Lawyers to have access to suspects in police custody
The Government will propose an amendment to the Code of Criminal Procedure (Special Provisions) Act giving statutory recognition to the right of an attorney-at-law to have access to a police station in which a client is being held.
It will equally recognise the entitlement of such attorney to meet the officerin-charge (OIC) of the police station and to ascertain from him the reasons for arrest, when and where the client is to be produced before a magistrate. It will also allow the lawyer to make an application in instances where the law provides for the grant of police bail.
It will statutorily recognise the rights of such suspect in police custody to meet a lawyer and receive legal advice. “It has been left open as to what that right would accrue, whether it would be soon before
the recording of the statement, or soon after arrest, or after the recording of a statement and before producing before a magistrate,” an authoritative source said. “It will say that contact between the lawyer and suspect shall be facilitated by the OIC. The OIC should allow contact between the lawyer and the suspect at the police station, subject to it being not prejudicial to the ongoing investigation.”
These changes were agreed to by a “stakeholders’ committee” that comprised, among others, representatives of the Bar Association of Sri Lanka ( BASL), the Attorney General’s Department and the police. This amendment to the CPC (Special Provisions) Act is being envisaged as an “interim solution”.
An amendment to the Code of Criminal Procedure, meanwhile, is to be proposed separately and at a later date following broader discussions.
“Issues such as whether a suspect should be conferred with the statutory right to remain silent during the first interview and recording of the statement, and should a suspect be given access to an attorney-atlaw soon after the arrest and before the recording of the statement, have been left for future negotiations,” the source said.
Also to be taken up are questions such as should the law enable a suspect to say he wanted his lawyer present when he made the statement; and should a statement recorded in the presence of a lawyer then be admissible against the suspect in a future trial.
“What is meant by ‘prejudice to an investigation’ is likely to be judicially interpreted,” the source said. “These are thorny issues and we leave it in the hands of, hopefully, good and competent judges to interpret in the form of a fundamental rights judgment. But the healthy sign is that an interim solution was arrived at on which the police, private and official bar concurred. Other matters have to be debated in good faith with all stakeholders and agreed over a period of time.”
It has long been accepted that certain sections of the Code of Criminal Procedure need amending to take cognisance of, among other things, torture in police custody. Under prevailing law, lawyers who appear for suspects for the first time in the Magistrates’ Courts do not know the exact allegation against their clients. This precludes them from making representations to the magistrate, particularly for grant of bail.
“There are legitimate and justifiable reasons to move for improvement of the system,” a legal source said. “But we need to balance it off so that we can continue to achieve criminal justice objectives, looking after the best interests of victims, particularly relating to recovery of the proceeds of crime.”
Earlier, a Government committee had prepared a draft amendment to the Code of Criminal Procedure and it deprived suspects arrested and detained by police of access to attorneys-at-law prior to recording of their statement. The Human Rights Commission of Sri Lanka opposed the draft. It said many instances of torture at police stations occurred between the period of arrest and the conclusion of the recording of a suspect’s statement.
“As such, depriving suspects under arrest and detention of access to their lawyers until the conclusions of their statements will result in a greater risk of suspects being subject to torture, cruel and inhuman treatment, as well as illegal arrest and detention by errant police officers,” the Commission said.
The Tamil National Alliance (TNA) and Joint Opposition also objected to the amendment.
The draft then went to the relevant Sectoral Oversight Committee which invited the Attorney General to meet the stakeholders. A committee was established — the chief members of which were the BASL, the AG and the Police — and asked to attempt to reach consensus.
“The members did agree on certain things,” a confidential source said. “Firstly, an amendment to the Code of Criminal Procedure requires careful consideration and, possibly, restructuring of provisions of certain other laws and the law relating to admissibility of evidence. Secondly, we would endeavour to reach an interim solution.”
This is how the consensus text of an amendment to the Code of Criminal Procedure ( Special Provisions) Act was developed during the last week of December, he said. It will be communicated to the Minister of Justice and go to the Cabinet.