Law Reform CommissionLaw Reform Commission Criminal ProcessCriminal Process

Pre-Trial ProceduresPre-Trial Procedures

Pierre Rosario DOMINGUEPierre Rosario DOMINGUE

Chief Executive OfficerChief Executive Officer

Wednesday, May 7, 2008Wednesday, May 7, 2008

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(A) (A) The Criminal ProcessThe Criminal Process

-- Purpose of Criminal LawPurpose of Criminal Law

-- Purpose of Criminal Purpose of Criminal Investigation Investigation

(Conduct inimical to the social order)(Conduct inimical to the social order)

(Gather evidence; identify the offender; present (Gather evidence; identify the offender; present evidence before a court) evidence before a court) Legal and Ethical Background to Legal and Ethical Background to Criminal InvestigationCriminal Investigation: : Compliance Compliance with Law; Respect for human dignity and with Law; Respect for human dignity and human rightshuman rights

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(B)(B) Arrest (1)Arrest (1)

ArrestArrest: the act of apprehending a person for the : the act of apprehending a person for the alleged commission of a criminal offencealleged commission of a criminal offence

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

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(B) (B) Arrest (2)Arrest (2)

Cases and Conditions for Permissible Cases and Conditions for Permissible Deprivation of LibertyDeprivation of Liberty

(Constitutional & Other LegislativeProvisions)

Arrest without warrant, with warrantArrest without warrant, with warrant

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(C) (C) Rights of Arrested or Rights of Arrested or Detained Persons (1)Detained Persons (1)

• Prohibition against arbitrary arrest and Prohibition against arbitrary arrest and detention: Arrest to be lawful and detention: Arrest to be lawful and necessarynecessary

• Right of a person arrested or detained to Right of a person arrested or detained to be informed as soon as reasonably be informed as soon as reasonably practicable, in a language that he practicable, in a language that he understands, of the reasons for his arrest understands, of the reasons for his arrest or detentionor detention

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• Right of a person arrested or detained to Right of a person arrested or detained to be afforded reasonable facilities to consult be afforded reasonable facilities to consult a legal representative of his own choice a legal representative of his own choice and to be informed of the existence of his and to be informed of the existence of his rightright

(C) (C) Rights of Arrested or Rights of Arrested or Detained Persons (2) Detained Persons (2)

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(C) Rights of Arrested or (C) Rights of Arrested or Detained Persons (3) Detained Persons (3) • Right of a person arrested or detained, and who is Right of a person arrested or detained, and who is

not released, to be brought without undue delay not released, to be brought without undue delay before a court of lawbefore a court of law

• Right of a person arrested or detained, upon Right of a person arrested or detained, upon reasonable suspicion of his having committed, or reasonable suspicion of his having committed, or being about to commit a criminal offence, if not being about to commit a criminal offence, if not tried within a reasonable time, to be released tried within a reasonable time, to be released either unconditionally or upon reasonable either unconditionally or upon reasonable conditions, including, in particular, such conditions, including, in particular, such conditions as are reasonably necessary to ensure conditions as are reasonably necessary to ensure that he appears at a later date for trial or for that he appears at a later date for trial or for proceedings preliminary to trialproceedings preliminary to trial

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(C) (C) Rights of Arrested or Rights of Arrested or Detained Persons (4) Detained Persons (4)

• Right to compensation if unlawfully Right to compensation if unlawfully arrested or detainedarrested or detained

[[Writ of habeas Corpus]]

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(D) Treatment of Detainees (D) Treatment of Detainees

• Humane treatment of detainees: Prohibition against Humane treatment of detainees: Prohibition against torture, inhuman or degrading punishment or other torture, inhuman or degrading punishment or other such treatmentsuch treatment

• Right to silence, to be presumed innocent, and to Right to silence, to be presumed innocent, and to be free from compulsion to testify against himself or be free from compulsion to testify against himself or herselfherself

[[Judges’ Rules (together with Administrative Directions) as Guidelines to be adhered to by Investigators]]

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(E) Right to Liberty and (E) Right to Liberty and Release on Bail (1) Release on Bail (1)

The Judicial decision to release on bail: A risk The Judicial decision to release on bail: A risk assessment exerciseassessment 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 Bail: Release upon Conditions imposed to minimize the risks involved as to render them minimize the risks involved as to render them negligiblenegligible

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(E) Right to Liberty and (E) Right to Liberty and Release on Bail (2) Release on Bail (2)

• Bail would be refused when there are relevant Bail would be refused when there are relevant and sufficient reasons to justify continued and sufficient reasons to justify continued detentiondetention

[[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 BailConditions 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]]

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(E) Right to Liberty and (E) Right to Liberty and Release on Bail (3) Release on Bail (3)

• Other Safeguards to Individual Liberty: Other Safeguards to Individual Liberty: Release on ParoleRelease on Parole

• Sanctions for Breach of Conditions: Sanctions for Breach of Conditions: Estreatment of Recognizance & Penal Estreatment of Recognizance & Penal SanctionsSanctions

• Procedural Facility: The Bail and Remand CourtProcedural Facility: The Bail and Remand Court

• Procedural Safeguards: Challenge of the Procedural Safeguards: Challenge of the decision of the Magistrate to release the decision of the Magistrate to release the defendant or detaineedefendant or detainee

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(F) Permissible (F) Permissible Interferences with RightsInterferences with Rights

[[Lawful restrictions, and reasonably justifiable in a democratic society] ]

• Right to Freedom of Movement – Prohibition against Right to Freedom of Movement – Prohibition against DepartureDeparture

• Right to Privacy – Search of Persons and premisesRight to Privacy – Search of Persons and premises

• Right to Enjoyment of Possessions - Seizure of Right to Enjoyment of Possessions - Seizure of Incriminating MaterialsIncriminating Materials

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(G) Rights of Special (G) Rights of Special Groups in relation to Groups in relation to Criminal Investigation (1)Criminal Investigation (1)

• VictimsVictims[[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 lawChildren coming into conflict with the law

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• WomenWomen

[[Women as Victims of Domestic Violence; Women as victims of rape and other Sexual Offences; Women as Detainees]]

• Other Vulnerable Groups requiring Special Other Vulnerable Groups requiring Special protection or Treatmentprotection or Treatment[Elderly; Disabled Persons; Foreigners]

(G) Rights of Special (G) Rights of Special Groups in relation to Groups in relation to Criminal Investigation (2)Criminal Investigation (2)

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CONSULTATIONS on Some CONSULTATIONS on Some Key Issues Key Issues

• Circumstances of Arrest/Other Circumstances of Arrest/Other Interferences with fundamental Interferences with fundamental rights rights

• Treatment of Arrested Persons or Treatment of Arrested Persons or Detainees/Release on BailDetainees/Release on Bail

• Rights of Victims and other Rights of Victims and other Vulnerable Groups in respect of Vulnerable Groups in respect of Investigation Process Investigation Process

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THE WAY FORWARDTHE WAY FORWARD

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

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