In democratic societies, the Executive Police is essential to the criminal justice system, serving as the crux in maintaining order and enforcing the rule of law while protecting human rights. To fulfill their duties, police officers are granted specific powers to assist the public. However, these powers must be carefully regulated to ensure a balance between law enforcement authority and individual freedoms. Therefore, it is imperative that police activities are subject to stringent oversight.
Article 346(1) of Chapter 9 of the Laws of Malta states that it is the duty of the Police to preserve public order and peace, to prevent and to detect and investigate offences, to collect evidence, whether against or in favour of the person suspected of having committed that offence, and to bring the offenders, whether principals or accomplices, before the judicial authorities. Therefore, this article sets out 3 main duties of the executive police:
Furthermore, article 347 of the criminal code[1] lays down the general rule that the police shall not institute criminal proceedings, except upon the complaint of the injured party, in cases where the law does not allow criminal proceedings to be instituted without such complaint.
Article 349(1) of Chapter 9 of the Laws of Malta provides that; “A police officer shall only have such powers as are vested in him by law and to the extent authorised by law and in this provision the word law has the same meaning assigned to it in Art.124 of the Constitution.”
Article 349(2) of this same chapter further provides that; “The omission of any precaution, formality or requirement prescribed under this Title shall be no bar to proving, at the trial, in any manner allowed by law, the facts to which such precaution, formality or requirement relates.”
Although the right to liberty is recognized as a fundamental human right, it is not without limitations. Exceptions to this right include arrest and detention. The authority to arrest is undeniably one of the essential powers granted to the police. An arrest represents the point at which an individual's fundamental right to freedom is counterbalanced by the public need for state custody.
In 2002, the laws relating to arrest underwent a comprehensive revision, and the powers of the police regarding arrest and detention are now detailed in articles 355B to 355AF of the Criminal Code.
Article 355V of the Criminal Code states that; “Where there are lawful grounds for the arrest of a person, the Police may request a warrant of arrest from a Magistrate, unless in accordance with any provision of law the arrest in question may be made without a warrant.”
Therefore, an arrest may be affected with or without a warrant. In any case, the warrant must be signed by the duty Magistrate, or il-Magistrat tal-għassa.
Article 355X (1) of Chapter 9 of the Laws of Malta provides that; “Any police officer may arrest without warrant anyone who is in the act of committing or has just committed a crime punishable with imprisonment, or whom he reasonably suspects to be about to commit or of having just committed such a crime”
In respect of the power of arrest given to the Executive Police without a warrant, such power may be exercised with respect to crimes which are punishable with imprisonment. Since arrest entails the deprivation of liberty, even temporarily, it should only be exercised in respect of the more serious offences.
In the case of ‘Vincent Vella vs. Commissioner of Police’ (Constitutional Court) 1993, the Court held that external anonymous information cannot be considered as being a sound basis for the formation of a reasonable suspicion, since the source of such information is external. From the moment in which the Police regard such information as being possibly true, they have to be continually informed of real facts which corroborate the information submitted anonymously, in order to give concrete quality to that suspicion which originated from an external source.
Article 355X (2) of Chapter 9 of the Laws of Malta provides that; “Any police officer may also proceed to the arrest of any person in respect of whom an alert for his arrest has been entered in the Schengen Information System”
Furthermore,Article 355X (3) of Chapter 9 of the Laws of Malta provides that; “Any police officer may also proceed to the arrest of any person who knowingly, or after due warning, obstructs or disturbs him in the execution of his duties, or disobeys his lawful orders.”
Therefore, this provision necessitates 3 requisites:
Although there is no statutory definition of 'arrest,' leading legal scholars describe it as the act of apprehending or restraining an individual to ensure they are available to respond to an alleged or suspected crime. Essentially, an arrest entails a complete deprivation of liberty, which can occur through physical constraint, being compelled to move to or remain in a specific location or being detained in a public area.
The principles of necessity and proportionality are critical when using force to make an arrest. Force should only be employed to the extent necessary to secure the individual and control the situation. Excessive force should be avoided unless absolutely required.
Upon making an arrest, the police are legally required to inform the individual that they are under arrest, either immediately or as soon as practicable. This information must be conveyed in a language the arrested person understands, with the assistance of an interpreter if necessary.
Following the arrest, the individual enters a detention period. During this time, suspects are cautioned, searched, and granted the right to consult a lawyer of their choice. Additionally, the arrested person has the right to have their lawyer present during any interrogation.
An individual may be detained for up to forty-eight (48) hours. Within this period, the police have the option to release the individual, present them before a court, or grant police bail (normally 3 months but can be extended further as needed).
The authority to detain individuals is a crucial aspect of police power. Similar to the power of arrest, the ability to detain a suspect is essential for the police to effectively perform their duties, particularly in crime prevention, investigation, and maintaining public order.
For more information or assistance related to Criminal Law please contact Dr Robert Tufigno and Dr Delilah Vella.
[1] Chapter 9, Laws of Malta.
Photo credits: The Malta Police Force