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Bekink, Mildred. "The Right of child offenders to intermediary assistance in the criminal justice system: A South African perspective." Potchefstroom Electronic Law Journal 24 (June 21, 2021): 1–34. http://dx.doi.org/10.17159/1727-3781/2021/v24i0a8563.
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The right of a child offender to participate effectively in criminal proceedings is a fundamental aspects of a right to a fair trial and is guaranteed in the Constitution of the Republic of South Africa, 1996 as well as in international instruments, including the United Nations Convention on the Rights of the Child. An arguments is made that ensuring that this right is fully realised at domestic level, allowances should be made for child offenders to be included in the provisions of section170A of the Criminal Procedure Act 51 of 1977. Section 170A makes allowances for the use of an intermediary by witnesses and victims when presenting testimony in criminal proceedings. It is argued that the best interest of the child principles as well as other rights such as the right to dignity and equality enshrined in the Constitution and guaranteed in international instruments warrants the inclusion of child offenders in the enabling legislation. An interpretation and implementation of Section 170A of the Criminal Procedure Act in line with the Constitution and international instruments that gives recognition to the child offender’s vulnerability and enforces the best interests of the child offender is accordingly advocated
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Bekink, Mildred. "Kerkhoff v Minister of Justice and Constitutional Development 2011 2 SACR 109 (GNP): Intermediary Appointment Reports and a Child's Right to Privacy Versus the Right of an Accused to Access to Information." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 20 (January 3, 2017): 1. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a1035.
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General consensus exists that the adversarial nature of the South African criminal procedure with its often aggressive cross-examination of a witness, sometimes by an accused himself, will in most cases expose a child to undue mental stress or suffering when having to testify in court. In confirmation of this fact and with a notion to shield child witnesses from the stress or suffering when having to testify in the presence of an accused the function of an intermediary was introduced with the insertion of section 170A into the Criminal Procedure Act 51 of 1977. In terms of section 170A(1) a court may if it appears to such court that it would expose any witness under the biological or mental age of eighteen years to undue mental stress or suffering if he or she testified at such hearing, appoint a competent person as an intermediary in order for the witness to give evidence through that intermediary. Section 170A(1) contemplates that a child complainant will be assessed prior to testifying in court in order to determine whether the services of an intermediary should be used. If the assessment reveals that the services of an intermediary are needed, then the state must arrange for an intermediary to be available at the commencement of the trail. The aforementioned procedure of section 170A(1) was followed in Kerkhoff v Minister of Justice and Constitutional Development 2011 2 SACR 109 (GP) and is the subject of this discussion.
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Pienaar, Letitia. "Deciphering the Composition of Section 79- Assessment Panels in the Criminal Procedure Amendment Act 4 of 2017." Potchefstroom Electronic Law Journal 20 (January 22, 2018): 1–25. http://dx.doi.org/10.17159/1727-3781/2017/v20i0a3062.
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Section 79 of the Criminal Procedure Act 51 of 1977 provides for the appointment of mental health professionals to assess an accused’s fitness to stand trial and/or criminal capacity if the court orders such an enquiry in terms of sections 77 and 78 of the Criminal Procedure Act. In terms of section 79, one mental health professional must assess an accused charged with a non-violent offence, whereas a panel of such professionals must assess an accused charged with an offence involving serious violence.
The legislative provisions regarding the appointment of mental health professionals to a section 79-assessment panel are not without ambiguity. Section 79(1)(b) read with section 79(13) is problematic. Directives issued by the National Prosecuting Authority in terms of section 79(13) do not aid in clarifying the legal position either. The main point of contention is whether a section 79-assessment panel must consist of a minimum of two or three psychiatrists. This ambiguity creates challenges for presiding officers tasked with appointing section 79-assessment panels. When presiding officers appoint these panels incorrectly, it causes delays in the assessment process and the delivery of justice to the accused and the victim.
The court considered the interplay between section 79(1)(b) and section 79(13) in S v Pedro 2015 1 SACR 41 (WCC). The judgment highlights the need to clarify the position in the Criminal Procedure Act regarding the appointment of section 79-assessment panels. This case provided the impetus for the amendment of section 79 through the Criminal Procedure Amendment Act 4 of 2017.
This contribution explores the composition of section 79-assessment panels as provided for in the Criminal Procedure Act. Section 79(1)(b) and the seemingly contradictory provisions contained in section 79(13) are discussed. The S v Pedro judgment is discussed with a specific focus on the court’s interpretation of the interplay between these two provisions.
Following the S v Pedro judgment, the Criminal Procedure Amendment Act 4 of 2017 amended section 79. This contribution explores the clarifying provisions of the Amendment Act regarding the composition of assessment panels
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Reddy, Managay. "Section 174 of the Criminal Procedure Act: Is it time for its abolition?" De Jure 51, no. 2 (2018): 251–70. http://dx.doi.org/10.17159/2225-7160/2018/v51n2a4.
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Pitman, D. J. M. "‘POINTING OUT’ and ‘POINTING AT’: SECTION 218 of the CRIMINAL PROCEDURE ACT REVISITED." South African Journal on Human Rights 7, no. 1 (1991): 70–84. http://dx.doi.org/10.1080/02587203.1991.11827827.
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Chiswick, Derek, Alexander P. W. Shubsachs, and Steven Novosel. "Reprosecution of patients found unfit to plead: a report of anomalies in procedure in Scotland." Psychiatric Bulletin 14, no. 4 (1990): 208–10. http://dx.doi.org/10.1192/pb.14.4.208.
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A legal finding of unfitness to plead results in automatic committal of the accused to a mental hospital. In Scotland, if criminal proceedings are under solemn jurisdiction, there is a mandatory order restricting discharge without limit of time and the hospital must be a state hospital unless for special reasons an alternative hospital is appropriate (Section 174 of the Criminal Procedure [Scotland] Act 1975). The mental condition of a person found unfit to plead may subsequently improve such that he may become fit to be tried in the normal way. In England and Wales the Home Secretary has power, under Section 5(4) of the Criminal Procedure (Insanity) Act 1964, to remit to prison for trial a person found unfit to plead who subsequently recovers. On arrival of such a person in prison the hospital and restriction orders cease to have effect. The Criminal Procedure (Insanity) Act 1964 does not apply to Scotland; authority to reprosecute unfit defendants in sheriff courts and the High Court rests exclusively with procurators fiscal and the Crown Office respectively. The status of the original hospital and restriction orders in reprosecuted cases is unclear.
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Kubiak, Rafał. "Criminal liability for performing laboratory diagnostics without necessary authority." Diagnostyka Laboratoryjna 54, no. 3 (2018): 185–90. http://dx.doi.org/10.5604/01.3001.0013.7714.
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The laboratory diagnostician’s profession is classified as the so-called professions of public trust. One of their features is limiting access to the profession through, among others, determining specific qualifications, education and skills, verified by appropriate bodies in the legal procedure, and awarded with so-called right to practice. The purpose of this procedure is allowing professional activities to be carried out only by persons who will guarantee their necessary quality. This requirement is particularly important in the case of medical employees, whose activities determine the life and health of patients. The Polish legislator secured the implementation of these requirements by means of the penal code. In art. 71 of the Act on laboratory diagnostics, a prohibited act has been described, which included performing laboratory diagnostic activities by a person who does not possess the authority do so. This is called a halved act, i.e. depending on the degree of social harm, may be considered an offense (section 1) or felony (section 2). This article discusses the terms of criminal liability for this act, including the circumstances qualifying it as a felony, in the form of actions to obtain a financial advantage or misleading as to the possession of authority. It explains who could be the perpetrator of this act and why the protection of criminal law was restricted only to activities performed in the laboratory. Penalties and criminal measures that can be imposed for this act, as well as the procedure for its prosecution, were also indicated. Deficiencies of this regulation and proposals for its amendment are also presented. The argument has been enriched by judicial decisions illustrating the presented theses.
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Bamgbose, Oludayo John. "Access to Prison Law Libraries as a Precursor to Effective Administration of Justice in Nigeria: Lessons from the United States of America." International Journal of Legal Information 46, no. 2 (2018): 110–19. http://dx.doi.org/10.1017/jli.2018.24.
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A decade after the inauguration of the national working group on the reform of criminal justice administration in Nigeria by the then Attorney General of the Federation, Chief Akin Olujinmi, SAN, Nigeria was presented with a newly signed law—Administration of Criminal Justice Act (ACJA), which was a direct response to the growing call for reforms that would address the plethora of problems confronting the administration of the criminal justice system in Nigeria. The 495-section law harmonized the existing two principal laws: the Criminal Procedure Act (CPA) and the Criminal Procedure Code (CPC), which hitherto governed the administration of criminal justice system across all Federal-owned Courts in Nigeria and the Courts within the Federal Capital Territory. Both CPA and CPC operated for many decades in Nigeria, but had many challenges, hence the urgency for the newcomer— ACJA.
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De la Harpe, Stephen, and Tharien Van der Walt. "The balancing of conflicting rights in the application of section 49 of The Criminal Procedure Act." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 6, no. 2 (2017): 15. http://dx.doi.org/10.17159/1727-3781/2003/v6i2a2863.
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Section 492 of the Criminal Procedure Act3 (hereafter CPA) provides for the use of force during arrest. This provision recently came under the spotlight in the Supreme Court of Appeal4 as well as in the Constitutional Court.5 Section 49 of the CPA is shrouded in controversy, as the proposed amendment (section 7 of the Judicial Matters Second Amendment Act, 122 of 1998) has not yet been put into operation because of the resistance of the Minister of Safety and Security.
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Mukhtar, Sohaib, Zinatul Ashiqin Zainol, and Sufian Jusoh. "Review of Trademark and Its Enforcement Procedures of Pakistan under TRIPS and Paris Convention." Economics, Law and Policy 1, no. 2 (2018): 122. http://dx.doi.org/10.22158/elp.v1n2p122.
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<p><em>Enforcement of trademark law has been in evolution for decades in Pakistan. Pakistani laws dealing with trademark and its enforcement procedures are Trade Marks Ordinance 2001, Trade Marks Rules 2004, Intellectual Property Organization of Pakistan Act 2012 and relevant provisions of Pakistan Penal Code 1860 and Specific Relief Act 1877. Civil procedure is dealt in Pakistan as per Code of Civil Procedure 1908 and criminal procedure as per Code of Criminal Procedure 1898. This article is qualitative method of research analyses trademark and its enforcement procedures of Pakistan as per relevant trademark laws of Pakistan under the light of relevant provisions of Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) and Paris Convention. Paris Convention is the first International Convention containing trademark and its enforcement provisions (6-9) as TRIPS is the first International Agreement containing exhaustive provisions on trademark and its enforcement procedures (15-21, 41-61). Part III of TRIPS deals with enforcement of trademark including civil procedure, administrative procedure, provisional measures, border measures and criminal procedure of trademark enforcement. Trademark Registry established under section 9 of Trade Marks Ordinance 2001 and works under Intellectual Property Organization of Pakistan (IPO-Pakistan) which is a statutory body established under section 3 of Intellectual Property Organization of Pakistan Act 2012. The registered trademark owner in Pakistan can avail civil procedure, criminal procedure, administrative procedure as well as provisional and border measures for enforcement of his registered trademark right in Pakistan. TRIPS and Paris Convention have been ratified by Pakistan, but ratification of International Convention and its implementation are two different things. Better enforcement of trademark law may take years to achieve as per relevant provisions of International Conventions therefore designated authorities of Pakistan are required to establish more Trademark Registry branches, more IP Tribunals, appoint and induct more IP experts, examiners in-charge of registration and spread IP awareness throughout Pakistan for betterment of trademark law enforcement in Pakistan.</em><em></em></p>
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Quansah, E. K. "Unsworn statement from the dock and the accused person in Botswana." Journal of African Law 43, no. 2 (1999): 234–43. http://dx.doi.org/10.1017/s0021855300011360.
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In a criminal trial an accused person may either choose not to give evidence or give evidence on oath (or affirmation) or make an unsworn statement from the dock. It is with this latter option that this article is concerned. This right to make a statement without being sworn is recognized in section 218 of the Criminal Procedure and Evidence Act (C. P. & E.) which confers competency on an accused person, their wife or husband to testify for the defence at every stage of the proceedings. Section 218(3) provides that:
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Ezeuko, Mabel Ijeoma. "Nigerian laws on informed consent before a surgical procedure." Medico-Legal Journal 87, no. 4 (2019): 185–87. http://dx.doi.org/10.1177/0025817219868098.
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Informed consent is a process of communication between a clinician and a patient, which results in the patient's agreement to undergo a medical procedure. Rule 19 Part A: Code of Medical Ethics of Nigeria and Section 23 of the National Health Act 2004 prescribe the process of obtaining consent before a medical intervention. The equitable law of torts and/or criminal liabilities that deal with medical negligence should be invoked more often by patients whose right to informed consent is denied by medical practitioners.
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Temkin, Jennifer. "DIGGING THE DIRT: DISCLOSURE OF RECORDS IN SEXUAL ASSAULT CASES." Cambridge Law Journal 61, no. 1 (2002): 126–45. http://dx.doi.org/10.1017/s0008197302001551.
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THE disclosure of confidential records such as those of doctors, counsellors, and therapists may be sought by the defence as a means of undermining the credibility of complainants in rape and sexual assault trials. It is not clear that the procedure under section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965, under which disclosure of the records of third parties may be sought, offers sufficient protection for the interests of complainants. This article discusses the weaknesses of section 2 and the implications of public interest immunity as well as Article 8 of the ECHR in this context. It also explores the different approaches taken in Canada, New South Wales and certain American jurisdictions to meet this problem. It concludes by making some suggestions for the amendment of the 1965 Act.
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Sitorus, Jeifson, and Achmad Sulchan. "Policy Termination Of Alleged Crime Investigation In Polres Semarang." Jurnal Daulat Hukum 2, no. 4 (2020): 637. http://dx.doi.org/10.30659/jdh.v2i4.8397.
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Police as investigators are authorized to terminate the investigation on the grounds as stated in Section 109 subsection (2) Criminal Procedure Code. In practice, there are crime that have been conducted the investigation found sufficient evidence and suspects, but in fact people who feel harmed (victim) had not wanted the case was brought to trial. This study aims to determine the termination of the investigation policy implementation alleged criminal act in Police Semarang, barriers faced by investigators in the implementation of the termination of the investigation alleged criminal act and analyze the implementation of the termination of the investigation policy alleged criminal act that should be implemented Police. The method used is the juridical sociological with descriptive analytical research specifications. The data used are primary data and secondary data and methods of data collection through field studies and literature. Data analysis method used is qualitative analysis. The results showed that the implementation of the policy of the termination of criminal case investigation in Police Semarang conducted through restorative justice as set out in the SE Chief of Police No. SE / 8 / VII / 2018 so it does not conflict with the provisions of the law. The obstacles faced by investigators in the implementation of the termination of criminal case investigation in Police Semarang consists of internal resistance and external obstacles. As for the implementation of the policy termination criminal case investigation should be carried out in accordance with the provisions of the Police should be legislation that exists, procedural, professional, justice and uphold human rights. Reason for ending the termination of the investigation should be based on the existing Article 109 (2) Criminal Procedure Code and restorative justice with the procedures and provisions stipulated in SE Chief of Police No. SE / 8 / VII / 2018 and the Regulation No. 6 of 2019 concerning the Crime Investigation.Keywords: Termination Of Investigation; Alleged Criminal Act.�
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Md Said, Muhamad Helmi, Sahanah Kathirvelu, Lim Jia Min, et al. "Constructive Arrest: An Analysis of the Case of PP v Mohd Safwan Husain." Journal of Politics and Law 14, no. 1 (2020): 73. http://dx.doi.org/10.5539/jpl.v14n1p73.
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After the landmark principle in Shaaban & Ors v. Chong Fook Kam & Anor that established a different set of definition for arrest in Malaysia Criminal Procedure Law in 1969, the case of Pendakwa Raya lwn. Mohd Safwan Husain again stirred the definition of arrest in the year of 2017. While it has long been a norm in this area of law to differentiate arrest into actual and constructive arrest, the judgment of Mohd Safwan Husain commented the differentiation critically. This paper aims to analyse the arrest happened in the case of Mohd Safwan Husain thoroughly, not only from the perspective of Criminal Procedure Code, but also from the view of Dangerous Drugs Act. Research method used are library research and case analysis. As for now there is no governing law on constructive arrest, the researchers believe that an explanation should be provided on what constitutes a constructive arrest in the Criminal Procedure Code and the present existing provision which is Section 15 Criminal Procedure Code should be amended.
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Botha, Rinda, and Jo-Mari Visser. "Forceful arrests: an overview of section 49 of the Criminal Procedure Act 51 of 1977 and its recent amendments." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 15, no. 2 (2017): 345. http://dx.doi.org/10.17159/1727-3781/2012/v15i2a2493.
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The debate concerning the use of violence by the police force is an endless one. Section 49 of the Criminal Procedure Act 51 of 1977 serves as a framework for the use of violence by police officers during arrests in South Africa. While some hold the opinion that the powers of the police in this respect should be restricted, others see the 2003 redefined section 49 as a legislative guarantee of a suspect’s right to flee. Against this background this article has as its focus a critical discussion of the historical development of section 49 as well as the recent amendments of the same. The current legal position in South Africa is also compared with that in the United States of America as well as in the United Kingdom. Finally, certain conclusions and recommendations are made in order to enhance more favourable regulation of the employment of force in effecting arrests.
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Nortje, Windell, Abraham Hamman, and Chesne Albertus. "Deciphering Dangerousness: A Critical Analysis of Section 286A and B of the Criminal Procedure Act 51 of 1977." Potchefstroom Electronic Law Journal 22 (October 11, 2019): 1–25. http://dx.doi.org/10.17159/1727-3781/2019/v22i0a5950.
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The violent nature of some crimes and the high crime rate in South Africa reflect the fact that some offenders constitute a real threat to the security of communities. It is understandable, therefore, that the state seeks to protect its citizens through preventive measures. Although South Africa has certain legal provisions on its statutory books, it seems that the declaration of persons as dangerous criminals is under-utilised. South African legislation dealing with the declaration of dangerous criminals can be improved by borrowing some traits of the Canadian legislation. Such features include the restriction of courts' discretion and the provision of concrete and more detailed guidelines on the nature of the offences for which the provision can be applied. The courts could also take into account the type of criminal history of the offender which would merit the declaration of a dangerous criminal. It is also important that the extent of the violence in an offence should be thoroughly defined in court. Courts need to balance their wide discretion on the matter with the provisions in the Act in order to protect the community against dangerous criminals.
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Koredczuk, Józef. "Prace nad kodyfikacją prawa karnego procesowego w Polsce w latach 1919–1928." Opolskie Studia Administracyjno-Prawne 17, no. 3 (2020): 37–50. http://dx.doi.org/10.25167/osap.1867.
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In his contribution, the author presents the work on the codification (initially on the Act) of procedural criminal law in Poland in the years 1919–1928. Those works were initially led by the Criminal Department of the Codification Committee, and then by the Criminal Proceedings Section of the Codification Commission. The first period of the work on the criminal procedure law was characterized by some disputes between the members of the Department, i.e. supporters of the classical school (E. Krzymuski) vs. the sociological school (J. Makarewicz), the discussion aiming at defining the relationship of procedural criminal law and substantive criminal law. The work on the draft law was carried out faster after the appointment (on 16 July 1920) of the Criminal Proceedings Section, which in 1924 published the first version of the draft criminal law bill. E. Krzymuski, A. Mogilnicki, Z. Rymowicz and E.S. Rappaport had played the main role in the development of the project. After a very deep criticism in the columns of Gazeta Administracji i Policji Państwowej [The Gazette of State Administration and Police], Ruch Prawniczy, Ekonomiczny i Socjologiczny [The legal, economic and sociological movement] and Palestra [The bar], the project was rejected. Only the second version of the bill prepared in 1925-1926, re-worked by the committee composed of W. Makowski, A. Mogilnicki and S. Śliwiński (appointed by the Minister of Justice), became the basis for the President of the Republic of Poland to adopt the first Polish Code of Criminal Procedure of 19 March 1928.
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Mohammed Na'aim, Mohd Safri, Ramalinggam Rajamanickam, and Rohaida Nordin. "FEMALE VICTIMS OF DOMESTIC VIOLENCE AND THEIR RIGHTS TO COMPENSATION IN MALAYSIA." Journal of Nusantara Studies (JONUS) 4, no. 1 (2019): 384. http://dx.doi.org/10.24200/jonus.vol4iss1pp384-400.
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In Malaysia, victims of domestic violence including women may seek protection under the Domestic Violence Act 1994 (Act 521) (hereinafter “DVA 1994”). Pursuant to section 10 of the DVA 1994, female victims of domestic violence (hereinafter “FVDV”) have the right to claim compensation from their husbands or former husbands (hereinafter “Abusive Husbands”). The criminal court also has jurisdiction to make a compensation order as stated under section 426 (1A) of the Criminal Procedure Code (Act 593) (hereinafter “CPC”). A qualitative approach was used for this research, consisting of a detailed analysis of the DVA 1994, CPC, Penal Code (Act 574), case laws, journals, newspapers and scholarly writings related to this area. Based on the findings, there are shortcomings within both provisions which may affect the FVDV’s claim for compensation. Thus, it is timely to propose amendments and reforms to enhance their rights. These include the insertion of a provision stressing that the claim for compensation under section 10 of the DVA 1994 can be applied through a stand-alone application, the inclusion of a provision allowing the compensation order to be initiated by the court on its own motion or upon the application by the FVDV themselves, imposing a responsibility on the court to give reasons if the court decides to disallow the application for compensation made, explaining the legal consequence to the offender should the offender fail to comply with the compensation order, and alternatively to consider a state-funded compensation scheme to provide immediate financial assistance to FVDV without going through the court process. Keywords: Abusive husbands, domestic violence, female victims of domestic violence (FVDV), right to compensation. Cite as: Mohammed Na’aim, M. S., Rajamanickam, R., & Nordin, R. (2019). Female victims of domestic violence and their rights to compensation in Malaysia. Journal of Nusantara Studies, 4(1), 384-400. http://dx.doi.org/10.24200/jonus.vol4iss1pp384-400
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SINGHA, RADHIKA. "Punished by Surveillance: Policing ‘dangerousness’ in colonial India, 1872–1918." Modern Asian Studies 49, no. 2 (2014): 241–69. http://dx.doi.org/10.1017/s0026749x13000462.
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AbstractThis article examines the way in which legal codification, the scrutiny of the high courts, and the expansion of the ‘native Bar’ restructured colonial ‘preventive policing’. Habitual Offender legislation in England targeted the ex-convict, but in India the bad-livelihood sections of the Code of Criminal Procedure (CrPC sections 109–110) permitted a far more flexible construction of ‘habituality’. They illustrate the degree to which summary judicial powers wielded by the executive head of the district were incorporated into the code, not excised from it. Educated Indians critiqued this combination of executive and judicial powers in the hands of the district magistrate, yet CrPC ‘preventive sections’ proliferated. Furthermore, in 1918 the Punjab province passed a Habitual Offender Act which, drawing upon the pattern of the Criminal Tribes Act (Act XXVII of 1871), permitted CrPC section 110 to be used to restrict the suspected ‘habitual’ to a certain area as well. Hitherto amendments to the CrPC were supposed to be matters for central not provincial legislation. The Punjab Act inaugurated an era of provincial enactments to intern or release ‘habituals’, structured around essentialist contrasts between urban and rural space. Under the surface of drives to codify colonial law a striated jurisdictional topography continued to re-form.
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Larkin, E. P., and P. J. Collins. "Fitness to Plead and Psychiatric Reports." Medicine, Science and the Law 29, no. 1 (1989): 26–32. http://dx.doi.org/10.1177/002580248902900105.
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The role of the psychiatrist in the determination of fitness to plead is reviewed by reference to 77 pre-trial psychiatric reports prepared on 31 Special Hospital patients detained under the provision of Section 5(1)(c) (Unfit to Plead) of the Criminal Procedure (Insanity) Act 1964. Each psychiatric report was analysed using a standardized checklist which addressed the legal criteria used to determine fitness to plead, the nature of the alleged offence and the clinical diagnosis. The results showed that almost 40% of the reports made no mention of fitness to plead at all and that only one-third of the reports made a statement about fitness to plead which was supported by reference to standard legal criteria. The results of this study support earlier work which has suggested that psychiatrists have a poor understanding of the issues surrounding fitness to plead and criminal responsibility. These findings are discussed in relation to recommendations made by the Report of the Committee on Mentally Abnormal Offenders, 1975 (Butler Report) and legislative changes introduced by the Mental Health Act 1983.
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Morley, J. Gareth. "Trial Lawyers of British Columbia v British Columbia: Section 96 Comes to the Access to Civil Justice Debate." Constitutional Forum / Forum constitutionnel 25, no. 2 (2016): 61. http://dx.doi.org/10.21991/c9t96s.
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You can bemoan or you can celebrate, but you cannot deny that the Canadian Charter of Rights and Freedoms fundamentally changed Canadian criminal procedure. In contrast, until recently, civil proceduralists could confidently ignore constitutional law. All attempts to constitutionalize principles of civil justice had been rebuffed by the courts. That appears to be how the framers of the Charter wanted it. The Legal Rights set out in sections 7 through 14 of the Charter speak of deprivation of “life, liberty and security of the person”, “arrest” and “detention”, being charged with an “offence” or of “punishment and treatment”. Those caught up in the criminal justice system are precisely the kind of unpopular minority the framers thought needed protection from populist majoritarianism. On the other hand, the Charter demonstrates no desire to interfere with the long tradition of provincial autonomy and experimentation with civil justice. As a result, the Court early on decided that even where the Legal Rights are unclear, they do not apply to civil litigation.But the Supreme Court of Canada’s decision in Trial Lawyers Association means that those interested in civil procedure, and its possible reform, can no longer ignore the Constitution without risk. The Court held that a right of access to superior courts is protected by section 96 of the Constitution Act, 1867, as informed by the unwritten principle of the rule of law. British Columbia’s hearing-fee scheme — in place since before Confederation — was held to be unconstitutional because its exemption for the “impoverished” was found not to be wide enough to protect that right for middle-class would-be litigants. This comment will argue that the impact could be significant, since all issues in civil and family procedure can be reconceived in terms of access to courts. Unfortunately, the constitutionalization of civil procedure is unlikely to improve the systemic problems that deny middle class Canadians the realistic option of a day in court.
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Monyakane, ’Mampolokeng ’Mathuso Mary-Elizabet. "The Danger for an Underestimation of Necessary Precautions for the Admissibility of Admissions in Section 219A of the South African Criminal Procedure Act 51 of 1977." Criminal Law Forum 31, no. 1 (2019): 81–120. http://dx.doi.org/10.1007/s10609-019-09381-x.
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AbstractThe Prima facie view regarding the admissibility of admissions, as evidence, in criminal matters is that, to admit admissions as evidence, the court requires a single consideration as to whether the admission was made freely and voluntarily. Without too much ado, the simple view to this understanding presupposes that admission of an admission as evidence against its maker is of a lesser danger compared to the admission of a confession. The admissibility of confessions against their makers does not come as easily as that of admissions. There are many prescribed requirements to satisfy before confessions are admitted as evidence. This comparison has led to a questionable conclusion that requirements for the admissibility of admissions are of a less complexity equated to the requirements for the admission of confessions. This paper answers the question whether an inference that the requirements for the admissibility of admissions are of a less complexity compared to the requirements for the admission of confessions is rational? It equates this approach to the now done away with commonwealth states rigid differentiation perspective. In the 1800s the commonwealth states, especially those vowing on the Wigmorian perspective on the law of evidence, developed from a rigid interpretation of confessions and admissions and adopted a relaxed and wide definitions of the word, “confession.” To this extent there was a relaxed divide between confessions and admissions hence their common classification and application of similar cautionary rules. The article recounts admissibility requirement in section 219A of the South African Criminal Procedure Act 51 of 1977 (CPA) (Hereinafter CPA). It then analyses Section 219A of the CPA requirement in the light of the rationale encompassing precautions for the admission of confessions in terms of 217(1) of the CPA. It exposes the similarities of potential prejudices where confessions and admissions are admitted as evidence. It reckons that by the adherence to this rigid differentiation perspectives of confessions and admissions which used to be the practice in the commonwealth prior the 1800s developments, South African law of evidence remains prejudicial to accused persons. To do away with these prejudices this article, recommends that section 219A be amended to include additional admissibility requirements in section 217(1). In effect it recommends the merging of sections 217(1) and 219A of the CPA.
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MacPartholán, Cathál. "Court in the Act: Procedural Progression in the Law of Arrest, Detention and Failure to Answer to Bail." Journal of Criminal Law 83, no. 3 (2019): 195–204. http://dx.doi.org/10.1177/0022018319829265.
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This article provides an overview of the latest developments in criminal procedure and practice pertaining to pre-trial defendants. It critically reviews the position regarding: failure to answer to bail, breach of pre-charge bail conditions and the considerations of granting bail with the liability to be rearrested following a breach of bail conditions (s. 72 of the Policing and Crime Act (PCA) 2017). In the eight years of Conservative government, criminal justice reform programmes have been seen as executing the extensive erosion of civil liberties. This article examines the enthusiastic enterprise set out in the PCA 2017 to deliver reform of the law on bail—and the consequences of failure to answer to bail following this reform. The first section of the article consists of a brief review of the early commitment to realign the State power with Britain’s past underlying traditions of democracy, freedom, human rights and the rule of law, arguably, accentuated with the Protection of Freedoms Act 2012. This is followed by a discussion of the interaction between police officers and suspects, namely: (a) pre-arrest, and on arrest, (b) caution and legal rights and (c) detention. This section will discuss recent coarsening of that commitment regarding powers of arrest, detention, entry, bail and failure to answer to bail, for pre-trial defendants. The article then turns to outline and evaluate the juxtaposition of the Law Commission’s Consultation Paper on Search Warrants. An analysis will then be made of the impact of s. 72 of the PCA 2017, before concluding with a critical evaluation of whether this change is a contemporary rapine of breach of bail, or a comparative necessity.
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Chandrasiri, N. M. "Examination of a scene of crime; do we need to amend section 370 of the Code of Criminal Procedure Act of Sri Lanka?" Ceylon Medical Journal 46, no. 2 (2014): 61. http://dx.doi.org/10.4038/cmj.v46i2.6495.
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Bayda, A. O., and D. O. Novikov. "Criminal liability for tax evasion with the use of offshore schemes as a prerequisite of stabilization of economy of Ukraine." Legal horizons, no. 21 (2020): 88–94. http://dx.doi.org/10.21272/legalhorizons.2020.i21.p88.
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This article first introduces the statistics of losses of the State Budget of Ukraine, which in 2019 were caused by violations of the statutory procedure for payment of taxes, fees and other mandatory payments in Ukraine, thus focusing on the relevant issues. The problem of tax evasion using offshore jurisdictions, or so-called offshore countries, is considered separately. Emphasis is placed on the destructive consequences arising from this illegal activity for the national economy of Ukraine. In addition, the authors turn to the analysis of world experience in combating the relevant negative phenomenon. Particular attention in this regard is paid to the method of promoting compliance with the procedure for payment of taxes, fees and other tax payments in the United Kingdom of Great Britain and Northern Ireland. In particular, an approach such as the establishment in the United Kingdom of criminal liability for significant tax evasion by persons who directly or indirectly own offshore income, assets, consequences of offshore business activities, or anything that has a result similar to arising from offshore income, assets or offshore business activities. This type of penalty was introduced in 2017 due to the entry into force of Section 166 of the 2016 Finance Act in the United Kingdom. Criminal liability under this section arises for acts related to offshore activities and consists of: failure to notify the supervisory authority of income tax or capital gains tax, breach by the payer of the obligation to file a declaration, filing a declaration containing false information, or breach of due the amount of payment of the corresponding mandatory payment. At the end of the article, the authors proposed to amend the Criminal Code of Ukraine, which will provide for the introduction of a similar rule in Ukrainian law.
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Mrvic-Petrovic, Natasa. "Position of persons with mental disorders in penal law." Temida 10, no. 3 (2007): 39–46. http://dx.doi.org/10.2298/tem0703039m.
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In penal law, persons with mental disorders most often receive attention as potential perpetrators of criminal acts. Persons who commit unlawful act provided under law as a criminal offence in the state of mental incompetence are subjected to a primary sanction - security measure of compulsory psychiatric treatment and confinement in a medical institution. This measure, as well as the security measure of compulsory psychiatric treatment at liberty may be also ordered to a person who committed a criminal offence in a state of substantially impaired mental capacity. In the new Serbian Penal Code 2005 few changes has been done respecting the conditions for imposing the security measures of compulsory psychiatric treatment and confinement in a medical institution and compulsory treatment at liberty, even though these provisions needed to be brought into accord with the changed concept of guilt. Especially, these changes are not properly expressed in the new Code of Criminal Procedure (special procedure for application of security measures). It is therefore even more distinct the contradictory position of a mentally incompetent person accused of a crime. One way of solving this issue, supported by the author, includes a separate legislation on protection of persons with mental disorders (including those persons who, in the state of mental incompetence, commit unlawful acts provided under law as criminal offences). The position of persons in the state of substantially impaired mental capacity does not need necessarily to be changed, since their guilt is not excluded. The entire complexity of protection of these persons? human rights is additionally pointed out in the section referring to execution of security measure of compulsory treatment and confinement in a medical institution, which naturally includes deprivation of liberty and compulsory psychiatric treatment.
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Grodetsky, Yurii Vasylovych. "Perspective on Criminalization of Smuggling of Goods." Herald of the Association of Criminal Law of Ukraine 1, no. 15 (2021): 150–61. http://dx.doi.org/10.21564/2311-9640.2021.15.237373.
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The article examines the perspective on criminalization of smuggling of goods arising in connection with the Draft Law of Ukraine «On Amendments to the Criminal Code of Ukraine and the Criminal Procedure Code of Ukraine on criminalization of smuggling of goods and excisable goods and inaccurate declaration of goods» (№ 5420). The Draft Law provides for the following criminal offenses: smuggling (Article 201); transporting across the customs border of Ukraine out of customs control or with concealment from customs control of timber or lumber of valuable and rare species of trees, unprocessed timber, as well as other timber prohibited for export out of the customs territory of Ukraine (Article 201-1); smuggling of goods (Articles 201-2); smuggling of excisable goods (Articles 201-3); smuggling of narcotic drugs, psychotropic substances, their analogues or precursors or falsified medicines (Article 305). They form a homogeneous group of actions, between which there must be systemic connections. It follows that the reasons for formulating the peculiar title of Article 201-1 are missing. The title of this article should be formulated as follows: «Smuggling of timber or lumber of valuable and rare species of trees, unprocessed timber, as well as other timber prohibited for export out of the customs territory of Ukraine». It was found that Article 201-2 of the Draft Law provides for the general description of a criminal offense, and the description of criminal offenses specified in Articles 201, 201-1, 201-3 and 305 of the Draft Law are peculiar. In this regard, it seems appropriate to swap the Criminal Law provisions of Articles 201 and 201-2 of the Draft Law. In Section 4 of Article 201-4 of the Draft Law, the phrase «assistance in any form by a customs official to commit such acts with the use of power or official position» is not a qualifying feature, but an independent structure. If there is a need to criminalize this act, it may be provided for in a separate article or should be specified in a separate section of Article 201-4 of the Draft Law as an independent act. It is established that on the one hand, the criminalization of smuggling of goods is an urgent need in Ukraine, on the other side the present Draft Law of Ukraine cannot effectively address this issue, as it requires additional elaboration.
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Aisyah, Nur. "DIALING AND INVESTIGATION OF NOTARY BY INVESTIGATOR POLICE." Jurnal Pembaharuan Hukum 5, no. 3 (2018): 310. http://dx.doi.org/10.26532/jph.v5i3.3545.
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Relationship notary to do with legal issues consciously or notary in practice are often faced with the proceedings or deal with the authorities caused the parties to a deed in front of him, and that the dispute can be reported to the investigator. So often a notary summoned by investigators with regard to the deed he made. In terms of the calling and notary investigation by an investigator there own rules set out in the Act. Although the implementation of the functions and investigations and inquiries Act gives the right to call, check, catching, defense minister, searched, confiscated to suspects and items are considered connected with a criminal offense, but in exercising its rights and authority must be obedient and subject to the principle of the right of due process (upholding the rights of the accused in the process of law enforcement). Each suspect is entitled researched and investigated based in accordance with the applicable law of criminal procedure. The concept of due process associated with the foundation of upholding the rule of law in dealing with crime. No one is located and put themselves above the law and the law should be applied to anyone based on the principle of treatment in an honest way. The application of the criminal law should be in accordance with the constitutional requirements and must comply with the law. By karen it does not allow the violation of a part of the general provisions on the pretext in order to enforce another law section.
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Mujuzi, Jamil Ddamulira. "Protecting Animals from Mistreatment through Private Prosecutions in South Africa: A Comment on National Society for the Prevention of Cruelty to Animals v Minister of Justice and Constitutional Development 2016 1 SACR 308 (SCA)." Journal of African Law 61, no. 2 (2017): 289–304. http://dx.doi.org/10.1017/s0021855317000146.
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AbstractThe general rule in South Africa is that, when an offence is committed, the suspect has to be prosecuted by a public prosecutor. However, there is an exception whereby a victim of crime is permitted to institute a private prosecution if the prosecutor has declined to prosecute. South African law allows natural, but not juristic, persons to institute private prosecutions. In the case examined in this note, the appellant argued that the law prohibiting juristic persons from instituting private prosecutions is discriminatory. The Supreme Court of Appeal held that private prosecutions are only permitted on grounds of direct infringement of human dignity. This note argues that section 7 of the Criminal Procedure Act is unconstitutional for excluding juristic persons from instituting private prosecutions and recommends steps the appellant could take to institute private prosecutions against those who mistreat animals.
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Mujuzi, Jamil Ddamulira. "Evidence by means of closed circuit television or similar electronic media in South Africa: Does section 158 of the Criminal Procedure Act have extraterritorial application?" De Jure 48, no. 1 (2015): 1–16. http://dx.doi.org/10.17159/2225-7160/2015/v48n1a1.
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MENSAH, KWADWO BOATENG. "DISCRETION, NOLLE PROSEQUI AND THE 1992 GHANAIAN CONSTITUTION." Journal of African Law 50, no. 1 (2006): 47–58. http://dx.doi.org/10.1017/s0021855306000052.
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Section 54 of Ghana's Criminal Procedure Code, 1960 (Act 30), gives the Attorney-General discretion to enter a nolle prosequi in the course of a criminal trial. According to the orthodox view, this discretionary power is not subject to judicial review. The orthodox view raises a number of very important questions. First, is it really the case that the power to enter a nolle prosequi is not subject to judicial review? Secondly, if this is the case, how is the Attorney-General accountable for the manner in which he exercises his discretion and how is it possible to ensure that he acts fairly when he enters a nolle prosequi? This article challenges the orthodox theory and advocates a theory based on legal accountability. The proposed theory is founded on the view that accountability and fairness—which are central constituents of good governance—will be enhanced if the discretion to enter a nolle prosequi is subject to legal control. The paper goes on to show that the legal accountability theory is supported by article 296 of the 1992 Ghanaian Constitution and that it also conforms to practices found in other Commonwealth jurisdictions such as England, Canada, Fiji and Australia.
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Abdelhameed, Adam Mohamed Ahmed, Kamal Halili Hassan, and Parviz Bagheri. "The Accused Privacy Rights in the Sudanese Legal System." Journal of Politics and Law 12, no. 1 (2019): 74. http://dx.doi.org/10.5539/jpl.v12n1p74.
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The purpose of this article is to discuss the rights of the accused person in the Sudanese legal system. Similar with other criminal justice systems, the Sudanese law do provide rights for the accused person to enable him or her to defend him or herself. These rights are considered as the core idea behind the thinking of human rights in the criminal proceedings. However the problematic issue here is to what extent does Sudanese law provide and protect the accused right especially the privacy right. It is also pertinent to balance the law enforcement interest in evidence collection in criminal proceedings with the privacy right of the accused in the Sudanese legal system. We found that there are evidence of privacy right protection on the accused within the Sudanese legal system. The result of this research shows that in Sudan, the privacy right was provided for the first time at the constitutional level in the T1973 Constitution (Articles 42 and 43). It has later received recognition in the 1985 Transitional Constitution (Articles 24 and 30), the 1998 Constitution (Article 29) and the 2005 Interim National Constitution (Article 37). At the statutory level, legislative protection is given to this right in the Penal Code 1991 (Section 166), the Code of Criminal Procedure 1991 (Sections 86 through 95) and the Informatic Offences (Combating) Act 2007 (Sections 16 and 6). The method adopted in this article is a qualitative content legal analysis of primary and secondary data obtained from legislation, case-law and various literature.
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Esoimeme, Ehi Eric. "A critical analysis of the anti-corruption policy of the federal executive council of Nigeria." Journal of Money Laundering Control 22, no. 2 (2019): 176–87. http://dx.doi.org/10.1108/jmlc-06-2017-0021.
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Purpose This paper aims to examine the anti-corruption policy of the Federal Executive Council of Nigeria, to determine whether the policy is working and/or has produced unintended effects. The Federal Executive Council is the body comprising all the Ministers of the Federation, including the President and Vice President. Design/methodology/approach The analysis took the form of a desk study, which analysed various documents and reports such as the Transparency International Corruption Perceptions Index, 2008-2016, the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Economic and Financial Crimes Commission (Establishment) Act, 2004, the Administration of Criminal Justice Act, 2015, the UK’s Investigatory Powers Act, 2016, the Public Interest Disclosure and Witness Protection Bill, 2017 and the Financial Action Task Force Recommendations, 2012. Findings This paper determined that the anti-corruption policy of the Federal Executive Council of Nigeria could achieve its desired objectives if the following recommendations are implemented: research grants which are sent to Nigerian universities by international and corporate bodies should be exempted from the current treasury single account arrangement. This would enable universities to easily access the funds and disburse the same to qualified students. The Federal Government should follow the guidelines laid down in Section 270 of the Administration of Criminal Justice Act, 2015 for plea agreements. In other words, the prosecution should only offer a plea bargain to a person who has been charged with an offence. The prosecution should not receive and consider a plea bargain from a person who has not been charged with an offence. Any attempt to water down the effect of Section 270 of the Administration of Criminal Justice Act, 2015 may weaken the ongoing fight against corruption and money laundering because criminals will be encouraged to continue looting public funds. The Financial Action Task Force Recommendations (Recommendation 3) requires that criminal sanctions for natural persons convicted of money laundering should be effective, proportionate and dissuasive. The Federal Government of Nigeria should introduce a Bill to the National Assembly that would provide a clear framework for the use of investigatory powers by law enforcement, the security and intelligence agencies and other public authorities. This includes the interception of communications, the retention and acquisition of communications data, the use of equipment interference and the retention and use of bulk data by the security and intelligence agencies. The Bill must establish a number of safeguards against the arbitrary or unlawful use of investigatory powers by the executive. The UK’s Investigatory Powers Act, 2016, for example, established a number of safeguards for the retention and acquisition of communications data. Authorisations for obtaining communications data will have to set out why accessing the communications data in question is necessary in a specific investigation for a particular statutory purpose and how it is proportionate to what is sought to be achieved. A police officer who receives information from a whistleblower about money hidden in an apartment should apply to a Court or Justice of the Peace within the local limits of whose jurisdiction he/she is for the issue of a search warrant before conducting a search on the said premises. This procedure is in line with Section 143 of the Administration of Criminal Justice Act, 2015 and the Court of Appeal decision in Hassan v. E.F.C.C. (2014) I NWLR (Pt. 1389) 607 at 625. The Public Interest Disclosure and Witness Protection Bill, 2017 should be given accelerated consideration in the House of Representatives based on its urgency and significance for the Federal Executive Council’s whistleblowers policy. Research limitations/implications This paper focusses on the anti-corruption policy of the Federal Executive Council of Nigeria from 29 May 2015 to 10 June 2017. It does not address the older policies. Originality/value This paper offers a critical analysis of the new anti-corruption policy of the Federal Executive Council of Nigeria. The paper will provide recommendations on how the policy could be strengthened. This is the only paper to adopt this kind of approach.
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Wallace, Stuart. "The Journalist—Source Relationship in Context: A Comparative Review of US and English Law." Common Law World Review 38, no. 3 (2009): 268–94. http://dx.doi.org/10.1350/clwr.2009.38.3.0190.
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This paper analyses the legal protection of the journalist–source relationship from both sides and the underlying interests involved. The paper begins by analysing why the relationship deserves protection. The position of journalists at common law is analysed with a discussion of the application of the principle established in Norwich Pharmacal v Customs and Excise to journalists. The development of immunity from contempt in s. 10 of the Contempt of Court Act 1981 is examined to illustrate the ideological clash between the judiciary and journalists. The impact of the Human Rights Act and decisions of the European Court of Human Rights are analysed to assess whether this will lead to a change in attitudes in the UK. Finally, the potential threat to journalists posed by compelled evidentiary disclosure in criminal cases is reviewed, with a particular look at ‘special procedure’ material. The US section begins with an analysis of the law at federal level, the decisions of the Supreme Court, including the leading decision of Branzburg v Hayes, as well as the role the legislature has played. The paper then analyses protections provided at state level, with a case study of the California shield law and a review of Californian jurisprudence.
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Nortje, Windell. "Warrantless Search and Seizures by the South African Police Service: Weighing up the Right to Privacy versus the Prevention of Crime." Potchefstroom Electronic Law Journal 24 (January 26, 2021): 1–27. http://dx.doi.org/10.17159/1727-3781/2021/v24i0a8153.
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The constitutional right to privacy is enshrined in section 14 of the Constitution of the Republic of South Africa, 1996. It is premised on the notion that all persons should be protected from intrusions on their privacy by any person or institution. The Constitutional Court has also, on numerous occasions, held that the right to privacy is bolstered by its connection with the right to human dignity. It is undeniable that every person's right to privacy should be protected. However, a person's right to privacy is violated when police officials conduct warrantless search and seizure operations. Generally section 22 of the Criminal Procedure Act provides for warrantless search and seizure operations when a police official has a reasonable suspicion that a search warrant will be issued to him and that a delay in obtaining such a warrant would defeat the object of the search. Warrantless searches are important for the prevention of crime, but recent case law has suggested that there has been a progressive shift towards protecting the right to privacy of the individual subjected to warrantless searches, since there are a number of laws besides section 22 that regulate warrantless searches and which have been declared to be constitutionally invalid. This article seeks to demonstrate that the current regulatory framework for warrantless searches should be reviewed in order to protect the legitimacy of the police as well as the dignity and privacy of the citizens of South Africa.
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Van der Walt, Tharien. "The Use of Force in Effecting Arrest in South Africa and the 2010 Bill: a Step in the Right Direction." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 14, no. 1 (2017): 137. http://dx.doi.org/10.17159/1727-3781/2011/v14i1a2548.
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In South Africa the use of force in effecting arrest is statutorily governed by section 49 of the Criminal Procedure Act 51 of 1977. The inception of the Constitution brought about a dramatic change in South African law in this regard. During 2001 and 2002 the two highest courts in the country had to decide on the constitutionality of sections 49(1) and 49(2) respectively. The Supreme Court of Appeal in Govender v Minister of Safety and Security 2001 2 SACR 197 (SCA) did not declare section 49(1) unconstitutional but found it had to be interpreted restrictively ("read down") to survive constitutional scrutiny. The Constitutional Court on the other hand confirmed the unconstitutionality of section 49(2) in S v Walters 2002 2 SACR 105 (CC) and the section was declared invalid. By then (as early as 1998) the legislature had already promulgated an amendment to section 49, but the amendment came into operation only in 2003 after section 49 had undergone intensive constitutional scrutiny. Legal scholars and others raised serious objections against the amendment – some were even of the opinion that it created a "right to flee" and that the rights of perpetrators were protected to the detriment of law-abiding citizens. The Department of Justice and Constitutional Development in 2010 drafted an Amendment Bill which was subsequently approved in Parliament. This paper discusses and concludes on: the developments over the last years in the South African law with regard to the use of force in effecting arrest by the South African Police Service (SAPS); international policies and guidelines of the police in this regard; and the application of the provisions of the Amendment Bill in practice and the possible pitfalls in the application of the latter.
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Deslauriers, Jacques. "La Cour provinciale et l'art. 96 de l'A.A.N.B." Les Cahiers de droit 18, no. 4 (2005): 881–920. http://dx.doi.org/10.7202/042197ar.
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In the Province of Quebec, the Provincial Court constitutes one of the most important benches after the Court of Appeal and the Superior Court. At its beginning in 1869, the Provincial Court was termed the Magistrate's Court and its juridiction was very circumscribed. The constitutional problem arising from the existence of such a court was not obvious as it is today. In 1867, when the B.N.A. Act was drafted, the powers concerning the administration of justice in the Province, including the constitution, maintenance and organisation of provincial courts, both civil and criminal, and including procedure in civil matters, were conferred on the provinces by section 92(14). But by section 96, it was provided that the Governor General should appoint the judges of the Superior, District and County courts in each province. These provisions of the B.N.A. Act are extremely confused, so that more than 130 published cases have not succeeded in clarifying definitively the interpretation of sections 96 and 92(14), and such a situation imperils the stability of the judiciary in the Canadian provinces. For the analysis of section 96 of the B.N.A. Act, we must refer to some concepts in English Law about Superior Courts and Inferior Courts. The Magistrate's Court, now the Provincial Court in Quebec, has in fact replaced the Circuit Court whose competence was exercised by judges of the Superior Court appointed by the Federal Government. It is not obvious that in 1867 the Circuit Court was an inferior bench in the mind of the drafters of the B.N.A. Act. At that time the inferior courts in the Province of Quebec were the Commissary Courts and the Justices of the Peace. In 1869 when the Magistrate's Court was established, nobody was wandering about the constitutional question because the jurisdiction of the Court was limited to the collection of municipal and school taxes and to suits actions in which the amount was less than $ 25.00. But in 1888 and 1889 when the Provincial Legislature attempted to replace the Circuit Court in the District of Montreal with the Magistrate's Court, the Federal Government disallowed the laws because judges appointed by the Provincial Government were invested with powers which were up to that time exercised by judges appointed by virtue of section 96 of the B.N.A. Act. The Federal Government was then invited to appoint judges especially affected to the Circuit Court of Montreal, but the Magistrate's Court continued to exist in other judicial districts without extent of jurisdiction. In 1922, the Provincial Legislature tried agin to raise the powers of the Magistrate's Court by transferring to it all the functions exercised by Superior Court judges in the Circuit Court. But at this moment, the Federal Government did not intervene with it's disallowance power. So, once the delay for disallowance had expired, the Provincial Government continued to raise the competence of the Magistrate's court until the abolition of the Circuit Court in 1952. Since 1952, the powers of the Magistrate's Court have not ceased to grow. In 1965, with the adoption of the new Code of Civil Procedure, the name of Magistrate's Court was changed to become the Provincial Court. In spite of it's importance, the constitutional question is not yet settled, and whatever method we use, we cannot justify the constitutionality of the Provincial Court. Several methods have been elaborated by judges to interpret section 96 of the B.N.A. Act. The particularist method consists in appreciating if a board or a bench is invested with powers which, in 1867, were exercised by judges appointed by the Federal Government. If so, the bench is considered inconstitutional. Another method is the functionalist method by which it is presumed that the judicial function should be exercised only by judges appointed by virtue of section 96. This method is not very often used. Finally, there is the globalist method which is more comprehensive but also more abstract, which consists in the recognition of the fact by the growth of its jurisdiction the Provincial Court has become a superior, district or county Court. Whatever method is used, it is very difficult to establish the constitutionality of the Provincial Court in the Province of Quebec. This situation incites a reflexion about the opportunity of section 96 of the B.N.A. ACT which restrains the Province from adopting judicial reforms that are very necessary. If after 110 years, we are not clear about the interpretation that should be given to section 96, we shall never be. In the actual context, the arguments presented by the Fathers of the Confederation for the drafting of section 96 are not very pertinent. If we examine other federal constitutions in foreign countries, it appears that in every case the drafters of such constitutions carefully avoid the situation in which we are placed by section 96 of the B.N. A. Act. Perhaps the better solution for us is the abrogation of section 96 of the B.N.A. act.
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Govender, Karthy, and Paul Swanepoel. "Cynicism and the Rule of Law: A Critical Analysis of President of the RSA V M&G Media Limited 2012 2 SA 50 (CC) and Associated Judgments." Southern African Public Law 30, no. 2 (2017): 580–97. http://dx.doi.org/10.25159/2522-6800/3593.
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In June 2015 the High Court granted an interim order prohibiting Sudanese President Omar al-Bashir from leaving South Africa. Although Al-Bashir is wanted by the International Criminal Court for war crimes and South Africa is a signatory to the Rome Statute and has passed the Implementation Act, the government failed to arrest him as required by an order of court. Short-term political considerations appear to have outweighed the need to respect the rule of law. Parallels can be drawn between this incident and the decision by the executive to refuse access to the Khampepe Report when requested to do so by the Mail and Guardian newspaper. The report was prepared at the request of former President Mbeki by two senior South African judges, after a visit to Zimbabwe shortly before the election held in that country in 2002. In an attempt to prevent disclosure, the executive approached various courts on six different occasions and drew out the process for more than six years. The main issue in this case is the use of section 80 of the Promotion of Access to Information Act by the courts, a discretionary power that is applied sparingly. In terms of PAIA, the state is prevented from making reference to the content of a record in order to support a claim of exemption. In such instances, section 80 provides courts with the power to inspect the record – a procedure known as a ‘judicial peek’ – in order to make a determination as to whether the exemption is justified. This case provides a clear example of how the state cynically used this provision as a dilatory tactic in refusing access to the report. The current system that relies solely on the courts to handle access to information matters undermines the main objectives of the Act and is inefficient and costly. It is recommended that PAIA be amended to provide for an information commissioner with powers to mediate and make binding decisions.
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Marais, P. J., F. JW Calitz, P. HJJ Van Rensburg, and G. Joubert. "The demographic, clinical and forensic profile of offenders diagnosed with epilepsy referred to the Free State Psychiatric Complex Observation Unit in terms of section 77 and/or 78 of the Criminal Procedure Act 51 of 1977." South African Journal of Psychiatry 17, no. 1 (2011): 7. http://dx.doi.org/10.4102/sajpsychiatry.v17i1.247.
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<p><strong>Introduction.</strong> Limited information regarding the relation between psychopathology associated with epilepsy, crime and the legal aspects thereof is available in South Africa.</p><p><strong>Objectives:</strong> The demographic, clinical and forensic profile of alleged offenders diagnosed with epilepsy and referred to the Free State Psychiatric Complex (FSPC) Observation Unit from 2001 to 2006, was investigated. Design A retrospective cross-sectional study was conducted.</p><p><strong> Results:</strong> Of the 69 alleged offenders, aged 17–79 years (median 30 years), 94.2% were male, 81.2% Black, 72.5% single, and 69.9% unemployed. The median qualification was grade six. Offences were violent in nature and committed against a person in 75% of cases. A direct link between epilepsy and the alleged offences occurred in 7% of cases. Generalised epilepsy (34.8%) and interictal psychosis (20.3%) were the most commonly diagnosed conditions. Twenty-nine (42%) alleged offenders lacked criminal responsibility and were not fit to stand trial. Most observati (79.2%) diagnosed with generalised epilepsy were criminally liable and fit to stand trial. The highest rate of criminal incapacity was found among observati with interictal psychoses (85.7%) and comorbid mental retardation (90%). Almost 60% of referred cases were declared as state patients by the court.</p><p><strong>Conclusion:</strong> In only 16% of cases, observati were found unaccountable because of epilepsy (automatisms) or postictal confusional states. Our findings confirmed an increased prevalence of violent behaviour during seizure-free periods. This contributes to evidence that factors associated with epilepsy, rather than the epilepsy itself, play an important role in the possible increased risk of violent behaviour in people with epilepsy.</p>
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Korotiuk, O. "Criminal responsibility for the most basic typical forms of compliance of copyright and associated rights over the foreign legislation." Herald of criminal justice, no. 3 (2019): 110–23. http://dx.doi.org/10.17721/2413-5372.2019.3/110-123.
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The article analyzes the criminal law of foreign countries, which reflect the main types of forms of encroachments on objects of copyright and related rights. It has been established that the criminal responsibility for the above-mentioned acts was foreseen in the most countries of the world. The purpose of the article is to investigate the issue of criminal responsibility for the most basic typical forms of compliance of copyright and associated rights over the foreign legislation. Extremely widespread forms of socially dangerous encroachments on copyright objects are "appropriation of authorship", "plagiarism" and "coercion to co-authorship". Offenses that encroach on copyright objects are usually placed in the sections "Crimes against the constitutional rights and freedoms of man and citizen", "Crimes against property", and in some cases are placed in a separate section "Crimes against Intellectual Property». Analysis of the criminal legislation of foreign countries suggests that the typical forms of encroachments on objects of copyright and related rights include acts related to: a) the illegal entry into the circulation of objects of copyright and related rights contrary to the established legislation procedure. These types of encroachments are represented by the following wording of the criminal law of foreign law: the wording indicating the act of import or other movement of objects of copyright and related rights (for example, transportation, movement, import, export, etc.); wording indicating acts concerning the acquisition and storage of objects that could not be in circulation (in particular, acquisition, storage, conscious possession for the purpose of trade or inclusion in trade, illicitly created objects, goods, including if they were imported, receiving etc.); the wording indicating the acts related to the introduction of objects to commodity circulation or the commission of any actions for the purpose of further introduction into circulation, including acts concerning the putting into circulation of equipment for the illegal creation of copyright and related rights objects (for example, the use of objects without a check mark and in the absence of author's contracts; introduction into business turnover; introduction into circulation; change, removal from copies of objects of symbols and signs of protection of rights etc.); b) illegal production (creation) and / or illegal use of such objects. The following wording of the criminal law provisions refers to these attacks: the wording which denotes actions related to the illegal creation of the object of intellectual property rights, the introduction of certain changes to the object or information about the object, as well as acts of unlawful gain rights to the object (for example, attribution or coercion, plagiarism, reproduction, copying, forgery or imitation etc.); wording that denotes acts of unlawful use and distribution of objects (in particular, illegal use, illegal distribution, sale or offer for sale, sales etc.); general wording indicating any of the above-mentioned encroachments, as well as other attacks on the objects of copyright and related rights (for example violation of the law, any other form of use of objects, other infringement of rights, violation of any which of the rights etc.).
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Rautenbach, Christa. "Editorial." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 17, no. 6 (2014): 0. http://dx.doi.org/10.17159/1727-3781/2014/v17i6a618.
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EditorialThis voluminous issue consists of 13 articles and 8 notes dealing with various legal topics in South Africa and abroad. The articles commences with Ig Rautenbach’s discussion of the ever-elusive concept of proportionality in the light of the text of the South African Constitution. Mmaphuti Tuba analyses the different approaches adopted for the regulation of payment systems in a variety of legislative instruments by the European Union. Phoebe Boltondeals with the thorny issue of public tenders and the extent to which bidders must comply with tender specifications and conditions. Leentjie de Jong examines present-day family arbitration and the problems experienced with it. Daleen Millard and Birgit Kuschke evaluate the insurer’s pre-contractual duties in the light of the transparency principle in insurance law. Karin Calitz deals with the question if a church can be held liable for the sexual assault of children by a priest, when the victims claim as adults, many years after the events took place. The entitlement of a non-member spouse to the member’s pension forms the focus point of Clement Marumoagae’scontribution. Mitzi Wiese reflects on the correctness of the classification of liens into enrichment and contractual liens. Frans Viljoen and Nicholas Orago analyses the importance and implications of the individual communications procedure under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) and details some of the reasons why it would be beneficial for South Africa to accede thereto. The interplay between international law and labour law in South Africa in the context of diplomatic immunity is investigated byEzette Gericke. Cornelius Kilian and Elizabeth Snyman-Van Deventer consider section 75 in the Companies Act of 1973 (or its equivalent, section 36(2) in the Companies Act of 2008) and the topic of statutory approval for an artificial decrease or increase in the number of issued shares. Annelie Laas and Trynie Boezaart give a critical analysis of the legal measures available to curb bullying in schools. Further afield, Mtendeweka Mhango discusses the development and current status of the political question doctrine in Ghana.The first note by Roger Evans and Lienne Steyn deliberate on the seemingly contradictory outcomes of three high court judgments regarding the question of ownership of property which vests in the master of the high court by virtue of the Insolvency Act 24 of 1936. Philip Stevens also discusses recent judgments pronouncing on the entering of the particulars of child sex offenders into the register for sex offenders as enunciated in Chapter 6 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007. Sieg Eiselen illustrates how the Department of Trade and Industry’s proposed amendment to the definition of “electronic signature” would undermine the key principles of functional equivalence, media neutrality and party autonomy. Luanda Hawthorne deliberates on the element of exploitation in bargaining relationships between contractual parties, as highlighted in Uniting Reformed Church, De Doorns v President of the Republic of South Africa 2013 5 SA 205 (WCC). Anneliese Roos and Magda Slabbert discuss the case of Isparta v Richter 2013 6 SA 4529 (GP), which dealt with defamation in the social media on the Facebook platform. Rowena Bernard considers the case of Department of Correctional Services v Police and Prison Civil Rights Union (POPCRU) 2011 32 ILJ 2629 (LAC), where the employer's application of rules relating to the dress code of employees impacted on the religious beliefs and practices of five of the staff members. Nico Buitendag and Karin van Marle reflect on Afriforum v Malema 2011 6 SA 240 (EqC), which drew considerable attention in the media and in the public discourse. In the last contribution, James Linscott analyses F v Minister of Safety and Security 2012 1 SA 536 (CC), which dealt with the “standard” test for vicarious liability.EditorChrista Rautenbach
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Bekink, Mildred. "Section 170A(1) of the Criminal Procedure Act of 1977: Do Intermediaries Need to Be Sworn in or Not? S v QN 2012 1 SACR 380 (KZP)." SSRN Electronic Journal, 2013. http://dx.doi.org/10.2139/ssrn.2364287.
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Mujuzi, Jamil. "Victim Participation in Parole Proceedings in South Africa." Southern African Public Law 34, no. 1 (2019). http://dx.doi.org/10.25159/2522-6800/3690.
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South African law provides for circumstances in which victims of crime may participate in the criminal justice system at the investigation, prosecution (trial), sentencing and parole stages. In South Africa, a prison inmate has no right to parole although the courts have held that they have a right to be considered for parole. In some cases, the victims of crime have a right to make submissions to the Parole Board about whether the offender should be released on parole. Section 299A of the Criminal Procedure Act 51 of 1977 provides for the right of victims of crime to participate in parole proceedings. The purpose of this article is to discuss section 299A and illustrate ways in which victims of crime participate in the parole process. The author also recommends ways in which victims’ rights in section 299A of the Criminal Procedure Act could be strengthened.
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Tsabora, James, and Ignatious Nzero. "Changing the Game: Striking Down Section 121 of Zimbabwe's Criminal Procedure and Evidence Act." SSRN Electronic Journal, 2013. http://dx.doi.org/10.2139/ssrn.2368221.
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Maepa, Traggy. "HOW MUCH MIGHT IS RIGHT? Application of Section 49 of the Criminal Procedure Act." South African Crime Quarterly, no. 1 (March 8, 2006). http://dx.doi.org/10.17159/2413-3108/2002/v0i1a1086.
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In 1998 the South African parliament voted on the issue of the use of force when effecting an arrest, in order to bring standards of practice in line with the rest of the democratic world. Four years later the law still has not been signed by the state president, largely due to protests by the ministers of Justice and Constitutional Affairs and Safety and Security. The issue has been before the Constitutional Court and in May 2002, this court did what the executive was afraid to do, striking down parts of the Section and clarifying “reasonable force”. But the court ruling still did not go as far as the legislation in protecting citizens.
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Msaule, Phindile Raymond. "Extending the Private Prosecution Provisions of the Criminal Procedure Act 51 of 1977 to Cover Private Prosecution in the Public Interest." Southern African Public Law 35, no. 2 (2021). http://dx.doi.org/10.25159/2522-6800/7027.
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Criminal prosecution is generally the preserve of the state. However, there are legislated exceptions that allow for private prosecution. For example, section 7 of the Criminal Procedure Act 51 of 1977 entitles individuals who satisfy certain criteria to prosecute in their own names. Section 8 of the Act, on the other hand, provides for statutory private prosecution. Statutory private prosecutions are limited to certain bodies and certain types of offences. In this article, it is submitted that private prosecution must be extended beyond the realm of sections 7 and 8 of the Act or the currently statutory sanctioned private prosecution. It is contended that section 7 of the Act must be amended to include the prosecution of corruption and related offences, on the one hand, and money laundering and related offences, on the other, in the public interest. It is submitted that there are safeguards to avoid private prosecution being abused. Furthermore, the allowance of private prosecution in the private interest would not impinge on the status of the National Prosecuting Authority (NPA) as the constitutional body mandated to institute prosecutions on behalf of the state. This is because a prospective private prosecutor may institute proceedings only in the event that the NPA declines to prosecute or on the basis of unreasonable delay on the part of the NPA to institute prosecutions.
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Skelton, Ann. "CASE NOTE: The automatic review of child offenders’ sentences." South African Crime Quarterly, no. 44 (March 8, 2016). http://dx.doi.org/10.17159/2413-3108/2013/v0i44a822.
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This case note considers the automatic review of child offenders’ cases. Adult offenders’ cases go on ‘review in the ordinary course’ in limited circumstances, but section 85 of the Child Justice Act aims to provide automatic review in a wider range of cases. The wording of section 85 and how it should be read with the Criminal Procedure Act has caused interpretational difficulties. Two cases have provided answers to certain questions: Do all cases regarding children under 16 years go on review? Do all cases regarding custodial sentences (that are not suspended) go on review, regardless of the experience of the magistrate, whether it was a regional court that issued the sentence, the length of the sentence and even if the child was legally represented? The courts have answered these in the affirmative. In reaching these conclusions, the courts have interpreted the law within the context of the Child Justice Act as a whole, and within the provisions of section 28 of the Constitution.
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"Armed Career Criminal Act: Title 18. Crimes and Criminal Procedure Part I. Crimes Chapter 44. Firearms: 18 US Code Section 924(E) (1994)." Federal Sentencing Reporter 7, no. 2 (1994): 103. http://dx.doi.org/10.2307/20639759.
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Ròsaan Krüger. "OF FENCES AND PEACE BETWEEN NEIGHBOURS." Obiter 30, no. 2 (2021). http://dx.doi.org/10.17159/obiter.v30i2.12436.
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The speaker in the poem “Mending Wall” by American poet Robert Frost questions the wisdom of the saying that “Good Fences Make Good Neighbo[u]rs”. The walls or fences referred to in the poem represent more than just physical barriers separating adjacent premises; the speaker sees them as representing obstacles to communication and friendship between individuals. Seen from theperspective of the speaker, a fence or wall is a “bad” thing. But the speaker is but one of the parties to the neighbourly relationship. For the speaker’s neighbour, a wall or a fence is “a protector of privacy”. Thus there are two views on walls or fences: they can be seennegatively as obstructing good relations, or positively as dividers that secure good relations between neighbours by separating them and protecting their privacy rights. What do dividers (or barriers), physical or otherwise, have to do with law? During recent research visits to the Durban Magistrate’s Court (October 2007, February 2008) the author noted with interest that magistrates at the Durban court often had to deal with applications for binding-over orders (or “peace orders”) intended to secure the peace between neighbours. Binding-over orders can be seen as legal “fences” or “walls” established in terms of statute at the request of one of the parties where violence or threats of violence imperil the peaceful co-existence of neighbours. Section 384 of the Criminal Procedure Act 56 of 1955 – which allows for such applications – is one of only two sections of that Act that remains on the statute book. The provisions of section 384 have been called archaic and irrelevant in view of the provisions of the Domestic Violence Act of 1998 and its 1993 predecessor. Seen in this light, a reconsideration of section 384 seems redundant. But the matter is not that simple. The application ofthe Domestic Violence Act requires the existence of a domestic relationship between the parties as defined in section 1 of that Act. The complainant who approaches a magistrate for a binding-over order in terms of section 384 and the person against whom the order is sought may not be in a domestic relationship as defined in the Act, thus ruling out the application of the Domestic Violence Act. Therefore, section 384 goes wider in that it aims to preserve the peace within a broader context than the Domestic Violence Act.Consequently reconsideration thereof is warranted. In this note the author discusses the provision for binding-over orders asset out in section 384 of the Criminal Procedure Act of 1955. In order to do so, she traces the origins thereof before considering the specific scope of section 384. In the main she analyses the constitutionality of this section in the light of relevant jurisprudence of the Constitutional Court and comparative jurisprudence of the European Court of Human Rights. She concludes with a recommendation.