CRIMINAL PROCEDURE 271
Chapter 1 – Basic introduction to Criminal Procedure
Introduction
Substantive law = legal rules determining rights and duties of individuals and the
state.
Formal/adjectival law = enforces rules of substantive law.
Responsibility of state to enforce legal rules and laws in line with Constitution.
1. Scope of criminal procedure
Regulates duties and powers of criminal courts and prosecutorial
authority.
Also duties of police, rights of suspects, pre-trial procedures, etc.
2. Function of criminal procedure
1) Regulates arrest procedure
2) Functions as GOJ (ground of justification)
e.g. if unlawful search of property occurs
- formal consequence: exclusion of evidence
- substantive consequence: claim for damages
3. Tension between Crime Control and Due Process
Need for balance between interest of society in efficient criminal law
enforcement & interest of society in protection of rights of suspects.
In need of a fair justice system
Packer “the limits of the criminal sanction” (1968)
- value system that underlies Crime Control Model based on proposition
repression of criminal conduct is most important function of criminal
process.
- Due Process Model (acknowledges importance of effective criminal law
enforcement BUT principle = primary goal of criminal justice system is to
ensure duly and proper acknowledgement of individual in critical stages.
, Public perceptions: “Constitution is pro-criminal”
Historical context e.g. detention without trial
Internal tensions
1. Cannot create strict criminal procedure rules on assumption only applied to
criminals
innocent people can get drawn into system too
pre-trail
2. liberty of innocent person should not be sacrificed to increase effective crime
control
Ashworth: “oppose rule if increases probability innocent will be
convicted”.
Damaska: “more rules to potentially convict innocent, bigger chance of
acquitting guilty”.
3. If state has all powers can curb criminality significantly
Society would live under tyranny/oppression
Also: If rights of individual absolute, state powerless to enforce criminal
law
4. Will always have conflict between victims’ rights vs accused’s rights – must
strike appropriate balance
5. Criminal procedure rules must regulate state power
Positive sense – rules empowering police
Negative sense – rules restricting use of power
6. Exclusion of evidence obtained illegally
S35(5) Constitution – must exclude if will render trial unfair or
detrimental to administration of justice
Due Process: Legality, rule of law and limitation of state power
Criminal procedure critique over emphasizes due process neglects
victims’ rights fails to bring guilty to justice
Valid response to criticism = “two wrongs don’t make a right” – criminal
law sets out what may or may not do to others but also what authority
may or may not do to you
Due process ensures vindication does not lead to further injustices
, 4. Victims’ rights
Set out in S234 of Constitution
Roach “Four models of the Criminal Process”
- Punitive model of victims’ rights = rights of crime victim or potential victims
worthy of respect & resembles Crime Control Model (criminal law,
prosecution and punishment controls crime)
- Non-punitive model = less concerned with traditional criminal sanction,
rather emphasis on prevention of crime and restorative justice (does not
require strict adherence to Due Process.
Restorative justice
Child Justice Act 75/2008: “approach to justice that aims to involve child
offender, victim, families concerned and community to address harms,
needs and obligations through accepting responsibility…and promoting
reconciliation”
Victim participation
Promoted by various statutory provisions
Sexual offences – investigating officer must take impact statement from
victim before testifying in court
Institution of private prosecution i.t.o S7 CPA = form of victim participation
5. Constitutional criminal procedure
S2 – supremacy clause
B.o.R. applies to all law, binds legislature, executive and organs of state
Criminal procedure usually vertical operation between community’s interest in
state power community’s interest in in individual rights and liberties
HOWEVER S8(2) horizontal application – binds natural or juristic person
depending on nature of right
Chapter 1 – Basic introduction to Criminal Procedure
Introduction
Substantive law = legal rules determining rights and duties of individuals and the
state.
Formal/adjectival law = enforces rules of substantive law.
Responsibility of state to enforce legal rules and laws in line with Constitution.
1. Scope of criminal procedure
Regulates duties and powers of criminal courts and prosecutorial
authority.
Also duties of police, rights of suspects, pre-trial procedures, etc.
2. Function of criminal procedure
1) Regulates arrest procedure
2) Functions as GOJ (ground of justification)
e.g. if unlawful search of property occurs
- formal consequence: exclusion of evidence
- substantive consequence: claim for damages
3. Tension between Crime Control and Due Process
Need for balance between interest of society in efficient criminal law
enforcement & interest of society in protection of rights of suspects.
In need of a fair justice system
Packer “the limits of the criminal sanction” (1968)
- value system that underlies Crime Control Model based on proposition
repression of criminal conduct is most important function of criminal
process.
- Due Process Model (acknowledges importance of effective criminal law
enforcement BUT principle = primary goal of criminal justice system is to
ensure duly and proper acknowledgement of individual in critical stages.
, Public perceptions: “Constitution is pro-criminal”
Historical context e.g. detention without trial
Internal tensions
1. Cannot create strict criminal procedure rules on assumption only applied to
criminals
innocent people can get drawn into system too
pre-trail
2. liberty of innocent person should not be sacrificed to increase effective crime
control
Ashworth: “oppose rule if increases probability innocent will be
convicted”.
Damaska: “more rules to potentially convict innocent, bigger chance of
acquitting guilty”.
3. If state has all powers can curb criminality significantly
Society would live under tyranny/oppression
Also: If rights of individual absolute, state powerless to enforce criminal
law
4. Will always have conflict between victims’ rights vs accused’s rights – must
strike appropriate balance
5. Criminal procedure rules must regulate state power
Positive sense – rules empowering police
Negative sense – rules restricting use of power
6. Exclusion of evidence obtained illegally
S35(5) Constitution – must exclude if will render trial unfair or
detrimental to administration of justice
Due Process: Legality, rule of law and limitation of state power
Criminal procedure critique over emphasizes due process neglects
victims’ rights fails to bring guilty to justice
Valid response to criticism = “two wrongs don’t make a right” – criminal
law sets out what may or may not do to others but also what authority
may or may not do to you
Due process ensures vindication does not lead to further injustices
, 4. Victims’ rights
Set out in S234 of Constitution
Roach “Four models of the Criminal Process”
- Punitive model of victims’ rights = rights of crime victim or potential victims
worthy of respect & resembles Crime Control Model (criminal law,
prosecution and punishment controls crime)
- Non-punitive model = less concerned with traditional criminal sanction,
rather emphasis on prevention of crime and restorative justice (does not
require strict adherence to Due Process.
Restorative justice
Child Justice Act 75/2008: “approach to justice that aims to involve child
offender, victim, families concerned and community to address harms,
needs and obligations through accepting responsibility…and promoting
reconciliation”
Victim participation
Promoted by various statutory provisions
Sexual offences – investigating officer must take impact statement from
victim before testifying in court
Institution of private prosecution i.t.o S7 CPA = form of victim participation
5. Constitutional criminal procedure
S2 – supremacy clause
B.o.R. applies to all law, binds legislature, executive and organs of state
Criminal procedure usually vertical operation between community’s interest in
state power community’s interest in in individual rights and liberties
HOWEVER S8(2) horizontal application – binds natural or juristic person
depending on nature of right
