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Sri Lanka is an island nation located in South Asia with a total population of 21.4 million people (2017 estimate). Its largest city and commercial capital is Colombo and the country maintains a unitary semi-presidential form of government.  A total of 20,598 people are incarcerated in the country's 61 institutions with pre-trial detainees and remand prisoners making up 53.47 percent of the total prison population. Many of these prisoners suffer the daily realities of chronic overcrowding with a lack of clean water, sanitation, and basic medical care. The poor management of the prison system greatly adds to the distress of inmates in clear violation of their human rights. The Government Task Force on prison overcrowding, established in September 2016, has yet to have any real impact on the ground with an increasing prison population and an occupancy rate in excess of 190 percent. Whilst some improvements have been made the practice of abuse, torture, and beatings, especially targeting political prisoners continues in direct contravention of international humanitarian law. Due to its complex colonial history, Sri Lanka operates a hybrid legal framework with criminal law drawing on English law and common law based on the Roman-Dutch system. The Legal Aid Commission of Sri Lanka operates 60 centers throughout the country and seeks to ensure that 'legal advice is given to any person without taking into consideration the income level of such person'. This body serves as a national source of defendant's rights. The Commission also runs a number of donor support programmes in conjunction with USAID and the UNDP inclusive of training for Judges, Paralegals, Lawyers, Police, Prison Officials and related legal activism training. An additional number of NGO's offer pro-bono legal aid including ECPAT Sri Lanka and the Norwegian Refugee Council (NRC) in Sri Lanka.
2. - Pre Trial Procedures (a). Police Procedures COMPLAINT/INFORMATION - In the first instance “complaint means the allegation made orally or in writing to a Magistrate with a view to his taking action under this Code that some person, whether known or unknown, has committed an offence" (7. Criminal Code Part 1, Chapter 1, preliminary interpretation) In the event that the complaint forms part of court proceedings - "here shall be attached to every summons issued to an accused person a copy of the complaint or report or other document upon which proceedings against him have been instituted together with a list specifying the names and addresses of the witnesses for the prosecution, if any" (8. Criminal Code Chapter V of process to compel appearance, 44. Registries of Summons, 3) ARREST, SEARCH AND SEIZURE LAWS The arresting officer (peace officer) under the criminal code shall "actually touch or confine the body of the person to be arrested unless there be a submission to the custody, by word or action, and shall inform the person, to be arrested, of the nature of the charge or allegation upon which he is arrested" (9. Criminal Code Chapter IV of Arrest, Escape, and Retaking A - Arrest Generally, 23. Arrest how made, 1). It is worth noting that under the code, a “non-cognizable offence” means an offence for which a ”non-cognizable case” means a case in which a peace officer may not arrest without warrant. In specific circumstances, peace officers may arrest without execution of an order from a Magistrate. These circumstances are: (a) who in his presence commits any breach of the peace; (b) who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned; (c) having in his possession without lawful excuse (the burden of proving which excuse shall be on such person) any implement of house-breaking; (d) who has been proclaimed as an offender; (e) in whose possession anything is found which may reasonably be suspected to be property stolen or fraudulently obtained and who may reasonably be suspected of having committed an offence with reference to such thing; (f) who obstructs a peace officer while in the execution of his duty or who has escaped or attempts to escape from lawful custody; (g) reasonably suspected of being a deserter from the Sri Lanka Army, Navy or Air Force; (h) found taking precautions to conceal his presence under circumstances which afford reason to believe that he is taking such precautions with a view to committing a cognizable offence; (i) who has been concerned in or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in any act committed at any place out of Sri Lanka, (10. Criminal Code, Chapter IV of Arrest, Escape, and Retaking, B - Arrest Without a Warrant, 32) In the case of an arrest without a warrant, the arrested person must not be detained for more than a period of twenty-four hours. Furthermore, the criminal code explicitly states that such persons must be presented before the appropriate at the earliest opportunity after arrest - "peace officer shall not detain in custody or otherwise confine a person arrested without a warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate" (11. Criminal Code, Chapter IV of Arrest, Escape, and Retaking, B - Arrest Without a Warrant, 37) PRE-TRIAL DETENTION In Sri Lanka, an arrested person or suspect can be detained during the period of an investigation - "every inquirer and officer in charge of a station shall have power to authorise the detention of a person during an investigation". (12. Code of Criminal Procedure, Chapter 26, 2) Should a longer-term detention be required, then a Magistrate in authority would need to sign off. The criminal code is specific in this event - "if he is satisfied that it is expedient to detain the suspect in custody pending further investigation, may after recoiling his reasons, by warrant addressed to the superintendent of any prison authorize the detention of the suspect for a total period of fifteen days and no more". It is also clear that after this period of time, should proceeding not be entered into against the suspect, then the court, must "either discharge the suspect or require him to execute a bond to appear if and when so required". (13. Code of Criminal Procedure, Chapter 26, 2) The arrested person or accused shall only be detained in a safe manner by the appointed authorities for as long as the court permits it. "The superintendent shall, upon delivery to him as aforesaid of the person named in the warrant, detain him and keep him safely in custody on behalf of the court making the detention, commitment or remand for such time as may be specified by the warrant" (14. Code of Criminal Procedure, Chapter 26, 264, 2) SEARCHES The carrying out of searches is permitted in a variety of situations under the criminal code. Under the code, a court issued warrant is deemed as a necessary legal instrument to enable a peace officer to carry out a search in the first instance and once this warrant has been issued by a Magistrate then - "whenever any place liable to search or inspection.....is closed any person residing in or being in charge of such place shall on demand of the person executing the warrant and on production of the warrant allow him free ingress thereto and afford all reasonable facilities for a search therein". (15. Code of Criminal Procedure Chapter 26, D - General Provision relating to Searches, 74, 1) In the event that a person is suspected of wrongfully confining another person, a Magistrate has the authority to issue a warrant under the law - "if any Magistrate's Court has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, it may issue a search warrant; and the person to whom such warrant is directed may search for the person so confined and such search shall be made in accordance therewith". (16. Code of Criminal Procedure, Chapter 26, C - Discovery of Persons Wrongfully Confined, 72) If a search is to be carried out, then the property owner, even an accused or arrested person has the right of attendance during any search - "The occupant of the place searched or some person on his behalf shall in every instance be permitted to attend during the search". (17. Code of Criminal Procedure, Chapter 26, D - General Provision Relating to Searches, 76) EXCLUSIONARY RULE The first exclusionary rule under s24 of the Evidence Ordinance of Sri Lanka has a direct bearing on the criteria of liability where the object of the prohibition, under this section, is to rule out confessions which are caused by a threat, inducement or promise. There is a high degree of probability that confession made in these circumstances will not be true. The second and third exclusionary rule, under s25 and s26 of the Evidence Ordinance, do not depend on the actual unreliability of a confession since it is made to a police officer or made while the accused is in police custody. PROTECTION AGAINST ILLEGAL POLICE PROCEDURES/ACTIONS The code provides protection to a suspect or arrested person in relation to police procedure with regard to accruing a warrant to carry out a search or to carry out an arrest by a peace officer - "any omission or error as to time and place and any defect in form in any order or warrant given under this section and any omission to comply with the provisions of paragraph (e) shall not be held to render illegal any execution carried into effect under such order or warrant or intended so to have been carried into effect, nor to render any execution illegal which would otherwise have been legal". (18. Code of Criminal Procedure, Chapter XXIV of Sentences and the Carrying out Thereof, 286, G) LINEUPS AND OTHER IDENTIFICATION PROCEDURES The code provides for the holding of court ordered identification parades, for the purposes of identification of the accused alone. "Every Magistrate to whom application is made......shall assist the conduct of an investigation by making and issuing appropriate orders and processes of court, and may, in particular hold, or authorise the holding of, an identification parade for the purpose of ascertaining the identify of the offender". (19. Code of Criminal Procedure, Chapter 26, Magistrate to assist investigation, 124) INTERROGATION A police officer (peace officer) has the right to interrogate a suspect under the same Magistrate who issued a warrant for a specific period of time before any formal charge in court - "the right of any police officer to interrogate the applicant with respect to any offence specified in the application". (20. Bail Act 1997, Section 25) In the event a suspect is charged and released on bail, the police retain the right to request the suspect attend for further interrogation within reason - "such person shall make himself available for interrogation by a police officer, as when required, provided that such interrogation shall not under any circumstances whatsoever be between 6 p.m. in the evening and 6 a.m. in the morning". (Bail Act 1997, Section 24) (b). Right to Counsel The arrested person does have the right to have legal counsel appointed in advance of their initial Court hearing and shall be considered innocent until proven otherwise (s152(3) and s217 of the Code of Criminal Procedure). 3. Rights of the accused at all times - (Criminal Law System) (i) Double Jeopardy The code provides protection against an instance of double jeopardy - "No person to be tried twice for the same offence" (Sri Lanka Code of Criminal Procedure Section 314) (ii) Legality Principle The right of equality before the law in combination with clearly defined limits of police powers - "The rule of law in this sense is expressed in the maxim, derived from the 19th century liberalism, nulla poena sine lege..." (Article - A Critical Analysis on the Application of the Legal Principle of Rule of Law in the Criminal Justice System of Sri Lanka - Volume 4, Issue 3 - 2017) (iii) Presumption of Innocence The code explicitly states that an accused person has the benefit of the "presumption of innocence" until proven guilty in a court of law. (Code of Criminal Procedure, Chapter 26, Trial to Close of Case for Prosecution and Defence, 217) (iv) Standards of Proof and Standards for Conviction The Criminal Code does not specify the quantum of proof and fails even to indicate which party to the proceedings bears the burden of proof. However the Evidence Ordinance of Sri Lanka, under section 3, defines proof and chapter 9 gives guidelines as to how the several burdens have to be discharged. (vi) Capital Punishment Whilst Capital Punishment is a legally enforceable sentence since its reintroduction in 2004, it is only enforceable in the case of rape, murder or drug related conviction. (Cornell Center on the Death Penalty Worldwide) (vii) Ex Post Facto Punishment The Constitution of Sri Lanka protects against any form of retroactive penal laws or penalties - "(n)o person shall be held guilty of an offence on account of any act or omission which did not, at the time of such act or omission, constitute such an offence, and no penalty shall be imposed for any offence more severe than the penalty in force at the time such offence was committed". (Constitution of Sri Lanka, Act. 13, 6) 3. Rights of the accused at all times - (Fair Trial Rights) (i) & (ii) Freedom from Prolonged pre-trial detention & Freedom from Punishment Under the Sri Lankan Constitution, the accused person is protected against prolonged pre-trial detention and freedom from cruel or unusual punishment - "Every person held in custody, detained or otherwise deprived of personal liberty shall be brought before the judge of the nearest competent court according to procedure established by law, and shall not be further held in custody, detained or deprived of personal liberty except upon and in terms of the order of suet. Judgement made in accordance with procedure established by law". (Constitution of Sri Lanka, Chapter 3 Section 13, 2) "No person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". (Constitution of Sri Lanka, Chapter 3 Section 11) (iii) Right to Counsel Whilst the right to access a lawyer is technically bound by the Constitution of Sri Lanka in Sections 6A (2) and (6) of Clause 2 of the Bill, the Centre for Policy Alternatives (CPA) note that the appropriate sections are "drafted in a way that is too broad with no objective criteria to determine the prejudice or effect a detainee's access to a lawyer or the lawyer's access to a police station may have on an investigation being conducted" (CPA Press Release on SC SD 7/2017 [Code of Criminal Procedure (Special Provisions) Act No 2 of 2013, Amendment Bill) (iv) Right to Habeas Corpus The writ of Habeas Corpus is explicitly taken care of by the Court of Appeals - "The Court of Appeal may grant and issue orders in the nature of writs of habeas corpus to bring up before such Court". (Constitution of Sri Lanka, The Court of Appeal, 141) (v) Right to Medical Care During a period of custody, every prisoner is guaranteed the right to medical care under the Prisons Act and that responsibility to provide said care initially is with the attending officer - "The names of prisoners desiring to see the Medical Officer or appearing out of health in mind or body shall be reported by the officer attending them to the jailer; and the jailer shall without delay call the attention of the medical officer to any prisoner desiring to see him". (Prisons Ordinance, Chapter 66, Prisons, Part VIII, Health of Prisoners, 66) (vi) Right to a fair trial The right to a fair trial is guaranteed under the Constitution - "Any person charged with an offence shall be entitled to be heard, in person or by an attorney-at-law, at a fair trial by a competent court". (Constitution of Sri Lanka, Chapter III, Fundamental Rights, 13, 3) (ix) Right to a speedy trial There is no automatic right to a speedy trial under the law in Sri Lanka as it stands today. (x) Right to trial by jury All trials currently held in Sri Lanka are held before professional judges - magistrates, and not juries. (Judicial System of Sri Lanka, Commonwealth Governance) (xi) Right to impartial judge The right to act impartiality during trial is an international obligation of Sri Lanka - "Sri Lanka, as a State Party to the International Covenant on Civil and Political Rights, it bound to provide a "competent, independent and impartial tribunal [or court] established by law". (United Nations, Human Rights Council - Written Statement’s submitted by the International Movement Against All Forms of Discrimination and Racism (IMADR), a non-governmental organisation in special consultative status) (xii) Right to appeal The right to appeal from a Magistrate’s court to the Court of Appeal is guaranteed under law. (Part VII, Chapter XXVIII of Appeals, A - 320) 3. Rights of the accused at all times – (Ways to protect rights) The rights of the accused are guaranteed under the Code of Criminal Procedure, Chapter 26. The accused has the right to call witnesses, has the right to be defended by an Attorney-at-law at trial and at any pre-trial hearings, has the right to give evidence on their own behalf, the right not have their life put in danger, if they are not accused of a crime punishable by the death sentence, and the right to appeal. 4. Rights in Prison (i) Conditions of confinement The code specifies that all prisoners must be held in humane conditions and their basic food, clothing and bedding must be provided without the taking of a fee - "the food, clothing, and bedding issued to each prisoner or each class of prisoners shall, without prejudice to the provisions of sections, 59, 60, and 61, be in accordance with such rules as may be made in that behalf under section 94", and "No money shall be taken by any prison officer by way of garnish, fee, or gratuity from any prisoner or any person on his behalf or account, on his entrance into or discharge from or during his detention in the prison, under any pretence whatsoever". (Prison Ordinance, Chapter 66, Part IV, 55 & 62) (ii) Immigrant Detention ‘Entry into Sri Lanka of persons other than citizens of Sri Lanka is controlled according to the provisions of Part III of the Immigrants and Emigrants Amendment Act, No. 7 of 2015. This part is related to the matters connected with approved ports of entry, documents required at the entry, requirement of visa to enter and stay in Sri Lanka, medical & other examinations upon arrival, inspection of persons & their belongings and detention & removal of certain persons from Sri Lanka.’ S20 of the above mentioned act speaks to the detention of persons for examination and inspection, where a person who is directed by an authorized officer to disembark and enter any place on shore, may be detained at any place approved in that behalf by the Minister for such length of time as may be necessary for completing such examination or inspection. S21, of the above Act, speaks the detention of certain persons. S21(1) states that the master of any ship arriving at any place in Sri Lanka shall, at the request of an authorized officer, detain on board the ship any person who has been refused an endorsement by that officer, or any person who enters Sri Lanka from that ship in contravention of the provisions of s10. S21(2) states that where a person to whom this Part applies is refused an endorsement by an authorized officer or where a person enters Sri Lanka in contravention of the provisions of section 10, he may be temporarily detained in such manner and in such place as may be specified in any general or special directions of the Minister, if such person cannot for any reason be detained on board the ship by which he traveled to Sri Lanka or that ship has left Sri Lanka. (iii) Right to medical care in prison/mental health care Right to medical care whilst in prison addressed in the previous section. Prison infrastructure is poor and old combined with not well-equipped consultation rooms makes it difficult to have good sanitation and it affects the health of prisoners. (iv) Restriction of rights The Constitution of the Democratic Socialist Republic of Sri Lanka provides for temporary restrictions on fundamental rights if national security issues are involved. (vi) Women's rights in prison The criminal code details the specific rights enjoyed by female inmates in Sri Lankan prisons. There must be a least one female officer in each prison, and additionally female prisoners are to be dealt with only by female officers - "In every prison in which female prisoners are detained there shall be at least one female officer" and "provided that the persons of females shall be searched by some female prison officer" and that "males shall be separated from females" at all times also. (Prison Ordinance, Chapter 66, Part IV) 5. Court Procedures a. Pre-Trial (i) Initial Court Appearance Should an arrestee be living in Sri Lanka, the initial court appearance before a Magistrate must occur not more than twenty-four hours after an arrest - "shall within twenty-four hours from the arrest exclusive of the time necessary for the journey be taken before the nearest Magistrate's Court......such person shall be forthwith released on his executing a bond for his appearance before a Magistrate's Court if so required". (Criminal Procedure Act, B - Arrest Without A Warrant, 33). Should an arrestee not have a permanent address in Sri Lanka then the arresting peace officer shall take the suspect "forthwith to the nearest Magistrate who may either require him to execute a bond with or without a surety for his appearance before a Magistrate's Court or may order him to be detained in custody until he can be tried". (Criminal Procedure Act, B - Arrest Without A Warrant, 33). (ii) Charging Instrument Once the court is ready and at the very commencement of the trial the "registrar shall in the hearing of the accused read the indictment to the jury and the Judge". (Code of Criminal Procedure, Chapter 26, 217 iii. Preliminary Hearing According to s145 of the Code of Criminal Procedure (Amendment) Act, No. 11 of 2018, ‘when the accused appears or is brought before the Magistrate’s Court, the Magistrate shall in a case, (a) where the offence or any one of them where there is more than one, falls within the list of offences set out in the Second Schedule to the Judicature Act; or (b) where the Attorney-General being of opinion that evidence recorded at a preliminary inquiry will be necessary for preparing an indictment, within three months of the date of the commission of the offence so directs, hold a preliminary inquiry according to the provisions hereinafter mentioned.’ iv. Pre-Trial Motions S145 of the Code of Criminal Procedure (Amendment) Act, No. 11 of 2018 states, ‘when the accused appears or is brought before the Magistrate’s Court, the Magistrate shall in a case— where the offence or any one of them where there is more than one, falls within the list of offences set out in the Second Schedule to the Judicature Act; or where the Attorney-General being of opinion that evidence recorded at a preliminary inquiry will be necessary for preparing an indictment, within three months of the date of the commission of the offence so directs, hold a preliminary inquiry according to the provisions hereinafter mentioned.’ S146 of the same Act mentions, ‘a Magistrate conducting a preliminary inquiry shall at the commencement of such inquiry read over to the accused the charge or charges in respect of which the inquiry is being held, but upon such reading over the accused shall not be required to make any reply thereto; if any such reply is made, it shall not be recorded by the Magistrate; nor shall any such reply be admissible in evidence against the accused.’ S147 of the same Act states, ‘the officer in charge of the police station where the relevant Information Book is kept shall at the commencement of the inquiry furnish to the Magistrate three certified copies of the notes of investigation and of all statements recorded in the course of the investigation.’ v. Discovery S72 of the Criminal Procedure (Amendment) Act, No. 11 of 2018 speaks to discovery of persons wrongfully confined. It goes on the state that ‘if any Magistrate’s Court has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, it may issue a search warrant; and the person to whom such warrant is directed may search for the person so confined and such search shall be made in accordance therewith; and the person if found shall be immediately taken before such court, which shall make such order as in the circumstances of the case seems proper.’ b. Trial i. Nature of the Trial S5 of the Criminal Procedure (Amendment) Act, No. 11 of 2018 speaks to the trial of offences under the Penal Code and other laws. Chapter XIII of the Criminal Procedure (Amendment) Act, No. 11 of 2018, covers the area of place of inquiry or trial and highlights the place of trial, where the concerned criminal act is an offence by reason of relation to another offences (s130) and the place of inquiry or trial in various cases (S132). Chapter XVII of the above-mentioned Act deals with the trial of cases where a magistrate’s court has the power to try summarily while Chapter XVII deals with trial by the high court specifically trial by a judge without a jury (section B) and trial by jury (section C). Section D deals with the re-trial of the accused after the discharge of the jury while section F deals with the trails in the high court in the absence of the accused. Chapter XXI speaks to the general provisions as to inquiries and trials. ii. Defendant According to s315 of the Criminal Procedure (Amendment) Act, No. 11 of 2018, ‘the plea of a previous acquittal or conviction may be pleaded either orally or in writing and may be in the following form or to the following effect: “the defendant says that by virtue of section 314 of the Code of Criminal Procedure Act he is not liable to be tried”.’ According to s260 of the above Act, ‘subject to the provisions of this Code and any written law, every person accused before any criminal court may of right be defended by an Attorney-at-Law, and every aggrieved party shall have the right to be represented in court by an attorney-at-law.’ iii. Lawyers According to s2 of the Criminal Procedure (Amendment) Act, No. 11 of 2018 an attorney general is the attorney-general of the Republic of Sri Lanka including an acting attorney-general. S6 of the same Act goes on to speak to the powers of the attorney-general stating, ‘anything in this Code shall not be construed as derogating from or limiting the powers or jurisdiction of the … Attorney-General.’ S133, of the above mentioned Act states, ‘whenever any doubt is entertained by a Magistrate as to the Magistrate’s Court by which any offence should be inquired into, such Magistrate may embody the ascertained facts in the form of a case and transmit the same to the Attorney-General for his opinion, and the Attorney-General shall thereupon decide in which court the offence shall be inquired into and such court shall thereupon have jurisdiction to inquire into such offence.’ With regard to the attorney-at-law, it is defined as a ‘pleader with reference to any proceeding in court’ under s2 of the above Act. S152 speaks to the role of such attorneys stating, ‘if the accused in answer to the question states that he wishes to give evidence but not to call witnesses, the Magistrate shall proceed to take forthwith the evidence of the accused, and after the conclusion of the evidence of the accused, his Attorney-at-Law (if the accused is represented) shall be heard on his behalf, if he so desires. If the accused, in answer to the question, states that he desires to give evidence on his own behalf and to call witnesses or to call witnesses only, the Magistrate shall proceed to take either forthwith, or, if a speech is to be made by an Attorney-at-Law on behalf of the accused, after the conclusion of the speech, the evidence of the accused, if he desires to give evidence himself, and of any witness called by him who knows anything relating to the facts and circumstances of the case or anything tending to prove the innocence of the accused.’ According to s158(2) of the above Act, ‘when an indictment has been forwarded against any person in respect of an offence which is not shown to be triable by a Magistrate’s Court in the eighth column of the First Schedule, the Attorney-General may, in the interests of justice, make available to the accused or to his Attorney-at-Law, for perusal the statement to the police of any witness not listed in the indictment.’ S190 of the above Act allows an accused to be discharged by a magistrate with a sanction of an attorney-general and with the fulfillment of the requirements listed under s194 of the above Act, and an attorney-general may withdraw an application. Like judges, attorney-generals and attorneys-at-law, are not allowed to serve and jurors, according to s245 of the above Act. S393-s401 of the above Act lists the requirements of the powers of the attorney-general. According to s257 of the above Act, ‘the attorney-general at any stage after commitment but before judgment is pronounced may, with the view of obtaining on the trial the evidence of any person supposed to have been directly or indirectly concerned in or privy to any such offence, tender or authorise the Magistrate to tender a pardon on the same condition to such person.’ According to s360 of the above Act, ‘the attorney-general shall appear for the State in every appeal to the Court of Appeal under this Code to which the State or a public officer is a party and all such documents, exhibits and other things connected with the proceedings as the attorney-general may require for the purpose of his duties under this section shall be transmitted to him by the Registrar of the court having custody of such documents, exhibits and things. The Solicitor-General or a State Counsel or an Attorney-at-Law specially or generally authorised by the Attorney-General in that behalf shall be entitled to appear for the State in place of the Attorney-General in any such appeal.’ iv. Expert Witnesses According to S148 (1) of the Criminal Procedure (Amendment) Act, No. 11 of 2018, ‘the Magistrate shall then take, in the presence of the accused and in the manner hereinafter provided, the statements on oath or affirmation of those who know the facts and circumstances of the case, and put them in writing (called the depositions): Provided that the Magistrate shall not except where the Attorney-General otherwise directs summon and record the evidence of any expert witness but shall only cause such witness’s report to be produced and filed of record.’ According to S397(2) of the above Act, ‘the Attorney-General may if he thinks it necessary, direct the Magistrate to record the evidence of any expert witness or police officer and the Magistrate shall then comply with such directions.’ v. Judges According to s2 of the Criminal Procedure (Amendment) Act, No. 11 of 2018, a judge is defined as, ‘the presiding officer of a court and includes a Judge of the Supreme Court, Court of Appeal, High Court, District Court, Magistrate’s Court and Primary Court as the context may require and includes an acting Judge of such court.’ It is important to note that judges of courts established under the law in force cannot serve as jurors (s245 of the same Act). According to s161 of the Criminal Procedure (Amendment) Act, No. 11 of 2018, ‘subject to the provisions of this code or any other law, all prosecutions on indictment instituted in the High Court shall be tried by a Judge of that Court: Provided that in any case where at least one of the offences falls within the list of offences set out in the Second Schedule to the judicature Act, No 2 of 1978, trial shall be by a jury, before a Judge, if and only if, the accused elects to be tried by a jury.’ S195 of the Criminal Procedure (Amendment) Act, No. 11 of 2018 speaks to the duty of the judge upon the receipt of an indictment. His duties include: ‘causing the accused to appear or to be brought before him; causing a copy of the indictment with its annexes to be served on each of the accused who will be tried upon that indictment; informing the accused of the date of trial; and subject to the provisions of section 403, direct the accused to execute a bond to appear in court for his trial or by warrant addressed to the superintendent of any prison authorise the detention of the accused pending his trial; causing the accused to be finger-printed and forward the prints to the Registrar of Finger Prints for examination and report to the prosecuting State Counsel; and if the indictment relates to an offence triable by a jury, inquire from the accused whether or not he elects to be tried by a jury; where trial is to be by a jury direct the accused to elect from which of the respective panels of jurors the jury shall be taken for his trial and inform him that he shall be bound by and may be tried according to the election so made; where the accused on being asked by court so requests, assign an Attorney-at-Law for his defence.’ Chapter XVIII, Part B of the Criminal Procedure (Amendment) Act, No. 11 of 2018 speaks to the trial by the judge of the high court, without a jury. With specific reference to s203 under such chapter and part, the judge is to pass judgment when the cases for the prosecution and defence are concluded. According to such section, ‘the Judge shall forthwith or within ten days of the conclusion of the trial record a verdict of acquittal or conviction giving his reasons therefor and if the verdict is one of conviction pass sentence on the accused according to law.’ According to s207 of the Criminal Procedure (Amendment) Act, No. 11 of 2018 ‘if the accused pleads not guilty but states that he is willing to plead guilty to lesser offence for which he might have been convicted on that indictment and the prosecuting counsel is willing to accept such plea, the Judge may if he thinks that the interests of justice will be satisfied by so doing order such plea of guilt to be recorded and may pass judgment thereon accordingly, and thereupon the accused shall be discharged of the offence laid in the indictment and such discharge shall amount to an acquittal.’ According to s208(1) of the same Act, ‘the prosecuting counsel or the accused may apply to the High Court at the sessions where the trial is pending for an order requiring a special jury to be summoned to try any case; and the Judge before whom such application comes up, shall if he considers such application just and reasonable make an order accordingly.’ S230 of the above mentioned Act, speaks to the duty of the judge at the conclusion of the trial. The judge is to: ‘decide all questions of law arising in the course of the trial and especially all questions as to the relevancy of facts which it is proposed to prove and the admissibility of evidence or the propriety of questions asked by or on behalf of the parties, and in his discretion to prevent the production of inadmissible evidence whether it is or is not objected to by the parties; decide upon the meaning and construction of all documents given in evidence at the trial; decide upon all matters of fact which it may be necessary to prove in order to enable evidence of particular matters to be given; decide whether any question which arises is for himself or for the jury.’ According to s231 of the above mentioned Act, ‘the Judge may if he thinks proper in the course of his summing up express to the jury his opinion upon any question of fact or upon any question of mixed law and fact relevant to the proceeding.’ vi. Victims S303 of the Criminal Procedure (Amendment) Act, No. 11 of 2018, speaks to the suspending the sentence of imprisonment by the court, in whole or part, provided reasons are stated in writing and in the appropriate circumstance, where there is a need to protect the victim or the community from the offender. S451A of the same Act, mentioned above, speaks to the warrant of granting custody of a victim to a place of safety. According to this section, ‘where it appears to a court in which indictment or charge for child abuse has been filed that the child in relation to whom the child abuse is alleged to have been committed requires care and protection, the court may order such child to be kept in a place of safety for care and protection, pending the trial. Where a court makes an order under subsection (1) that a child in relation to whom the child abuse is alleged to have been committed be kept in a place of safety for care and protection, a warrant substantially in the form set out in the Second Schedule shall be signed by the court and delivered to the Fiscal of the court.’ c. Sentencing Sentencing is at the discretion of the presiding Magistrate and shall remain detained under the order of the President of the Court - "when any person has been sentenced under section 53 of the Penal Code to be detained during the President's pleasure he shall, notwithstanding any enactment of the contrary, be liable to be detained in such place and under such conditions as the President may from time to time direct, and whilst so detained shall be deemed to be in legal custody". (Code of Criminal Procedure, Chapter 26, 288) D. AppealA defendant retains the right to appeal to either the Court of Appeals or the Supreme Court, depending on the nature and seriousness of the crime. The right to counsel in this instance is not guaranteed by the State. (Code of Criminal Procedure, Chapter 26)
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