RESOURCE MATERIAL SERIES No. 53

GROUP 3

ISSUES CONCERNING PROSECUTION IN RELATION TO , SPEEDY AND SENTENCING

Chairperson Mr. Kyoji Ishikawa (Japan) Co-Chairperson Ms. Pauline Christine Ngo Mandeng (Cameroon) Rapporteurs Mr. Madan Lal Sharma () Mr. Jonathan John Mwalili (Kenya) Dr. Meen Bahadur Poudyal Chhetri (Nepal) Members Mr. Mohamed Jameel Ahmed (Maldives) Mr. Yutaka Kubo (Japan) Mr. Takahiro Ueda (Japan) Adviser Professor Yuzuru Takahashi (UNAFEI)

I. INTRODUCTION The right to a speedy trial is a fundamental human right. It has been The main objective of the criminal trial affirmed in the Universal Declaration of is to determine whether an accused person Human Rights 1948 and enshrined in the has violated the penal law and where found consitutions and statutes of some guilty, to prescribe the appropriate countries. Speedy trial is a vital element sanction. Prosecution is an executive in the administration of criminal justice. function of the state and is usually In fact, unnecessary delay in the trial discharged through the institution of the constitutes a denial of justice. The . The burden of proof rests on the prevention and control of crime as well as prosecution as per the prescribed standard the effective rehabilitation of the convict of proof. The prosecutor faces several are enhanced by speedy trial. The problems in proving the of the accused prosecutor is at the center stage of a person. Some of these problems fall beyond criminal trial and plays a leading role in the scope of his duties and responsibilities. its conduct. In the second part of the paper, The legal framework, the law enforcement the group has examined some of the laws infrastructure and the quality of the and practices which prevail in different personnel operating within the legal countries where this right is guaranteed. system, amongst other factors, Factors affecting the realization of a speedy considerably affect the conviction rate. In trial have also been discussed from the the first part of the paper, our group has perspective of the prosecutor. defined conviction rate, and analyzed the Sentencing is the final stage of a criminal reasons for variation in rates in different trial. An appropriate is one which countries. The group has discussed some strikes a balance between the preservation of the problems which may arise in proving of social order and the rehabilitation of the the case in a from the perspective of convict. The participation of the prosecutor the prosecutor under four categories in sentencing and the stage of the such relating to investigation, prosecution, trial, participation differ depending on the legal and legal and systemic factors. The group systems as practiced in different countries. has also proposed solutions to some of these Sentencing remains the prerogative of the problems.

348 107TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE presiding judge/magistrate who usually B. Conviction Rate enjoys wide discretion, and the The conviction rate may be taken to recommendations of the prosecutor are not mean the ratio of cases convicted out of the binding on him. In the third part of this total number of cases decided in a given paper, the group discussions revealed year. problems which may arise in the Our group is of the view that the sentencing process. The countermeasures conviction rate is a reasonably good proposed therein, are intended to ensure indicator of the efficiency and efficacy of that the prosecutor effectively assists the the criminal justice system prevailing in a court in arriving at an appropriate country. Of course, there is a limitation to sentence. the significance of the conviction rate as an indicator of prosecutorial efficacy. II. HOW WELL DOES THE Distinctive conviction rates are caused by PROSECUTION ESTABLISH ITS the differences in the evidential standard CASE AGAINST THE DEFENDANT? required at the initiation of prosecution, more fundamentally the differences in the A. Preface role of investigators and to The preservation of life and property is refer cases to the court. In countries where one of the fundamental functions of the a considerably low evidential standard is state. Over the millennia, the state has required to send a case to court, it should endeavored to perform this function be tasked to pass judgement of conviction through various institutions. Crime and or non-conviction based on such criminality are as old as humanity itself prosecution, the conviction rate is and their total elimination appears to be systematically lower than the countries beyond human ingenuity. The requiring a higher evidentiary standard. investigative, prosecutorial, adjudicatory A high conviction rate, however, is not the and correctional institutions aim at primary objective of the criminal justice containing criminality within socially system. acceptable limits. The state causes Notwithstanding the aforesaid, a high sanctions to be imposed upon the criminals conviction rate may be indicative of commensurate with the gravity of their methodical and painstaking investigations crimes. and effective prosecution. On the contrary, Any violation of the law is investigated an excessively low conviction rate definitely by the competent agencies and if a prima indicates unsuccessful and ineffective facie case is made out, a charge sheet/bill prosecution. of indictment is filed in the competent It should be made clear, however, that it court. Prosecution is conducted by the is not the mandate of the prosecutor to prosecutor on behalf of the state. The court secure conviction at any cost. He is required adjudicates the case on the basis of to be fair, impartial and must present all adduced and either convicts the the facts, including facts and circumstances offender or acquits him. The court imposes favorable to the offender, before the court the sentence on the convict after it has for an appropriate decision. This is the heard him and the prosecutor. The general practice in most common law aforesaid procedure is followed in most countries, where the prosecutor does not jurisdictions, with occasional variations to have the authority to withhold a case from punish the offender as per the procedure prosecution. established by law. The correctional Our group realizes that no conviction services attempt to rehabilitate him. handed down by the court of first instance

349 RESOURCE MATERIAL SERIES No. 53 is final until confirmed by the highest court 3. Indonesia3 in the event of an appeal. However, as no The overall conviction rate was 98.4 published data is available in relation to percent in 1994. Of offenders, 84.17 percent the decisions of appellate , data were sentenced to terms of regarding the as rendered by and others were fined/paroled or given the courts of first instance is used. minor sentences. Similarly, the convictions obtained through the plea bargaining process shall be dealt 4. Nepal4 with in this paper. According to a survey conducted in 20 districts of Nepal in 1996, the average C. Overview of Conviction Rate in conviction rate was found to be 16 percent. Some Countries 5. Japan5 1. England and Wales1 The conviction rate in Japan is The conviction rate in England and extremely high. In District Courts, it was Wales was 90.6 percent in 1992-93; 90.2 99.91 percent in 1994; 99.92 percent in percent in 1993-94 and 90.3 percent in 1995 and 99.94 percent in 1996 in cases 1994-95. It may, however, be added that the wherein the defendant had pleaded guilty. newly created Crown Prosecution Service In cases wherein the defendant had not has the power to withdraw a case from pleaded guilty, the conviction rate was prosecution under certain circumstances. 97.73 percent in 1994; 97.92 percent in Further, about 85 percent defendants 1995 and 98.01 percent in 1996. In pleaded guilty. Summary Courts, the conviction rate was 99.79 percent in 1996 wherein the 2. India2 defendant had pleaded guilty and 94.90 Under the Indian Penal Code offences, percent in cases wherein the defendant had the conviction rate was 47.8 percent in 1991 not pleaded guilty. In grave offences such and 42.1 percent in 1995. In 1995, the as homicide, robbery, bodily injury, rape or conviction rate for grave offences was as larceny, the rate is as low as follows: murder, 37.0 percent; culpable between 0.1 to 0.3 percent. homicide not amounting to murder, 36.3 percent; rape, 30 percent; kidnapping and 6. Republic of Korea6 abduction, 30.3 percent; robbery, 34.1 Conviction rate in 1993 was 99.5 percent; and burglary, 42.7 percent. percent. It was 99.11 percent in murder; However, for the Special and Local Laws, 99.87 percent in robbery; 99.74 percent in the conviction rate was 85.8 percent in rape and 99.59 percent in bodily injury 1995. This is largely explained by a high cases. In special code offences, conviction conviction rate in traffic related offences rate was 99.61 percent. i.e., 90.4 percent.

3 Bureau of Central Statistics, Government of Indonesia, 1994, p. 26. 1 Mr. G.D. Ethrington’s paper on “The Crown 4 As per country paper presented by the participant Prosecution Service and the Public Interest” of Nepal in this course. published in UNAFEI Resource Material Series 5 The White Paper on Crime, 1996, Research and No.49, p. 93. Training Institute, Ministry of Justice, Government 2 As per data published by National Crime Records of Japan, p. 112. Bureau, Ministry of Home Affairs, Govt. of India, 6 The White Paper on Crime published by the in Crime in India, 1995. Government of Korea, 1993, p. 182.

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7. Thailand D. Analysis of Conviction Rates The conviction rate ranges between 97 The conviction rate is largely affected by to 98.40 percent from 1991 to 1993, as per the quality of investigation and the statistics published by the Attorney standard of proof prescribed by law to send General’s Office. However, we have been the case to trial. The propensity of offenders informed that a large proportion of these to plead guilty also has a significant convictions are reversed by the appellate bearing on the conviction rate. courts. In Japan and the Republic of Korea, the conviction rates are extremely high. In 8. of America7 these countries, prosecutors have the The conviction rate turned by the federal statutory discretion not to initiate courts in the U.S.A. was 82.7 percent for prosecution due to insufficiency of evidence. all offences in 1993. The rate in grave They also have the authority to conduct offences was as follows: murder, 78.6 investigation in addition to directing, percent; negligent manslaughter, 78.3 guiding and supervising investigations percent; assault, 76.3 percent; robbery, 92.5 conducted by the police. Resultantly, only percent; rape, 80.2 percent; and strong cases are sent up to the courts. kidnapping, 64.0 percent. It may, however, Further, in Japan 92 percent of offenders be added that 90 percent of the convicts plead guilty, and the Japanese Criminal pleaded guilty and another 1 percent Procedure Code provides for exceptions to pleaded nolo contendere. The remaining 9 the hearsay rule in certain circumstances, percent were convicted at trial. which help in proving the cases. These factors largely explain the high conviction 9. Others rate. In Indonesia, the conviction rate is No published data is readily available also extremely high. This is largely about Costa Rica and . Our group is, explained by strict screening made by however, informed that the conviction rate prosecutors at the pre-trial stage. in Costa Rica was 56 percent in 1996. In The conviction rates turned out by the China, it was 99.75 percent in 1994 and U.S. federal courts are fairly high, even 99.5 percent in 19958. though 90 percent of convictions (including In Sri Lanka, the conviction rate was murder cases) are based on pleas of guilt. 86 percent in grave crimes in 19969 . The same is true of England and Wales. In the Sindh Province of Pakistan, the At the other end of the spectrum are conviction rate was 40.96 percent in 1993; countries like India and Sri Lanka. The 36.86 percent in 1994 and 50.88 percent in conviction rate in Penal Code Offences in 199510. India was as low as 42.1 percent in 1995. The conviction rate in the Sindh Province of Pakistan is also comparatively low. In 7 Compendium of Federal Justice Statistics, 1993, these countries, the standard of proof U.S. Department of Justice, p. 43. required for conviction is much higher than 8 As per responses to our questionnaire received from the one required for sending a case to the the participants from China and Costa Rica. court. In most countries, cases are sent for 9 As per the lecture paper presented by Mr. D. P. trial on the basis of “prima facie” evidence. Kumarsingha, Additional Solicitor-General, At the same time, the cases should be sent Attorney-General’s Department, Sri Lanka, in this to the court where there exists “prima facie” course. evidence. The evidence should be such that 10 As per the country paper presented by the the defendant has a case to answer. participant of Pakistan in this course.

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However, the case is required to be 1. Investigation-related proved “beyond reasonable doubt” in court a) Insufficiency of evidence due to secure a conviction. The evidence to poor investigation required should be conclusive in nature and The investigating agencies are required inconsistent with the innocence of the to collect all available evidence during defendant. Furthermore in most countries, investigations. If painstaking and timely the defendant is presumed to be innocent investigations are not conducted, valuable until proved guilty. The burden of proof evidence maybe lost. Sometimes the police11 wholly rests on the prosecution and only fail to collect vital evidence from the site shifts as per the conditions prescribed by such as blood stains, fingerprints and other law. evidence in cases of physical violence, due This low conviction rate is also due to either to lack of training or inefficiency. At the inadmissibility of confessions made times, the statements of key witnesses are before the police; the lack of binding legal not recorded as their importance in proving provisions for compelling the / the case is not understood. Statements may defendant to give samples of his blood, also be recorded in a casual and slipshod handwriting and fingerprints, etc. and the manner by the investigating officer which negligible percentage of offenders who leaves gaps in the evidence. Occasionally, plead guilty unlike the practice prevailing the police fail to work in collaboration with in England, Japan, the Republic of Korea, forensic experts. As a result, forensic the U.S.A., etc. evidence is not collected for use against the Our group discussed whether offender. The police may send cases to the prosecution initiated by police prosecutors court even when the evidence is insufficient undermines their capacity to establish the for reasons of expediency. case against the defendant. There were several opinions about the validity of police b) Inexperience and inadequate prosecution. qualification of investigating officers E. Problems in Proving the Guilt of Investigations are often conducted by the Defendant low-ranking officers who are new in service The conviction rate in countries like and lack experience. As the caliber of such Indonesia, Japan and the Republic of Korea officers is not high, they may be deficient is very high, whereas in countries like India in procedures. Hence their inability to it is relatively low. It is now proposed to conduct quality investigations. The lacunae examine problems in proving guilt left are often harmful in trial. particularly in the context of countries having a low conviction rate. The problems c) Non-separation of are divided in four categories, namely; (a) investigative staff investigation; (b) prosecution; (c) trial; and Even though some countries have set (d) legal and systemic problems. up specialized investigative agencies to handle specific category of crimes, the police still remains the main investigating agency to handle general crimes. In most countries, investigations are conducted at police stations where the police handle both investigations and duties to maintain social 11 Hereinafter, we use the word “police” as a typical order. No staff is earmarked exclusively for example of investigating agencies. investigative work. Generally, the police

352 107TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE gives preference to activities related to the g) Lack of transparency and preservation of social order which results other forms of malpractice in lack of sustained and systemic In some countries, investigations are not investigation, inordinate delay and the always conducted in a fair and just manner consequential loss of valuable evidence. due to extraneous factors such as lack of probity amongst the investigators, political d) Poor supervision by the pressures, etc. This leads to various forms superiors of malpractice which include the failure to Sometimes senior officers are unable to record statements from key witnesses or monitor and supervise investigations in a the intentional manipulation of statements timely manner due to heavy work load or with a view to screening the offenders. indifference. Hence, vital lacunae are left in cases and are exploited at the trial stage. 2. Prosecution-related Public prosecution is an executive e) Lack of qualified personnel, function of the state which is conducted by logistics and financial the prosecutor. It is his primary resources responsibility to prove the guilt of the Investigating agencies do not have well defendant. Public prosecution, inter alia, qualified officers in sufficient numbers. has a significant bearing on the conviction Often they after have excessive work load rate. The problems in efficient prosecution and the quality of investigation is adversely are enumerated hereinafter. affected. Efficient investigation necessitates qualified personnel a) Inadequate or delayed commensurate with the work load. Besides, scrutiny by the prosecutor lack of resources such as transportation, In Indonesia, Japan, Maldives, Nepal, communication and office equipment may the Republic of Korea and Sri Lanka, the affect the quality of investigations. prosecutor has absolute authority to Investigating agencies suffer from these determine whether a case should be sent constraints in some countries. for trial or not, and he alone determines if the evidence is sufficient. In some f) Lack of cooperation and countries, the case file is sent to the coordination with prosecutor for screening at the pre-trial prosecutors stage, even though he does not make the The prosecution is separate from the final decision. Sometimes, the prosecutor police in most countries and they often does not conduct proper screening due to function under separate ministries. In heavy work load or other extraneous countries where the prosecutors do not factors. In Sri Lanka, the police sends the enjoy the statutory authority to guide and case file to the Attorney General’s Office supervise police investigations, they are for advice. Scrutiny may take a long time, not usually consulted by the police during and it may be too late for the State Counsel investigation even when legal advice is to make any meaningful suggestion to the necessary. Sometimes, prosecutors are police, to improve the quality of consulted but their directions are not investigations. Hence, relatively weak complied with due to departmentalized cases are sent to court. perceptions.

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b) Inadequate supervision of needed court. It is not always easy to secure investigations the presence of the experts in court as they In countries where the prosecutor is have other functions. vested with the authority to supervise investigations, he may not exercise it g) Non-cooperation of victims sufficiently due to heavy work load or Victims may not cooperate with the indifference. There is not always adequate prosecution and sometimes retract their cooperation with the police in the previous statements. of supervisory functions. h) Lack of cooperation between c) Inadequate preparation for the prosecution and the trial police To conduct a trial is one of the most For successful prosecution, the need for important functions of the prosecutor. It is cooperation and understanding between observed that sometimes the prosecutors these agencies which cannot be over are not prepared for the trial and fail to emphasized. The police is required to examine the witnesses in a professional secure the presence of witnesses when they manner. As a result, court time is wasted. are needed in court. Generally, the prosecutor also ensures the execution of d) Delay in trial court orders through the police agency. Any This is a serious problem in some lack of cooperation may result in inefficient countries and may be fatal to the prosecution and delayed trial. prosecution. Due to delayed , some witnesses may die, suffer from memory i) Quality of prosecution loss, or lose all interest in prosecution. For efficient prosecution, it is important Some defense counsels apply for that the prosecutor be preferably a law adjournments on flimsy grounds further graduate, have adequate experience and a contributing to unnecessary delay in trials. good command of the law. The prosecutor should oppose such applications. 3. Trial-related a) Inadequate court structures e) Reluctance of witnesses to In some countries, the problem of testify “docket explosion” is very serious. The It is a serious problem in crimes relating courts are overburdened and their number to organized gangs, terrorist groups and not commensurate with the needs. This drug offenders. The witnesses are often often results in delayed trials, which may reluctant to testify due to fear of reprisals be prejudicial to the prosecution. or because they are compromised themselves with the defendant. b) Lack of resources—human or otherwise f) Difficulties in obtaining and In some countries, the courts do not have adducing forensic evidence adequate support services such as Forensic evidence is extremely useful in stenographers, typists and interpreters, proving the guilt of the defendant. The modern office equipment (i.e., computers) reports prepared by experts should be and telephones, which consequently affects tendered in court and used with the the work of the courts. testimonies of the said experts. Sometimes these reports are not available when

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c) Numerous and unnecessary to attract suitable hands in these adjournments professions. Investigations conducted by Cases are adjourned on flimsy grounds, low-ranking police officers do not invoke often at the request of defense counsel. the confidence of the public at large. Sometimes prosecutors do not oppose these applications. This impedes the trial c) Lack of coordination process. between the police, prosecution and prison d) Stay on trial by the appellate authorities courts In some countries, these departments It is a serious problem in some are placed in different ministries. Prisoners countries. Stays disrupt the court schedule are not produced in court on the appointed and delay trials. dates because of lack of coordination. Lack of cooperation between the prosecutors and e) Political pressures and other the police officers is prejudicial to the extraneous factors prosecution case, as mentioned earlier. The court may not conduct fair and impartial trials due to political pressure F. Solutions to the Problems and other extraneous factors. Judgements Our group has discussed in detail the may be intentionally delayed. countermeasures to overcome the problems enumerated above. Solutions to these 4. Legal and Systemic Factors problems are as follows: Apart from the problems enumerated above, there are some problems which are 1. Investigation-related inherent with the legal structures and a) Investigation by experienced systems prevailing in certain countries. and qualified police officers These problems are as follows: Investigations, particularly of grave crimes, should be conducted by a) Exclusion of evidence experienced, well-trained and senior police In some countries, confessions made officers. Certain statutes do prescribe the before police officers are not admissible in rank of officers competent to conduct evidence irrespective of the rank of the investigations under special laws. officer. Due to this legal disability, valuable However, our group suggests that evidence against the defendant is lost. investigations for serious offences be Furthermore, in some countries, the conducted by senior officers. The defendant is not legally bound to give his supervisory officers should be deeply fingerprints, handwritings or blood involved in investigations from the samples, etc., either during investigation inception to the end of the case. or the trial. Valuable forensic evidence is thus precluded, which makes the b) Use of scientific methods of prosecution’s task all the more difficult. investigation Forensic evidence is often conclusive in b) Inadequate salaries and nature and difficult to rebut. Police officers status of criminal justice should be trained to collect forensic system authorities evidence and to use other modern scientific The salary scales of the police, methods of investigation. prosecutors and judges in some countries are relatively low. This makes it difficult

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c) Separation of investigating liability. In countries, where the prosecutor staff does not have the authority to drop Our group feels that specialization prosecution of his own level, he should within the police force is essential for record his candid and categorical opinion improving the quality of investigations. in the case file so as to enable the The group recommends the creation of a competent authority make an appropriate separate cadre of investigating officers in decision. Strict scrutiny by the prosecutor each police force. would definitely lessen the burden of the courts. d) Adequate logistical and financial resources b) Meticulous preparation and To improve the quality and speed of diligent production of investigations, it is imperative that parties during trial adequate resources—human and The prosecutor should meticulously material—are made available to the police. prepare both the facts and law in every Adequate budgetary provisions should be case. He should review the case file, made for this purpose by the competent exhibits and also test witnesses, if authorities. necessary. In this regard, the ways and means of prosecutor’s preparation vary, e) The prosecutor and police depending on the differences in the legal should act in harmony on the framework of the disclosure or discovery basis of mutual trust and of evidence. Irrespective of the degree of confidence one party’s duty to disclose evidence to the Our group feels that prosecutors should other, it is always recommendable for the be involved in investigations as this may prosecutor to expect the potential defense improve their overall quality. and try to eliminate the room for reasonable doubt about his case. He should f) Others also secure police cooperation to ensure the Political interference in the activities of production of witnesses in court on the the police is a fact in some countries, even appointed dates. The work load of the though the degree may vary from country prosecutor should be kept within to country. The police needs to be insulated reasonable limits so that the quality of his from political influence by creating a buffer output is not adversely affected. between it and the political authority. The police also needs to improve its ethical c) Improving the court standards and enhance its professional structure skills to better invoke greater public In those countries that suffer from the confidence. problem of “docket explosion”, the number of courts should be increased. Also, 2. Prosecution- and Trial-related adequate secretarial services and other a) Thorough screening by the logistical support should be provided. prosecutor The prosecutor needs to meticulously d) Strict attitude toward screen cases so that only legally viable adjournments cases are sent up for trial. This would The prosecutor should vehemently reduce the chances of acquittal and save oppose frivolous applications by the defense the defendant from avoidable harassment counsel. (incarceration in some cases) and financial

356 107TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE

e) Improving the quality of incorporated in the procedural laws of some prosecutors countries to compel to give Prosecutors should have a good samples of handwriting, fingerprints, command of the law, procedure and enough blood, etc., to the investigating agencies. experience for effective prosecution. It is, therefore, essential that qualified b) Mobile courts personnel be inducted into the profession In some jurisdictions, the transportation from the open market. This would network is not well developed, and parties necessitate improving the salary scales, find it very difficult to attend court perks and status of prosecutors. sessions. Besides, such travel involves extra expenditure. Setting up mobile courts 3. Legal and Systemic Factors in such jurisdictions may be a way of taking a) Amendments in laws justice closer to the people and reducing In some countries, the law expressly expenditure. excludes the admissibility of confessions made before police officers. Also in some c) Witness protection program countries, the witness statements before Witnesses who are reluctant to depose investigators may never be admissible as in court for fear of reprisals need protection incriminating evidence (not merely as from the state. In the U.S.A., there are legal impeachment evidence) in the court provisions for the protection of witnesses, without the defense’s consent. Such which also permit a change of their identity, provisions, apart from being out of line with their relocation and financial support until the laws applicable in other countries, such time that they become self-reliant. preclude valuable evidence from being This program has yielded good results in adduced in court. These provisions should that several gangsters have been convicted be considered for review by the competent on the basis of the testimony of such authority12. Similarly provisions need to be protected witnesses. A similar witness

12 For reference, Article 322, paragraph 1 of the Code admissibility of a written statement made by a of of Japan provides as follows: person other than the accused, or a document which “A written statement made by the accused or a contains his statement and is signed and sealed by document which contains his statement and is him: signed and sealed by him may be used as evidence “As regards the document which contains a against him, if the statement contains as admission statement of a person given before a public by the accused of the fact which is adverse to his prosecutor, where he does not appear or testify on interests, or if the statement was made under such the date either for the preparation for public trial circumstances as secure a special credibility. or for the public trial because of death, unsoundness However, where the written statement or document of mental condition, missing, staying outside of contains an admission by the accused of the fact Japan or being so physically incapacitated that he which is adverse to his interests and there exists cannot testify, or where he, appearing on the date any suspicion that the admission has not been made above mentioned, has given a testimony contrary voluntarily, it shall not be used as evidence against to or materially different from his previous the accused as well as in cases prescribed by Article statements; however, in the last case this shall 319, even though the admission is not a confession apply only where there exist special circumstances, of a crime.” because of which the court may find that the Also, Article 321, paragraph 1, item 2 of the same previous statements are more credible than the Code provides for the exception to hearsay rules, testimony given in the course of interrogation on approving on the following conditions the the date above mentioned.”

357 RESOURCE MATERIAL SERIES No. 53 protection program may be launched in It cannot be denied that speedy trial is countries affected by organized crime and in the interest of both the defendant and terrorism. the society. It is a guarantee to the defendant against his infinite incarceration III. IS SPEEDY TRIAL REALIZED? without trial, (if he is in custody) and tends to minimize anxiety if he is admitted . A. Preface Speedy trial serves the public interest in Courts are the citadels of justice—they that it minimizes the possibility of the are the vanguards of life, liberty and defendant jumping bail or influencing property. They radiate the last ray of hope witnesses. Besides, pre-trial incarceration to those in despair. is costly and delayed trial may cause key Indeed courts perform a very vital role witnesses to suffer from memory loss, or in society. They have the enormous task of become unavailable. deciding cases and controversies so that It is difficult to determine a precise time justice may be rendered. The fulfillment of frame for a speedy trial. However, speedy this duty by the court in promptly resolving trial not only means the commencement of controversies is necessary for the people’s trial within a statutory prescribed time continued belief in them and respect for the frame from the time the suspect is arrested, law. it also encompasses the completion of the trial within the legally prescribed time B. What is Speedy Trial? frame. It is the endeavor of our group to Speedy trial is considered a fair process address these issues in the light of legal conducted within a reasonable period of and constitutional provisions prevailing in time. Our group considered speedy trial an some countries. indicator of the efficiency of a criminal justice system because where it exists: C. Present Situation in Some • There is a faster flow of cases. Countries • It may facilitate the writing of court The legal and constitutional provisions judgements. prevailing in some of the countries are as • There will resultantly be more cases follows: heard and disposed of. • Litigation expenses are reduced as 1. India cases may be heard and completed in Article 21 of the Constitution of India one or more court sessions. guarantees the right to life, which has been • Tension on the part of the parties, interpreted by the Supreme Court of India especially those in police or prison to mean right to speedy trial. custody, will be eased, since the According to section 167 of the Criminal pendency of a case is reduced to the Procedure Code, the charge sheet must be minimum period. People will, thus, filed against the defendant within 90 days resort to the judicial process instead from the date of arrest in offences of taking the law into their hands. punishable with death, imprisonment for “Justice delayed is justice denied” runs life or imprisonment of not less than 10 the proverb. Delay in the criminal justice years, and within 60 days in other offences, system is a matter of major concern. It failing which he will be released on bail. raises a number of issues of legal The failure to file the charge sheet in the significance, some constitutional, others of afore time frame, however, does not statutory dimensions. prejudice the trial. Besides, there is no law in India which prescribes a time frame for the completion of trial.

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2. Indonesia located adjacent the court; the time limit The Indonesian Criminal Procedure is 6 months. This may be extended to 1 year Code prescribes the time frame of detention for cases wherein the cause of action lies of a suspect at pre-trial stage. If the arrest in remote and distant areas. is made by police, the maximum detention The Public Offences Act, 1972, empowers period is 20 days, which may be extended the police to arrest a suspect without to 40 days by the prosecutor and another warrant if he is found to be indulging in 60 days by the District Court, the total street violence, teasing or the molestation being 120 days. Detention is ordered by of women, obstructing public servants in the District Judge is 150 days. The Code their duties; disrupting public also prescribes the maximum period of transportation; power supply lines or postal detention by the High Court to 150 days services; illegally occupying public property and the Supreme Court to 170 days. If the or indulging in any acts harmful to the trial or appeal is not finalized within the society, etc. The police are mandated to file above time frame, the defendant has the the charge sheet against the arrested statutory right to be released on bail but it person within 7 days of arrest in the court would not prejudice the ongoing trial. of Chief District Officer. As per this Act, if the Chief District Officer does not complete 3. Japan13 the trial within 90 days, the defendant will Article 37-1 of the be released on bail but the trial will not be guarantees the right to a speedy trial. prejudiced. Section 6 of the Act, however, Furthermore, Article 253-2 of the Public mandates the completion of trial within 90 Officers Election Law, mandates days. completion of the trial within 100 days from the date of the institution of a case in 5. Republic of Korea14 respect of election fraud and other election The Republic of Korea has enacted a law, related offences. the Special Act for Speedy Proceedings, As per the statistics published by the 1981, which prescribes a time frame of six Supreme Court of Japan, the average time months for the completion of a trial. The for the completion of trials by district courts Appellate Courts have four months within was 3.3 months in 1994 and 1995, while in which to complete the proceedings15. 1996 it was 3.2 months. The average It may be pointed out that non- number of trial dates was 2.8 months. In completion of trial in the above time frame summary courts, the average time taken does not prejudice the trial. The available for trial was 2.3 months in the aforesaid data shows that only 55.3 percent of cases years. The average number of trial dates were disposed of by the District Courts was 2.4 months. This means that the within three months. This disposal was disposal in summary courts was faster than 70.6 percent in the Summary Courts. in the district courts. However, within six months the disposal

4. Nepal 14 The White Paper on Crime, 1993, Government of The Common Code (“Muluki Ain”) of Korea, p. 181. Nepal (Part II, Section 14) prescribes the 15 Article 22 of said Act reads, “A judgement must be time frame for the completion of a trial by pronounced within six months in the court of the the court. If the case pertains to an area first instance calculated from the day when the public action was instituted, and within four 13 The White Paper on Crime, 1996, Government of months in the court of other levels calculated from Japan, p. 7. the day when the record of proceedings was sent”.

359 RESOURCE MATERIAL SERIES No. 53 in both the courts went up to, 97 percent In some countries, the law prescribes the and 96.47 percent respectively. time frame for the commencement of the trial from the time of arrest of the suspect. 6. United States of America16 There are also laws which set a time limit The right to a speedy trial has been for completion of trial. Our group is of the guaranteed by the sixth Amendment in the view that speedy trial is in the interest of Constitution of the U.S.A. It was followed justice and also protective of the human by the Federal Speedy Trial Act, 197417. rights of the defendant. It reflects on the According to the aforesaid Act, an efficiency of the criminal justice system. indictment or information is to be The group feels that trials must be presented to the defendant within 30 days completed with utmost speed but refrained from arrest or issuance of summons, with from prescribing any time frame as this a 30-day extension if no grand jury is in would depend on the nature of the case, session. If the accused person pleads not the legal framework, in which the trial is guilty, he must be brought to trial within being conducted, geographical and 70 days, but not less than 30 day from the infrastructure-related factors. date of information or indictment or from In some of the countries where a common the date he appeared before a judicial law system is predominant, it inevitably officer of the court in which the charge is takes a certain period of time to complete pending, whichever of the dates occurs last. a trial by adversarial court proceedings. In computing this time period, the Act Due process requires a hearing wherein specifically excludes any period of delay both parties present evidence to establish resulting from other proceedings the facts of the case, and the burden of concerning the accused person, etc. The proof, lies with the prosecutor. It has been U.S. Supreme Court while interpreting the observed however, that while “the search law has recognized the right to a speedy for truth is best aided by allowing both trial to be a relative one18. parties to argue the same question, the The statistics published by the Justice process is time-consuming”. Department indicate that the average time The group also emphasizes that the for trial disposal in U.S. federal courts was quality of trials should not be compromised, 8.2 months in 1993. Felony cases on for the sake of speed. average took 9.5 months; violent offences 7.8 months; property offences 8.4 months; D. Causes of Delays in Trials drug offences 10.8 months; and Our group in its deliberations considered misdemeanors only 3.3 months. The time that delays may be classified under four taken was less in cases wherein a plea of categories: guilty was entered. • court-related, • prosecution-related, • defense counsel-related, and 16 Compendium of Federal Justice Statistics, 1993, • general. U.S. Department of Justice, p. 44. 17 18 U.S.C.A. sections 1361-3174. 1. Court-related Factors 18 Criminal Justice Administration, by Frank. W. a) The split trial process Miller and Robert O. Dawson, p. 752, “The right of Cases are generally tried on a piecemeal speedy trial is necessarily relative. It is consistent basis. This means that the trial proceedings with delays and depends upon circumstances. It are conducted in sessions spread out over secures rights to a defendant. It does not preclude a period of time. Usually one witness the rights of public justice.” testifies for an hour or less in one hearing

360 107TH INTERNATIONAL TRAINING COURSE REPORTS OF THE COURSE and then continues at the next hearing for 2. Prosecution-related Factors “lack of material time”, a stereotype reason a) Inadequate preparation and stated. lack of evaluation of evidence b) Incompetence and ignorance The excessive workload of a prosecutor of the law may result in inadequate preparation for As a factor in unnecessary delay, our trial. Additionally, the lack of cooperation group has considered the incompetence of between the prosecution and the some judges/magistrates. The failure to investigating agencies would undoubtedly keep abreast with the law and result in non-production of exhibits and/or jurisprudence also causes undue delay, witnesses during the trial date, hence particularly when a judge is unfamiliar leading to adjournment. with the rules of procedure. b) Failure to show a clear c) Heavy case load and poor outline of proving cases case flow management Failure by prosecutors to show a clear Due to the increase in the population in outline as to how they intend to present most countries and the deterioration of their cases, makes it difficult for the court economic conditions, considerable number to allocate sufficient time to hear and of new cases are added yearly to the already determine cases. Factors such as overcrowded dockets of the courts. There documentary evidence, statements of seems to be a tendency to schedule cases witnesses and of the defendant should over a long lapse of time. This is so because enable prosecutor to calculate the number there are too many cases scheduled for a of witnesses and the length of time given trial date and it is impossible for the necessary for their respective testimonies. trial judge to hear them all. Those that cannot be called are re-scheduled for some 3. Defense Counsel-related other date. As a result, only a few cases Factors are heard on any given trial date. a) Abuse of court process Defense counsel are known to use d) Delay caused by court dilatory tactics to gain an advantage over personnel the opposing party. By filing unnecessary Delay may be caused by court personnel motions for the review of court orders, a who are unprofessional or who lack proper defense counsel hopes that the prosecution managerial and technical skills. The may lose interest in the case. Defense scheduling of cases, issuance of summons, counsel think that by prolonging the cross- record keeping, the retrieval of information examination of a material witness, he may and the docketing of cases are done by court become tired and will simply disappear. staff, thus relieving the judges/magistrates Other dilatory tactics include the of the “house keeping” chores of the court. presentation of corroborative witnesses to Since the jobs of court staff are interrelated, prove matters that have already been the absence or incompetence of any one of established; filing of writs for certiorari, them can scuttle trial proceedings, e.g., the mandamus or prohibition; and seeking a absence of a court stenographer will cause review of orders by a trial court. the postponement of all the cases scheduled for hearing and may delay the completion b) Heavy volume of cases of records of proceedings for those cases The heavy volume of cases handled by a that are appeal. defense counsel eventually leads to

361 RESOURCE MATERIAL SERIES No. 53 scheduling conflicts which, may result in E. Measures to Be Taken for the adjournments, thereby inadvertently Realization of Speedy Trial delaying court proceedings. To combat delay and reduce the court backlog, our group considered the following c) Incompetence and failure to measures: prepare 1. To exercise better case control, the The heavy case load of the defense trial court judges should conduct an counsel may result in inadequate inventory of their cases to determine preparation for trial. The defense counsel the actual number of cases pending thus unprepared for the trial may ask for in their respective courts. The cases a adjournment, thereby delaying the could then be categorized into those disposition of the case. which are pending trial, those adjourned for judgement and those 4. General which have been completed but are a) Our group considered other general pending appeal. It is, therefore, factors such as lack of discipline and moral important for judges to allocate their probity in the execution of different time so as not only hear and functions. External pressure and determine cases but also to dispose interference from politicians and/or other of pending cases. senior government officials with vested 2. With regard to effective court interests in particular cases and other management, the Supreme Court forms of malpractice such as corruption should urge judges to observe strict within the criminal justice system were rules of punctuality and minimum also considered contributory to hours of daily work. The presiding unnecessary delay in trials. In addition, the judges should closely supervise their group observed that sufficient initial and clerks of court to ensure that they continued professional training was perform their functions in an lacking in the judiciary and the appropriate manner. prosecution. 3. Judges should observe the rules of procedure regarding issues such as b) Our group observed that there is restraining orders or preliminary wide-spread poverty and ignorance of the objections, and act promptly on all law in many developing countries, which motions and interlocutory was identified as one of the factors applications before the courts. contributing to the delay in trials. The 4. The courts should make appropriate group cited examples where a defendant schedules for trials by seeking the or a witness could not travel to court due cooperation of the parties concerned. to lack of bus fare or a means of More than one court session should transportation. In some countries where be allocated in advance and most defense counsel is not provided the desirably on consecutive trial dates. defendant by the state, they apply for 5. The prosecutor should be able to adjournment on the ground that they were calculate the time necessary to still making arrangements for such defense present his case, and propose a counsel. In this respect, the courts found it concrete schedule for the case. This difficult to deny them their constitutional will enable the court to plan the time right to defense counsel and grant such frame for the cases with a view to applications. avoiding unnecessary delay in trial.

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6. Witnesses and exhibits should be as possible relating to sentencing, that is, produced and tendered on the the circumstances of the commission of the relevant dates. This objective may be offence and the personality of the convict. achieved with the cooperation between prosecutors and the B. Present Situation investigating agencies. Additionally, 1. An Overview of Sentencing prosecutors must assure the security Process of witnesses by ensuring that their The degree of involvement and the time legal rights are strictly observed of such involvement by prosecutors in during their respective testimonies. sentencing, varies depending on the system This security should be extended to in application in different countries. In the witnesses before and even after some common law countries, the prosecutor testimony to avoid possible makes general recommendations relating intimidation. Prosecutors should to sentencing at the end of the trial during therefore liaise with the investigating the closing statement/argument. Following agencies dealing with the case to conviction, he is only expected to disclose achieve this objective. the past criminal record of the convict to 7. Our group observed that for the court. In countries following the civil effectiveness and efficiency in the law system, the prosecutor makes administration of justice, there is a recommendations which may be detailed need for professional training of or not in his submissions to the court at judges/magistrates and prosecutors the end of the trial. The past criminal before they join their respective record of the convict is contained in the case professions. This will ensure that all file, which is transmitted to the trial judge legal issues are addressed in view of or magistrate before the commencement of a fair application of the law. the trial. 8. The prosecutor should scrutinize the Before imposing sentence, the court shall case files by anticipating the rebuttal provide the defense counsel an opportunity of the case by defense counsel. to speak on behalf of the defendant and shall address the defendant personally to IV. IS THE APPROPRIATE ask him if he wishes to make a statement SENTENCE IMPOSED ON or to present any information in mitigation DEFENDANTS? of punishment. In some common law countries, the pre-sentence inquiry is a A. What Is Appropriate Sentence? procedural step prior to sentencing at Appropriate sentence should reflect the which the judge of a court may examine major objectives of punishment which the pre-sentence report and all other include retribution, general and specific relevant documents before imposing deterrence and rehabilitation. sentence. Sentencing is a crucial stage of The court has wide discretionary powers criminal prosecution requiring the in the selection of the type of punishment assistance of an appointed defense counsel. considering the gravity of the offence and The prosecutor shall also have an personality of the convict. The prosecutor opportunity to speak to the court. has professional duties as a representative In Japan, during the trial, mitigating of the public interest to ensure that the circumstances are presented to the court appropriate sentence is meted out by the by the prosecutor and the defense counsel court. It is for this reason that prosecutors respectively. The prosecutor submits, in in most jurisdictions are required to assist addition to the charge, any other the court by disclosing as much information

363 RESOURCE MATERIAL SERIES No. 53 aggravating evidence such as the past imposed on him. At this stage, in some criminal record of the defendant. On the countries like Japan, the prosecutor other hand, the defense counsel may recommends specific punishment, that is, produce witnesses to present mitigating the type of penalty, the nature and duration circumstances. In this case, the defense of the term of imprisonment and/or the sum counsel examines the witnesses in relation of the fine. to mitigating circumstances. In his closing argument, the prosecutor makes a detailed d) Victim Impact Statement recommendation for specific punishment to In cases where the victim experiences be determined by the court. loss over and above the ordinary pain and suffering, this fact may be revealed to the 2. Involvement of Prosecutors judge after the defense has pleaded for The prosecutor may be involved at mitigation. The judge may take this into various stages of criminal proceedings from consideration in sentencing. This is to investigation to sentencing: ensure a fair and equitable sentence. This system is in practice in New Zealand and a) Plea bargaining Singapore. Plea bargaining in a criminal case is the process whereby the defendant and the e) Appeal prosecutor work out a mutually In most countries, the prosecutor can satisfactory disposition of the case subject appeal to the higher court if the sentence to court approval, which usually involves passed by the lower court is insufficient or the defendant’s pleading guilty to a lesser excessive in proportion of the gravity of the charge or to only one or more of the counts offence. In case the defendant was of an indictment in return for a lighter sentenced to excessive punishment when sentence than that possible for the graver he was not represented at trial, the charge. prosecutor may, to discharge his duty impartially, appeal the sentence. In some b) Examination of witnesses countries, namely, the Philippines and the As mentioned above, in some countries U.S.A., to protect the defendant from like Japan, the defense counsel calls , the prosecutor cannot witnesses (relatives, employers, friends, appeal in the event of an acquittal. etc.) only to disclose mitigating In addition to the above involvement, circumstances to the court. By examining prosecutors may collect evidence relating the witnesses, the prosecutor can ascertain to sentencing and select the appropriate whether they present sufficient guarantees procedure and competent courts for that they will care for the convict. initiating prosecution.

c) Closing argument C. Problems in Obtaining The closing argument is the final Appropriate Sentence statement made by the prosecutor and the The following are some problems, which defense counsel respectively to a jury, or adversely affect the appropriate sentence: the court summing up the evidence that 1. In some countries, the opinion of the they think the other has failed to establish. prosecutor is not considered. The prosecutor may disclose the past Opinions are divided as to whether criminal record of the defendant and argue the prosecutor should participate in that the defendant’s past record is not good, the sentencing process. Our group therefore, maximum punishment should be discussed the pros and cons of the

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matter and is generally of the view prosecutor handling a case may not that the prosecutor should partake in be able to complete the case, and may the process. This is because he is a not have the opportunity to brief the unique position to provide the court incoming prosecutor. The new the viewpoints not only of the victim prosecutor may not understand the but also the law enforcement case so as to conduct the prosecution agencies. His intervention is also efficiently. essential as he may restrain a judge 7. It has been observed that the court with a propensity for leniency. The may impose heavy punishment on group was the opinion that legislative one defendant and a lighter reform may be necessary in those punishment on another defendant, countries where the prosecutor does even when they committed the same not enjoy such authority. offences and they are similarly placed 2. The prosecutor always requests for in life. When the convicts compare the maximum punishment. In some notes with each other, such disparity countries, especially in those in sentencing may cause them some countries where the prosecutor enjoys frustration and bring into focus enormous authority, he always discrimination in the sentencing requests for the maximum process. punishment for the defendant. This is a serious problem in sentencing. D. Countermeasures Because of the system, some As underlined above, our group revealed prosecutors cannot participate in several problems in relation to appropriate sentencing even when they wish to sentencing. In a country where the above- do so. mentioned problems prevail, necessary 3. The police and the prosecutor may measures should be taken for the effective lack information about the past and efficient administration of criminal criminal record of the defendant. In justice. Bearing in mind the gravity of the some developing countries, the above problems, the group suggests the prosecutor may find it difficult to following countermeasures from the obtain the past criminal record of perspective of the prosecutor, the defense some convicts due to poor counsel and the court: conservation of such records or lack of cooperation with the police. 1. Adduce Sufficient Evidence, 4. Some prosecutors may be too ardent, Disclose Mitigating rigid and overzealous, thereby Circumstances and Other affecting sentencing. Information About the 5. Prosecutors and judges face political, Defendant to the Court social and other problems in some To assist the court in sentencing, the countries in the form of undue prosecutor should adduce sufficient pressure and external interference. evidence and disclose all information about Moreover, some of them purposely the defendant and the offence he is alleged involve themselves in various forms to have committed. It has been noted that of malpractice, which adversely prosecutors often lack information about affects sentencing. the defendant’s past criminal record. 6. The untimely and sudden transfer of Similarly, the defense counsel may prosecutors is a problem in some contribute to a greater extent in obtaining countries. In such a situation, the appropriate sentencing by disclosing all

365 RESOURCE MATERIAL SERIES No. 53 possible mitigating factors favorable to the is suggested that national training defendant. In some countries such as New programs and seminars should be Zealand, Singapore and the U.S.A., the organized for judges, focusing on this victim of an offence is allowed to make a aspect. It may be useful to widely publish statement to the court as to the loss he has important decisions in the media for judges suffered as a result of the commission of and prosecutors. Research is necessary to the offence. The court may take the determine the dimensions of the problem. aforementioned statement into The issuance of by consideration to determine the appropriate the legislature or apex to the courts is sentence. another viable option. Available data in relation to sentencing should be 2. The Prosecutor Should File an computerized for easy access to judges and Appeal prosecutors. Furthermore, as prosecutors Where the prosecutor is dissatisfied with play an important role in sentencing, they the sentence of the trial court, he may should be conversant with sentencing consider an appeal to the appellate court standards and assist the court in this with a view to securing the appropriate regard. sentence for the convict. Such legal provisions do exist in most jurisdictions and V. CONCLUSION should be used to as a remedy to disparity The importance of the role played by the in sentencing or to realize the objectives of prosecutor in a criminal trial cannot be punishment. overemphasized. Adequate initial and continued professional training are 3. To Resist Undue Pressure and necessary for the efficient and diligent Other Forms of Malpractice performance of prosecutorial functions. The prosecutor, the defense counsel and Furthermore, probity should be a requisite the judge should resist undue pressure and for admission into the profession. The all interference in a case. None of them prosecutor should adhere to the should try to take undue advantage. All of professional ethics throughout his career. them should honestly adhere to the ethics There is a need for sustained cooperation of their professions. between the prosecutor, the investigating agencies, defense counsel, judges, 4. To Work in Good Harmony supporting staff and all persons involved The prosecutor and the defense counsel in the administration of criminal justice. usually resist till the end of a case in favor The quality of investigations, prosecution of their party, which is quite natural to and trial in some jurisdictions needs to be some extent. But, to obtain an appropriate improved. sentence, they should cooperate and work The legal framework may require together, instead of being rigid. They substantial reforms to better respond to should be flexible and objective. prevailing circumstances in different countries, so as to meet the challenges 5. Avoid Disparity in Sentencing posed by the sophistication of crime and Disparity in sentencing is a serious its transnational character resulting from problem and may occur due to the personal technological advancement. These reforms predilections of judges. The lack of can only materialize where there is a firm sentencing guidelines and the political commitment and necessary funds nonavailability of data on sentencing by are made available by the competent superior courts aggravates the problem. It authorities.

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The group fully understands and respects the systems prevailing in different countries. The political, social and economic conditions of some countries may not be conducive to the implementation of some of the measures proposed. The intention of the group is to make meaningful contributions with a view to optimizing the efficacy of the different systems and practices.

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