arrest, custody and search ppt

7/23/2019 Arrest, Custody and Search Ppt

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LT COL JAMAL RODZI BIN DAHARIDEPARTMENT OF STRATEGIC STUDIES

NATIONAL DEFENCE UNIVERSITY OF MALAYSIA

ARREST, CUSTODY ANDSEARCH



INTRODUCTION

• S 93(1) AFA 72-A person subject to service law may be arrested under th

following circumstances:

(1) if he is found committing an offence against any provision of the ArmedAct 1972; or

(2) if he is alleged to have committed any such offence; or

(3) if he is reasonably suspected of having committed any such offence.

• It is to be noted that arrest is given a wider meaning under the Act. Arresmilitary law includes

• open arrest and arrest by the civil power.



MILITARY OFFENCES



SERVICE OFFENCES(s.38 – s.88)

Offences in Respect of Military Service

38. Aiding the enemy.

39. Misconduct by commanders when in

action.

40. Misconduct by other persons in

operations against the enemy.

41. Communication with the enemy.

42. Offences against morale.

43. Becoming prisoner of war through

disobedience or willful neglect; and

failure to rejoin forces.

44. Offences by or in relation to sentries, etc.45. Offences relating to supplies.

46. Looting.

Mutiny and Insubordination47. Mutiny.48. Failure to suppress mutiny.49. Insubordinate behaviour.50. Disobedience to superior officer.51. Disobedience to standing orders.52. Obstruction of provost officers.

53. Obstruction of police officer arresting amember of the Armed Forces.

Avoidance of or Failure to Perform M54. Desertion.55. Absence without leave.

56. Assisting and concealing desabsence without leave.

57. FaJse statements in respect o58 Faillure to attend parades o

perform duties.59. Malingering.60. drunkenness.

Offences Relating to Prope61. Offences in relation to public

service proper62. Offences in relation to prope

members of the armed force63. Miscellaneous offences relat

property.Offences Relating to, and by, Person

64. Irregular arrest and confine65. Permitting escape, and unlaw

of prisoners67. Resistance to arrest.

68. Escape from lawful custody



SERVICE OFFENCES(s.38 – s.88)

Navigation and Flying Offences

68. Loss or hazarding of ships or aircraft.

69. Dangerous flying, etc.

70. Low flying.

71. Annoyance by flying.

72. Inaccurate certification.

73. Prize offences by commanding officers.

74. Other prize offences.

Offences Relating to Service Tribunals

75. Offences in relation to courts-martial.

76. False evidence.

Miscellaneous Offences

77. Falsifying service document

78. False accusations, etc.

79. Unauthorized disclosure of i

80. Attempting to commit suicid

81. Ill-treatment of officers or se

inferior rank.

82. Unlawful detention of pay.

83. Disgraceful conduct.

84. Improper carriage of goods.

85. Scandalous conduct of office

86. Attempts to commit offences Act.

87. Conduct to the prejudice of s

discipline.

88. Civil offences.

s.88(2) In this Act the expression "civil offence" means any act or omission punishable by the law of the Fe

which, if committed in the Federation, would be punishable by that law; and in this Act the expression "the

civil offence" means the civil offence the commission of which constitutes an offence against this section.



LT COL JAMAL RODZI BIN DAHARIDEPARTMENT OF STRATEGIC STUDIES

NATIONAL DEFENCE UNIVERSITY OF MALAYSIA

ARREST, CUSTODY ANDSEARCH



When Does an Arrest Take Place?

An arrest takes place:

(1) when an arresting officer states in terms he is arresting anindividual concerned.

Example; a policeman shouting at a snatch thief who was trying to runaway; ‘This is the police, stop! You are under arrest';

(2) when he uses force to restrain an individual concerned, forexample a policeman handcuffing a person;

(3) when by words or conduct he makes it clear that he will, if

necessary, use force to prevent the individual from goingwhere he may want to go, for example by saying 'the policedo not allow you to leave' or 'we want to take you to thepolice station’.

(4) Arrest does not occur where he stops an individual to makeenquiries.

(ref: Criminal Procedure Code (Act 593) s 15)



Procedure on Arrest A person who makes an arrest shall:

(1) inform the arrested person whether he is under close oropen arrest ;

(2) inform the arrested person of the reason for which he isunder arrest;

(3) immediately deliver the arrested person to a place ofcustody; and

(4) deliver to the person into whose custody the arrestedperson is committed at the time of arrest or within 24 hours

thereafter a copy of a charge report provided that if no suchcharge report is produced, the person into whose custody thearrested person is committed will report the circumstances tothe commanding officer (CO)who will, if continued arrest doesnot appear to be justified, order the release of the arrestedperson without prejudice to his re-arrest.

Ref: Lt Kdr v Balakrisnan v Menteri Pertahanan Malaysia & Anor [1994] 2 AMR 1045(to inform to the accused or the person arrested of the ground arrest)Armed Forces (Court-Martial) Rules of Procedure 1976 (PU A 163/1976) r 18



The Officer Apprehending the Suspect May UseReasonable Force to put the Suspect into Custody if HeResists(R 17 AF (CM) RP 1976)

the force used does not inflict more harm than it is necessaryfor the purpose of making the arrest.

The use of force shall not include the use of fire-arms exceptunder the following circumstances:

(1) where the offence is of a very serious nature; and

(2) the person being arrested is behaving in such a violentmanner that damage to life or limb may result or theuse of firearms is the only possible way of making thearrest.

(3)Procedure for using fire-arms :

(a) warning

(b) ascertain that the person being arrestedunderstands the warning and still refusesto submit to arrest;

(c) fire a shot vertically into the air;

(d) if still resist, may fire at his knees but only so asto wound him;

(e) no fire-arms shall be used withoutsuperior’s permission.



Who may Arrest?

• Armed Forces Act 1972 s 93(2)-(7).n

• Arrest of officer by

• Officer of superior rank

• Officer of any rank (Mutiny/Quarrel/Disorder)

• MP

• Arrest of serviceman by

• Officer/WO/NCO – of superior rank

• Regulating Staff

• MP

The power of arrest given to any person by this section may (subject to the provisions of anyregulations made under the Act) be exercised either personally or by ordering into arrest theperson to be arrested or by giving orders for that person's arrest.

In this section the expressions 'officer of the regular forces' and 'warrant officer or non-commissioned officer of the regular forces' includofficer, warrant officer or non-commissioned officer of any of the volunteer forces when they are subject to service law under this Act andany foreign forces duly appointed, seconded or attached to any of the regular forces or when such members of a foreign force are serving

together or acting in combination with any of the regular forces under the provisions of section 17(3) and (4) of the Visiting Forces Act 19(Act 432).



Open Arrest and Close Arrest

• Open arrest

• CO may limit the freedom of movement on anaccused person to a certain place or area within theprecincts of the mess, the camp of his unit or base

area

• CO may also limit his social activities or imposecertain conditions such as to be in uniform whenappearing outside the area he is confined to

• The accused shall not leave the confined area exceptthat he is to perform his duty or be assigned otherduties

• Close arrest

• the accused shall be confined in the guard room orunit detention room or any other place asdetermined by the CO

• under the charge of a guard, patrol, sentry or provostofficer



CUSTODY When Can an Arrested Person Be Placed Under Custody?

• R 13 (1)- offence he has committed or is reasonably suspectedof having committed is of a serious nature

• R 13 (2) - A person shall be placed under arrest only whenabsolutely necessary for example when:

(1) the offence is punishable with death;

(2) he is deliberately trying to undermine discipline by acts ofmisconduct;

(3) he is likely to injure himself or others;

(4) he is likely to suborn witnesses;

(5) he has been apprehended (and has not surrendered himself)

as being absent without leave or is habitually absent without leave;

(6) having regard to the nature or prevalence of the offence withwhich he is charged or which is under investigation, it isundesirable in the interests of discipline that he should be at largeor in a position to consort with his comrades; or

(7) it is suspected that he will not attend the investigation of thecase or the trial

• CO/Provost to use discretion whether to put into custody ornot Pusat Tahanan Angkatantelah menerima kunjunga

Suruhanjaya Hak Asasi M



When Can an Arrested Person Be Placed Under Custody?

Subject to rule 13 of the Armed Forces (Court-Martial)Rules of Procedure 1976, the person responsible (the CO orthe MP officer) must use his discretion to change the form

of arrest, to re-arrest or to release him without prejudice tore-arrest.

The CO can remand the accused for court-martial in twocircumstances

(a)the charge(s) cannot be dealt with summarily or

(b)the commanding officer decides not to deal summarilywith the charge(s) even though he has the jurisdiction todeal with it.

During his trial by a court-martial the accused shall be heldunder close arrest, except where the convening authoritydirects that for the period of any adjournment of the courthe shall be held under open arrest or released from arrest.



Duties Imposed on CommandingOfficer/Provost Officer After Arrest

Allegation duly investigated without delay

Soonest possible institute proceedings against him or he must be dulyreleased

CO to commence investigation within 48 hours of him becoming awareof the fact that the accused is under closed or open arrest

No arrest for more than 72 days without being tried

Delay reports – Schedule 1

Ref – R 16, R 14 (2)



Duties Imposed on CommandingOfficer/Provost Officer After Arrest

Provided that in the case of a person on active service,

compliance with the putting up of a special report shall beexcused in so far as it is not reasonably practicable, havingregard to the exigency of operation.

The special report must be sent direct to:

(1) in the case of the first copy, the convening officer;

(2) in the case of the second copy, the Principal Legal

Officer of the Ministry of Defence;

(3) in the case of third copy, the Provost Marshal ofthe Ministry of Defence; and

(4) in the case of the fourth copy, it is to be retainedby the unit.



Unnecessary Delay in CarryingOut the ‘Investigation’



Unnecessary Delay in CarryingOut the ‘Investigation’

Summary trial

Captain’s Mast



Unnecessary Delay in Carrying Out the‘Investigation’



Arrest of Deserters and AbsenteesWithout Leave

Arrest of Deserters and Absentees Without Leave

A police officer may arrest any person whom he has reasonablecause to suspect of being an officer or serviceman of the regular

forces who has deserted or is absent without leave. Where nopolice officer is available, any officer or serviceman of the regularforces, or any other person, may arrest any person whom he hasreasonable cause to suspect as aforesaid.

A magistrate or other person having authority to issue a warrantfor the arrest of a person charged with a crime, if satisfied byevidence on oath that that person is reasonably suspected ofbeing, within his jurisdiction, an officer or serviceman of theregular forces who has deserted or is absent without leave, or isreasonably suspected of being absent without leave, may issue awarrant authorising his arrest.

Any person in custody in pursuance of this section shall, as soonas practicable and in any case within 24 hours (excluding the timeof any necessary journey) be produced before a magistrate.



Search.

When maysearch wa

be issued?



When May a Search Warrant BeIssued?

h h



Who May Execute a SearchWarrant Issued?

A search warrant may be directed to:

(1) military policemen in general or to any one member of thecorp of military police;

(2) any one or more officers or servicemen not being amember of the corp of military policemen.

When a search warrant is directed to more than one person it maybe executed by all or any one or more of them.

Form and Period of Validity of a Search

Warrant

Every search warrant issued under rule 19 shall be in the form setout in the Second Schedule of the Armed Forces (Court-Martial)Rules of Procedure 1976 and signed by the President of the court-martial or a commanding officer or a provost officer.

Every such warrant will remain in force for a reasonable number ofdays to be specified therein



Search Warrant

Form and Period of Validity of a SearchWarrant

Every search warrant issued under rule 19

shall be in the form set out in the Second

Schedule of the Armed Forces (Court-Martial)

Rules of Procedure 1976 and signed by the

President of the court-martial or a

commanding officer or a provost officer.Every such warrant will remain in force for a

reasonable number of days to be specified

therein



Under What Circumstances Can a Search Warrabe Executed?

• Whenever a place liable to search is closed, anyperson residing in or being in charge of suchplace shall, on demand of a person executing asearch warrant and on production of thewarrant, allow him free ingress thereto andafford all reasonable facilities for a searchtherein.

• If ingress to such place cannot be so obtained,the person executing a search warrant may

enter such place and search therein, and inorder to effect an entrance into such place maybreak open any outer or inner door or windowof the place to be searched if after notificationof his authority and purpose and demand ofadmittance duly made he cannot otherwiseobtain admittance.



What is the Procedure of Search of a Place



Procedure of Seizure on Documents or MaterialFound



reference

• Armed Forces Act 1972

• Criminal Procedure Code (Act 593)

• Armed Forces (Court-Martial) Rules of Procedure 1976

• Teo Say Eng and Col Wan Normazlan, Military Legal Proceedings in Malay(2009) LexisNexis

• Baharudin bin Kamsin v Pihak Berkuasa Sidang Panglima Armada Pengka

TLDM Lumut [1996] 4 MLJ 184

• Khalid bin Yusof v Kepten llyas bin Haji Din Pegawai Memerintah KD PelaPengkalan TLDM Lumut (unreported, 9 July 1996; Crim App No 44-10, 441996) [1996] 1 LNS 332.

• Lt Kdr v Balakrisnan v Menteri Pertahanan Malaysia & Anor [1994] 2 AM