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RRLLB81 portfolio exam 62272954 latestupdate nov 2023
CPR3701 notes 2022 latest update
nov 2023
Research Report (University of South Africa)
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CPR3701 NOTES
STUDY UNIT 1: A BASIC INTRODUCTION TO CRIMINAL PROCEDURE (Chapter 1 of
the handbook)
1. INTRODUCTION
The law of criminal procedure is the entire body of rules that prescribes the procedure to follow
in punishing criminals by virtue of state authority.
Criminal procedure must, subject to the supremacy of the Constitution:
- provide a process to enforce criminal law;
- allocate power to state officials; and
- articulate fair process norms with reliable outcomes.
1.1 Criminal procedure: the distinction between substantive and adjectival law
LAW
Public law Private Law
Substantive law Constitutional law Family law
Legal rules determining the Administrative law Property law rights and
duties of International law Law of persons
individuals and the state Criminal law Law of delict
Adjectival law Offence Instituted Claim
Procedures to enforce Public/Criminal Civil procedure law (used substantive law by
procedure law In public procedure, e.g. proving and judging Law of
evidence mandamus, interdict)
the - Law of evidence
1.2 Criminal procedure
1.2.1 Scope and content
Criminal procedure regulates, inter alia, the duties and powers of the criminal courts and
prosecutorial authority; the duties and powers of the police, especially in the course of the
investigation of a crime; the rights of suspects and arrested and accused persons; pre-trial
procedural matters; bail, charge sheets (in the lower courts) and indictments (in the superior
courts); pleading; the course of the criminal trial, and especially the trial rights and duties of
the prosecution (the State) and the defence; verdict; sentencing; post-trial remedies (such as
appeal or review) and executive action (e.g. mercy, indemnification and free pardon).
1.2.2 Criminal procedure as component of the criminal justice system
Criminal procedure also functions as part of a system which is referred to as the ‘criminal
justice system’. ‘Criminal justice’ consists of criminal procedure, substantive criminal law, the
law of evidence in criminal proceedings, the law of sentencing (and related disciplines like
penology and criminology) and, furthermore, the law governing prisoners and prisons (see,
for example, the Correctional Services Act 111 of 1998, which provides for, amongst other
things, the custody of all prisoners under humane conditions, parole and the rights and
obligations of unsentenced and sentenced prisoners). The common binding factor between
the aforementioned branches of the law is that they deal primarily with crime and its
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perpetrators and form (or should form) a coherent whole in order to ensure that there is, in the
interests of society, firm but fair enforcement of the rules of substantive law in accordance with
constitutional and all other legal requirements.
1.3 The double-functional nature of some rules
Many rules of criminal procedure are double-functional in the sense that apart from regulating
procedure, they also operate as grounds of justification in substantive law, i.e. substantive
criminal as well as private law. Thus, if a police officer infringes a suspect’s interests in privacy
by searching him in terms of the provisions of criminal procedure, the act of searching is both
a regular procedural action and a lawful limitation of the suspect’s right to privacy; in terms of
substantive law the suspect can neither successfully charge the peace officer with an offence
nor sue him in a delictual matter. If, on the other hand, the search was illegal (e.g., in that it
was not permitted by the law of criminal procedure), then, in terms of criminal procedure and
the consequences of procedural actions, and if an exclusionary rule is applied (see para 2.2
below), the procedural/evidential consequences of the unlawful conduct may be that the
evidence thus obtained will not be admissible; the substantive law consequences may be a
criminal charge against the officer as well as an action for damages.
Conversely, grounds of justification in substantive law may also be double-functional and may
be used to great effect in criminal procedure. For instance, if a police officer may lawfully arrest
a suspect and the latter attacks the officer, the officer may rely on the law of self-defence and
defend himself. While self-defence as such is primarily a ground of justification in substantive
criminal and private law (meaning that conduct which would otherwise be unlawful is rendered
lawful in the circumstances), it here also empowers the officer to act in a criminal procedural
sense.
2. CRIME CONTROL AND DUE PROCESS
2.1 The need to balance values
Criminal procedure is, in the final analysis, a system which seeks to incorporate and balance
certain fundamental values. These values can be best explained in terms of the crime control
model and the due process model of criminal procedure.
Crime Control Model Due Process Model
Regards the repression of criminal conduct Regards the adherence to rules which duly as
the most important function of criminal and properly acknowledge individual rights
procedure. at every stage of the criminal process as
the only ground on which a conviction and
sentence can be secured.
Not rival models! Both seek to vindicate the goals of substantive criminal law
2.2 The internal tensions
No real-life systems conform exactly to one specific model, an appropriate balance must be
secured, and there are certain tensions between the underlying values of the two models.
Consider the following internal tensions:
First, one cannot create strict criminal procedural rules on the assumption that these rules will
only be applied to ‘criminals’. The system must allow for the fact that innocent people can also
get drawn into the system, especially during the pre-trial investigative stage of the criminal
process. Secondly, ‘the liberty of an innocent individual should not be sacrificed in order to
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