Law Reform Commission Criminal Process Pre-Trial Procedures

Law Reform CommissionCriminal ProcessPre-Trial Procedures Pierre Rosario DOMINGUE Chief Executive Officer Wednesday, May 7, 2008

(A) The Criminal Process- Purpose of Criminal Law- Purpose of Criminal Investigation (Conduct inimical to the social order) (Gather evidence; identify the offender; present evidence before a court) Legal and Ethical Background to Criminal Investigation: Compliance with Law; Respect for human dignity and human rights

(B) Arrest (1) Arrest: the act of apprehending a person for the alleged commission of a criminal offence Purposes of Arrest: To prevent a person from committing, or continuing to commit, an unlawful act; To enable an investigation to be carried out in relation to an alleged unlawful act committed by the person arrested; To present a person before a court for consideration of any charges against him or her

(B) Arrest (2) Cases and Conditions for Permissible Deprivation of Liberty (Constitutional & Other Legislative Provisions) Arrest without warrant, with warrant

(C) Rights of Arrested or Detained Persons (1) • Prohibition against arbitrary arrest and detention: Arrest to be lawful and necessary • Right of a person arrested or detained to be informed as soon as reasonably practicable, in a language that he understands, of the reasons for his arrest or detention

(C) Rights of Arrested or Detained Persons (2) • Right of a person arrested or detained to be afforded reasonable facilities to consult a legal representative of his own choice and to be informed of the existence of his right

(C) Rights of Arrested or Detained Persons (3) • Right of a person arrested or detained, and who is not released, to be brought without undue delay before a court of law • Right of a person arrested or detained, upon reasonable suspicion of his having committed, or being about to commit a criminal offence, if not tried within a reasonable time, to be released either unconditionally or upon reasonable conditions, including, in particular, such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial

(C) Rights of Arrested or Detained Persons (4) • Right to compensation if unlawfully arrested or detained [Writ of habeas Corpus]

(D) Treatment of Detainees • Humane treatment of detainees: Prohibition against torture, inhuman or degrading punishment or other such treatment • Right to silence, to be presumed innocent, and to be free from compulsion to testify against himself or herself [Judges’ Rules (together with Administrative Directions) as Guidelines to be adhered to by Investigators]

(E) Right to Liberty and Release on Bail (1) The Judicial decision to release on bail: A risk assessment exercise [Risk of Accused absconding; risk of interfering with the course of justice; preventing crime; preserving public order; and necessity of detention to protect the accused] Bail: Release upon Conditions imposed to minimize the risks involved as to render them negligible

(E) Right to Liberty and Release on Bail (2) • Bail would be refused when there are relevant and sufficient reasons to justify continued detention [Bail Act spells out relevant considerations to be taken into account by a Magistrate or Judge when deciding on an application for bail] • Conditions for Release on Bail [Recognizance/ Sureties/Such other conditions of a general or specific nature as a Magistrate or Judge may think fit to impose]

(E) Right to Liberty and Release on Bail (3) • Other Safeguards to Individual Liberty: Release on Parole • Sanctions for Breach of Conditions: Estreatment of Recognizance & Penal Sanctions • Procedural Facility: The Bail and Remand Court • Procedural Safeguards: Challenge of the decision of the Magistrate to release the defendant or detainee

(F) Permissible Interferences with Rights [Lawful restrictions, and reasonably justifiable in a democratic society] • Right to Freedom of Movement – Prohibition against Departure • Right to Privacy – Search of Persons and premises • Right to Enjoyment of Possessions - Seizure of Incriminating Materials

(G) Rights of Special Groups in relation to Criminal Investigation (1) • Victims [Access to Justice and prompt redress for harm suffered; Material, medical, psychological and social assistance; Protection from intimidation and retaliation; Restitution and compensation] • Children coming into conflict with the law

(G) Rights of Special Groups in relation to Criminal Investigation (2) • Women [Women as Victims of Domestic Violence; Women as victims of rape and other Sexual Offences; Women as Detainees] • Other Vulnerable Groups requiring Special protection or Treatment [Elderly; Disabled Persons; Foreigners]

CONSULTATIONS on Some Key Issues • Circumstances of Arrest/Other Interferences with fundamental rights • Treatment of Arrested Persons or Detainees/Release on Bail • Rights of Victims and other Vulnerable Groups in respect of Investigation Process

THE WAY FORWARD • Legislative Proposals on aspects of criminal investigation, on same lines as PACE in England to secure confidence of the public that investigations are carried out effectively and efficiently, in an ethical and professional manner [with greater emphasis on scientific evidence, such as DNA], are law-based and in accordance with human rights standards, and that investigators are held to account for their performance

Law Reform Commission Criminal Process Pre-Trial Procedures