Distribution of this document is illegal and constitutes a copy-right violation
1
Criminal Procedure Notes and Cases
Key
- Cases in bold = prescribed cases
- Highlighted in orange = asked previously in a test/exam
- Blue = headings
- Purple = topics
- Green = readings (textbook, legislation and prescribed cases)
Topic 1: Introduction to criminal procedure and models of the criminal process
Readings
- Textbook pages 4 -17
- Handbook pages 8-13
- Section 35 of the Constitution
Introduction
- Part of public law
- integral component of the criminal justice system with the function of providing the pre-trial,
trial and post-trial procedural mechanisms
- adjectival/procedural law: the portion of the law that deals with the rules of procedure
governing evidence, pleading, and practice. Looks not at what needs to be proven but how it
must be proven
- focuses on the procedures, the mechanisms and structures that are in place to give effect to
that substantive law
-
- safeguards individual constitutional rights by imposing reasonable checks and balances on
the procedural powers of the police service and Prosecuting Authority
Scope
Criminal procedure regulates a number of procedural and structural processes:
- the criminal courts
- the police
- the NPA
- the defence
Kaya Borkowski
, Distribution of this document is illegal and constitutes a copy-right violation
2
- rights of arrested, detained or accused persons
- pre-trial procedural matters (such as bail)
- procedures during the course of the trail
- sentencing
- post-trial procedures (such as appeal and review).
- The regulation of the role players to the criminal justice system is not just to protect individual
accused persons who face arrest or have been brought to trial – although that is of primary
importance.
- The regulation of these actors, especially the state actors, are fundamental to a constitutional
democracy
Substantive v adjectival law
- Substantive law comprises the legal rules and duties.
- eg. criminal law – with its focus on the elements of criminal liability and defences – is part of
substantive law.
- The substance of WHAT must be proven in a criminal trial is substantive law.
- Adjectival law
- The process and rules for HOW it must be proven, is largely adjectival. Criminal procedure
contains the processes for how the substantive criminal law is enforced.
- Criminal Procedure also applies safeguards to the exercise of power, particularly by state
bodies, by stipulating restrictions on conduct like arrest and prosecution.
- The sanctions attached is one of the links between substantive and adjectival.
Because it is the enforcement of the sanctions promised by substantive law that is the role of
adjectival law.
Accusatorial and inquisitorial criminal justice systems (asked previously in a test/exam)
- Our system has largely been influenced by two major international systems of criminal justice
- Two models focus on procedural aspects but can include substantive law
- These are the accusatorial system based on English common law and the inquisitorial
system based on Continental Roman law.
- differences between these two systems are to be found in the differing functions allocated to
a judge, State prosecution and the accused’s defence.
- The distinction between the procedures lies largely on the role of the presiding officer during
the trial (which in turn affects the roles of other parties), and to some extent, the source of
law.
Accusatorial/adversarial system
Kaya Borkowski
1
Criminal Procedure Notes and Cases
Key
- Cases in bold = prescribed cases
- Highlighted in orange = asked previously in a test/exam
- Blue = headings
- Purple = topics
- Green = readings (textbook, legislation and prescribed cases)
Topic 1: Introduction to criminal procedure and models of the criminal process
Readings
- Textbook pages 4 -17
- Handbook pages 8-13
- Section 35 of the Constitution
Introduction
- Part of public law
- integral component of the criminal justice system with the function of providing the pre-trial,
trial and post-trial procedural mechanisms
- adjectival/procedural law: the portion of the law that deals with the rules of procedure
governing evidence, pleading, and practice. Looks not at what needs to be proven but how it
must be proven
- focuses on the procedures, the mechanisms and structures that are in place to give effect to
that substantive law
-
- safeguards individual constitutional rights by imposing reasonable checks and balances on
the procedural powers of the police service and Prosecuting Authority
Scope
Criminal procedure regulates a number of procedural and structural processes:
- the criminal courts
- the police
- the NPA
- the defence
Kaya Borkowski
, Distribution of this document is illegal and constitutes a copy-right violation
2
- rights of arrested, detained or accused persons
- pre-trial procedural matters (such as bail)
- procedures during the course of the trail
- sentencing
- post-trial procedures (such as appeal and review).
- The regulation of the role players to the criminal justice system is not just to protect individual
accused persons who face arrest or have been brought to trial – although that is of primary
importance.
- The regulation of these actors, especially the state actors, are fundamental to a constitutional
democracy
Substantive v adjectival law
- Substantive law comprises the legal rules and duties.
- eg. criminal law – with its focus on the elements of criminal liability and defences – is part of
substantive law.
- The substance of WHAT must be proven in a criminal trial is substantive law.
- Adjectival law
- The process and rules for HOW it must be proven, is largely adjectival. Criminal procedure
contains the processes for how the substantive criminal law is enforced.
- Criminal Procedure also applies safeguards to the exercise of power, particularly by state
bodies, by stipulating restrictions on conduct like arrest and prosecution.
- The sanctions attached is one of the links between substantive and adjectival.
Because it is the enforcement of the sanctions promised by substantive law that is the role of
adjectival law.
Accusatorial and inquisitorial criminal justice systems (asked previously in a test/exam)
- Our system has largely been influenced by two major international systems of criminal justice
- Two models focus on procedural aspects but can include substantive law
- These are the accusatorial system based on English common law and the inquisitorial
system based on Continental Roman law.
- differences between these two systems are to be found in the differing functions allocated to
a judge, State prosecution and the accused’s defence.
- The distinction between the procedures lies largely on the role of the presiding officer during
the trial (which in turn affects the roles of other parties), and to some extent, the source of
law.
Accusatorial/adversarial system
Kaya Borkowski
