CONSTITUTION WATCH 15/2015
[15th July 2015]
Aligning Laws with the Constitution
The Criminal Procedure and Evidence Amendment Bill (Part 2)
In the first part of our examination of the Criminal Procedure and Evidence Amendment Bill [HB 2, 2015] we analysed amendments which the Bill will make to the Criminal Procedure and Evidence Act [the Act]. In this part we shall deal with amendments which should be made to the Act but which the Bill will not make.
Powers of Arrest and Detention
Reasonableness of arrest
The Act sets out circumstances in which police officers and others are authorised to carry out arrests — for example, they can arrest anyone who is reasonably suspected of committing a crime, or who commits a crime in their presence, and so on. Nowhere does the Act say that an arrest must be reasonable, i.e. that although a police officer is authorised by the Act to make an arrest he or she may do so only if it is reasonable to arrest the person concerned. Our courts have said this repeatedly, and the Act should be amended to include a provision to this effect so that police officers are made aware of the limits of their powers of arrest.
Restrictions on power of arrest
Section 25(1)(b) of the Act prevents police officers below the rank of assistant inspector from arresting people suspected of committing any of the serious crimes specified in the Ninth Schedule to the Act, unless the officers have obtained permission from an assistant inspector or more serious officer. It is a mystery why such a provision was put into the Act in the first place: if a police constable or sergeant is unable to form a reasonable suspicion as to whether someone is committing a crime, even a serious one, then he or she should not be in the Police at all. There should have been an amendment repealing this provision.
Warrants of arrest
The Bill does not contain a provision stating that anyone arrested under a warrant of arrest must be brought to court within 48 hours. This is required by section 50(2) of the Constitution. Such a provision should be inserted in the Act, to guide police officers.
Records of arrested persons
The Bill does not insert a provision in the Act obliging the Police and other law enforcement agencies to keep accurate records of everyone they have arrested and detained, and to show the records to lawyers and other interested parties on demand. Such a provision might discourage abductions and forced “disappearances” by State agencies.
Rights of arrested persons
Section 50(3) of the Constitution states that arrested persons must be released immediately if they have not been brought before a court within 48 hours. The Bill does not insert a provision to this effect in the Act. It would have been helpful for the Bill to have done so, to make police officers aware of their constitutional obligation to release prisoners after 48 hours.
The Bill does not touch sections 32(3a) and (3) and 34 of the Act, which prohibit a court from granting bail for 21 days to persons who have been arrested for serious offences. These sections are unconstitutional and should have been repealed, since they run counter to section 50 of the Constitution, which requires arrested persons to be released unconditionally or on reasonable bail conditions unless there are compelling reasons justifying their continued detention (section 50(1)(d)).
Nor does the Bill touch section 121 of the Act, which states that if a court orders an accused person to be released on bail but the prosecutor tells the court he or she wants to appeal against the bail order, the accused must be kept in gaol for up to seven days while the Prosecutor-General decides whether or not to institute the appeal. This section has been abused in the past and is unconstitutional in that it permits a person to be detained in custody for more than 48 hours without a court order. The Bill should have repealed it.
Right to Remain Silent
Under sections 50 and 70 of the Constitution, people who have been arrested and detained, and accused persons in criminal trials, have a right to silence. This means that if they remain silent when being questioned by the Police, or if at their trial they refuse to outline their defence or give evidence, adverse inferences [i.e. inferences that the accused are guilty] cannot be drawn from their silence because they are exercising their constitutional right. [If, however, the State establishes a prima facie case against the accused during a trial, the accused or his lawyer may be wise to put up a defence or risk being convicted. But the court cannot regard the accused person’s silence, in itself, as indicating guilt.]
In the Act as it stands:
If a suspect refuses to answer questions put to him or her by the Police, adverse inferences can be drawn from the refusal [section 257]
Before evidence is led in a criminal trial, the accused must outline his or her defence; if he or she fails to do so, adverse inferences can be drawn from the failure [sections 66 and 189]
If an accused person declines to give evidence in a criminal trial, he or she may be questioned by the prosecutor, and the court may draw adverse inferences from the accused’s failure to answer the questions satisfactorily [section 198]
If a suspect is forced or tricked into confessing his guilt and, as a result of the confession, the Police find evidence against him [for example, if the suspect is forced to show the Police where he hid stolen property], the suspect’s confession cannot be revealed at his trial because it was not made voluntarily, but the Police can tell the court that they found the evidence as a result of what the suspect told them [section 258].
All these provisions are unconstitutional and should have been repealed by the Bill.
Proof of statements made by accused
The general rule of our common law is that if the prosecution wants to prove that an accused person made a confession or other statement, the prosecutor must prove beyond a reasonable doubt that the accused made it freely and voluntarily and without undue influence.
For the most part the Act as it stands adopts this rule, but in section 256 it makes two exceptions:
- A statement made by an accused person is admissible even if the accused was compelled by law to make it.
- If the statement has been confirmed by a magistrate before the accused’s trial, then it can be handed in at the trial by the prosecutor and it is up to the accused to prove that he did not make it freely or voluntarily.
Both these exceptions are unconstitutional and should have been repealed by the Bill. In regard to the first exception, if a person is compelled to make a statement, whether by compulsion of law or because he or she has been assaulted, the statement cannot be said to have been made freely and voluntarily. As to the second exception, shifting the onus of proof on to the accused violates the presumption of innocence laid down in section 70(1)(a) of the Constitution, and the presumption of innocence is an essential element of the right to a fair trial, which is guaranteed by section 69 of the Constitution.
Assistance to unrepresented accused
Although clause 34 of the Bill obliges judges and magistrates to inform accused persons of their right to legal representation, as required by section 70(1)(f) of the Constitution, the clause does not go further and require judicial officers to assist unrepresented accused persons at all stages of their trials by explaining their rights and the options open to them. This is essential if unrepresented accused persons are to get a fair trial as required by section 69(1) of the Constitution. The Bill should have included such a provision.
Detention of persons who are deaf and unable to speak
People living with a disability that renders them deaf and unable to speak may be unable to conduct their defence properly if they are charged in a criminal court. Section 193 of the Act provides a drastic way of dealing with them: the judicial officer does not have to decide on their guilt or innocence but can simply order them to be detained in prison indefinitely at the President’s pleasure. Imprisoning a disabled person who is perfectly sane and who has not been convicted of a crime is grossly unjust and violates the person’s rights to personal liberty and human dignity conferred by sections 49 and 51 of the Constitution. The Bill should have repealed section 193 of the Act.
Separation of trials
If two or more people commit a crime together, they are very often tried together in the same trial. Sometimes however a joint trial may prejudice one or other of the accused persons – for example, if evidence against one of them is inadmissible against the other – and in that event the court can order the accused to be tried separately in the interests of justice. However, the court can only do so in terms of section 190 of the Act if either the accused or the prosecutor applies for separation of trials; the court cannot order separation on its own volition. This can cause injustice, particularly when the accused is not represented by a lawyer and is not aware of his right to ask for a separate trial. The Bill should have amended section 190 to allow courts to order separation without being asked.
In 1989 the Supreme Court declared that sentences of whipping imposed on boys under the age of 18 were unconstitutional in that they were inhuman and degrading. The Government promptly amended the then constitution to allow such punishments to be imposed. The present Constitution does not incorporate this amendment, however, so juvenile corporal punishment – i.e. the whipping of boys – has once again become unconstitutional. The Bill should have repealed section 353 of the Act, which gives courts power to impose corporal punishment.
Reporting of Crimes
There are circumstances in which it is difficult or inappropriate to report a crime at the police station nearest to the scene of the crime, but nonetheless the Police generally insist that crimes be reported there rather than at some other police station.
Their insistence can cause trouble and sometimes considerable distress to victims. This is particularly so in the case of rape and other sexual crimes which cause immense trauma to the victims. The procedures for reporting such crimes must be sensitive to the victims’ needs so as to avoid causing them further distress. Currently however it is the practice for police officers, at some stations at least, to insist that victims must make their reports to the police stations within whose area the crimes were committed. Sometimes, indeed, victims are told to go with the police to confront the alleged perpetrator. The Bill should have amended the Act to require the Police to be more sensitive to victims of such crimes and to allow them to make their reports at any police station they choose.
It will be apparent from these analyses that while the Bill goes some way towards bringing the Act into line with the Constitution, it is unsatisfactory. Some provisions which the Bill aims to insert in the Act are themselves unconstitutional – for example, the new section 42 allowing the Police to kill people who are escaping arrest – but more generally the Bill leaves untouched a great many provisions of the Act which must be amended or repealed in order to bring them into line with the Constitution.
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