DUE PROCESS IN CRIMINAL JUSTICE 1998 THESES 22 TABLE OF STATUTES AND OTHER INSTRUMENTS 1. Bail Act 1976 (UK). 2. Bail Act 1989. 3. Criminal Code Act. 4. Criminal Procedure Act. 5. Constitution of the Republic of Mauritius. 6. Dangerous Drugs Act. 7. District and Intermediate Courts (Criminal Jurisdiction) Act. 8. European Convention on Human Rights. 9. Forest, Mountain and River Reserves Act. 1O.Judges Rules and Administrative Directions to the Police. 11.Juvenile Offenders Act. 12.Legal Aid Act. 13.Police Act. 14.Police and Criminal Evidence Act (UK). TABLE OF CASES 1. Alderson v. Booth (1969) 2 QB 216. 2. Allaghen v. The Queen (1984) MR 156. 3. Attomey-General of Trinidad and Tobago v. Whiteman (1991) 2 WLR 156. 4. Babet v. R (1979) MR 222. 5. Balloo v. The Queen (1969) MR 128. 6. Bird v. Jones (1845) 7 QB 745. 7. Bruton v. United States 391 US 123 (1968). 8. Caboche v. R (1961) MR 166. 9. Deweer v. Belgium (1980) (ECHR Case). 1O.Dhanookchand v. R (1974) MR 184.
Transcript
DUE PROCESS IN CRIMINAL JUSTICE
1998 THESES 22
TABLE OF STATUTES AND OTHER INSTRUMENTS
1. Bail Act 1976 (UK).
2. Bail Act 1989.
3. Criminal Code Act.
4. Criminal Procedure Act.
5. Constitution of the Republic of Mauritius.
6. Dangerous Drugs Act.
7. District and Intermediate Courts (Criminal Jurisdiction) Act.
8. European Convention on Human Rights.
9. Forest, Mountain and River Reserves Act.
1O.Judges Rules and Administrative Directions to the Police.
11.Juvenile Offenders Act.
12.Legal Aid Act.
13.Police Act.
14.Police and Criminal Evidence Act (UK).
TABLE OF CASES
1. Alderson v. Booth (1969) 2 QB 216.
2. Allaghen v. The Queen (1984) MR 156.
3. Attomey-General of Trinidad and Tobago v. Whiteman (1991) 2 WLR 156.
4. Babet v. R (1979) MR 222.
5. Balloo v. The Queen (1969) MR 128.
6. Bird v. Jones (1845) 7 QB 745.
7. Bruton v. United States 391 US 123 (1968).
8. Caboche v. R (1961) MR 166.
9. Deweer v. Belgium (1980) (ECHR Case).
1O.Dhanookchand v. R (1974) MR 184.
11 v. Ping Lin (1976) AC 574.
12. Gooranah v. R (1968) MR 122.
13.Hussein v. Cheong (1970) AC 942.
14.lbrahim v. R (1914) AC 599/[1914-151 All ER 874.
15.Minelli v. Switzerland (1983) (ECHR case).
16.Miranda v. Arizona 384 45 436 (1966).
17.Mootoosamy v. R (1981) MR 476.
18.Nelliah v. R (1985) MR 84.
19.Noordally v. Attorney General and D.P.P. (1986) MR 204.
20.Nunkoo v. R (1983) MR 128.
21.Police v. Labat (1970) MR 214.
22.Police v. Ruhomally (1981) MR 106.
23.The Queen v. Therens (1986) LRC 455.
24.R v. Beegun (1988) SCJ 122.
25.R v. Boyjoo (1991) MR 284/SCJ 401.
26.R v. Bathurst (1968) 2 QB 94.
27.R v. Hubbard (1991) Crim LR 449 C.A.
28.R v. Mensa (1989) MR 137.
29. R v. Prager (1972) 56 Cr App R 15 1.
30.R v. Priestley (1966) 51 Cr App R 1.
31.R v. Samuel (1988) 1 QB 615.
32.R v. Shummugum (1977) MR 1.
33. R v. Voisin (1918-19) All ER 49 1.
34.Ramdeen v. R (1985) MR 125.
35.Rice v. Connelly (1966) 2 QB 414.
36.Rodolphe v. D.P.P. (1985) MR 54.
37.Samseerally v. The State (1993) MR 94.
38.Sheriff v. District Magistrate of Port-Louis and D.P.P. (1989) SCJ 368.
39.Sibsurrun v. R (1956) MR 456.
40. State v. Coowar (1997) SCJ 193.
41.Thornhill v. AttoRNey-General of Trinidad and Tobago (1981) AC 61.
42.VeleVindron v. The Queen (1973) MR 245.
"Thus a legal system must make provisions for conducting orderly trials and hearings, it must contain rules of evidence that guarantee rational procedure of inquiry. While there are variations in these procedure, the rule of law requires some form of due process: that is a process reasonably designed to ascertain the truth, in ways consistent with the other ends of the legal system ... "
John Rawls, A Theory of Justice (1972)
INTRODUCTION
When crimes are committed, the offenders display the impression that punishment is an unpleasantness that is best avoided. They very often take care not to be caught. And if arrested, they ordinarily deny guilt and otherwise try not to cooperate with the police. If brought to trial, they do their best to resist being convicted. And even after they have been convicted and sent to prison, their efforts to secure their freedom do not cease. It is a struggle from start to finish. This struggle is referred to as the criminal process.
In broad terms, the criminal process can be described as the rules of law which govern the apprehension, screening, and trial of persons suspected of crime. It is a fact that the more expeditious the process, the greater the number of people with whom it can deal and, therefore, the greater the variety of antisocial conduct that can be confided in whole or in part to criminal law for inhibition. On the other hand, the harder the process is to use, the smaller the number of people who can be handled by it, the harder it is to put a suspected criminal in jail, the fewer the number of cases that can be handled in a year.
In all countries round the world, constitutional and statutory provisions govern the operation of the criminal process. These prescriptions of law tell us about the "Ought' of criminal justice, that is how people suspected of crime ought to be dealt with. However, in practice, there is very often a gulf between the "Ought' and the "Is" of criminal justice.
A quick glance at the legal prescriptions governing the operation of the criminal process in the Mauritian context reveals that our law prescribes for "due process in criminal justice". By "due process", we mean: "measures authorised by the law so as to keep the streams of justice pure: to see that trials and inquiries are fairly conducted,-that arrests and searches are properly made; that lawful remedies are readily available; and that unnecessary delays are eliminated".(1)
In other 'words, "due process in criminal justice" implies that fairness should prevail throughout the criminal process.
The aim of the present dissertation is to analyse whether due process prevails in practice in the Mauritian criminal justice system. But before undertaking our
analysis we will have to look at the two models of criminal justice in order to understand the operation of a criminal justice system where due process prevails and one where it does not. After that, we will look at the due process requirements in Mauritian law. Then we will divide the criminal process into stages and carry out our analysis.
If after having made our analysis we find that the situation in practice is not what it ought to be or that there is a likelihood of deviation from due process norms, we will suggest means that will uphold due process in criminal justice.
(1) Lord Denning-The Due Process of Law (1980), Preface.
CHAPTER ONE
TWO MODELS OF CRIMINAL JUSTICE: DUE PROCESSAND CRIME CONTROL
Two models of the criminal justice system have been proposed by Packer: the crime-control model and the due-process model (2). Each of the two models is an attempt to give content to a set of values which underlies the operation of the criminal justice system. From this set of values, it is possible to identify two competing systems of values each characterising one of the two models of criminal justice.
The value system underlying the crime control model is that the repression of criminal conduct is by far the most important function to be performed by the criminal process. Accordingly, under the crime control model the criminal conduct is under tight control, thus preventing the breakdown of public order and securing the existence of an important condition of human freedom. In order to achieve this high purpose, the crime control model requires that primary attention be paid to the efficiency with which the criminal process operates to screen suspects, determine guilt, and secure appropriate measures against persons convicted of crime. Since the crime-control model places a premium on the effective processing of cases through the system, Packer wrote that this model of criminal justice ressembled an "assembly line", (3) that is, producing conveyor-belt justice.
On the other hand, the due process model is composed of a set of ideas some of them based on judgements about the efficiency of crime control devices, other having to do with quite different considerations. The ideology of due process is far more deeply
(2) H. Packer. The Limits of the Criminal Sanction (1968), 150-72.(3) Ibid. page 163
impressed on the formal structure of the law than the ideology of crime control. It is worth to be noted that the due process model does not rest on idea that it is not socially desirable to repress crime. Briefly, the value system characterising the due process model rests on the ideology that the individual accused must not be aggrieved in the interest of crime repression. Hence, it canbe said that the due process model operates as a constraint on the way in which the crime control model works. It has been compared to an "obstacle course" (4) designed to present formidable impediments to carrying accused persons along in the process, placing value on the primacy of the individual and the limitation of state power.
(4) loc. Cit.
CHAPTER TWO
DUE PROCESS REQUIREMENTS IN MAURITIAN LAW
The Mauritian Constitution gives concrete expression to due process requirements in criminal justice, through section 5 and section 1O of our supreme Law.
Section 5 of the Constitution entitled "Protection of the right to personal liberty”, provides that no person shall be deprived of his personal liberty save as may be authorised by law in a number of circumstances (5), including the need to ensure his appearance in court in answer to a court order, upon, reasonable suspicion that the person has committed or is about to commit an offence or that he is likely to commit breaches of the peace. But the section goes at once to state that firstly the person arrested should be told of the reason for his arrest (6), secondly that someone who is arrested or detained in any of the three circumstances specified above must be given facilities to obtain legal advice and be brought before a court, without undue delay, and thirdly that if such a person is not tried within a reasonable time he shall be released, with or without conditions, without prejudice to the appropriate authority's power to bring fresh proceedings subsequently, including conditions reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial (7).
Section 10 of the Constitution, entitled "Provisions to secure the protection of law" lays down procedural guarantees in both civil and criminal trials. The following is a list of the guaranteed rights of accused persons, that is the due process requirements in criminal justice as provided by section 1O of our Constitution:
(5) See Section 5(l) a-k of the Constitution.(6) Section 5(2) Constitution.(7) Section 5(3) Constitution.
(i) Right of the person charged with a criminal offence to the presumption of innocence (section 10(2)(a)).
(ii) Right to be informed promptly and in detail in a language which he understands the nature and cause of the charge against him. Section 10(2)(b)).
(iii) Right to have adequate time and facilities for the preparation of his defence and to communicate with a counsel of his own choosing Section 10(2)(b),(c)).
(iv) Right to be tried without undue delay (requirements of prompt adjudication). (section 10(1)).
(v) Right to be tried in his presence. (Section 10(2) in fine).
(vi) Right to defend himself in person or through legal assistance of his own choosing. (Section 10(2)(d).
(vii) Right to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any case if he does not have sufficient means to pay for it. Section 10(10)(2)(d)).
(viii)Right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. (Section 10(2)(e)).
(ix) Right to have the free asistance of an interpreter if he cannot understand or speak the language used in court. (Section 10 (2)(f)).
(x) Right not to be compelled to testify against himself or to confess his guilt (Right to silence). (Section 10(7)).
(xi) Right to freedom from double jeopardy. (Section 10(5)).
(xii) Right to freedom from retroactive or retrospective criminal legislation. (Section 10(4)).
Statutes and case law have also recognised other due process requirements incriminal justice. The right of juvenile persons to a procedure which shall be such as will take account their age and the desirability of promoting their rehabilitation has provided by the Juvenile Offenders Act. The right of the suspect to be informed by the police of his right of access to counsel during police interrogations has been recognised by the courts(8). And the right to silence during trial proceedings has been extended to pre-trial matters by case law (9).
Once due process requirements have been given concrete expression there is the problem of ensuring that they are realized. In order to know whether the due process requirements are realized in the Mauritian criminal justice system, an analysis of the system is required.
There are various ways of dividing up the criminal process for the purposes of description and analysis. It is best to view the criminal process as consisting of two (10) major stages: (1) the stage from arrest through the decision to charge the suspect with an offence; and (2) the stage from charge to the determination of guilt (11).
In order to analyse due process requirements in the Mauritian criminal justice system, Chapter Three will deal with the stage from arrest to charge, Chapter Four will deal with abuse of process or police malpractices and Chapter Five will deal with the stage from charge to guilt determination.
(8) See R v. Boyjoo (1991) SCJ401 and the Full Bench decision in State v. Coowar (1997) SCJ 193.
(9) See Ramdeen v. R (1985) MR 125.(10) Contrast approach with that of H. Packer, op. Cit. note 2. Packer views
the criminal process as consisting of three major stages or periods, at page 174.
(11) By guilt determination, we mean final guilt determination, which implies that the appeal phase is included in our analysis of due process requirements from charge to guilt determination. (see note 10).
CHAPTER THREE
FROM ARREST TO CHARGE
The first stage of the criminal process is the act of taking the suspect into physical custody, which is ordinarily spoken of as an arrest (12). An arrest can be effected by the police, customs officers, fisheries officers and even by the general public, and these people have to point out to some legal authority justifying their action, for instance a statute. As arrests are most of the time effected by the police authorities, it would be very appropriate to concentrate on the police powers of arrest as the powers of the other people who can effect arrest are of the same nature.
Section 5 of our Constitution affords the individual Protection of right to personal liberty'. It therefore, recognises that it is a fundamental rig)-ht of the individual not to be subject to physical restraint except for good cause. The only measurable standard of cause is the prescription that no one may be arrested except "-upon reasonable suspicion of his having committed, or being about to commit, a criminal offence (13).
According to the wording of section 5 of the constitution, arrests are prima facie illegal, as mentioned earlier, the police must be able to point out to some legal authority to justify their action. Section 5 of the Constitution itself, grants the police powers to arrest. The police also derive their powers of arrest from section 9 of the Police Act (14).
(12) Section 9(3) of the District and Intermediate Courts (Criminal Jurisdiction) Act defines an arrest in the follonving terms: "An arrest shall be made by some actual touching or confining of the body". See also Bird v. Jones (1845) 7 Q.B 745, where it was laid down that there is no arrest unless the restraint is total.
(13) Section 5(l)(c) Constitution.
(14) Section 9 of the Police Act is entitled "Duties of the Police Force".
The wording of this section can be summed up by a quote of Lord Parke C. J, in the case Rice v. Connelly (15).
‘..it is part of the obligations and duties of a police constabletake all steps which appear to him necessary for keeping thepeace, for preventing crime or for protecting property from criminal injury.’
Undeniably, the liberty of the suspect is deprived on arrest. In order to secure justice, our law provides for strict procedures, for it is not to be forgotten that "the suspect remaining at large is the rule: his detention is the exception..(16)’
3.1 WHAT CONSTITUTES AN ARREST?
It is important to define an arrest since, as the introductory Notes to the Judges Rules in 3(b) rightly says, "police officers, otherwise than by arrest, cannot compel any person against his will to come to or remain in any police station."
An arrest commonly occurs as Lord Devlin explained in Hussein v. Cheong (17) when a police officer states in terms that he is arresting the person or when he uses force to restrain the individual concerned. Arrests, therefore, involve actual physical seizure of the person, using no more force than reasonably necessary or a token restraint of a person's liberty indicating its Compulsory nature. And in the case of Alderson v. Booth (18) the divisional court stated that "an arrest is constituted where any form of words is used which in the circumstances of the case were calculated to the accused's
(15) Rice v Connelly (1966) 2QB 414 at 419.(16) Noordally v Attorney General and Director of Public Prosecutions (1986) MR
204 at 207.(17) (1970) AC 942.(18) (1969) 2 Q.B 216 at 220.
notice and did bring to the accused’s notice that he was under compulsion and thereafter he submitted to the compulsion."
3.2 LAWFUL AND UNLAWFUL ARRESTS
Our law provides for a list of arrestable offences in the criminal code. The police have discretionary powers to arrest. In order to be lawful, an arrest must be based on "reasonable suspicion' that the suspected offender has committed the offence, or is caught red-handed. In case of absence of reasonable grounds for that suspicion, an arrest would be unlawful. Determining the legality of an arrest, depends on what the suspect is seen or reported to have done taken with the relevant circumstances. Acting on a mere hunch on the part of a police officer will definitely not constitute reasonable grounds foreffecting an arrest.
In R v. Shummugum (19), Garrioch J., said that reasonable suspicion is not something based on fancy. This means that reasonable grounds for suspicion depend on the circumstances in each case coupled with an objective basis for belief.
It is to be noted that Section 5(5) of our Constitution provides for compensation to be paid to the victim of an unlawful arrest by the person who has effected the arrest. Lord Denning wrote, "if it a lawful arrest, the man cannot complain. If it is unlawful, the man can bring an action for false imprisonment and get damages" (20).
3.3 DETENTION AND INTERROGATION AFTER AN ARREST
Once a person suspected of crime has been taken into custody, he cannot beimmediately placed on trial, his case is not ‘in court’ and at this point of the process, there is no charge against him. The suspect is detained at the police station in order that
the police can question him about the offence which he is suspected to have committed. Due process requires that once the person who is arrested is brought
to the police station, he must be informed of his right to have access counsel and of his right to remain silent.
3.3.1 Right to be Informed of Access to Counsel
The interrogation stage is a very crucial point of the criminal process. Experience has shown that the police very often is tempted to establish a prima facie case against the suspect, on the basis of an 'alledged' confession, which may be the best evidence that the prosecution can make use of to substantiate a case.
A suspect's own confession is probably the most probative and damaging evidence that can be admitted against him, as it was said in the American case of Brutonv. United State (21).
This is why the Judges Rules (22) which are still in force in Mauritius, require that a police officer should first inform the suspect that he has a right to a lawyer of his own choice to assist him during the interrogation. Further the same Judges Rules require that there should be a conspicuous display of a list of lawyers in the police station. And the suspect must also be told that he is free to phone whoever he wants. He can either phone his relatives and ask them to find a lawyer for him or he can choose a lawyer from the list and phone him.
The conversation on the phone between the lawyer and the suspect or the conversation between them before the interrogation is considered to be priviledged information.
(21) 391 US 123 (1968)(22) Judges Rules and Administrative Directions to the Police
However, unlike the codes of practice, issued under the Police and CriminalEvidence Act 1984 in England, which has replaced the Judges Rules, the latter does not have force of law (23). And our Constitution only provides in section 5(3) that "any person who is arrested or detained ... shall be afforded reasonable facilities to consult a legal representative of his own choice... " The Constitution in no way directly imposed a duty on the police authorities to inform the suspect of his right to consult a lawyer.
In the recent Full Bench decision of State v. Coowar (24), the Supreme Court held that "the Police is (also) under a legal obligation to inform a person in police custody of his right to communicate with Counsel under Section 3 of the Constitution, coupled with paragraph 7(a) and (b) of Appendix B [Judges] Rules". Their Lordships (25) in the Coowar case, following the decisions of the Privy Council in Attorney General of Trinidad and Tobago v. Whiteman (26) and Thornhill v Attorney General of Trinidad and Tobago (27), arrived to the above conclusion in following way:
"Since the procedure outlined in Paragraph 7(h) [of the Judges Rules] had become a settled practice implemented before the Constitution of 1968 come into operation, it was part of the protection of the law guaranteed to the individual under section3 of the Constitution (which recognizes and declares that there have existed and shall continue to exist fundamental rights and freedoms, including the right of the individual to the protection of the law) ".
(23) See R v. Voisin [1918-191 ALL ER 491: Rosin v. R (1954) MR 23: Sibsurrun v. R. (1956) MR 456.Following R v. Boyjoo (1991) SCJ 374: As regards 'the
right of access to a legal adviser, the right to silence and the giving of the caution, the principle that the Judges Rules do not have the force of law can no longer obtain in Mauritius. This was confirmed by the Full Bench Decision in State v. Coowar(1997) SCJ 193 where the Court held: "In this jurisdiction, both the right to retain a legal adviser and the right to protection against self-incrimination are constitutional rights which are legally enforceable and ..., construction of the Judges' Rules and administrative appendix thereto must be considered against the background of the constitution".
(24) (1997) SCJ 193.(25) Pillay CJ. Narayen J. and Lam Shang Leen. J.(26) (1991) 2 W.L.R 1200.(27) (1981) AC 61.
Therefore, following the Full Bench decision in Coowar, the police authorities have a constitutional duty to inform the suspect of his right to consult a lawyer.
In theory it is only after the suspect has been informed of his right of access to counsel and has taken a decision as to whether or not he would exercise this right that the police can start the interrogations. If the suspect has elected to waive his right to counsel, the interrogation will start and no counsel will be present. However, if the suspect elects to have the assistance of counsel during the interrogation, then the interrogation will be carried out in presence of the suspect's counsel, unless access to counsel is denied.
Under paragraph 3(c) of Appendix A and paragraph 7 of Appendix B of the Judges Rules, the police may defer access to legal advice to a suspect when such a course may cause "Unreasonable delay or hindrance to the process of investigation or the administration of justice". The Police and Criminal Evidence Act 1984 in the UK does have similar provisions. In such instances, it was held in R. v. Samuel (28), that the onus is on the police authorities to show that there exists a danger of "Unreasonable delay or hindrance to the processes of investigation or the administration of justice". Short of that, undeniably, the courts will action denial of access to counsel. Our Supreme Court is of the view that, in circumstances where no danger as mentioned above exists, 'Preventing a suspect who is being detained from seeing or meeting his lawyer would be oppressive and unfair”(29).
3.3.2 Right to Silence during Police Interrogations
Section 10(7) of our Constitution provides that: "No person who is tried for a criminal offence shall be compelled to give evidence at trial". An examination of this
(28) (1988) 1 QB 615.(29) R v Beegun (1988) SCJ 122. It has been held in the Canadian case of The
Queen v. Therens (1986) LRC (Const) 455, that "the right to counsel is of such fundamental importance that its denial in criminal law context must prima facie discredit the administration of justice”.
provision reveals that the right to remain silent is a constitutional right at the judicial stage of the criminal proceedings but not during the police interrogations.
In the Court of Appeal decision of Nelliah v. R (30), Justice Lallah, delivering the judgement of the Full Bench had this to say:
"Our Constitution gives an accused person and inalienable right to silence in both pre-trial proceedings and at the trialitself.’
Justice Lallah reiterated the fundamental importance of the right to silence during pre-trial and trial proceedings in the case of Ramdeen v. R (31) when he said that the right of an accused to silence whether from the beginning of his arrest, at the enquiry stage or through the proceedings at trial stage, is a fundamental principle of our law.
The decisions of Nelliah v. R and Ramdeen v. R have extended the right to silence to the enquiry stage of the criminal process, that is the pre-trial proceedings. Henceforth, there is a constitutional right to remain silent at enquiry stage.
The Judges Rules lay down the procedures through which the interrogation of suspects are to be carried out. Rule 11 provides that "as soon as a police officer has evidence which afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence". And the same Rule 11 goes on saying that the caution must be administered in the following terms before the interview of a suspect: "You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence".
(30) (1985) MR 84.(31) (1985) MR 125.
The words of caution amount squarely to a recognition of a right to silence during the police phase of the criminal process. However, this right to silence would be meaningless if the suspect is not made aware of it. Surely, if a suspect elects to have assistance of counsel, the lawyer would undoubtedly advise him as to his right to remain silent. But a suspect unaware of his right to counsel and not informed of it by the police, would surely be unaware of his right to silence if the police does not inform him. In such a situation, the suspect would be at the mercy of police.
The right to silence protects the suspect from arbitrary and excessive policequestioning. It also reduces the risk that a suspect will make a false confession. The right to silence is viewed by the due-process adherents as the cornerstone of a criminal justice system since it underpins the principles that it is for the prosecution to prove the accused's guilt. For the due-process adherents, the police should not dissipate all their energy in an elaborate strategy aimed at extracting a damning confession from a suspect, but should strive to secure other forms of compelling evidence such as statements from eye witnesses or real evidence.
Crime-control adherents have seen the right to silence during police interrogations as a clear demonstration of their claim that criminals can use the rules to escape justice. For the crime-control partisans it is not the inarticulate or the inexperienced but rather the sophisticated, professional criminal who shelters behind the right to silence, a right which can, in some cases frustrate the whole purpose of the criminal justice system.
One of the problems for the crime control lobby, however, has been to justify the claim that the exercise of the right to silence before and at trial has actually impeded the conviction of criminals. Recent empirical evidence does not show that the exercise of the right results in a failure to charge defendants (or results in their acquittal) (32).
(32) See, S. Geer, "The right to silence: A review of the current debate" (1990) MLR 709. 711.
In England, those who favour the abolition of the right to silence during police interrogations have endorsed the views of the crime-control adherents. In the Mauritian context, the abolition of the right to silence during pre-trial procedures would have serious repercussions on the constitutional presumption of innocence. This is so because as Justice Lallah said in the case of Ramdeen v. R (Supra): "The right is founded on the constitutional presumption of innoncence, for this reasons an accused person is cautioned at the enquiry stage before he is questioned'. Therefore, if the right to silence during pre-trial proceedings were to be abolished in the Mauritian Criminal justice system, this would lead to a situation whereby a suspect would no longer be presumed innocent during the enquiry stage, and he would have to establish his innocence in order to avoid being charged with the offence which he is suspected to have committed.
3.3.3 Right to Silence implies Right to be Informed of the Right to Silence
What is the point of having a constitutional rule if it is not made known to the suspects?
Justice Boolell, in the case of R v. Boyjoo and another (1991) SCJ 379, said that the constitutional principle against self-incrimination is not limited to cases where the accused is charged before a court of law, but a the stage of the police enquiry before he is questioned, the accused must be told of his right to silence. Justice Boolell also stated in the judgement that the right to silence at the police investigation stage was formally recognised in the famous American decision of Miranda v. Arizona (1966). In that case the US Supreme Court had to interpret the Fifth Amendment to the American Constitution which is not dissimilar to section 10(7) of our own constitution. The US Supreme Court held that prior to any questioning by the police, the suspect must be warned that he has a right to remain silent.
In the recent Full Bench decision in The State v. Coowar (33) which concerned the right of access to counsel, the court concluded that in the light of two Privy Council decisions (34) the adoption of the 1964 Judges Rules in Mauritius meant that they had become a part of the rights of an accused person which are protected by Section 3 and Section 5 of our Constitution. This signifies that the suspect must be informed of his6ght of access to counsel when in the police station, as this procedural requirement is constitutionally protected.
Hence, by way of analogy, one can argue that the rule requiring the suspect to be informed of his right to silence, by means of a caution administered by a police officer, is protected by our Supreme Law.
The Full Bench decision in Coowar has dissipated all the doubts that had been cast on the R v. Boyjoo (1991) SCJ 401 (35) - a first instance case - in the
Appeal case Samserally v. The State (36), in that the Full Bench held that the Samserally case had been wrongly decided.
3.4 CHARGING THE SUSPECT
The terminal point of what is ordinarily referred to as the "police phase" of the process is when the criminal investigation turns into a criminal prosecution. Normally after the police has completed the enquiry, the enquiry file referred to in practice as "P.F 100”(31), is submitted to the Director of Public Prosecutions (D.P.P), who by virtue of
(33) (1997) SCJ 193. The decision of our Supreme Court (Court of Criminal Appeal) in this case comes to reassert and uphold the principles enshrined in R v. Boyjoo (1991) SCJ 379 and R v. Boyjoo (1991) SCJ 401.
(34) The Whiteman and The Thornhill cases (supra).(35) R v. Boyjoo (1991) SCJ 401 like the Coowar decision concerned the right of
access to counsel.(36) (1993) MR 94. In that case the Court of Criminal Appeal interpreted
Section 5(3)(b) of the Constitution to imply that where a suspect expresses the wish to consult with a legal adviser he must be afforded reasonable facilities to do so and there is no duty on the police to inform him. The Court held that the Judges Rules "should not be considered as strict Rules of law which must be obeyed at all costs.
(37) “P.F 100” stands for "Police Form number 100" and it is entitled "Jacket reporting cases to Director of Public Prosecutions".
Section 72 of the Constitution has an absolute discretion to initiate criminal proceedings. However, in cases of minor offences committed, the police can take the decision to prosecute the offender. Such minor offences are road traffic offences, simple assault and simple larceny.
Rules III (a) of the Judges Rules which deals specifically with the question ofcharging a suspect provides that where a person is charged with or informed that he may be prosecuted for an offence, he must be cautioned by the police. And at this stage also, the right of silence still prevails (38).
3.5 THE DECISION TO CHARGE
The two models of criminal justice are divided on the point as to who should take the decision to charge a suspect with an offence, that is converting the suspect into an accused. Is this decision one that should be made in a primarily administrative way or one that should be made in a primarily adjudicative way?
According to the crime-control model, the prosecutor (39) is in the best position to evaluate the evidence amassed by the police and to decide whether it warrants holding the suspect for a determination of guilt. The prosecutor must in any event do so in every case; and it would be a waste of time and resources to require that the job be done over again by a magistrate, the prosecutor having no interest in pressing cases that are unlikely to result in conviction. Therefore, according to the crime-control model, the interest of suspect in not being prosecuted on a completely groundless charge is amply protected by confiding the screening decision at this stage of the process entirely to the prosecutor's discretion.
(38) Rule III (a) of the Judges Rules says that the caution to be administered should be in the following terms "Do you wish to say anything? You are obliged to say anything unless you wish to do so but whatever you say will be taken down in writinq and may be given in evidence.
(39) “Prosecutor' is used in this context not only in reference to the Police Prosecutor. where the police institute proceedings in cases of minor offences. but also includes the D.P.P.
For due-process adherents, it would be ridiculous to expect every arrest to produce a case sufficiently strong to warrant criminal prosecution. There must be some screening. And the prosecutor cannot be entrusted to do this screening job. The due-process adherents therefore advocate that the appropriate forum for that screening is a preliminary hearing before a magistrate.
But it is to be noted that any system that required a preliminary judicial examination in all criminal cases would collapse of its own weight. Since such a task would require trained magistrates to go around and conduct the examinations. In practice, this would not be effective simply because there are not enough magistrates and preliminary judicial examinations would cause undue delay in the criminal process.
An analysis of section 72 of our Constitution which provides for the powers of the Director of Public Prosecutions reveals that the latter has absolute discretion in matters relating to institution, undertaking, taking over, continuing and discontinuing of criminal proceeding (40). This was confirmed in the decision of Police v. Ruhomally (41).
It can be said that by conferring upon the Director of Public Prosecutions such absolute powers, Section 72 of the Constitution has adopted the crime-control norm as regards the charging of suspects. But as pointed out earlier the adoption of the due-process norm, that is a preliminary judicial examination in all criminal cases, would lead to the collapse of the criminal justice system.
(40) See Section 72(b) which provides that: 'In the exercise of the powers conferred upon him by this section, the Director of Public Prosecutions shall not be subject to the direction or control of any other person or authority
(41) (1983) NM 106; where the court held that the powers of the D.P.P under S.72 of the Constitution were absolute. Therefore, the Court struck down what used to be section 301(3) of the Criminal Code as being unconstitutional in relation to section 72 of the Constitution. Since this former provision of the Criminal Code provided that in the case of "larcenv by decendants to the prejudice of ascendants, the latter could
CHAPTER FOUR
ABUSE OF PROCESS - POLICE MALPRACTICES
4.1 ILLUSTRATION OF THE SITUATION IN PRACTICE IN THE POLICE PHASE OF THE CRIMINAL PROCESS
The legal norms that ought to be applied in the police or preliminary phase of the criminal process - from arrest to charge – mostly (42) favour the due process model. However, as mentioned earlier (43), the situation in practice is sometimes very different from what it ought to have been. The police phase of the criminal process actually operates in the large majority of cases probably approximates fairly closely the dictates of the crime control model. The reason for this is that the activities of the police are subject to no kind of judicial or independent scrutiny until the suspect is charged.
The police have wide powers to conduct the investigation of a Crime (44). But unfortunately, very often, they abuse of their powers. For instance, they put pressure on suspects, or the conduct of interrogations of suspects is not performed as the legal norms Prescribe suspects are not informed of their right to counsel and their right to silence during interrogations by the police, who has a constitutional duty to inform suspects of these rights.
Case law has revealed many examples where the police has used unorthodox means to force suspects to say things that they did not intend nor volunteered to say.
(42) See Chapter Three, 3.5 for an example where the crime control model prevails during the preliminary phase.
(43) See Introduction.(44) The police can search clothes, houses and vehicles. They are also
responsible for the collection of all exhibits and packaging them for delivery to the forensic laboratory.
And the police knowing full well that a confession or self incriminating statements, on the part of a suspect, is the best evidence that can be used against the latter in court, tend to rely on these improperly or illegally obtained evidence instead of looking for other independent evidence in order to secure the conviction of an individual who in their eyes is factually guilty.
Two among the numerous Mauritian cases can be used as illustrations of policemalpractices (45)
In the Boyjoo case (supra), during the interrogations, the accused was frightened by the Police Inspector who was interrogating her. The Police Inspector used a ruler and banged it on the table where the accused was seated to force her to make a statement acknowledging her guilt. Moreover, the police lied to her by saying that the other suspects involved in the case had already made statements. And the police also told her that she would be hanged if she did not confess her guilt and was later to be found guilty by a court. Furthermore, the unscrupulous Police Inspector mentioned that she would have to be sent to hospital, thus implying that physical violence would be used on her. Frightened, coupled with the fact that it was her first brush with the police,(46) caused the accused to make an involuntary confession to the police.
Another example of police malpractice is available in the "Red Ants” (47) case which is an Intermediate Court case, where a person suspected of larceny was forced by the police to make a confession. Though, section 7(l) of our Constitution affords the
(45) Police malpractices are not unknown in other jurisdictions. For example. the Guilford four case is one of the best illustrations of police malpractices in England. In that case, the four accused were suspected-
charged and even convicted of having planned and perpetrated a terrorist bombing. The police in an excess of zeal used very unorthodox means to force the accused to make confessional statements. On two of the accused the police had exercised brutality, they intimidated another who confessed to protect his girlfriend and the last, was drugged and made to sign a confession.
(46) Note: The accused was also not informed of her rights to counsel and her right to silence.
(47) "Red ants Case" or "Fourmis Rouges" case. is an unreported decision.
individual protection from inhuman treatment or torture (48) the police in the "Red Ants'case, to obtain the confession subjected the suspect to red ants bites.
The police sometimes use more subtle means to extract an involuntary confession from a suspect. For instance, they have recourse to a technique known as prolonged detention and questioning. This technique is used to influence the suspect psychologically. Before starting the interrogation, the police can leave a suspect without food and refreshment for long hours. Then the interrogation is carried on for a long time. Hungry and thirsty, the suspect is bound to be psychologically affected and he will say anything that the police wants him to say in order to satisfy the police officers and be given food and refreshment. Hence, the suspect will make an involuntary confession or a self-incrirninating statement.
The technique of prolonged detention and questioning is referred to by the courts as being oppression. In R v. Priestley (49), Sachs J. said of oppressionthis word ... imports something which tends to sap, and has sapped that free will which must exist before a confession is voluntary ... whether or not there is oppression in an individual case depends upon many elements. I am not going into all of them. They include such things as the length of time of any individual period of questioning, the length of time intervening between periods of questioning, whether the accused person has been given proper refreshment or not, and, the characteristics of the person who makes the statement what may be oppressive as
(48) Section 7(l) of our Constitution provides: "No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment."
(49) (1966) -51 Cr. App R 1.(50) See also R v. Prager (1972) 56 Cr App R 151 where the Court applied the
statement of Lord McDermott: "oppressive questioning is questioning by which its nature, duration or other attendant circumstances including the fact of custody) excites hopes (such as the hope of release) or fears, or so affects the mind of the suspect that his will crumbles and he speaks when otherwise he would have stayed silent".
regards a child, an invalid or an old man or somebody inexperienced in the way of this world may turn out not to be oppressive when one finds that the accused person is of a tough character and an experienced man of the world ".
The illustration of the situation in practice during the police phase of the criminal process has enabled us to see that though the legal norms prescribe for
due process, the actual situation in practice from arrest to charge fairly approximates the crime control norms.
Though various appeals have been made to the police authorities by those who campaign in the name of human rights and due process, the situation has not changed and there is no likelihood that it would change. To illustrate this point, we shall take what a due process adherent, namely Sir Henry Hawkins, wrote (51) more than a century ago:
"Much power is vested in a police constable and many opportunities are given to him to be hard and oppressive, especially to those in his custody. Pray avoid harshness and oppression, be firm but not brutal, make only discrete use of your power ...
It seems that the appeal of Sir Henry Hawkins has been a cry in the desert since one hundred and five years have passed and police malpractices are still live issues today.
(51) See preface by Sir Henry Hawkins. One of Her Majesty's Judges to C.E Howard Vincent: "The Police Code and General Manual of Criminal Law for the British Empire" (1893).
4.2 JUDICIAL APPROACH TO CONFESSIONS AND SELF--INCRIMINATING STATEMENTS OBTAINED AS A RESULT OF POLICE MALPRACTICES
When confessions and self-incriminating statements obtained as a result of police malpractices are introduced in court, two competing Interests come into conflict namely the interest of the individual to be protected from illegal and irregular invasions of his civil liberties and rights by the police and the interest of the State to secure that evidence in connection with the commission of an offence and necessary for justice to be done shall not be withheld from the trial Court on a mere technical ground. The existence of these two conflicting interests calls for an analysis of how the courts in Mauritius deal with confessions and self-incriminating statements obtained as a result of police malpractices.
The Constitutional right to silence during police interrogations has firmly been established by the case of Ramdeen v. R (supra). And paragraph 3(e) of Appendix 'A' of the Judges Rules which embodies the principle of the voluntariness of confession or of a self-incriminating statement reads as follows:
"It is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by the person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the sense that it has not been obtained from him by fear or prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression.”
And the classic exposition of the rule that any statement must be given out of one's own free will was laid down in Ibrahim v. R (52) Lord Summer in that case expressed
(52) (1914) AC 599; [1914-15] All ER 874. The principle as established in this case has been approved in a number of local decisions and followed closely by our courts: see Sibsurren v. R (1956) MR 456: Caboche v. R (1961) MR 166: Dhanookchand v. R (1974) MR 184.
the requirement of voluntariness "in the sense that it has not been obtained either by fear of prejudice or hope of advantage exercised or held out by a person in authority”.
If the confession or the self-incriminating statement is involuntary, it will be held inadmissible, by the judge or the magistrate, as evidence in court. The burden of proof, therefore, is on the prosecution to show beyond reasonable doubt (53) that the confession or self incriminating statement was voluntary.
And it is clear that in the cases of police malpractices, a confession or a self-incriminating statement obtained would be ruled inadmissible since if fails to satisfy the voluntariness test as laid down in Ibrahim v. R (supra).
Furthermore, on the basis of the case Boyjoo v R (54) a confession or a self-incriminating statement obtained as a result of a breach of the suspect's rights, namely the right of access to counsel and the right to remain silent during police interrogations, would be ruled inadmissible though it may have been given 'voluntarily' by a suspect. Justice Boolell in the Boyjoo case (supra) was of the view that failure on the part of the police to administer the caution informing the suspect that he has a right to remain silent can be construed as a breach of the voluntariness test if the accused makes a confession or a self-incriminating statement. Justice Boolell further held that the rule against self-incrimination which is enshrined in Section 10(7) of our Constitution would be defeated if a suspect is not cautioned. And in order to prevent this, the Court would have recourse to the "virtual exclusion of a confession on the ground that a constitutional provision would have been breached'.
It is to be noted that a suspect can make a 'voluntary' confession or a self-incriminating statement following an earlier denial of access to counsel. Should the evidence so obtained be admissible? It is contended that a denial of access to counsel
(53) See D.P.P v. Ping Lin (1976) AC 574 which was follonved in the local decision Mootoosamy v. R (1981) MR 476.
(54) (1991) MR 284.
following a request by the suspect to have his legal representative present during the police questioning, is a form of psychological coercion and inducement which affects the free will of the arrested person. The case which supports this proposition is R v. Beegun (55). In that case, the accused along with other persons were charged with the offence of manslaughter. At trial, objections were taken to the production of the accused statements on the ground, inter alia (56), that they were obtained as the result of the enquiring police officers efforts to keep the suspect away from his counsel during the interrogations. Statements obtained from the accused in the absence of his counsel were held to be inadmissible.
(55) (1988) MR 212 where Ahmed J., held that preventing a suspect who is being detained from seen or meeting his lawyer would be oppressive and unfair.
(56) The production of the accused statements were also objected on the grounds that they were obtained from the accused after threats of violence, acts of violence, duress exercised and promise made by the enquiring police officers.
CHAPTER FIVE
FROM CHARGE TO GUILT DETERMINATION
Our analysis of the judicial approach to confessions and self-incriminatingstatements obtained as a result of police malpractices reveals that the courts uphold due process requirements although they have not been followed in the police phase of the criminal process, by ruling inadmissible evidence obtained in such circumstances. This attitude of the Courts gives us a hint that the situation in practice 'from charge to guilt determination'- which is referred to as the judicial stage of the criminal process, orients towards the due process rather than the crime control model (57).
It is hardly an oversimplification to say that during the judicial phase of thecriminal process the factual situation tend strongly towards the due process model. This is so because as one can observe, the judicial phase is a stage in which errors that have arisen during the criminal process are reviewed and corrected: errors that have arisen during the preliminary phase, that is from arrest to charge, are usually corrected during the trial of the case, and errors that have not been corrected or that have cropped updu6n- trial are corrected on appeal by the Appellate Court. In other words, even if the preliminary phase has been unfair to the accused, the Trial Court should ensure that the trial is fair, and if the trial is unfair, the Appellate Court should intervene to correct the unfairness. As Rault CJ., rightly held in Babet v. R (58):
(57) This affirmation in no way means that magistrates and judges in Mauritius have never deviated in their reasoning and allowed themselves to be guided by crime control norms when interpreting the rights of the accused. But it is to be noted that in those cases, their decisions have either been sanctioned on appeal (see: Vele Vindron v. The Queen (1973) MR 245, reviewed (this is usually the case in matters relating to bail) or overruled or rendered inapplicable by subsequent cases (see for example Samseerally (supra) overruled by Coowar (supra)).
(58) (1979) MR 222.
"The provisions of the Constitution requiring a fair trial are anabsolute command. Once it is proved that the trial was unfair, the appellate court should quash the conviction, without enquiring as to the strength of the evidence.”
In this chapter, therefore, we will have a brief analytical over-view of some of the due process requirements during the judicial phase of the criminal process (5. 1). And in the rest of the chapter we shall focus on an area where the due process and the crime control model come into conflict in a significant manner during the judicial phase – this area of conflict is "the detention pending trial" (5.2).
5.1 OVERVIEW OF SOME OF THE IMPORTANT DUE PROCESS REQUIREMENTS DURING THE JUDICIAL PHASE OF THE CRIMINAL PROCESS
5.1.1 Right of the Person Charged with a Criminal Offence to the Presumption of Innocence.
When a person is charged with an offence or several offences, he becomes an accused. According to the due process requirements, though being charged with an offence, the accused is still presumed to be innocent until he pleads guilty or is found guilty by a competent court of law. The presumption of innocence is enshrined in Section 10(2)(a) of our Constitution which provides that: .
"Every person who is charged with a criminal offence -
(a) shall be presumed to be innocent until he is proved or has pleaded guilty; ... "
When it is said that an accused is presumed to be innocent, all that is meant is that the prosecution is obliged to prove the case against him beyond reasonable doubt. The European Court of Human Rights defined the idea of the presumption, which is enshrined in Article 6.2 (59) of the European Convention on Human Rights in the case of Minelli v. Switzerland (1983). The Court agreed and held that:
"Without the accused's having previously been proved guilty according to law and notably, without his having had the opportunity of exercising his right of defence, a judicial decision concerning him reflects an opinion that he is guilty ".
In the local decision of Vele Vindron v. The Queen , the Court of Criminal Appeal allowed the appeal and quashed the conviction of the appellant on the grounds that Section 5(2) of the Forest, Mountain and River Reserves Ordinance was repugnant to the constitutional provisions enshrining the presumption of innocence. Justice Rault in his judgement had this to say:
"The enactment does not merely require the accused to prove particular facts, it places upon him the burden of proving a general, unconditional innocence, without even first calling upon the prosecution to prove any suspicious or sinister circumstances.”
5.1.2 Right to be brought to Trial within a Reasonable Time
This right usually referred to as requirements of prompt adjudication is provided by section 10(1) of the Constitution which provides that 'where any person is charged with a criminal offence ..., the case shall be afforded a fair hearing within a reasonable time..” In Noordally v. Attorney General and Director of Public Prosecutions (61)
(59) Article 6.2 is not dissimilar to section 10(2)(a) of our Constitution. The said article provides: 'Everyone charged with a criminal offence shall he presumed innocent until proved guilty according to law”.
(60) (1973) MR 245.(61) (1986) MR 204.
Glover S P J., delivering the judgement of the Court held that "it is for the Court to decide what is a reasonable time" and said that "tried within a reasonable time" must be interpreted as not referring to the date on which the case is heard on its merits but to the time at which the State is ready to lay a formal information against the prisoner. The European Court of Human Rights with regard to the requirements of prompt adjudication in the criminal context which is provided by Article 6.1 of the European Convention on Human Rights has
established that the time runs from the moment "official notification [has been] given to an individual by the competent authority of an allegation that he has committed a criminal offence" (62). The standard established by the European Court on Human Rights is not dissimilar to that adopted by our Supreme Court in Noordally.
In Police v. Labat, the Supreme Court held that what is a reasonable time within which a case should be heard, will have to be decided on the facts and circumstances of each case (63). And considering the facts of the present case, the court held that the delay in the prosecution of the offence may affect the value of the testimony but it cannot and should not affect the hearing which the court is required to give to each case.
It is to be noted that bringing an accused to trial within a too short or after a too long lapse of time after the commission of the offence charged, may not afford him a hearing. If the delay is too short this may infringe his constitutional right to have adequate time to prepare his defence (64). And if the delay is too long (65)
(62) Deweer v. Belgium (1980).(63) The facts of Police v. Labat (1970) UR 214, were as follows: The accused
was arrested on 23 June1969 in connection with an offence of illicit distillation of alcohol. He had appeared before the District Court and his case was adjourned twenty-nine times. He was finally told to appear before the Intermediate Criminal Court (as it then was) on the 24hMay 1970 and his case was fixed on 24th June 1970, that is one year after his arrest. Counsel for defence raised the point that his client had not been afforded a fair hearing within a reasonable time and that the prosecution of his client was time barred by virtue of Section 5(l) of the Constitution, so he moved for reference of the matter to the Supreme Court and his motion was granted by the Intermediate Criminal Court.
(64) Right of an accused to have adequate time and facilities for the preparation of his defence is a due process requirement enshrined by Section 10(2) of our Constitution.
(65) It was held however, in the American case US v. Ewell quoted in Police v. Labat (supra) that a delay of 19 months between arrest and hearings was not iso facto a violation of the sixth Amendment which provides that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial
might be faced with the difficulty of being unable to obtain the attendance and examination of witnesses on his behalf (66) as the latter may no longer be available either because they have left the country or they are no longer in this world.
5.1.3 Right to Silence during Trial
Section 10(7) of the Constitution provides for a very important due process requirement namely that:
"No person who is tried for a criminal offence shall be compelled to give evidence at the trial ".
In Nelliah v. R (67) the Court interpreted à contrario (68) the above constitutional provision and held that the accused has constitutional and inalienable right to remain silent during trial.
In fact, the right to remain silent is a furtherance of the presumption of innocence. Therefore, as it has been so often held by the Courts (69), remaining silent at trial (and even during police interrogations) does not constitute evidence of guilt.
However, this in no way means that the judge or magistrate cannot comment on the accused silence (70) since it is his role to comment on the strength of the evidence
(66) Which is a due process requirement enshrined in section 10(2)(c) of our Constitution.
(67) (1985) MR 84.(68) A different attitude had been adopted in R v. Shummugum (1977) MR 1 where
the Court observed that ‘Section 10(7) is couched in negative terms, it does not say that the accused has a right to silence but that he should not be compelled'. The attitude adopted in Shummugum no longer obtains in the present case law which favours the view that "The language of a Constitution falls to be construed not in a narrow and legalistic way, but broadly and purposively, so as to give effect to its spirit, and this is particularly true of those provisions which are concerned with the protection of human rights". (Attorney-General of Trinidad and Tobago v. Whiteman (1991) 2 WLR 1200 at 1204).
(69) See for example: R v. Hubbard [1991] Crim LR 449 C.A; Nunkoo v. R (1983) MR 128.
(70) By virtue of Section 184(2)(b) of the Courts Act, the prosecution is not entitled to comment on the accused's failure to give evidence. This Section 184(2)(b) provides that: "The failure of any person charged with and offence ..., to give evidence, shall not be made the subject of any comment by the prosecution’.
adduced in court. But the judge or magistrate cannot draw adverse inference from the accused's silence. In R v. Bathurst (7l), the Trial Judge commented strongly on the accused's silence. The Appellate Court considered the 'strong comments', of the Trial Judge to the jury, as a misdirection and the accused conviction was quashed.
5.1.4 Right of Defence through Counsel
The right of defence through counsel which is undoubtedly an important requirement for due process, since it ensures the element of fair procedure during trial, is guaranteed by Section 10(2)(d) (72) of our Constitution. It is to be noted that this right includes the right to legal aid when the conditions for egibility prescribed by the Legal Aid Act are met.
The accused being represented (73) by counsel during trial is of fundamental importance because the accused may lack both the knowledge and the skill to prepare his defence and effectively defend himself in court. Furthermore, without the assistance of a legal representative, the accused might be put to trial without a proper charge and convicted in circumstances where an accused defended by counsel might have been acquitted (74). Therefore without legal
assistance during trial an accused faces the risk of being convicted though he is not guilty, as he does not know how to establish his innocence.
When an accused retains the services of counsel, the responsibility of ensuring the presence of the latter in court devolves on him. The trial court's duty is purely a
(71) (1968) 2 QB 94.(72) Section 10(2)(d) of the Constitution reads as follows: "Every person who
is charged with a criminal offence shall be permitted to defend himself in person or, at his own expense, by a legal representative of his own choice or, where so prescribed, by a legal representative provided at the public expense".
(73) Whether by a counsel of his own choosing at his own expense or by one assigned to him through legal aid.
(74) For example he may be convicted upon unsufficient or irrelevant evidence.
passive (71) one as regards the presence of counsel in court. The court's duty is to inform the accused that he has a right to be represented by Counsel when he appears for trial unrepresented. On being so informed, the unrepresented accused can elect to defend himself or ask postponement to hire the services of a counsel or seek legal aid.
In circumstances where an accused was deprived of assistance of counsel by his own fault, he cannot subsequently through an appeal complain that he did not benefit from a fair trial. In Balloo v. The Queen (76), the appellant failed to give his counsel instructions for the trial in time, consequently the latter applied and was granted leave to withdraw from the case by the trial judge. The Court of Appeal held that in those circumstances, the accused being the only person to be blamed (77) could not invoke that he has been deprived of the right of defence through counsel.
In R v. Mensa (78), an important constitutional issue which concerns due process during trial arose. The accused, a foreigner, was charged with importation of and trafficking in dangerous drugs and he was liable if convicted to a mandatory death penalty. The conditions of the Legal Aid Act being satisfied in this case, the accused asked and was assigned a counsel at public expense. But subsequently, during trial, the accused stated that he no longer needed counsel as he was in a position to conduct his own defence. The issue was whether the accused could be said to have had a fair trial if his request to conduct his own defence was allowed. To determine this issue, the Court (79) had to make an enquiry to determine whether the request of the accused was a valid waiver of his right of defence through counsel.
(75) As it was rightly pointed out in Gooranah v. R (1968) MR 122: "it is clearly not the duty of a court to inquire from an accused party the reasons for the absence of his legal representative".
(76) (1969) MR 1286(77) For another example where the Court of Appeal dismissed an appeal as it
considered that no miscarriage of justice had occurred because the appellant was to be blamed for the withdrawal of counsel: See Allaghen v. The Queen (1984) MR 156; where counsel had warned his client that he would withdraw unless properly instructed.
(78) (1989) MR 137.
(79) Boolell J., sitting alone.
The Court fully aware that counsel cannot be imposed on an accused who is unwilling to accept one, recognised that at the beginning of trial an accused who wants to conduct his own defence should be allowed to do so and counsel should not be assigned to him against his will (80). But in the present case the Court took into consideration the following circumstances: that the accused was a foreigner, he had initially asked for legal assistance raising "a strong presumption whereby he felt he could not conduct his defence", he was liable on conviction to a mandatory death sentence. All these circumstances led the Court to hold that the request of the accused could not be interpreted as a valid waiver of his right of defence through counsel, consequently, his request was rejected. The Court held that having acceded to his request would prejudice his right to a fair trial.
5.2 DETENTION PENDING TRIAL - An Area in the Judicial Stage of the Criminal Process where the Two Models of Criminal Justice Conflict in a Significant Manner
The fundamental question at this stage is: what is to be done with the person who is charged with a crime but not yet convicted of it? The answer has important consequences for the shape of subsequent proceedings, for a decision that the suspect will remain in custody once he has been charged, may itself act as an inducement for him to plead guilty. Thereby short-circuiting the part of the process dealing with determination of guilt and passing directly to the stage of conviction.
5.2.1 Dictates of the Crime Control Model Regarding Detention Pending Trial
According to the crime control dictates, the vast majority of persons charged with crime are factually guilty. For crime control adherents, an arrest followed by a formal
(80) Boolell J., cited a passage from paragraph 4-19 from "Archhold Criminal Evidence, Practice and Procedure" 43rd edition which reads thus.- "where at the beginning of a trial, a defendant expresses tile desire to conduct his own defence he should be allowed to do so and counsel should not be assigned to him against his will.
charge has behind it a double assurance of reliability: the judgement of the police officer who made the arrest is backed up by that of the Director of Public Prosecutions or Police Prosecutor who has decided that there is enough evidence to hold the accused for trial. In short, for the crime control adherents the accused is a criminal and there no reason for him to regain his liberty just because the system cannot deal with him immediately.
If the accused is freed, there is the potential risk the he will abscond and not appear for trial. A risk which is increased when the accused is well aware that he is guilty and has a lively expectation of probable punishment. And if allowed to remain at large pending trial, there is also the risk that further crimes would be committed especially if the accused is a known criminal. And the more hardened the criminal, the greater likelihood that this will happen. The likelihood that the accused may commit similar offences, is in itself for the crime control lobby an adequate reason for not making pre-trial liberty the norm.
For crime control adherents, even for first offenders and others who do not seem very likely to repeat their crimes while awaiting trial, there are good reasons why pre-trial liberty should not be available as a matter of right. The crime control adherents argue that for such persons, a short period spent in jail awaiting trial is not only a useful reminder that crime does not pay but also the only such reminder they are likely to get.
According to the crime control lobby, a high percentage of accused who now plead guilty would elect to stand trial if they could be at liberty pending trial. Therefore keeping into custody people who know that they are guilty ensures in a way that they plead guilty rather than gamble on the remote or even inexistent chance of an acquittal for which the price to pay is spending weeks or months in jail awaiting trial. But if they are released pending trial, the incentive to plead guilty is greatly reduced.
5.2.2 Dictates of the Due Process Model Regarding Detention Pending Trial
For the due process model a person accused of crime is not a criminal. He is to be distinguised from a person who has been duly convicted by a competent court. If the accused is kept in custody pending his trial, this may have serious consequences on him. An accused person who is confined pending trial is greatly impeded in the preparation of his defence. He needs to be able to consult on a free and unrestricted basis with his counsel but this is notoriously hard to do while is custody. He may be the most likely person to interview and track down witnesses in his own behalf, this he cannot do if he is detained. The pre-trial detention of the accused has a serious economic consequence on the latter. Being detained, he cannot go to work, therefore his earning capacity is cut off; he may loose his job- his family may suffer extreme economic hardships. The economic deprivations sustained as a result of pre-trial confinement act as coercive measures that inhibit the accused's will to resist. Thus he is rendered more likely to plead guilty, hence waiving the various safeguards against conviction.
According to due process precepts, and accused is entitled to remain free pending his trial, so long as his freedom is not a threat to the orderly process of criminal justice. His freedom would have this effect, if for instance the accused deliberately fails to appear at the time and place for trial or he tampers with any evidence against him.
5.2.3 Detention Pending Trial in Mauritian Law
The pre-trial liberty of a person accused of an offence, and who is not released by the police is established by the institution of bail. The law relating to bail (81) Mauritius is derived from the application of section 5(3) of the Constitution. An interpretation of this Constitutional provision reveals, that if an accused who is detained is not brought before
(81) The law relating to bail in Mauritius is governed by the Bail Act 1989, the various scattered provisions on bail found in the Criminal Procedure Act and the District an Intermediate Courts (Criminal Jurisdiction) Act and the common Law principles and practice of English Courts prior to the UK Bail Act 1976.
a Court for trial within reasonable time, then he is entitled to be released. From a strict interpretation of the Constitution, it seems that there is a
mandatory right to bail only if the accused is not "tried within a reasonable time". (82)
Supposing that a person is formally charged with an offence and is brought to trial within a matter of days following the charge, that is, obviously within a reasonable time and he pleads not guilt, is he entitled to bail pending the adjudication of guilt?
In order to answer this important question, an analysis of the case law dealing with bail pending trial is necessary. On analysing the case law, it can be seen that there has been an evolution towards due process norm. To understand this evolution, we have to look at the case law prior to the Noordally case and the case law following it.
The case law prior to the Noordally case reveals that magistrates and judges were greatly influenced by the crime control model as regards detention pending trial, since the Courts held that the accused has no invariable right to be at large pending the adjudication of guilt. For the case law prior to the Noordally case, jail was the rule, bail the exception. The case of Rodolphe v. D.P.P.(83) is a good example which illustrates the pre-Noordally era. In Rodolphe, the Supreme Court held that:
‘We are not persuaded that an accused person has an invariable right to be at large. The right to liberty of an accused party is subject to a number of exceptions as laid down in Section 5"... The only protection he enjoys is:
1. Reasonable facilities to consult a legal representative of his own choice.
2. Brought with undue delay before a Court and tried within a reasonable time. "
(82) As to what is meant by "tried within a reasonable nine "? See 5. 1.1 (supra.).
In spite of the precedents in the case law relating to bail pending trial, the Supreme Court adopted a totally different approach in the Noordally case.
The case of Noordally concerned an application for bail, by a person arrested and charged with possession of heroin. He was denied bail by virtue of Section 46(2) of the Dangerous Drugs Act 1986 (84). It was contended on his behalf that the section in question was unconstitutional, being repugnant to Section 5 of the Constitution.
The Supreme Court interpreted Section 5 of the Constitution as providing that "the suspect remaining at large is the rule; his detention on ground of suspicion is the exception ... " The Court also stated that it is not in accordance with the letter and spirit of our Constitution to pass laws to allow the executive overstep the role of the judiciary in matters pertaining to the granting of bail". Therefore, the Supreme Court held that Section 46(2) of the Dangerous Drugs Act was repugnant to Section 5 of the Constitution and therefore void.
The decision in Noordally was confirmed by subsequent cases, for example, in Sheriff v. District Magistrate of Port-Louis and D.P.P. (85), it was held that 'freedom of the individual and the restriction of his liberty should not be
interpreted in such a way that arrest and detention become the rule and freedom the exception". The Court in Sheriff also overturned the decision in Rodolphe (supra) (86)
According to the new case law on detention pending trial, the Constitution does grant a right to bail to persons charged with an offence but not yet convicted of it. From the pre-Noordally era, where detention was the rule and freedom the exception, the case law has moved to a situation where the rule is "a right to be at large" and detention or
(83) (1983) MR 54.(84) Section 46(2) of the Dangerous Drugs Act reads as follows: "No person who
is charged with all offence under Section 28, 30, 33 shall be admitted to bail".
(85) (1989) SCJ 368.
the exception and that this exception should only apply in exceptional cases (87). Therefore, one can see that from the crime control norm which characterised the pre-Noordally era, the case law following Noordally has adopted the due process norm as regards detention pending trial.
(86) The Court in Sheriff held: ‘..we feel that the pronouncement made in the case of Rodolphe v D.P.P. MR 54, to the effect that an accused party has no invariable right to be at large under our Constitution may go a bit far".
(87) Bail may be refused when the following circumstances are present:
1. The seriousness of the offence and punishment;2. The risk the accused may repeat the same offence;3. The risk the accused may tamper with the evidence or destroy
material evidence;4. The likelihood the accused will not appear for trial if released;5. The strength of the evidence against the accused.
See also Section 8 of Bail Act 1989 which lists the "Circumstances in which bail may be refused”. And for a broader understanding of the law of bail; see P. Kam Sing, "The law relative to bail in Mauritius"U.O.M Law. Dis. 1992.
CONCLUSION
Our aim throughout this dissertation has been to stress on the importance of due process in criminal justice. We have seen how the two models of criminal justice operate and found that the due process model lays emphasis on rights afforded to the accused rather than the interests of society and it is a guarantee of individual freedom.
We have analysed the criminal process from "arrest to charge" and found that the legal norms prescribed by Mauritian law favour the due process model. But we have seen that the situation in practice, in this stage of the criminal process approximates the crime control model. The reason for this is, as it has been shown, during the police phase of the criminal process there are very often malpractices on the part of the police.
And finally in our analysis of due process requirements from "charge to guilty determination", we have shown that in this phase of the criminal process, the
due process model has the upper hand on the crime control model. The main reason for this is that the prevailing case law has adopted a very generous interpretation of the rights of the accused and this gives them their full effect. Hence ensuring that though the pre-trial stage (or even the trial stage) was unfair towards the accused, the latter's rights would prevail over the interests of society.
The gulf between the legal prescriptions and the situation in practice during the stage of the criminal process from arrest to charge can be eliminated by reforming police practices during interrogations. The legislator should intervene in this area by passing a law making it compulsory for police interrogations of suspects to be video-taped. This will ensure that the police does not have recourse to unorthodox means to obtain confessions or self-incriminating, statements from suspects and that the latter are informed of their rights during the interrogations. Therefore, the police phase of the criminal process would, in practice, be in line with the legal prescriptions.
If due process requirements enshrined in sections 5 and 10 of our Constitution were not given their full effect, then the criminal process would ressemble the crime control model. In such a situation, it would be very easy for the prosecution to secure the conviction of an accused. One immediately realises that this may also lead to the conviction of people who are in reality innocent. Hence, the need for due process to be upheld in our criminal justice system.
J.E.ANDRE
BIBLIOGRAPHY
Textbooks
1. Packer, H. The Limits of the Criminal Sanction: Standford University Press. 1968.
2. Jackson, J., "Due Process", In Mc Gmdden, C. and Chambers, C. Individual Rights and the law in Britain: Oxford. Clarendon Press. 1994.Ih
3 .Cross, Sir Rupert, and Tapper, C. Cross on Evidence: London. ButterWorths. 7edition. 1990.
