Criminal Procedure Handbook
Summary.
CRIMINAL PROCEDURE NOTES:
Topic 2: Models of Criminal Procedure
Crime Control and Due Process (Packers Models)
- Criminal procedure in the final is a process which seeks to incorporate and balance
fundamental values. The interest in society in effective cr...
Topic 2: Models of Criminal Procedure
Crime Control and Due Process (Packers Models)
- Criminal procedure in the final is a process which seeks to incorporate and balance
fundamental values. The interest in society in effective criminal enforcement v the interest in
society of the protection of rights and the freedoms of all individuals that form a part of the
process
2 models arise (Packers Models) – packer does not favor any model (compete)
1) Crime control model: the repression of crime is the most important function to be performed
in the criminal process. Legislature as validating authority. This model places excessive
powers in the hands of police as law enforces for interrogation and seizure procedures
(rather than the courts) they are more concerned with factual guilt rather than legal guilt that
can be established BRD, the focus is only on efficiency and guilty pleas. However, the
police conduct is not absolute and is still subject to sanction
2) Due Process: Focus is more on individual and group rights. Equality – protection of all
accused’s protects marginalized. It acknowledges the importance of criminal enforcement,
but states that securing a conviction/sentence must be achieved in terms of rules that
acknowledge the rights of an individual at every stage of the process. (BOR) Not focused
on factual guilt but whether prosecution can establish a case beyond reasonable doubt on
the basis of legally obtained evidence. Open to appeals.
Critique: cost of invoking one’s rights is larger than accepting loss of rights – lawyers encourage
guilty pleas – hollow symbol of fairness. Accused is passive and dependent.
NB: both seek to vindicate the goals of substantive criminal law – different means
Internal tensions
- Creation of rules must consider that both innocent and guilty people may be involved in the
process of criminal procedure
- The liberty of an innocent individual should not be sacrificed in order to ensure the efficiency
of crime control (rule opposed if it increases possibility of conviction of innocent)
- State v individual rights given absolute power – both creates issues
- Rules must regulate state power in both a negative and positive sense
- Rights of accused v Rights of victims – not all victims are victims in the absolute sense..
- Evidence must be obtained in a constitutional manner
Models based on the conceptions of victims’ rights (Roach) – distinguish between 1) the
punitive model of victims’ rights and 2) the non-punitive model of victims’ rights
1) The rights of crime victims and potential crime victims are worthy of respect – Similar to
crime control – replicates packer’s assumption that criminal law controls crime. – New
, because crime control is now strengthened by the rights of victims. Puts the criminal
system under constant pressure to encourage victims to report, to prevent victimization
within the criminal process and to respond to high levels of victimization.
2) Does not put the blame on victims or offenders but rather emphasizes the prevention of
crime and restorative justice (away from formal criminal sanctions). The offender, victim
and members of society are involved in the attempt to restore society to the position it
was in prior to the offence – acknowledges the impact that the wrongdoing has on the
victim (more than just a breaking of law. Victim rights remain central in that they decide
whether they choose to accept reparation). Factual guilt – requires the offender to
accept responsibility rather than PBRD.
Position of the Victim in criminal procedure:
- Criminal procedure is at the instance of the state and the accused, therefore the role of the
victim is confined to that of a witness called upon to testify. It is said that the system is
offender orientated which leads to the neglect of the victim. The system lacks adequate
victim support strategies – exposure to secondary trauma.
- Victim participation: There are certain statutory provisions which promote victim participation
e.g. the sexual offences act which requires an impact statement. Private prosecution.
- Victim protection: Statutory provision for the protection of witnesses – Address and name of
the witness will not be disclosed for a period if it may be detrimental- may even be able to
testify behind closed door. Intermediary for those that lack capacity. Witness protection act –
protective custody.
TOPIC 3 – Criminal Procedure from apartheid to the Constitution
Prior to the Constitution:
- SAP and SADF were relied to implement criminal procedure during apartheid
- Legislation: Public safety act granted general authority to the president to put aside all laws
and declare a state of emergency. Any member with the requisite authority could detain
individuals in the call for public safety. The communications act dissolved public
meetings/gatherings. General Law amendment act allowed for 90 day detention. Sobukwe
clause. In Rossou v Sachs the court held that a person held for reasons of safety is not an
unconvinced visitor, therefore the state is not required to relieve the tedious nature of
imprisonment
Post Constitution:
Relevant provisions: s12 (right of freedom and security of person), s35 (rights of arrested
detained, and accused persons)
The BOR has to be interpreted authoritatively. The court in Zuma stated that due regard must
be taken by the express language, otherwise would entail that the constitution is open to
interpretation. The rights of the Constitution usually have a vertical application – however they
may apply horizontally to natural and juristic persons in certain situations
Right to dignity – s10
, Permeates the CP (no permanent step in the process should infringe)
Right to fair trial – enforced by notions of justice and fairness
Right to freedom and security - 12
Right to privacy –s14
The presumption of innocence
- Legal guilt: Every person is considered to be innocent until properly convicted in a court of
law. Properly entails that that accused has been proved guilty by the state in a properly
conducted trial in acc with the principle of legality
- Statement of the prosecutions burden of proof: The burden of proof rests on the prosecution
to prove every substantive element of the crime. The accused does not need to prove his
innocence. If the accused does not speak, it may serve to harden the prosecutions prima
facie case. Whereas if the accused can raise a reasonable doubt – acquittal
- Nature of crime: Severity of the crime does not serve to exclude the presumption of
innocence
The right to remain silent
- An accused can never be forced to testify, he has the right to remain silent (privilege against
self-incrimination). The basis of this right is that the accused is a full legal subject, and not a
mere object to an enquiry. He should be able to be participate meaningfully as he wished, in
addition he will not be able to be trailed if he is incapable. Inferences can be drawn –
conclusion that can be drawn from the fact that the accused could not or would not disturb
the state’s case
Huebner – restructuring the criminal justice system in a democratic society
- Up until 1910 there was not a single black on the SC bench despite no policy prohibiting
- By 1988 a disproportionate majority of judges were still white – with the minority being indian
and coloured – people of color made up 85% of the population, but only 1.5% formed a part
of the country’s judicial decision makers.
- The percentage of blacks participating as lawyers and advocates was also discouraging
Scott and Macklemore – An international perspective
Delay and undue process:
- Delays have resulted in courts ordered cases to be stayed with hopes that more judges will
be appointed/courthouses built (temporary structures?)
- It is only when the delay is temporary does the state have a defense and then positive
remedial action must be taken
- Under the European Convention states are under a duty to organize the provision of
effective and expedient judicial services – where delays become unreasonable and
systematic, the state’s ability to reorganize is too far reaching
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