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UNIVERSITY of SUSSEX LAW SCHOOL Dissertation for The A University of Sussex DPhil thesis Available online via Sussex Research Online: http://sro.sussex.ac.uk/ This thesis is protected by copyright which belongs to the author. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the Author The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the Author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given Please visit Sussex Research Online for more information and further details UNIVERSITY OF SUSSEX LAW SCHOOL Dissertation for the Degree of Doctor of Philosophy On the subject of Human Rights in the Stage of Criminal Investigation: A Comparison between Law and Practice in Saudi Arabia and England and Wales PhD Candidate : Suliman Abdullah Alkharashi 2015 1 Acknowledgement It is my great pleasure to have this opportunity to thank all those who have supported and encouraged me during the period of my doctoral thesis. I am particularly grateful to my supervisors, Pro. Richard Vogler and Dr. Elizabeth Craig, for their tireless support and guidance; they generously sacrificed their time to provide me with invaluable recommendations and constructive criticism, and always made themselves available to see me. Also would like to thank all the police officer I met in England and Wales and who provided information that helped this thesis. I would also like to express my gratitude to the Minister of the Interior, Prince Muhammad Bin Naif for his significant support. I would like to express my deep thanks to the members of the IPPC and to those who work in the police stations in Saudi Arabia. I would also like to thank the people who work in the Ministry of the Interior in Saudi Arabia for their help and support. I am strongly indebted to my parents—my mother and the soul of my father, who sadly passed away before the course of this research. A big thank you to my brother, Ahmad Alkharashi for his financial and moral support. I would also like to express special gratitude to my wife who has supported me and for being patient throughout this thesis. 2 Table of Content Abstract. 8 Table of Abbreviations. 9 Table of Cases. 11 Chapter One: Introduction. 13 1. General Introduction. 13 2. Rationale. 15 3. Questions for the Thesis. 16 4. Literature Review. 16 5. Debates on the compatibility of Saudi Law, Shari’ah and internationally 20 recognised human rights standards. 6. Methodology. 25 6.1. Secondary sources. 25 6.2. Primary sources (interview) 26 6.3. The interviews (Brighton & Riyadh). 28 6.4. Audio recording. 30 6.5. Data analysis. 32 6.6. Trustworthiness. 33 6.7. How the interview data was used in the thesis. 34 7. Proposed Thesis Structure. 35 Chapter Two: The Principles of International Human Rights Law. 38 Introduction 38 1. The Origins of Human Rights. 39 2. The Jurisprudential Basis of Human Rights. 41 2.1. The Universal Declaration of Human Rights. 42 2.1.1. The Two Covenants. 43 2.1.2 Regional instruments. 45 2.1.2.1 The European Human Rights system. 45 2.1.2.2. The Cairo Declaration on Human Rights in Islam (CDHRI). 46 3 2.1.2.3. The Arab Charter of Human Rights (ACHR 2008). 47 3. Human Rights in the Islamic Tradition. 51 Conclusion 56 Chapter Three: Procedural Rights at the Pre-trial Stage in International 58 Human Rights Law and Shari'ah. Introduction 58 1. Procedural Rights at the Pre-trial Stage in International Human Rights 59 Law. 1.1. The Right to Liberty. 59 1.1.1. The Prohibition of Arbitrary and Unlawful Deprivation of Liberty. 60 1.1.2. The Right to Know the Reason for Arrest and What Charges are Being 65 Brought. 1.1.3. The Right to be Brought Promptly Before a Judicial Officer. 67 2.2. The Right to Legal Assistance. 69 1.2.1 The Scope of the Right to Legal Assistance. 69 1.2.2. Legal Aid. 71 1.3. The Right Against Ill- Treatment. 73 1.4. Police conduct during interrogations. 77 1.4.1. The Presumption of Innocence. 77 1.4.2. The Right to Silence. 80 1.4.3. The Right against Self- Incrimination. 84 1.5 Non-discrimination. 87 1.6 The Right to Privacy. 89 1.6.1. The Right to Respect for One’s Private Life. 90 1.7. The Right to Bail. 92 1.8. The Right to an Effective Remedy in International Human Rights Laws. 94 2. Shari’ah and Pre-Trial Procedural Rights. 96 2.1. The Right to Liberty. 96 2.1.1. Arrest in Shari’ah. 97 2.1.2. Detention in Shari’ah. 99 2.1.3. The Right to be Informed Promptly of the Reason for Arrest in Shari’ah. 101 4 2.2. The Right to Defence in Shari’ah. 101 2.3. The Right Against Ill-Treatment. 102 2.4. Presumption of Innocence and the Right against Self-Incrimination. 104 2. 5 Non- Discrimination in Shari'ah. 105 2.6. The Right to Privacy. 106 2.7. The Right to Bail in Shari’ah. 107 2.8. The Right to an Effective Remedy in Shari’ah. 108 Conclusion 111 Chapter Four :The History and Development of Criminal Justice in England 113 and Wales. Introduction 113 1. Developing the concept of a pre-trial in England and Wales (The Norman 114 period- Marian Reforms to the Eighteenth and Nineteenth centuries. 1.1.The Norman period. 114 1.2. Marian Reforms 1555. 115 1.3. The Eighteenth Century. 116 1.4. The Nineteenth Century. 118 2. Judges’ Rules 1912 and the weakness of unregulated pre-trial procedures. 121 3. Police and Criminal Evidence Act 1984 (PACE) - a Revolution. 123 4. Contemporary Developments. 126 Conclusion 130 Chapter Five:The Procedure of Criminal Investigation in England and Wales. 132 Introduction 132 1. The Right to Liberty. 133 1.1. The Prohibition of Arbitrary and Unlawful Deprivation of Liberty. 134 1.1.1. Arrest. 138 1.1.2. Detention. 143 1.2. The Right to Know the Reason for Arrest and What Charges are Being 148 Brought. 1.3. The Right to be Brought Promptly Before a Judicial Officer. 151 2. The Right to Legal Assistance. 153 5 2.1. The Scope of the Right to Legal Assistance. 154 2.2. Legal Advice. 155 163 3. The Right Against Ill-Treatment. 165 4. Police conduct during interrogations. 4.1. The Presumption of Innocence. 166 4.2. The Right to Silence. 167 4.3. The Right against Self-Incrimination. 170 5. Non- discrimination. 173 6. The Right to Privacy. 178 7. The Right to Police Bail. 182 8. The Right to an Effective Remedy in England and Wales. 185 Conclusion 189 Chapter Six: The History and Development of Criminal Justice in Saudi 191 Arabia. Introduction 191 1. Criminal Justice in the Arabian Peninsula before Islam. 191 2. Criminal Justice after the Birth of Islam. 195 3. Contemporary Criminal Justice and Human Rights in Saudi Arabia. 196 3.1 National Level. 197 3.2. International Level. 202 4. Current Reforms in Saudi Arabia at the Stage of Pre-trial. 205 4.1. Investigation and Public Prosecution (IPPC) Establishment. 206 4.1.1. Code of Criminal Procedure CCP (2001). 207 Conclusion 209 Chapter Seven :The Procedure of Criminal Investigation in Saudi Arabia. 211 Introduction 211 1. The Right to Liberty. 212 1.1. The Prohibition of Arbitrary and Unlawful Deprivation of Liberty. 213 1.1.1. Arrest. 215 1.1.2.Detention. 218 1.2. The Right to Know the Reason for Arrest and What Charges are Being 224 6 Brought. 1.2.1. The Right to Inform the Family. 226 1.3. The Right to be Brought Promptly Before a Judicial Officer. 229 2. The Right to Legal Assistance. 232 2.1. Legal Advice. 233 3. The Right Against Ill-treatment. 238 4. Police conduct during interrogations. 243 4.1. The Presumption of Innocent. 243 4.2. The Right to Silence. 245 4.3. The Right against Self-Incrimination. 248 5. Non- discrimination. 251 6. The Right to Privacy. 253 6.1. Individual inspection. 254 6.2. Inspection of Premises. 255 7. The Right to Bail. 259 8. The Right to an Effective Remedy in Saudi Arabia. 263 Conclusion 267 Chapter Eight: Conclusion. 270 Appendix A: Contemporary Development of Criminal Justice in England and 282 Wales. Appendix B: Miscellaneous. 299 Bibliography. 301 7 Abstract This thesis is a comparative study of the pre-trial procedures of England and Wales and Saudi Arabia. Its aim is to show how the pre-trial procedures of Saudi Arabia could be re- designed in order to conform to both the standards set by international human rights and the norms of Shari’ah law and argues that there is much common ground between the two. It addresses the human rights relevant to pre-trial procedures and explores in-depth how these are expressed in international human rights legislation and in the current legislation of England and Wales with particular reference to the Police and Criminal Evidence Act (1984). They are contrasted with the relevant articles of the Code of Criminal Procedure 2001 (CCP) of Saudi Arabia. Individual rights such as the right to liberty, the right silence, the right to privacy, the right to bail and the right to an effective remedy are examined in depth and relevant case law is cited throughout. The history of pre-trial procedures and regulations in England and Wales and Saudi Arabia is explored in order to understand how these have developed into what exists today.
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