the opinion of the Supreme Court of India explained the purpose of conferring an arrested person with the right to consult a legal practitioner of his or her own choice in the following words: There can be no doubt that the right to consult a legal practitioner of his choice is to enable the arrested person to be advised about the legality or sufficiency of the grounds for his arrest. The right of the arrested person to be defended by a legal practitioner of his choice postulates that there is an accusation against him against which he has to be defended. The language of art. 22(1) and (2) indicates that the fundamental right conferred by it gives protection against such arrest as are effected otherwise than under a warrant issued by a Court on the allegation or accusation that the arrested person has committed, or is likely to commit, an act of a criminal or quasi-criminal nature or some activity prejudicial to public or State interest. In other words, there is indication in the language of Art 22(1) and (2) that it was designed to give protection against the act of the executive or other nonjudicial authority. It is trite law today that the denial of an arrested person of his right to consult and to be defended by a legal practitioner will invalidate the trial3. Thus in Sim Kee Thong v. Rex4, Murray-Aynsley CJ: ? an accused person has a reasonable opportunity of obtaining the services of counsel. Any trial where the accused was deprived of such a reasonable opportunity will of necessity be regarded as a mistrial. In Chong Fah Hin v. PP5, the accused appealed against his conviction and sentence for being in possession of uncustomed goods. The accused claimed trial to the charge and bail was set in the sum of $10,000. The trial was fixed for hearing on 12 February 1949. When the case was called for hearing on 12 February, the appellant stated that he was unable to secure the sum of $10,000 so as to be released on bail and that consequently he was unable to instruct counsel to defend him. He asked for an adjournment to enable him to brief counsel. The trial judge refused the adjournment and proceeded with the trial which resulted in his conviction and sentence. Russell J in setting aside the conviction and sentence said at p. 140: Every accused person has a right, if he so desires, to be defended by an advocate, and I was of the opinion that as the appellant had been in custody since his arrest,

the time given to him to instruct counsel on his behalf was insufficient. The time was also insufficient for a stranger to Kuala Lumpur to contact his friends with the object of them furnishing bail in such a sum as RM10,000. He wrote to his friends on, 10 February and they arrived in Kuala Lumpur on the 12th, the morning of his trial. The appellant was therefore, in my opinion, guilty of no delay whatsoever in endeavouring to get bail and to brief counsel, and I therefore allowed the appeal and quashed the conviction without considering the merits of the case. I also ordered a new trial before a different President, the appellant to be granted bail on the same terms until the re-trial can take place. Who is a Legal Practitioner? The Federal Constitution does not define the meaning of the word "legal practitioner" found in art. 5(3). However, it is respectfully submitted that the word legal practitioner has the same meaning as an "advocate"6 found in s. 255 of the Criminal Procedure Code. An advocate is defined in s. 3 of the Interpretation Acts 1948 and 1967 as a person who is entitled to practice as an advocate or as an advocate and solicitor under the law in force in any part of Malaysia. In this article the words "counsel", "advocate" and "legal practitioner" are used interchangeably. In Public Prosecutor v. Mah Chuen Lim & Ors7, Syed Othman J was of the view that the phrase "shall be allowed to consult and be defended by a legal practitioner of his choice" found in art. 5(3) clearly confers the right to an arrested person and not to the legal practitioner. The constitutional right of an arrested person to counsel cannot be equated with the right of counsel, if any, to an arrested person. Counsel is merely the object of an arrested person. There would be a ground to complain only if it could be shown that a request by the arrested person to consult a legal practitioner has been denied. State?s Duty to Provide Free Legal Aid? The 6th Amendment of the American Constitution guarantees every American citizen an indefeasible right to be represented by a counsel of his or her choice8. The US Supreme Court has made it clear that the State is under a constitutional obligation to provide an impecunious accused person to free legal representation in all criminal cases. The 6th Amendment provides that: In all criminal prosecutions, the accused shall ? have the assistance of counsel for his defense. The scope and extent of the right to counsel under the 6th Amendment was considered by the Supreme Court in Gideon v. Wainwright9. In that case, the petitioner was charged in the Florida State Court for breaking and entering a

poolroom with intent to commit a misdemeanour. This offence is a felony under Florida law. The petitioner appeared in court without funds and without a lawyer. The petitioner asked the court to appoint a counsel for him whereupon the following colloquy took place: The Court: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the law of the State of Florida, the only time the court can appoint Counsel to represent a Defendant is when that person is charged with a capital offence. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case. The Defendant: The United States Supreme Court says I am entitled to be represented by Counsel. The petitioner was put on trial before a jury. He conducted his defence as well as could be expected from a layman. He made an opening statement to the jury, crossexamined the state?s witnesses in his own defence, declining to testify himself and made a short argument "emphasising his innocence" to the charge contained in the information filed in this case. The jury returned a verdict of guilty and he was sentenced to serve five years in the state prison. The petitioner thereupon filed an application for habeas corpus attacking the conviction and sentence on the ground that the trial court?s refusal to appoint counsel for him violated his rights as guaranteed by the Constitution and under the Bill of Rights by the United States Government. The United States Supreme Court in overturning his conviction held that the right to counsel, guaranteed in federal trials by the 6th Amendment is fundamental to a fair trial. The State?s failure to provide counsel for an accused charged with a felony violated the ?due process of law? clause found in the 14th Amendment. Black J who delivered the opinion of the court held: In returning to these old precedents, sounder, we believe, than the new, we but restore constitutional principles established to achieve a fair system of justice. Not only these precedents, but also reason and reflection, require us to recognise that, in our adversarial system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public?s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defences. That government hires lawyers to prosecute and the defendants who have the money hire lawyers to defend are the strongest indication

of the wide-spread belief that lawyers in criminal courts are necessities, not luxuries. The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law. This noble idea cannot be realised if the poor man charged with crime has to face his accusers without a lawyer to assist him. The Supreme Court?s ruling was later extended in 1972 to require counsel for any accused person who would spend even one day in jail if found guilty. In Argersinger v. Hamlin10, the petitioner an indigent was charged in the Florida state court with carrying a concealed weapon, an offence punishable by imprisonment up to six months and a fine of US $1,000. Unrepresented by counsel, the petitioner was tried before a judge without a jury, convicted and was sentenced to serve 90 days in jail. The petitioner instituted habeas corpus proceedings in the Florida Supreme Court, but relief was denied on the ground that the federal constitutional right to counsel extended only to trials for non-petty offences punishable with more than six months. The United States Supreme Court however ruled that the Florida Supreme Court erred in holding that the petitioner who was tried for an offence punishable by imprisonment up to six months, a $1,000 fine or both and given a ninety-day jail sentence had no right to court-appointed counsel on the ground that the right only extended to trials "for non-petty offences punishable by more than six months imprisonment". The federal constitutional right to counsel is not limited to trials for offences punishable by more than six months imprisonment. Douglas J who delivered the opinion of the court was of the view that no person may be imprisoned for any offences, whether classified as petty, misdemeanour, or felony, unless he was represented by counsel at his trial. Interestingly Brennan J joined by Douglas J and Stewart J concurring joined the court?s opinion and noted that law students as well as practicing attorneys might provide an important source of legal representation for the indigent. What is impressive about the American Legal System is that, the United States Supreme Court has interpreted the 6th Amendment in such a manner as to impose a constitutional obligation on each state to provide free counsel for an indigent person accused of a crime even though the state?s obligation to do so is not expressly spelt out in the 6th Amendment. The Position in India Article 22 of the Indian Constitution reads as follows:

No person who is arrested ? shall he be denied the right to consult and to be defended by, a legal practitioner of his choice. The wording of art. 22 is virtually identical to art. 5(3) of our Federal Constitution. The Supreme Court of India in Maneka Gandi v. Union of India11, observed that art. 21 (in pari materia with art. 5(1) of the Federal Constitution) requires a fair, just and equitable procedure to be followed in all criminal cases. In line with this, the Indian Supreme Court on numerous occasions has consistently held that the right to free legal service is an essential ingredient of a reasonable, fair and just procedure for a person accused of an offence. Article 21 of the Indian Constitution provides: No person shall be deprived of his life or personal liberty except according to procedure established by law. In M.H Hoskot case12, Krishna Iyer J boldly declared: This (Legal Aid) is the State?s duty not Government?s charity. In the landmark case of Hussainara Khatoon and Other v. Home Secretary, State of Bihar13, the eminent Bhagwati J ruled that it is a constitutional right of every accused person who is unable to engage a lawyer or secure legal services on account of poverty, indigence or incommunicado, to have free legal services provided to him by the State and the State is under a constitutional mandate to provide a lawyer to such an accused person if the needs of justice so require. If free legal services are not provided to such an accused person, the trial itself may run the risk of being vitiated as contravening art. 21 of the Indian Constitution and every state should try to avoid such a possible eventuality. In the famous case of Khatri and Others v. State of Bihar and others14, (commonly known as the Bhagalpur Blinding Case), Bhagwati J went on further to say that an accused person is entitled to a free legal service not only during the trial stages but also when an accused is brought for the first time before a Magistrate for remand application. Accordingly his Lordship at pp. 930-931 held: ? the right to free legal service is clearly an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it must be held implicit in the guarantee Article 21 and the State is under a constitutional mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyers. It is unfortunate that though this Court declared the right to legal aid as a Fundamental Right of an accused person by process of judicial construction of Art 21, most of the States in the country have not taken note of this decision and provide free legal services to a person accused of an offence. We regret this disregard of the decision of the highest Court in the land by

many of the States despite the constitutional declaration in Article 141 that the law declared by this Court shall be binding throughout the territory of India. Mr. K.G Bhagat on behalf of the state agreed that in view of the decision of this Court the State was bound to provide free legal services to an indigent accused person but he suggested that the State might find it difficult to do so owing to financial constrain. We may point out to the State of Bihar that it cannot avoid its constitutional obligation to provide free legal services to a poor accused by pleading financial or administrative inability. The State is under a constitutional mandate to provide free legal aid to an accused person who is unable to secure legal services on account of indigence and whatever is necessary for this purpose has to be done by the State. The State may have its financial constrains and its priorities in the expenditure but as pointed out by the Court in Rhem v. Malcolm 377 F Supp 995 "the law does not permit any government to deprive its citizen of constitutional rights on a plea of poverty" and to quote the words of Justice Blackmum in Jackson v. Bishop 404 F Supp 2d, 571 "humane consideration and constitutional requirements are not in this day to be measured by dollar consideration". Moreover, this constitutional obligation to provide free legal services to an indigent accused does not arise only when the trial commences but also attaches when the accused is for the first time produced before the Magistrate. It is elementary that the jeopardy to his personal liberty arises as soon as a person is arrested and produced before a Magistrate, for it is at that stage that he gets the first opportunity to apply for bail and obtain his release as also to resist remand to police to jail custody. This is the stage at which an accused person needs competent advice and representation and no procedure can be said to be reasonable, fair and just which denies legal advice and representation to him at this stage. We must, therefore, hold that the State is under a constitutional obligation to provide free legal services to an indigent accused not only at the stage of trial but also at the stage when he is first produced before the magistrate and when he is remanded from time to time. What is interesting in India is that, the Supreme Court has interpreted art. 2115 of their constitution in such a manner as to impose an obligation on the state to provide free legal representation to an indigent accused person on the basis that such free legal representation is essential to the ingredient of reasonable, fair and just procedure in criminal trials16. Today art. 39A17 of the Indian Constitution directs every state to provide free legal aid. Article 39A reads: The State shall secure that the operation of the legal system promotes justice on the basis of equal opportunity, and shall, in particular, provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disability.18 European Union Countries

The right to free legal assistance is expressly guaranteed under art. 6(3)(c) of the Convention for the Protection of Human Rights and Fundamental Freedoms. Article 6(3) reads: Everyone charged with a criminal offence has the following minimum rights: (c) to defend him himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interest of justice so require. In Boner v. United Kingdom19; Maxwell20 v. United Kingdom21, the European Court of Human Rights unanimously held that there has been a violation of art. 6(3) of the European Convention in Human Rights when Mr. A Boner and Mr. P Maxwell were refused legal aid for their representation at the hearing of their appeal before the High Court of Justiciary in Scotland. The court in this case also observed that without the services of a legal practitioner the applicants were unable competently to address the court on the legal issues and thus defend themselves effectively. The Position in Malaysia So far there are no decided cases which have interpreted art. 5(1) of the Federal Constitution so as to impose a constitutional obligation on the federal or state government to provide free legal representation to an indigent accused person in criminal cases. In Palaniappa Chettiar v. Arunasalam Chettiar FM Civil Appeal No 34 of 195822; the Chief Justice then in interpreting art. 5(3) said: It is wrong to say, as is frequently said, that a litigant is entitled to be represented by the counsel of his choice. The true statement is that he is entitled to be represented by the counsel of his choice if that counsel is willing and able to represent him. Similarly in Mohamed bin Abdullah v. Public Prosecutor23, Harun J similarly held that: With respect, I agree with the aforesaid interpretation of Article 5(3) of the Constitution in so far as it concerns an accused person?s right to counsel. The right is only to choice of counsel who is willing and able to act. It does not confer a right to counsel in every case, that is to say, it does not mean that an accused person cannot be tried unless he is represented by counsel which is what the appellant is in substance contending. What this means is that if a legal practitioner is not willing to act for an accused person who is unable pay for the legal services, the accused person will be left to conduct his or her defence alone. It was pointed out in Rianto bin Sumiran v.

Public Prosecutor24, that the trial judge is not prohibited from hearing a case in the absence of a counsel should the accused person choose not to retain one. Where an accused person is unable to retain a counsel due to his financial impotence, does that mean that an accused person deliberately refuses to retain a counsel? Can an inability to appoint a legal practitioner due to financial impecuniosities can ever be equated with the refusal to appoint a legal practitioner? Should the court still proceed to try an accused person in the absence of counsel if he is too poor to retain one? It is respectfully submitted that a person?s inability to appoint a legal practitioner due to his financial disability must not be equated with a person who has the financial means to engage a counsel but makes a conscious decision not to retain one. It is submitted further that the trial does not become unfair or unjust where an accused person who has the financial means to engage counsel chooses not to retain one and conducts the defence by himself at his own peril. It is hard to understand and imagine how an indigent accused person who is unrepresented by counsel is able to get a fair trial without the assistance of a legal practitioner to defend him during the course of trial. It is unlikely that a lay person with limited or with no knowledge in the science of law and who is unfamiliar with the technical rules of evidence and procedures of trial, will be able to defend himself effectively and take advantage of any procedure that may be available to him. I respectfully submit that conducting a trial without a legal practitioner to represent an indigent accused person may result in irrelevant and prejudicial evidence being adduced and admitted without the benefit of objections which would otherwise be taken if a competent counsel had acted for the accused person. It is also possible that there may be numerous accused persons languishing in various prisons around the country for months and years due to financial disability to engage the services of a lawyer to apply for bail or to defend them at trial. It is unfortunate that the Malaysian government has not set up a legal aid scheme whereby an accused person who wishes to claim trial to the charge would be assigned counsel as of right where one can?t afford to engage a legal practitioner. In Malaysia, a legal practitioner is generally assigned by the High Court from a list of voluntary lawyers to an accused person charged with an offence punishable with death. In all other cases the Bar Council Malaysia runs its own legal aid program in each state without any government funding25. The Legal Aid Act 197126 also makes provisions for providing legal aid in criminal cases in limited circumstances. Under the Legal Aid Act, the legal assistance is only given to an accused who wishes to make a plea in mitigation27. Notwithstanding the availability of free legal representation in these limited circumstances, the fact remains that the government does not provide an indigent person free legal services as of right where he or she wishes to plead not guilty and claim trial to the charge. Does the federal or state government owe a constitutional

duty to provide an indigent accused person charged with a criminal offence free legal representation where he pleads not guilty and wishes to claim trial? If we follow the reasoning and interpretation of the Supreme Court of India in the interpretation of their art. 22 of the constitution, it is possible to suggest that the state governments and the federal government in Malaysia have similar constitutional obligations to provide an indigent person with free legal representation on the basis that it is a fundamental basic right to ensure a fair trial. Only time will tell whether our courts will embrace the spirit of the constitution and interpret our constitution in such a manner as to make it incumbent on the government to provide free legal aid to an indigent person who protests his innocence and requires the guiding hand of a lawyer to conduct his defence. There is no legal obligation on the arresting officer to inform the arrested person of his right to consult and to be defended by a legal practitioner The Federal Constitution, the Criminal Procedure Code nor the Police Act 1967 impose any positive obligation on the part of the police or the arresting officer to inform the arrested person of his right to consult a legal practitioner. In Hashim bin Saud v. Yahya bin Hashim & Anor28, Harun J held: Article 5(3) prescribes that an arrested person shall be informed of the grounds of his arrest but does not prescribe that the arrested person shall be informed of his right to consult and be defended by a legal practitioner of his choice. It merely prescribes that he shall be allowed. Unlike in America, therefore there is no duty on the part of the police to inform the arrested person of his right to counsel. It may be that Malaysians are more aware of their constitutional rights than Americans and are expected to exercise it the moment they are arrested without having to be reminded of their rights. It is respectfully submitted that the Harun J?s observation that the Malaysians may be more aware of their constitutional rights than the Americans is totally devoid of any factual basis and it is erroneous to make such an assumption. Similarly the Singapore Courts in interpreting art. 9(3) of the Singapore Constitution (in pari materia with art. 5(3)) have also held that Singapore Constitution does not provide the right to be informed of one?s right to counsel, see Rajaevan Edakalavan v. PP29. It would appear that in America, an arrested person has the right to be informed of his right to counsel. Thus in Miranda v. Arizona30, the U.S Supreme court held that the arrested person has the right to be informed of his or her right to an attorney who is either retained or appointed. In Gibbs v. Burke31, it was laid down that a failure to request counsel does not constitute a waiver when the accused does not know of his right to counsel. Similar in R v. Absolam32, the English Court of Appeal quashed the conviction for supplying cannabis and substituted one for simple possession because the accused had not been informed of his right to consult a solicitor before he was questioned. The trial judge held that the series of preliminary questions and answers that took place between the

accused and the officer did not amount to an interview. The Court of Appeal however took the view that the series of preliminary questions were an "interview" within the meaning of the Code of Practice because they were directed at the suspect with the aim of obtaining admissions on which the prosecution could be based.33 When the right to consult a legal practitioner begins? The Federal Constitution merely declares that an arrested person has a right to consult a legal practitioner of his or her own choice. It does not, however, expressly state when the right must be conferred to an arrested person. In Lee Mau Seng v. The Minister of Home Affairs, Singapore & Anor34, it was held that this right must be granted within a reasonable time after a person?s arrest. Wee Chong Jin CJ accordingly held that: The language of art 5(3) of the Constitution is clear and simple. If a person who is arrested wishes to consult a legal practitioner of his choice, he is, beyond a shadow of doubt, entitled to have this constitutional right granted to him by the authority who has custody of him after his arrest and this right must be granted to him within a reasonable time after his arrest. In determining whether the right to consult a legal practitioner was granted within reasonable time or not would inevitably depend on the facts and circumstances of each case. Similarly in PP v. Mah Chuen Lim & Ors35, Syed Othman J at p. 95 noted that: The Constitution does not prescribe the time within which the arrested person shall be allowed to consult counsel. But section 38 of the Interpretation and General Clauses ordinance 1948, which applies to the Constitution (see Eleventh Schedule) reads: When no time is prescribed or allowed within which anything shall be done, such thing shall be done with all convenient speed and as often as the prescribed occasion arises. (A similar provision can be found in section 54(2) of the Interpretation Act, 1967, which applies to legislation set out in section 2). What is "convenient speed? would depend on the circumstances of each particular case. I do not think it is desirable to lay down the speed convenient to all cases. Whether the right to consult a legal practitioner could be delayed until the completion of police investigation?

In Ramli bin Salleh v. Inspector Yahya bin Hassim Alor Setar36, the police arrested the applicant based on the strength of a report. He was remanded for eleven days in police custody. An advocate who was appointed to act for the applicant made an application to see the applicant for consultation. The application was refused and the advocate was informed that he can only see the applicant after the completion of the remand period, in other words, after the police has completed their investigation. The advocate thereupon filed a writ of habeas corpus but before the application could be heard the applicant was released. Counsel for the respondent argued that since the applicant was already released the application for habeas corpus no longer arose and therefore it was not necessary for the court to consider the application. Syed Agil Barakbah J nevertheless went on to give his ruling as his Lordship was of the view that the question which arose for determination was of considerable public importance and public interest that it was proper for him to make a ruling. Syed Agil Barakbah J had to decide whether the right of a person who is arrested and remanded in police custody to consult and to be defended by a legal practitioner of his own choice commences immediately after his arrest or within a reasonable time before police investigations are complete. After considering several Indian authorities the learned judge came to the conclusion that in Malaysia the right of an arrested person to consult and to be defended by a legal practitioner as envisaged under art. 5(3) of the Federal Constitution, begins from the day of arrest even though the investigations has not been completed. In order to satisfy the constitutional requirement of art. 5(1), the right should be subjected to certain legitimate restrictions which necessarily arise in the course of police investigation, the main object being to ensure a proper and speedy trial in the court of law. Such restriction may relate to time and convenience of both the police and the person seeking the interview. They should not be subjected to any abuse by either party, for instance, the police unreasonably delaying the interview or by counsel demanding an interview at any time that suits him or interferes with the investigation. The learned judge went on to say that in order to render such interview effective it should not be held within the hearing of any member of the police force though within their sight. Ruling on the facts of this case, the High Court found that the action of the police in this case in restricting the counsel?s application to interview his client until after the expiry of the detention period was unreasonable.37 The question of whether the police can deny or delay the accused from exercising his constitutional right to consult a legal practitioner was considered afresh in Ooi Ah Phua v. Officer in Charge of Criminal Investigation, Kedah/Perlis38. Here the accused was arrested on 26 December 1974 and was produced before the Magistrate on 28 December 1974. He was formally charged with arm robbery on 7 January 1975. The father of the accused instructed a solicitor to see the accused on 30 December 1974. The solicitor was informed that he could only see the accused

on the 2 January 1975, ie, after the investigation was complete. On 5 January 2005 the solicitor filed a motion for habeas corpus. It was argued that the accused was unlawfully detained as he was not allowed to exercise his constitutional right to consult a legal practitioner provided under art. 5(3) of the Federal Constitution. The High Court dismissed the application and on appeal, Suffian LP held that: ? that the right of an arrested person to consult his lawyer begins from the moment of arrest, but I am of the opinion that that right cannot be exercised immediately after arrest. A balance has to be struck between the right of the arrested person to consult his lawyer on the one hand and other the duty of the police to protect the public from wrongdoers by apprehending them and collecting whatever evidence exists against them. The interest of justice is as important as the interest of arrested persons and it is well known that criminal elements are deterred most of all by the certainty of detection, arrest and punishment. Referring to the facts of this case, the learned judge opined: I am of the opinion that it was unreasonable of Mr. Karpal Singh to expect to be allowed to interview Ooi on the Monday, December 30, 1974 and that as in this case there had been a day light robbery committed in the heart of the state capital involving the use of pistol and the loss of $14,000 to $15,000 not to mention the loss of one life and that as many young men are prepared to go to any length in the pursuit of instant wealth, armed robberies are therefore quite common. It was quite reasonable of the police to give facilities to Mr. Karpal Singh to interview Ooi for the first time only on January 5, 1975. This case seems to suggest that the police can deny an arrested person from consulting a legal practitioner until the police investigations are complete. Similarly in Hashim bin Saud v. Yahya bin Hashim & Anor39, the appellant was arrested on suspicion of being involved in a theft of a generator. He was brought before a Magistrate who authorised his detention for investigation under s. 117 of the Criminal Procedure Code. An application by his lawyer to see the appellants was refused and his counsel was informed that he could only see the appellant on a subsequent date when the investigations have been complete. An application for the release of the applicant was made. It was argued that the refusal of the police to allow the counsel to see the appellant during the course of police investigations had breached his constitutional right and therefore the order made by the Magistrate was unlawful. It was also argued that the appellant was entitled to damages for false imprisonment against the police officer and the Government of Malaysia. The High Court ruled that although the right to consult a legal practitioner starts immediately from the time of arrest, the exercise of that right could be postponed for so long as the arrested person is detained under s. 117 of the CPC. Raja Azlan Shah FJ however held that the judge was not correct in stating in effect that the right to counsel could only be exercised after the completion of police

investigations. The Federal Court approved the decisions in Ooi Ah Phua v. Officer-In-charge of Police Investigations Kedah/Perlis (supra) and reiterated that the right to consult a legal practitioner starts from the day of arrest. An accused person does not lose his right to consult a legal practitioner merely because he is remanded for investigations under s. 117 but that right cannot be exercised by the accused person immediately after arrest or where it impedes police investigations or the administration of justice. The onus lies on the police to show that by allowing the arrested person to exercise his right to consult a legal practitioner would impede the ongoing police investigations or the administration of justice. Ruling on the facts of this case, the court was satisfied that the police had given a good reason as to why such right should only be exercised after the period of police investigations. Unfortunately the principle in Ooi Ah Phua (supra) was affirmed once again in Theresa Lim Chin Chin v. Inspector General of Police40. However Salleh Abas LP at p. 297 seemed to have reversed the burden on the accused: When should a detainee arrested under s. 73 of the Internal Security Act be allowed to exercise his right under Article 5(3) of the Constitution to consult counsel of his choice? We would reiterate what was held by the Federal Court in Ooi Ah Phua v. Officer-in-Charge, Criminal Investigations, Kedah/Perlis [1975] 2 MLJ 198. In other words, the matter should best be left to the good judgement of the authority as and when such right might not interfere with police investigation. To show breach of Article 5(3), an applicant has to show that the police has deliberately and with bad faith obstructed a detainee from exercising his right under the Article. More recently in Saul Hamid bin Pakir Mohamad v. Inspector Abdul Fatah bin Abdul Rahman & Anor41, the High Court expressly held that the police is entitled to deny an accused person access to his lawyer pending investigations. Such a denial of access to counsel during the period when a person is under remand for investigations does not amount to an infringement of the right to access to counsel conferred by the Constitution. The weight of the above authorities seems to suggest that although the right of an accused person to consult a legal practitioner starts immediately upon arrest, police however seem to have the final say in deciding when the accused should be allowed to consult his legal practitioner. Interestingly in Nasharuddin bin Nasir v. Kerajaan Malaysia & 2 Ors42, the High Court voiced its disapproval in the following words: The first question posed by me that needed immediate attention by the respondent, was whether the police, after having arrested the detainee could legally prevent the detainee?s solicitors from seeing him. Under Art 5(3) of the Federal Constitution, it is quite clear that a detainee after having been arrested is entitled to legal representation. The consequential question that flowed will be when or at what stage may his lawyers meet up with him to put into effect that constitutional right.

It is indisputable that the right of legal representation would be meaningless if a detainee were to be denied access to professional assistance due to some overzealous but ill-informed administrator. Having scrutinized the above Art 5(3), I failed to identify anywhere in it, expressed or inferred, which authorized the police to deny that access. In fact the learned Senior Federal Counsel to his credit even admitted that he likewise failed to identify any relevant provision that empowered the police to issue the letter of May 10, 2002. He could only allude to case laws for assistance. Both the police and the detainee know that the latter has an entrenched constitutional right under Art 5(3) to consult a lawyer of his choice. In the event he desires to see that lawyer, an application as in the current case will have to be made. Regardless of that guaranteed promulgated right, ironically the police then will decide to grant that access or not. To pour salt on the wound, the ball then will dramatically roll to the detainee?s court whereby he will have to allege that Art 5(3) had been breached when a rejection had occurred. Following the above view of Theresa Lim Chin Chin, there is no necessity for the authorities to justify the rejection of the access application. Yet by analogy, the authorities in Karam Singh v. Minister of Home Affairs [1969] 2 MLJ 9 were required to justify the detention after a complaint had been received that the impugned detention was illegal. Once the detention order pursuant to law had been produced, with it being proved authentic and done in good faith, the onus then shifts back to the detainee to show bad faith on the part of the detaining authorities. The ironic twist in the current case is that despite the non-requirement of the police to justify the arrest, running counter to Karam Singh rationale (and an issue for future consideration by superior courts), the onus still remains on the detainee to prove mala fide on the part of the police. Not only must he be a mind reader and speculate on the reasons of the rejection, but must prove mala fide without help from them. With near nothing to start off, and trapped within the confines of the inscrutable faces of his jailors, he might as well throw in the towel. Thankfully, the only avenue still left unplugged is that there are no inhibitive case laws or statutory provisions that restrict the manner of proving thatmala fide factor. The Indian Position The right to counsel under art. 22 of the Indian Constitution was examined by Modi J in Moti Bai v. The State43. In this case Moti Bai was arrested by the police on 15 June 1954 on suspicion of being involved in an offence under s. 6 of the Indian Wireless Telegraphy Act and under s. 489A of the Penal Code. While she was in police custody, her counsel wanted to interview her. This interview was not granted although he was able to obtain one at the house of a magistrate where the accused was taken to for remand under s. 167 of the Indian Criminal Procedure Code. Counsel for the accused wanted another interview on 17 June 1954 and he applied to the Station House Officer who then turned down his application. Counsel then applied to a senior officer, a Deputy Superintendent, who allowed the

application on the condition that the interview must be conducted in the presence and within the hearing of the police. Modi J at p. 242 of the judgment opined: The requirement is that no such person shall be detained without being informed at the earliest possible opportunity of the ground for his arrest and that such person shall have a right to consult and to be defended by a legal practitioner of his own choice. In order that this right ?to consult a legal practitioner of one?s choice? can properly and reasonably be given effect to, it must follow that such legal practitioner must be allowed the facility to consult the accused whom he seeks to defend, and I may further point out that if such consultation is to be useful, it must be allowed without the hearing of the police though in their presence. The presence of the police is obviously needed so that the accused may not abscond from custody or do anything which may be objectionable otherwise. It deserves to be noticed in this connection that the right of the accused enshrined in this Article begins right from the day of his arrest. Having said that Modi J at p. 243 went on to make an important observation: It must be clearly understood, however, that the police must not in any way obstruct such interviews on arbitrary or fanciful grounds with a view to deprive the accused of his constitutional right.44 Similarly in Sundar Singh v. Emperor45 it was held: It is in the interest of justice that an accused person should have access to legal advice even while he is in police custody during the course of investigation. An interview with the legal advisor should not therefore be refused to a prisoner who is remanded to police custody under s. 167. What is clear in India is that an arrested person has the right to consult a legal practitioner even during the course of investigation. The police can only deny access to the legal practitioner provided they have reasonable grounds to believe that the legal practitioner has abused or likely to abuse the privilege and the police must be prepared to support their action on substantial grounds46. The burden remains to the police to justify the denial of the accused to consult a legal practitioner. English Law Under English Law, the Police and Criminal Evidence Act 198447 confers an arrested person a right to consult a solicitor privately at any time48 and his request to consult a solicitor must be recorded in the custody record49. The right to consult a solicitor, however, can only be delayed in limited circumstances specified in the

1948 Act50. An officer can delay the arrested person from consulting a solicitor provided the officer has reasonable grounds to believe that by allowing the arrested person to consult a solicitor it will lead to the interference with or harm to evidence connected with a serious arrestable offence or that it will interfere with or cause physical injury to other persons; that it will alert other persons suspected of having committed such offence but have not been arrested for it51; that it will hinder the recovery of any property obtained as a result of such an offence52. The Code of Practice under the Police and Criminal Evidence Act also requires a poster advertising the right to have legal advice to be prominently displayed in the charging area of every police station53. In R v. Samuel54, the appellant was interviewed by the police on four occasions concerning a robbery and four burglaries. The appellant denied any involvement. During the second interview he asked for access to a solicitor but his request was refused on the ground that the other suspects involved in the robbery might inadvertently be warned. On the fourth interview the appellant confessed to the two burglaries and he was charged at 4.30pm. At 4.45pm a solicitor was informed of the charges but access was still denied. Shortly afterwards the appellant confessed to the robbery and the solicitor was only allowed to see him one hour later. During trial, objection was taken as to the admissibility of the confession. The trial judge admitted the confession and convicted the appellant based on the confession. The Court of Appeal quashed the conviction and the sentence on the ground that the refusal of access to a solicitor was unjustified and the interviews should not have taken place. The Court of Appeal also found that the officer had failed to establish one or more of the reasons set out in (a) to (c) of s. 58 to justify the refusal to allow the accused from consulting a solicitor. Hodson J at pp. 929-930 of the reported judgment held: The use of the word "will" is clearly of great importance. There were available to the draftsman many words or phrases by which he could have described differing nuance as to the officer?s state of mind, for example "might", "could", "there was a risk", "there was a substantial risk" etc. The choice of "will" must have been deliberately restrictive. Of course, anyone who says that he believes that something will not happen, unless he is speaking of one of the immutable laws of nature, accepts the possibility that it will not happen, but the use of the word "will" in conjunction with belief implies in the believer a belief that it will very probably happen. What is it that the officer has to satisfy the court he believed? The right denied is a right "to consult a solicitor privately". The person denied that right is in police detention. In practice, the only way that the person can make any of the matters set out in paras (a) to (c) happen is by some communication from him to his solicitor. For the matters set out in paras (a) to (c) to be made to happen the solicitor must do something. If he does something knowing that it will result in anything in paras (a)

to (c) happening he will, almost inevitably, commit a serious criminal offence. Therefore, inadvertent or unwitting conduct apart, the officer must believe that a solicitor will, if allowed to consult with a detained person, thereafter commit a criminal offence. Solicitors are officers of the court. We think that the number of times that a police officer could genuinely be in that state of belief will be rare. Moreover it is our view that, to sustain such a basis for refusal, the ground put forward would have to have reference to a specific solicitor. We do not think they could ever be successfully advanced in relation to solicitors generally ? Right of the Accused to be assisted by Counsel when making unsworn evidence In Abdullah bin Jacomah v. Public Prosecutor55, the accused was charged for corruption. At the close of the prosecution case, the trial judge found that the prosecution had made out a prima facie case and ordered the accused to enter his defence. The trial judge explained the three options to the accused and the accused elected to give unsworn evidence from the dock. His counsel was not allowed to assist him in making the statement. On appeal to the High Court, Augustine Paul J (as his Lordship then was) in setting aside the conviction and sentence held that the right to legal representation is expressly conferred by art. 5(3) of the Federal Constitution and is reinforced by s. 255 of the Criminal Procedure Code. Such fundamental right cannot be whittled down or restricted unless there is an express statutory provision to that effect of which there is none in this case as to the manner of making a statement from the dock. The right to be defended means that not only must counsel be heard but that there must also be an opportunity of being effectively heard. The right will be meaningless if the legal representative is precluded from full participation. Counsel can be fully and effectively heard only if he has complete control of the defence. This must include the right to adduce evidence which is relevant, necessary and admissible when the accused is required to testify. It is absolutely necessary for counsel to have such a right as he is the person who is ultimately responsible for the conduct of the defence. As such he cannot be denied the right to participate fully in the proceeding in any manner chosen by the accused to advance his defence. Thus, a denial of the right to make a proper statement from the dock with the assistance of counsel will result in the accused not being heard properly and will thereby amount to a breach of natural justice unless there is a statutory power to do so of which there is none. Whether an accused person has a right to have an advocate & solicitor present during remand proceedings It is trite law today that a suspect has a right to be represented at remand proceedings. This has been made clear in Saul Hamid v. PP56. In this case the accused was represented by a legal practitioner during an application by the police to continued remand order against the accused. The Sessions Court Judge ruled

that the legal practitioner had no right of audience at the hearing of the application. On revision Edgar Joseph Jr. J in the High Court held that: The conclusion that I have arrived is that generally an arrested person has a right to be represented by a legal practitioner in remand proceedings before a Magistrate under s. 117 of the Criminal Procedure Code unless the police discharge the onus of satisfying the Magistrate that to allow him to exercise that right would result in undue interference with the course of investigation" ? the police must adduce sufficient evidence to convince the legal mind that there is sufficient grounds to support their objections. Whether an accused person has a right to have counsel present during interrogation? In the United States, an arrested person has the right to have an attorney present during interrogation by the investigating authorities. InMiranda v. Arizona57 the accused Ernesto Miranda was convicted of rape and murder. The accused was identified in a police line up and upon questioning by the police he gave a written statement and made a confession without being told about his right to a lawyer. His confession was then used at the trial. In overturning his conviction, Chief Justice Earl Warren held that the prosecution cannot use any statements made by a person in police custody unless certain minimum procedural safeguards were in place. The United States Supreme Court held that prior to any questioning an accused person must be warned that he has a right to remain silent and any statement made by him may be used as evidence against him. The accused must also be informed that he has a right to have the presence of an attorney either retained or appointed. The accused can waive his rights, provided his waiver is made voluntarily, knowingly and intelligently. Where an interrogation is conducted without the presence of an attorney and a statement is taken, a heavy burden is cast on the government to demonstrate that the defendant knowingly and intelligently waived his right to have an attorney present. If at any stage of the questioning the accused intimates in any manner that he wishes to consult an attorney before speaking, there can be no further questioning. Likewise if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police cannot question him any further. The mere fact that the accused may have answered some questions or volunteered some information on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted an attorney and thereafter consents to being questioned. In the United Kingdom, when a suspect is allowed to consult a solicitor and the solicitor is available, the solicitor must be allowed to sit in on any interview the police gives the suspect58. A solicitor may however be asked to leave if his conduct is such that the investigating officer is unable to put questions to the suspect59. Unfortunately in Malaysia an advocate has no right to be present when the police are interrogating the suspect. It is submitted that the advocate should be allowed to

be present when the police records statements from the suspect as this will prevent any allegation of oppression or misconduct on the part of the investigating or the recording officer. This would invariably make statements made by an arrested person more reliable in court. It is submitted that there are really no logical reasons to exclude the participation of a legal practitioner when a statement is recorded from the accused as the legal practitioner is merely present to advise the suspect to exercise his legal right to remain silent or to cooperate with the police. Conclusion It would seem that an arrested person in Malaysia is very much at the mercy of the police to determine when the arrested person should be allowed to consult a legal practitioner upon arrest. Without any clear guidelines spelt out under the Criminal Procedure Code, Police Act or under the Federal Constitution specifying instances when an arrested person?s right to consult a legal practitioner could be delayed, it opens to a variety of possible abuse of power by the police. It is regrettable that our Federal Court in Ooi Ah Phua (supra)has interpreted the Federal Constitution in such a manner as to give the police absolute right to deny or delay the suspect from consulting a legal practitioner until the completion of police investigations. It is respectfully submitted that the police should only be allowed to delay the suspect from consulting a legal practitioner provided the police have reasonable and genuine grounds to believe that the particular lawyer in question will abuse his rights or likely to abuse his rights and that it would impede the ongoing police investigations by tampering with witnesses. It would be contrary to common sense to suggest that by allowing a suspect to consult any legal practitioner in general would impede police investigations. While the possibility cannot be excluded it is unlikely that an advocate in Malaysia who is an officer of the court will risk being charged for a criminal offence and put his professional career in jeopardy to impede police investigations and obstruct ongoing police investigations by tampering with witnesses60. The police on the other must be prepared to justify their decision not to allow the suspect to consult a legal practitioner in question, failing which they must be prepared to face legal consequences for violating a citizen?s constitutional right. It is therefore suggested that a Code of Practice similar to the one found under the Police and Criminal Evidence Act in the United Kingdom be enacted to safeguard the accused?s right to counsel and to prevent the police from abusing their powers by arbitrarily refusing the suspect access to his solicitor. It is submitted that when a police refuses a suspect to consult a solicitor, reason for the refusal must be made known to the suspect and it must be recorded in the custody record as this would allow the court to evaluate the conduct and legality of the police actions. It is also submitted that the average Malaysian is still unaware of his constitutional right upon arrest. There is a clear danger that a person?s right to consult legal advice can be effectively curtailed if they are not aware of it. It is also submitted that an accused person cannot be said to have waived his right to counsel on account of failing to request for one if he is unaware of his right to consult a legal practitioner in the first place. It is respectfully

suggested that the Criminal Procedure Code be amended as soon as possible to make it obligatory for the arresting officer to inform the suspect of his right to consult a legal practitioner immediately upon arrest. It is also timely that an arrested person be given a right to make one phone call either to his family or to his legal practitioner. In Jahangiri Lal v. Emperor61, Dalip Singh J said: The rulings of this Court are clear that an undertrial prisoner is entitled to have the assistance of counsel and further he is entitled to communicate with his relations and friends. These rules cannot be evaded by removing the accused person to a place so that nobody knows where he is and his relations and friends cannot communicate with him and legal assistance cannot be availed of. The matter is really reduced to a farce if interviews are allowed only after a confession has been recorded?There should be means provided whereby the relatives of the accused can be informed where the person is detained and inquiry made from the person concerned whether he wishes for legal assistance or not. Lawyers also owe a duty to the society to provide legal aid to an indigent accused person62. Perhaps its time to consider an amendment to the Legal Profession Act 1976 to make it compulsory for newly qualified lawyers to serve the government for a certain number of years in a legal aid bureau, just like requiring newly qualified doctors to serve in government hospitals before they are allowed to work in the private sector. Until reforms and amendments are incorporated into the Criminal Procedure Code, we are left with no choice but to trust our judges to interpret our constitution wisely and to guard our most precious gift, the right to consult and to be defended by a legal practitioner. ****** * Srimurugan LL.B (Hons) Wolverhampton, CLP (Mal); Advocate & Solicitor. The author is also a lecturer/tutor at the International Islamic University Malaysia. 1. 287 US at p. 64 of the reported judgment. 2. AIR [1953] SC 10 at p. 15 3. Hansraj and Others v. State AIR (43) [1956] Allahabad 641. 4. [1948] Supp MLJ 151. 5. [1948] Supp MLJ 139. 6. The word "advocate" is derived from "advocare", ie, to summon to one?s assistance. 7. [1975] 1 MLJ 95.

8. Right to assistance of counsel includes the right to be assisted from the time of arraignment until the beginning of trial for the purpose of consultation, investigation and preparation of trial see Powel v. Alabama 287 US 45. 9. 372 US 35 1963. 10. 407 US 25. 11. [1978] 1 SCC 248. 12. AIR [1978] SC 1548. 13. AIR [1979] SC 1377. 14. AIR [1981] SC 928. 15. It is interesting to note that the Law Commission of India in its 41st Report Vol 1 para 24.34 and 24.38, had made recommendation for an indigent accused person to be provided with free legal representation long before the Supreme Court Cases by art. 21 were decided. 16. Today the right to be provided with free legal service to an indigent accused person has been reduced into a statutory footing. Under s. 304 of the Indian Criminal Procedure Code an accused person without sufficient means to engage a lawyer has a right to be defended by a lawyer at the expense of the State in regards to sessions trials with a provision also enabling the State Government to extend this right by notification to any class of trials before other court in the state. 17. Inserted by the Constitution (42nd Amendment) Act 1976. 18. Article 39A is merely a directive. In the absence of any legislation implementing art. 39A, an accused cannot compel the State to supply him with a lawyer, at the cost of the state, through a writ petition. The remedy of an indigent accused lies in an application to the Sessions Court under s. 304(1) of the Indian Criminal Procedure Code. 19. In this case Mr. Boner was charged with arm robbery and assault. He received legal aid and was represented by a solicitor during the trial. He was convicted and sentenced to eight years. He sought to appeal against his conviction and his application for legal aid was refused by the Legal Aid Board on the ground that the board was not satisfied that he had good grounds to appeal. 20. Here Mr. Maxwell broke into a private house and assaulted a man. He was convicted and was sentenced to five years imprisonment. He too was granted legal aid and was represented by a solicitor during trial. He filed an appeal against his conviction and sentence and applied for legal aid. The Scottish Legal Aid denied

his application on the ground that Mr. Maxwell did not have a substantial ground to appeal. 21. The Times Law Reports, 1 November 1994, p. 541. 22. [1961] MLJ xxxiii. 23. [1980] 2 MLJ 201. 24. [1994] 4 CLJ 423. 25. The Bar Council Legal Aid Centre in each state provides free legal representation to an accused person charged in the Magistrates and in the Sessions Court. Voluntary lawyers and chambering students with locus to appear also conduct mitigation for an indigent accused person in the Magistrates Court. 26. (Act 26). 27. See s. 10, 2nd Schedule to the Legal Aid Act 1971. 28. [1977] 1 MLJ 259. 29. [1988] 1 SLR 815. 30. 384 US 436 (1966). 31. [1949] 93 Law Ed 1686 (1691) (D). 32. [1989] 88 Cr App R 322. 33. Also in R v. Beycan [1990] Crim Law LR 185, the accused was arrested in connection with supplying heroin. He was taken to the police station where he was asked ?Are you happy to be interviewed in the normal way we conduct these interviews without a solicitor, friend or representative?" The Court of Appeal once again held that this did not amount to informing the accused of his right to obtain a legal advice and quashed his conviction which was based on this confession. 34. [1971] 2 MLJ 137. 35. [1975] 1 MLJ 95. 36. [1973] 1 MLJ 54. 37. The learned judge in this case went on to refer the matter to the Federal Court for an opinion under s. 48 of the Courts of Judicature Act 1964. However the Federal Court declined to give their opinion on the ground that the Federal Court

had no jurisdiction under s. 48, to determine abstract matters or matter of academic interest as in this reference. Suffian LP was of the view that at the time when the learned judge gave his ruling he was already functus officio and he should not have made any ruling. Ong Hock Sim FJ also took the view that since the prisoner was already released the ruling was uncalled for as the matter has become purely an academic exercise. 38. [1975] 2 MLJ 198. 39. [1976] 1 LNS 40. 40. [1988] 1 MLJ 293. 41. [1999] 6 MLJ 800. 42. [2002] 3 AMR 3721. 43. AIR 1954 Rajasthan 241. 44. Although Suffian LP in Ooi Ah Phua v. Officer-in-Charge, Criminal Investigations, Kedah/Perlis, referred to the case of Mot Bai v. State (supra) this passage was expressly omitted. 45. AIR 1930 Lah 945. 46. Sundar Singh v. Emperor AIR [1930] Lahore 945 at p. 947. 47. The Police and Criminal Evidence Act 1964 came into force on 1 January 1986. The Act was accompanied by Code of Practice: Code A on Stop and Seizure; Code B on Search of Premise: Code C on detention, questioning and treatment of person in custody; Code D: on identification and Code E: on Tape Recording Interviews. 48. See s. 58(1) Police and Criminal Evidence Act 1984; the suspect may also consult at any time and communicate privately, whether in person or in writing or on the phone with a solicitor (see Code C Para 6.1. Code of Practice). 49. See s. 58(2) Police and Criminal Evidence Act 1984. 50. Where the police intends to delay the arrested person from consulting a solicitor, the reasons for the delay must be told to the arrested person and it must be recorded in the custody record, see s. 58(9) of Police and Criminal Evidence Act 1984. 51. In Re Walters [1987] Crim LR 577, the court accepted that access to solicitor could be denied where there was evidence that the suspect had been using "Delphic

phrases" to communicate with each other. A solicitor could be used in such a way to communicate an apparently innocent message that could alert other gang members. 52. See s. 58(8)(a), (b), (c) Police and Criminal Evidence Act 1984; see as well s. 58(5A) which applies to drug offences. 53. see Code C Para 6.3. 54. [1988] 2 WLR 920. 55. [2002] 8 CLJ 1. 56. [1987] 2 MLJ 736. 57. 384 US 436 (1966). 58. See Code of Practice (Code C Para 6.8). 59. See Code of Practice (Code C Para 6.9). 60. It must be noted that the police can also report a particular lawyer to the Disciplinary Board established under the Legal Profession Act 1976 if the lawyer in question tampers with witnesses or obstructs the course of police investigations. 61. AIR [1935] Lahore 230. 62. In India, r. 46 of the Bar Council of India provides that it is the duty of an advocate to render legal aid. It provides that every advocate shall, in the practice of the profession of law bear in mind that anyone genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an advocate?s economic conditions, free legal assistance to the indigent and oppressed is one of the highest obligation one owes to the society. See Sarkar?s Hints of Modern Advocacy, Cross-examination and Professional Ethics, 5th edn 2002 at p. 18.