Category: Criminal Procedure

Analysis of the Concept of Bail Based on The Criminal Procedure Code

Bail is nowhere stated under this code though the word bailable offenses and non-bailable offenses are defined under Sec 2a of this code.

According to Black’s Law Dictionary, bail is a process to release a person from legal custody by undertaking that he/she will have to appear at the time of the trial in the court.

As defined under the Oxford Dictionary defines bail as a short-term release of an individual who is waiting for his hearing and getting that bail, he has to deposit a certain sum of money by promising to appear in the court.

Section 436 to Section 450 of Chapter XXXIII of The Criminal Procedure Code states the provisions of bail and bonds. In Indian Criminal Law, bail is a legal right given to a person who is waiting for his trial or an appeal to release from jail for that period. The history of bail and bond can be identified from the era of 399BC when the famous Greek Philosopher Plato tried to form a bond for the release of Socrates. In the modern era, the concept of bail derived from England, and now it is widely used across many countries’ laws, including India.

Basic Rule

In a country like India, every individual has a right to freedom and persona liberty. The state has a prescribed duty toward its people by protecting their rights. The concept of bail and personal liberty are interconnected; this guarantees the accused to access his rights to seek bail for his release from police custody until he is proven guilty. Article 21 of The Indian Constitution states that the personal freedom and liberty of a person cannot be infringed except the procedure laid down by the law.

Object

The object of arresting a person and keeping him in custody is to secure his appearance at the time of trial and if he is guilty, then to assure that he is there to take the sentence. So, if the accused gives the surety to appear at the time of the trial and also being available for the penalty if found guilty, then it would be unfair for him to keep him under detention during the pendency of the criminal proceedings against him. He cannot be deprived of his liberty. The concept and the provisions of bail only focus on the presence of the accused at the time of trial without disregarding his liberty.

Types of Bonds

1. Cash Bond: In this situation, cash is paid for bail. This amount is produced when the accused doesn’t appear in the court when the date has been given. There is no section for a refund of cash.
2. Surety Bond: In this when the accused is not able to pay the cash for bail then a surety bond is issued by bail bondsmen. A third party has to pay the token to the bondsmen and the bondsmen charge significantly less amount for his services. If the accused doesn’t appear on the date given by the court then the bondsmen have to pay the entire amount of bond money in cash.
3. Federal Bail Bond: The Federal Bond is given in a situation in which the crimes were committed outside the boundaries of the state. This bond is directly paid to the court without the involvement of bondservants. In federal bonds, both cash and property are accepted.
4. Property Bond: In this bail bond accused offers property concerning bail. The accused can only provide those properties on which he has ownership. The court can have full authority on that property, and the court can also take a right if required.

Types of Bail in Indian Law

There are three types of bail in India which a person can apply for-

1. Regular Bail: A person who is arrested or who is in police custody can apply for regular bail. A regular bail can be filed under Section 437 and Section 439 of the Criminal Procedure Code.
2. Anticipatory Bail: A person requires anticipatory bail when he has sufficient reasons believe that he is going to be arrested for a non-bailable offense. A person can apply for anticipatory bail under Section 438 of the Criminal Procedure Code. Anticipatory Bail can be granted either by the High Court or Session Court.
3. Interim Bail: Interim bail is given for a short period. A person can apply for interim bail before the hearing for regular and anticipatory bail.

Bail under Bailable offense:

When a person is not accused of a non-bailable offense and he is arrested by police in charge without any warrant or he is brought before the court then it is the police officer who has to release him. He has the right to take bail in bailable offenses under Section 436 of the Criminal Procedure Code. If a person is arrested for a bailable offense then it is compulsory to grant bail to that him on personal bond or with sureties.

In the case of Rasiklal vs Kishore Khanchand Wadhwani [1], the question of bail in a bailable offense is a conclusive and indomitable right. In the case of a bailable offense, there is no question of the decision in granting bail as the words of Section 436 are clear in this case.

In Deepak Khosla vs State of NCT of Delhi & Ors [2] the court of Delhi held that grant of bail for the bailable offense is regulated by Section 436 of Criminal Procedure Code. Bail is compulsory in these cases and the person who applies for them has the right to get bail and the court has not any discretion to denies the bail.

If the court or officer thinks that the accused is not able to present his bond within a week from the date of his arrest then it will be a sufficient ground for the court and the officer to assume that a person is an indigenous person and he should be granted bail without any surety. If any accused person fails to fulfill the conditions of bail bond then the court may not allow him to release him on bail.

Conditions in which bail is granted in bailable offenses:

• If there is sufficient reason to believe that the accused has not committed the crime.
• As per the court if there is sufficient reason to conduct further inquiry.
• If the person is not accused of any crime which is punishable with death, imprisonment, or life imprisonment up to ten years.

Bail under Non Bailable offenses:

A person can be released in case of a non-bailable offense under Section 437 of Criminal Procedure Code when he is arrested without any warrant by an officer in charge or brought before the court other than High Court or Session court. The court or the police in charge has the power to grant bail in special conditions, but-

1. If there is reasonable ground to believe that the person has been guilty of an offense whose punishment is life imprisonment or death then that person cannot be released on bail.
2. If the person has committed a cognizable offense or he had been previously convicted of an offense punishable with life imprisonment or death or the person had been convicted for two or more cognizable offenses punishable with imprisonment for three or more years but not less than seven years then that person will not be released on bail.

In the case of Mazahar Ali vs. State [3], the court held that bail is a basic rule and its denial is an exception. But at the time of granting of bail, the court must be satisfied that the order has been passed as per justice.

Conditions in which the court can grant bail in non-bailable offenses:

• If the accused is a child below the age of sixteen years, women, or sick persons then bail can be granted to them.
• The accused can get bail if there is a lack of evidence by the discretion of the court.
• If there is a delay in filing the FIR then bail can be granted.
• If there is any animosity between the accused and the person who filled the compliant then in that situation bail can be granted.

Anticipatory Bail

When any person believes that he is going to be arrested under a non-bailable offense in India then he can appeal to the High Court or Session court for anticipatory bail under section 438 of the Criminal Procedure Code. Anticipatory bail can be granted in a situation where a person is still not arrested after the arrest one has to move according to the procedure of normal bail.

The lawmaker considering the false cases and acquisition inserted this provision under the law as earlier there was no such law to release a person before his or her arrest. Thus, this provision has the intention to prevent a person from harassment and disgrace if the report was made on a false basis.

But if the Court doesn’t find any reasonable ground to grant anticipatory bail then it has the power to cancel the bail. As in the case of the State of Madhya Pradesh vs. Pradeep Sharma [4], it was observed that it is the discretion of law that if the accused has escaped or not cooperated with the investigation then his anticipatory bail can be denied.

Conditions in which anticipatory bail is granted:

• If there are reasonable grounds to think that the accused is arrested on a baseless ground.
• If the acquisition made against the accused is vague.
• If the name of the accused is not mentioned under FIR.

Cancellation of Bail

The cancellation of bail is given under two sections of the Criminal procedure code, 1973 which is Section 437(5) and Section 439(2).

1. Section 437(5) states that if any court has released any accused on bail under Section 437(1) and (2) then it can order that person to be arrested again if it is necessary.
2. Section 439(2) states that the High Court or Session Court gives direction to arrest the accused who is on bail if it is required.

Conclusion

Bail is a right given to a person who is arrested against a complaint it is a conditional release of the accused with a promise to appear in the court whenever required. A person can apply for bail while his trial is pending. The main aim of bail is to prevent the person from mental harassment. With the help of bail, a person can temporarily be free from the custody of the police.

Analytical Essay on The Code of Criminal Procedure 1898

Wrongful Conviction and State Responsibility in This Regard:

Nowadays, Wrongful Conviction frequent event in our country in criminal cases. A person who has not Committed any crime but unfortunately convicted by the court and detrain in the jail. According to the National instate of justice, there is two way to found a wrongful conviction. They are as follows:

1. The person convicted is factually innocent of the charges.
2. There were procedural errors that violated the convicted person’s rights.

In this assignment, we will talk about the second one. Many convictions occur in our country due to the procedural fact. Even if criminal procedure cover all the procedure but lack of many proper implementation of criminal procedure for example wrong investigation by the police or lack of proper consideration by the judge many innocent people convicted by the court. There are many cases where the higher judiciary gave acquittal to many persons who were wrongfully convicted in the lower court. A news from Dhaka Tribune said An innocent day laborer, who spent the last 17 years wrongfully accused in a case and spent time behind bars, has at last been acquitted and released from jail. He was suffering all this years due to wrong investigation of police.in the first court he (Bablu Sheikh) held to two years imprisonment and with compensation. After appeal to the higher court he was held innocent. The court also said in his judgment that he can seek compensation to the higher court. In 2011 the HCD from 41 criminal cases acquit the accused in 24 cases. It means that 58.53% of total case are acquitted its accused and only 14 cases maintain the verdict of lower court. Punishments were reduced in 3 criminal cases. From the report of 2012 from the 19 criminal cases HCD gave acquittal in 10 cases and 5 cases maintain the decision of lower court and in 4 cases punishment were reduced by the HCD. From 2016 from the total 7 cases 6 cases were death sentence from which 4 death sentences were reduced and 2 remain the same. It means only 28.57% decision of lower judiciary were remain same and 57.14% were reduced. In 2017 the HCD among 10 criminal appeals, death references, and jail appeals 13 person in 4 appeals get acquittal. However, 3 cases maintain the same decision made by the lower judiciary. All this report show that there are number of wrong conviction which given by the lower court.

State responsibility in Regard of Wrongful Conviction:

Every prison has a hope of exoneration. This type of things is more need in an erroneously incarcerated matter. In our country if a person got acquittal from the case he can walk away but in the society has already had a bad impression. He got a questionable character. Criminal procedure does not provide any provision to this matter. In Bangladesh, the illegally convicted person has two incidental remedial possibilities under the prevailing legal system. Such as they have an opportunity of filing Tort law suit based on false imprisonment or malicious cases or abuse of process and the other one gave by the constitution Article 44 and 102. But this two remedy actually very time consuming and costly process that’s why most of the people don’t file a suit. But some case of compensation for the wrong conviction show a good result such as, In CCB Foundation case the HCD granted compensation of taka 20, 00000/ to the parents of victim named ‘jihad’ against the government for violating his constitutional right under article 32. Beside this to remedy State don’t have any legal provision in this regard. Government should take measures and create a special legal provision to reduce the wrongful conviction.

Delay in the Criminal Adjudication and Backlogs:

The word delay means over consuming time in Criminal justice system. In another way we can say that exceeding the time fixed for the trial in criminal adjudication. On the other hand, Delay cause to be slowed down or delayed; act later than planned, scheduled, or required; time during which some action is awaited. According to a source about 2.3 million cases were pending in our country and in the Appellate Division 16219 case pending in 2012. A number of Articles were written in regard of backlogs and lengthy process but no effective measures were taken by the government.

Cause of delay in Criminal Justice in Bangladesh:

In criminal system there are many problems to deliver the proper justice to the parties. Crisis of Judges is a reasonable factor. In our country we have 160 million of people and fro them there is not sufficient number of Judges. For almost 0.13 million people we have only one criminal judge to serve. Another reasonable factor was inefficient number of criminal courts. For that reason large numbers of backlogs are pending in the criminal courts. In this regard, criminal procedure did not give any provision. Although number of judges should be maintain as a procedural law but criminal procedure have no provision in regard of this issue.

Filing of false cases:

According to the law everyone has a right to sue. With this right many people misuse it and file false cases against innocent person. For that reason criminal court faced many malicious prosecutions and bogus cases. As I said earlier we have a crisis of criminal court and these false cases led the criminal adjudication to overburden. Under this circumstance, it is necessary to increase the number of court.

Problems inside the judiciary:

In the criminal adjudication, the number of judicial officers is too low. For that reason a number of judges play duel role in the judiciary like they divide a day into two parts such as civil and criminal. They hear civil cases along with criminal case. Inefficient number of judges might create a large number of backlogs. Due to duel role played by the judges they had a possibility to incriminate a person who is innocent because they may get confused with the cases.

Insufficient of logistical, administrative, and technical resources:

In our country logistical support are in another cause of delay in the criminal adjudication. We never get enough budget to provide proper justice to the people. Within the Judicial budget, we have to manage our criminal adjudication. For that reason, we have inadequate human resources, insufficient infrastructural support, shortage of technical assistance, and limited budget for technical skill-building which led to the lengthy process in the criminal adjudication.

Concluding Observation:

Lastly, I might say that The Code of Criminal procedure 1898 cover all the procedure about criminal case. It has a very much good review theoretically but in practicing the code, there has some different implementations in our country. it has successfully provide a proper procedure and explain how to use it but some government employee like police and other judicial officer in some point abuse it. This abuse occurs due to some unexplained matter in the code. But overall this code tries to assured a fair trial in Bangladesh.

Concerns when Developing the Existing Crowd Dispersal Drills: Analysis of Code of Criminal Procedure

What are the concerns when developing the existing crowd dispersal drills of basic infantry tactics?

Introduction

1. A crowd we can describe as more or less large gathering or individuals in one place in close physical proximity to one another with a tendency to develop psychological interaction. Control a crowd is a very important thing to the police as well as to the military. Therefore, as officers of the military crowd, the aspects to handle a crowd peacefully and disperse it with the minimum use of force and to understand the behavior according to the situation are most concerned things in the handling of the crowd and disperse using the military. A crowd gathering for any incident usefully because of injustice. Sometimes with the delay of the police action and effective legal action make the opportunity for the crowd or individual to react as well as to infract. Most of the time they do not obey the legal instructions and act aggressively.
2. Crowd dispersal drill is the measure used by the police, military or other security forces to control to di,sperse and to arrest people who are involved in a riot, demonstration or protest. Riots may spontaneous and irrational. If it is, a action which make people stop and think for a moment (eg: loud noises or issuing instructions in a calm tone) can be enough to stop it. When there is severe anger with a legitimate issue or riot is well planned or organized, these methods may fail.
3. At present Government of Sri Lanka is facing a sequence of riots, demonstrations, and protests mainly in Western Province. Not only this situation affects the daily routine of civil society but also it badly affects to the economy of the country. And also, these situations are harmful to the reputation of Sri Lanka over other countries.
4. To study and to analyze the development of the existing crowd dispersal drills of basic infantry tactics.

Characteristics of a crowd

1. The individuals gather to form a crowd, has certain characteristics as follows:

• a. Heathendom Emotion. This is an important characteristic in a crowd. The gain of attention, feeling of expectancy, tension, stress and its release, the loud shouting, booing, or cheering are major observations normal reluctance to show their emotions.
• b. Heightened suggestibility. The crowd individually accept the suggestion and take actions as a crowd.
• c. Irresponsibility and lack of moral inhabitation. Individually not attending to the activities tend to get crowd irresponsibility dried if its form the crowd.
• d. The tendency of the group. The crowds draw strength their manner and therefore they are keeping a good grip among the individual for preventing leaving from the crowd.

Types of crowd

1. 6. Though there are various types of crowd we can identify and classify them into gap four types.

• a. Casual Crowd. The collection of proper communication to see the common goals of the end. They are not regular members and time to time they come and leave from the crowd. Such as people in railway a flat form, a crowd in fair, crowd at the site of a traffic accident. It can be disposed on command.
• b. Entertainment Crowd. This gathering of people for central focus and similar ends such as gathering for sport event, support for their team or crowd gathering to witness republic day or Independence Day celebrations. Such groups are unorganized and generally peaceful. The police should provide legal regulations and policies for such crowds.
• c. Expressive Crowd. This type of crowds are expressing their feelings by dancing events or celebrating national victory events. Their feelings and sentiments express freely and crowd release energy through the dancing or movement. This crowd can be controlled by imposing the policies.
• d. Aggressive Crowd. This aggressive type crowd, active aggressively towards the violence action and we can observe it in political, students and commercial demonstrations. This crowd usually active based on the leader, principles or achieving objectives.

Present crowd dispersal drills, tactics and employment adopted by the police and special task force

1. 7. The Police crowd dispersal duties are laid down in the Department Orders 19A and Code of Criminal Procedure No 15 of 1979. In both of these documents, crowd dispersal duties have been addressed under ‘Unlawful Assembly.
2. 8. Moreover, moving on to the Police Riot Drills mentioned in the Department Orders 19A, it includes several steps such as Preparatory, doubling & extending, standing load, object, firing, changing direction and finally cease-fire. Before performing the riot drills it is expected and surely it is a must to convey a warning orders to the rioters.
3. 9. When it comes to the present day crowd control drills adopted by the police and STF, it is very similar to army procedure by the nature of the written document. But when it comes to the practical execution of the operation, it is totally different from what is taught in the book.
4. 10. The initial procedure taken by the police is taking a court order to prevent the crowd from entering into a specific location and in order to inform it to the rioters. After that, the police will establish barricades to stop the crowd from entering the banned location. If the situation gets out of control police will seek the assistance of STF to control the rioters. Finally, the police will use tear gas, water cannons, rubber bullets and non-lethal weapons to disperse the crowd.
5. 11. For the purpose of controlling the crowd, the police or STF will not adopt a specific drill in practical scenario whereas they will react to the situation according to the situation develops.
6. 12. As the police or STF is not adopting proper drills and not considering the number of troops required to deploy for such some operation, rioters gaining more advantage by the actions which are undertaking by the Police and STF.

Military assistance to the police during crowd dispersal duties

1. 13. Military and police as established in the state in the purpose of internal security and protection of the Island. In the same occasion, the military assists the police to keep the law and order in the country. The theoretical aspects and procedure of military cooperation with the police and other legal and government institutes are more important to address the practical situation. Because more establishments work together. The right time to call for military assistance is very important for the crowd dispersal duties, because this was evident with Rathupaswala incident. When conducting such kind of joint tasks orders and duties should be clearly understand by both parties. It can overcome the practical challenges. Military assistance for the police is a very rare occasion. The military will be engaging with civil society during the urgent or serious situations which police or STF cannot control the situation. When we concern about Sri Lanka, we can divide crowd dispersal duties into two sectors. Those are military crowd dispersal and police crowd dispersal duties.

Crowd dispersal duties of police

1. 14. According to the Section 95 (1) of the Code of Criminal Procedure, any Magistrate or a Police officer not below the rank of IP (Inspector of Police) may command any unlawful assembly likely to cause a disturbance of peace to disperse. Also, Section 95 (2) describes the procedures to the use of Military Force to disperse an unlawful assembly when Police is unable to do so.
2. 15. According to the police riot control drill mentioned in the Department order 19A including steps such as preparation, doubling and extending standing load object, firing, cheering direction and ceasefire before dispersing the riot warning orders conveyed to the rioters.

Crowd dispersal duties of armed forces

1. 16. The word ‘Military’ means three forces, Army, Navy and Air Force. This has been further clarified with the usage of interpretation in Section 95 (3) of the Code of Criminal Procedure. However, mainly SL Army has been engaging in assisting the Police force during crowd dispersal duties in the country. Section 95 (2) of the Code of Criminal Procedure describes that if upon being commanded any such assembly does not disperse then the Magistrate or the Police Officer may proceed to disperse using such force as is reasonably necessary. Moreover, Section 95 (3) explains the use of military force to disperse an assembly when called upon by a Magistrate or the Government Agent (GA) of the District or any Police Officer not below the rank of Superintendent of Police (SP) may cause it to be dispersed by requiring any commissioned or non-commissioned officer in command of any personnel of the Sri Lanka Army, Navy or Air Force.
2. 17. Sri Lanka Army is following British pamphlet and military crowd dispersal drill executed in line with the pamphlet. It gives guidance on the tactic and technics to be used by the military for supporting in dealing with civil disobedient, unlawful assembles and riots.
3. 18. When we compare military crowd dispersal duties with police duties. It is wider than the police duties, because police duties focus only to unlawful assemblies. Under the practical situation, we can gain more experience from the Rathupaswala incident. The factory relates to the incident situated at Rathnapura, Weliveriya in Gampaha district. The resident in the area accused to the factory authority for being an irresponsible disposal of waste water and it effects to the environmental pollution in the area and disturbance to the lively hood of the population in the area. They shouted and protested and blocked the Kandy- Colombo road of the area and police fired tear gas to disperse them on the road.
4. 19. Finally, the army engaged with the incident in order to control the situation and as a result, 3 civilians died and 10 protesters were hospitalized because of the clash between the protestors and security forces and the Police. According to the code of criminal under section 95 and 96 Police can summon the security forces to assist to dissolve the protest. On 3 July 2018 a gazette notification was published as per the instruction given by the then His Excellency the President Mahinda Rjapaksha authorizing the armed forces to engage in the maintain public order and bring the military to Rathupaswala under this new gazette notification. It is pointed out the responsibility of maintaining the law and order with the legal framework in Sri Lanka is the function of the police and armed forces addition to their responsible for the national security of the country.

Riot control – legal aspects as per the penal code of sri lanka

1. 20. Authority to Disperse an Unlawful Assembly. Any Magistrate or Police officer not below the rank of Inspector of Police, is able to take due actions to disperse an unlawful assembly under the Section 95(1) of the Code of criminal procedure act no.15 of 1979. As well as any Magistrate or a police officer not below the rank of IP can affiliate civilians (Not Armed Forces) for the purpose of dispersing such an assembly when it is reasonably necessary according to the Section 95(2) of the Code of criminal procedure act no. 15, 1979.
2. 21. Authority to Convene Army to Disperse an Unlawful Assembly. A Magistrate or the Government Agent (GA) of the District or any police officer not below the rank of Superintendent of Police has legal authority to convene any personnel of the Sri Lanka Army if any such assembly cannot be otherwise dispersed. [Code of criminal procedure act (no. 15 of 1979) sect 95(3)].
3. 22. Power of Commissioned Military Officers to Disperse an Unlawful Assembly Without Convening by Above Mentioned Authorities. When the public security is manifestly endangered by any such assembly and when a Magistrate, the Government Agent or a police officer not below the rank of Superintendent of Police cannot be communicated with, any commissioned officer of the Sri Lanka Army, Navy or Air Force may disperse such assembly by military force and may arrest and confine any persons forming part of it in order to disperse such assembly or that they may be punished according to the law. But if while he is acting under this section it becomes practicable for him to communicate with the Magistrate or Government Agent or a police officer, not below the rank of Superintendent of Police he shall do so and shall thereafter obey the instructions of such Government Agent or police officer as to whether he shall or shall not continue such action. [Code of criminal procedure act (no. 15 of 1979) sect 96)

Crowd control training

1. 23. It is essential to provide proper a training for the soldiers specially operating in civil disturbance operations. Well trained soldiers will be able to prevent mistakes and adopt the correct procedures to deal with various situations.
2. 24. Riot training should be focused on the following aspects.

• a. Manage peaceful crowds effectively.
• b. Identification of the difference between an unlawful assembly and a constitutionally protected gathering of people.
• c. Apply defensible arrest tactics when facing active resistance or passive resistance and be prepared to recognize the differences.
• d. Demonstrate defensible subject control and wooden baton techniques.
• e. Make tactically sound arrests, which are prosecutable.
• f. Perform classic crowd control formations, crossbow movements, and operate as an effective field force under stress.
• g. Have some grenadiers available trained in the deployment of chemical munitions and impact munitions.
• h. Recognize the type of crowd they are facing. Identify dangerous behaviors in a crowd.
• i. Implement their role in the department’s plan.

1. 25. Trained commanders should be:

• a. Able to lead these teams effectively.
• b. Able to recognize when their teams should change out of their soft covers and into full gear.
• c. Able to competently lead a trained crowd control unit. Ranks bestowing does not automatically transfer knowledge, skill and ability.
• d. When training the RIOT teams teaching the planning process should focus on the following:
• e. Plan to have intelligence gathering, including pre-event communications with event organizers.
• f. Plan to have a public information specialist, who is an expert at rumor control.
• g. Delegating responsibility and authority to commanders on the scene.
• h. A callout protocol for additional personnel
• i. A pre-set detour plan for anticipated hot-spots.
• j. A communication plan.
• k. A staging plan for vehicles.
• l. Additional vehicle and radio acquisition plan.
• m. Prisoner transport and mass booking plan.
• n. Evidence packaging/holding and report writing plan.
• o. Medical and fire escort protocol.
• p. Protective response plan for gun stores and drug stores.
• q. Field force activation protocol.
• r. Street clearance plan.
• s. Mutual aid agreements in place.
• t. If the event is prolonged, a housing, feeding, and relief plan for officers working the event.

1. 26. Further, it is essential to train soldiers on the handling of riot shields and riot batons as discussed under the topic of Riot Shield, Riot Baton and the Techniques.

Conclusion

1. 27. Crowd control is an essential subject for security forces in the present day as riots and unlawful assemblies are happening so frequently and as it disturbs the smooth functioning of day to day work routine of the normal public in the main townships.
2. 28. As an army, it is our prime responsibility to be ready at any given time to deploy and control an unlawful assembly anywhere in the country. For that Army need to have specially trained teams and ready to execute the above task. Those teams must be thorough in crowd behavior, habits, equipment which used by the crowd.
3. 29. It was repeatedly appreciated in this paper that remain major differences of the crowd dispersal duties in the pragmatism of both organizations Military and Police. Therefore, in order to overcome this challenge, it is recommended to draft a new legal notion of combined tasks of Military and Police crowd dispersal duties

Recommendations

1. 30. When we concern about the crowd dispersal, military use the principle of “Minimum force” and police expected to use “necessary force”. Within simple words, carry heavy gravity and task that are expected to perform.
2. 31. In military and police duties there are no main tasks, combined or joint operations except the crowd dispersal duties with the military and police. Therefore it should recommend doing the joint or combine duties with the military and police to develop good coordination and combination among the police and security forces when conducting duties with civilians such as crowd-dispersal duties.
3. 32. It is the most important aspect; we are following British pamphlet it’s emphasize that we should consider about the law and order in the country when conducting the disperse of the crowd using the military.
4. 33. The police should call to assist in the ideal time to the military for the assistance. Otherwise, pre-mature calling has led to the whole process may disorder. We have evidence with the Rathupaswala incident too.
5. 34. Considering all the above factors, in order to change the current system for crowd dispersal, two suggestions can be made out. First the assistance should not be taken from the military and to further take necessary action to disperse the unlawful assembly solely by the Police. Secondly, is to make necessary amendments to the British Pamphlet and Police riot drill, and recommend military assistance to Police.
6. 35. The individual officer and the security forces as a group must not lose self- control when dealing with riots.
7. 36. Draft a new legal notion with suitable combination duties of both organizations of Military and Police crowd dispersal duties.
8. 37. Wordings used in this kind of situations must be rectified strategically. For example, the military said to use the principle of ‘Minimum Force’, whereas in Police it is expected to use ‘Necessary Force’.
9. 38. Using only military force for the operations such as crowd control in very crucial situations without having a combined force.
10. 39. Filming persons engaged in unlawful conduct is recommended as a future record for court proceedings to show that crimes were being committed and the identity of the persons committing those crimes.
11. 40. Publish a proper document related to civil disturbance operations by the nature of field manuals in both Sinhala and English languages.
12. 41. Use developed non-lethal weapons to minimize the damage that can be caused to the normal public.
13. 42. Proper legal procedures to be adopted before deploying the riot control teams, importantly when military deploying to control riots it must be in writing by an authorized person.
14. 43. Plan riot control training based on real-time scenarios to give the soldiers the real feeling of the situation.
15. 44. Develop ROE which is based on our own law and international law.

Bibliography

1. Code of Criminal Procedure No 15 of 1979.
2. https://en.wikipedia.org/wiki/Crowd_controlSri-lanka. (Accessed 20 July 2019).
3. http://ir.kdu.ac.lk/bitstream/handle/345/1371/dss147.pdf?sequence=1&isAllowed=y (Accessed 22 July 2019).

Analysis of Securities Scams in India Based on Criminal Procedure

Brief essence of the case (500 words)

India over the period of years have been a witness to many scams. The securities scam 1992 of Harshad Mehta has been of the biggest scams of stock market. Harshad Mehta from being an ordinary man with its ambitions to became rich very quickly used various strategies, and unfair practices to get rich. He was aware with the loopholes in the banking system and he had relations with various powerful personalities to facilitate him in various ways, he became to be known as the “big bull”.He also had somewhat succeeded in his practices and became one of the most powerful brokers in very short time. He had a luxurious lifestyle and was known as Big Bull of the stock Market. He was successful in manipulating the stocks of ACC from Rs.200 to Rs.9000.also, the sensex increased from 1194 points to 4467 points almost to 274%. But his strategies failed when there came a decline in the stock market due to nuclear changes in India. He then was not able to repay the money he had got from banks. Sucheta Dalal exposed his scams and than 72 cases were filed against him and more than 600 civil law-suits filed against him, many others were also accused of being involved in the scam. He used methods like READY-FORWARD deal and Diversion of Funds, Fake Bank Receipts technique to roleplay the scam, he used to aggregate the amount over 1 week to invest in share markets and then sell them off. The scam almost amounted to Rs.4000 crore, he had misproportioned the shares of about 90 companies. Also, the stock markets crashed by 72% leading to one of the biggest scams and lasted for a period of two years. He was convicted by the Bombay High court to upto 5 years in jail and a fine of 25000 rupees. He died while he was in Jail only. Also till he was dead only 4 of his cases were solved. At the outbreak of scam the Indian Economy got shaken and the stock Markets crashed. It remained a regret for SEBI that Harshad Mehta’s intelligence was not able to channelize in good ways but used his intelligence to result in such dreadful ways, Also the name of then prime minister PV Narsimha Rao was suspected in the corruption.it was also suspected that top bank officials were also involved in facilitating the scam for personal benefits SEBI since than has stricken it rules, also RBI removed the concept of Bank Receipts from than. Also after this incidence, various institutions have taken steps to improve transparency in the system. although several scams have taken place after this scam such as nirav Modi scam, Ketan Parekh scam, etc which shows that adequate steps aren’t taken yet to prevent the scams. Their family was acquitted of the taxes after 27 years of arduous battles.

Facts and issues

• Parties Involved:

Harshad S. Mehta(Petitioner)

Crime Branch of Investigation(Respondent)

• Judge:

Usha Mehra, J.

• Advocates:

Mr.D.C. Mathur, Sr. Adv. with Ms.Rebecca John, Advocate for Petitioner

Mr. S.K. Saxena with Mr. S. Lal Advocate for respondents.

Acts Involved:

Sub-Section (1) of Section 93 corresponds to Section 96(1) of the Old Code. Sub-Section 2 of Section 93 corresponds to Section 97 and Section 3 to Section 96(2) of the Old Code. Section 93 Bengal State Prisoners Regulation 1818 Madras Regulation Il of 1819, or Bombay Regulation XXV of 1827, or the State Prisoners Act, 1850, or the State Prisoners Act, 1858.18

Sections 11,12,13(2) and 13(1)(d) of Prevention of Corruption Act, 1988 (hereinafter called as PC Act) read with Section 120-B.I.P.C2.

Sections 167 Cr. P.C and Section 344 of the Old Code,(corresponding to Section 309)

Section 167 Cr. P.C Drawing attention to the provision of Section 167 (2) Cr.P.C.

Section 4(1) of the Old Code (which corresponds to Section 21h) of the new Code provisions of Section 155(2) of the Code of Criminal Procedure Provisions of Sections 94 to 96 of the Old Code. Section 91(3) of Sub Section 96 of the Code of Criminal Procedure, police.21. Provision (a) to Sub Section (2) of Section 167

Section 153 penal code provisions of Section 94 and 96 of the Old Code provision of Section 91, 92, and 93 of the Code Section 267 in the Cr.P.C8. Section 267 Cr.P.C. Section 167 Cr.P.C25.

That Section 167 Cr.P.C. sub-clause of Section 167 Cr. P.C of the Code provision of Section 94(1) of the Old Code Criminal Procedure Code under Section 267(a) of sub Section 2 of Section 167 Cr.P.C.

Issues:

he used the funds obtained by the bank receipts and forged them to manipulate the prices of the stocks, he used the concept of ready forward deal to obtain funds from the banks. The issues that were raised by this scam caused a domino effect in the entire Indian economy and fluctuated the economy between 4467 to 1194 points and Sensex was put into abysmal frenzy and markets crashed with 72 % which amounted to the biggest downfall that lasted for two years ranging from April 1991 to April 1992.

Harshad Mehta(petitioner) was lodged in the Byculla jail of Bombay previous to this case he was conducting a scam which was evidently illegal and therefore CBI moved an application before the special judge of delhi under section 267 under the code of criminal procedure, once he was formally arrested on 17th August 1992, he was put in police remand till 22nd August and in judicial custody till 25th August 1992, thereafter remand wasn’t sought nor granted. Due to this DC Mathur raised two important questions :

1. should the invocation of provisions of section 267 criminal procedure code be invoked for the purpose of interrogation in connection to the investigation
2. should the remand as defined by the section 167(2) of criminal procedure code has to be re-taken after span of 15 days and whether thereon after taking the initial remand the subject can be held in perpetuity with regard to the maximum limit of 60 to 190 days

The first point was smartly raised by DC Mathur as he targeted the loopholes in the legal system as the word “investigation” wasn’t used In the section 267 Instead the word of the proceedings was used which generally meant other things and not similar to investigation type cases so under ejusdem generis Which stands for a Canon of statutory construction The general words The enumeration of particular classes of things the general as word will be constructed as Applying only to the things of the same general class as those enumerated. And secondly he was kept in custody for more than 15 days without justification

Judgment and analysis

The judgment House this case between Harshad Mehta versus CBI resulted in Harshad Mehta not gaining bail as it was considered that he was never put into custody and only the people under custody can be granted bail,Mr. Saxena also agreed that Since the person was not in custody cannot be granted bail under this consideration bail became unnecessary and petition was closed. The judge also denied the claim made by Mr Saxena that Harshad Mehta was ordered to put in remand for perpetuity as there is no provision for this under section 167 stating that remand has to be specific period and that too to the satisfaction of the magistrate and granting this would deprive him the right to court, also the detention was illegal as the permission for the remand was not taken from the magistrate and nor the reason and neither the diary was produced for the same by the magistrate

An important feature of the legal system was brought into question from this that if a detention becomes illegal is the person automatically granted bail should he be entitled to bail? Now, laws have been established that if detention is illegal than the solution is not bail but rather the person can petition for habeas corpus which is writ by which the person under arrest can be brought in front of the judge to be released if the arrest was unlawful. Also in this case valid arguments were made targeting the loopholes in the sections and this may be a call to the lawmakers to make better descriptive documents that don’t exhibit vague behavior and hence can expedite the jurisdiction.

Social impact:-

This case shows prime importance of the technology in the field of banking, if there had been existing technology then there would have been a layer of transparency to the entire process of banking and this scam would’ve been avoided or caught early on. Due to lack of such technology harshad mehta was easily able to duplicate the bank receipts or forge them and no one suspected anything also smart machine learning algorithms can catch such frauds easily by detecting too many frequent purchases and sales of stocks that value too much. The public also suffered in this process as they too had their money invested in such banks, therefore introducing such technologies can prevent

Harshad Mehta from son of a peon, he became one of the most prominent broker of India.

He started his career by joining NIACL than by this time he got interested in the stocks and commodities Market. He so joined a brokerage firm in Mumbai as a Jobber. He served in positions of increasing responsibility at various brokerage firms. Harshad Mehta recognised as the big bull of the stock market industry the media houses replicated as Amitabh Bachchan of the securities market his articles also came in magazines such as Business Today, and Forbes. His power and prominence in the industry increased with time. He had great connections with various CEOs and Chairmans of major companies in the Banking and Financial Sector.

Ready Forward Deal:

In the 1990’s it was compulsory for Banks to invest, certain proportion of their capital in government bonds and securities. Also, The RF deal were used by banks for getting short-term loans approximately for period of 15 days. In it the seller bank(Sell Securities) sells the securities to the buyer bank and repurchasing them on a forward basis. Thus by selling the securities the seller bank creates temporary liquidity for itself.

In RF deal the original documents were not exchanged between banks rather the seller bank gave the Buyer Bank, Bank Receipt(BR). Thus Harshad Mehta identified the loophole in the Banking System, he made fake Bank Receipts and issued fake BRs to various Banks. Thus he issued BRs which were actually void but the banks actually didn’t verify the BRs. Also, he used his relations with various people like chairman of Vijaya Bank to see to it that the BRs issued by him are not verified and the cheques issued were not in favour of the Bank but were issued in favour of Harshad Mehta.

He used 2 small banks the Bank of Karad (BOK) and the Metropolitan Co-operative Bank (MCB) to issue fake BRs and BRs, not backed by any government securities.

Diversion of Funds/Stamp Paper Scam:

In the 1990s the Banks were not allowed to invest in the shares and securities market. Mehta identified this need of the banks and thus extracted money from the banking system and invested in the stock market. Also, he promised the banks higher than usual interest on their capital and insisted them to pay the check-in favour of Harshad Mehta. So the Banks were also unaware that who they are transacting with and where their money is going.But using the Bank’s money he was able to inflate the price of various stocks. In his times the BSE index saw steep rise from Rs.1000 to Rs.4500.He used to trade in stocks like Associated Cement Companies, Sterlite Industries,Videocon. He was able to increase ACC share price from Rs 200/share to almost Rs.9000 which is almost 4400% increase. Also, when he required the money or he had to return money to the bank he would carefully sell out his stocks and liquidate them. He slowly came to known as Big Bull of the Indian stock market. Thus indirectly using the funds of Bank to manipulate the stock prices. The scam involved an amount of approximately Rs.4000 crores in present day’s money value it is said the amount can be considered equivalent to Rs.24000 crores.

Modus Operandi:

The Modus Operandi adopted by Harshad Mehta he used was that if Bank X needed money he used to take Bank Receipts of government Bonds from them and ask Bank X for some time to sell their securities. Meanwhile, he would find a Bank Y who is ready to buy the securities with a clause that Bank X will it buy it back after the prescribed time. But Mehta would insist to Bank Y to transfer the funds to his account. So the Bank Y does not actually know where there funds are actually going. Now He would use this money to invest in the stock market. Now when Bank A would ask for their money than he would find a Bank Z which also is interested in buying government securities and Bonds, He would take money from Bank Z and give it to Bank A. Thus he made a chain like this by which there was always some money left with him at all times. This worked as he was aware about the loopholes in our Banking System. Also when he had to return money and not able to continue the chain than he is used to sell the stocks and return the money. Also he than with the help of 2 small banks issued fake Bank Receipts to various Banks. Thus using the Ready Forward Deal, Fake Bank Receipts, allegedly using the funds to invest in the stock market are the key things in the scam.

Later, in the investigations, it was found that Mehta had established companies under the name of Damyanti group to undertake Market Operations.

Also, he had great relations with people at BSE, which helped him with carrying the transactions with ease. Also, he had became one.

Outbreak of the scam:

Their started bearish trends in the market, the stock prices started to fall, and thus he was unable to pay back the money to the Banks on time. Sucheta Dalal in her column exposed the Harshad Mehta Scam. As soon as scam came out than chairman of Vijaya Bank came to know that the Bank receipts he had were fake and were of no value, he committed sucide. Also, many famous personalities came into the picture for allegedly supporting Harshad Mehta to support him in various ways executing the scam. Also, Mehta publically gave a statement that he has given Rs. 1 crore of funds as bribe to than the Prime Minister of India Mr. P.V. Narsimha Rao, as donation to the party, for getting him off and saving him from the scandal case.

Below is the chart of Sensex after outbreak of the scam.

Bank system had to face losses amounting Rs.4000 crore due to this scam. The stock Markets crashed, people’s capital got vanished and the Indian Economy faced a great downfall.

Also, Harshad Mehta was banned for a lifetime from trading in markets, from BSE by SEBi.

He was later charged for 72 criminal offences and over 600 civil lawsuits.

Social impact:

SEBI tightened its rules for brokers and government increased the powers with SEBI. Also established various offices and departments for regulating various trader activities and to regularise the securities market.

The transparency also increased in market operations. Various types of rules were introduced to see to it that fair trading practice is undertaken by traders. Bank Receipts were banned by the RBI.

Practical Approach to Criminal Procedure and Investigations Act: Analytical Essay

Criminal Procedure

Introduction

Mark and Cazza, two Solent LLB students were unlawfully arrested and victims of false imprisonment giving the lack of proceedings followed by the police constables Jones and Reed.

The police officers (PO) committed innumerable errors – that will be discussed in the following paper – regarding the proceedings of arrest concerned on the Police and Criminal Evidence Act 1984 (PACE) and in the respective Codes of Practice; the use of force and conduction of the interview. During the whole process, the officers failed to give the necessary information to the suspects and their rights of freedom were clearly violated contrary to Art.5 from the Human Rights Act 1998 (HRA).

The outcome of this arrest lead to a miscarriage of justice, given that the suspects, coerced by the police, ended up confessing to a crime of which they are totally innocent.

In the matter of miscarriages of justice, Michael Naughton[footnoteRef:1] says: [1: Michael Naughton, The innocent & the criminal justice system. (Palgrave Macmillan, 2013) p.15]

“… the term miscarriage of justice relates to intentional and or unintentional acts by those that cause them, and (…) the wrongful conviction of the factually innocent. (…) Miscarriage of justice are problematic (…) in terms of the harm of the victims and the loss of faith in the system…”

The misconduct of the police officers could have been avoided if the powers granted by the PACE and the “detailed guidance”[footnoteRef:2] provided by the Codes of Practice had been followed. [2: Deborah Sharpley, Criminal litigation: practice and procedure”. (College of Law Publishing,2016) p.23]

The following paper will be chronologically written in accordance with the events, from the moment of the first approach until the moment of the confession.

All references to non-specified sections belong to PACE 1984.

Stop and Search

Following PACE S.1(3) on the powers of constable to stop and search persons and S.24(3)(b) on the powers of arrest without warrant, anyone may be searched/arrested if the police officers have “reasonable grounds for suspecting” that they will find prohibited articles/a person is guilty of an offense that has been committed (respectively) – concerning the concept of “reasonable grounds” in Castorina v Chief Constable of Surrey[footnoteRef:3] is stated that it “must be determined by reference objectively to information available to the officer and without regard to his belief”. [3: Castorina v Chief Constable of Surrey [1988] 6 WLUK 85]

The PO that arrested Mark and Cazza, had a description of two suspects being “a white male and female, wearing jeans and t-shirts, the male also wearing a red baseball cap”. There are two problems arising from this description.

First, a question if this description is reasonable enough for suspecting since it is relatively generic. According with PACE Code A para 2.2[footnoteRef:4], the suspicion might be considered enough given it allows “a description of a suspect” without clarifying how precise that description must be. [4: Searches requiring reasonable grounds for suspicion ]

And second, the lack of characteristics fulfilment by the suspects i.e. Mark and Cazza barely satisfied the description of the suspects given that Mark is of Black ethnicity and the cap he was wearing was blue, so basically, the only description that was fit was “male and female wearing jeans and t-shirt” which is basically a common wearing nowadays.

When the PO asked the suspects to empty their pockets, Cazza refused to do so. At this stage, the constables failed to provide the required information stated on s.2(2) and 3 from PACE – the constables names and their police station, the object of the search, and the grounds to make the search – which gives Cazza the right to refuse to comply with the request. A similar absence of proceedings happened in the case of Bristol [2007][footnoteRef:5] in which the court of appeal declared that the information was mandatory and that on the event of not providing such information the search would not be properly carried out. [5: R v Bristol [2007] EWCA Crim 3214]

After refusing to comply with the constable’s demands Cazza tried to leave which resulted in her being “tackled to the ground and forcible handcuffed” by the police constable (PC) Reed; S.117 of PACE[footnoteRef:6] allows the use of force by constables if it is necessary when exercising their duties, it can thus be argued that the PC Reed had reasons to use force to “prevent further escape”, nevertheless if they had followed the requirements for a stop and search then the argument could be acceptable but given that both of the PCs failed to provide the suspects the necessary information under Ss.2(2) and 3 they were, until otherwise be said, free to go – the constraint against that freedom incur in a breach of right to liberty under S.5 of the ECHR[footnoteRef:7]. In Christie v Leachinsky [1947][footnoteRef:8] it was stated that the constable must inform the person arrested of the grounds of arrest; if the information is not given but the person is seized the policeman may be liable for false imprisonment; a person “is only required to submit to restraint on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed” and that unless an arrest is lawful every citizen is entitled to resist. [6: Power of constable to use reasonable force within any provisions of PACE] [7: European Convention on Human Rights] [8: Christie v Leachinsky [1947] A.C 573]

Arrest

An arrest is established when the police constable informs, as soon as possible, the citizen that he is under arrest and the reasons for it – see Alderson v Booth [1969] 2 QB 21 – accordingly, the arrest of Mark and Cazza began after the alleged attempt to escape. Even then, I should ask, following the appeal in Wilson v Chief Constable of Lancashire [2000][footnoteRef:9], if the sarcastic answer of PC Reed conveyed satisfactory information required for an arrest to be lawful under S.28 (see also Code G para.3.3 and Note 3). [9: Wilson v Chief Constable of Lancashire [2000]11 WLUK 671]

Even if PC Reed’s response is considered enough the suspects are still empowered to claim damages for the restraint of their liberty under S.5 of ECHR as explained above, and following the appeal in Lewis v Chief Constable of South Wales [1991][footnoteRef:10]: “the appellants were entitled to damages for the period where their freedom was denied without being given reasons”. If, on other hand, the information given by PC Reed is considered no to be enough, then the “period” to which the suspects are entitled to damages is extended until the moment they got to the police station and the information was given, if it was given. [10: Lewis v Chief Constable of South Wales [1991] 1 All E.R 206]

Based on the aforementioned information we can declare that the procedures to arrest according to PACE were not followed, thus, resulting in an unlawful arrest.

Considering the reasons for arrest, it can be argued that within S.24(5)(a)[footnoteRef:11] the constables could have arrest Cazza to ascertain her name as she refused to give them (legally she has no duty to do so, as it was stated by Lord Parker in Rice v Connolly[footnoteRef:12]) but it does not justify Mark’s arrest. The officers could try to excuse themselves with S.24(5)(e) but it should not be valid on the basis that Mark does not even fit in the description and from the beginning of the ‘stop and search’ showed to be willing to respond to all the requests (see Richardson v The Chief Constable of the West Midlands[footnoteRef:13] where the defendant was considered to be unlawfully arrested and false imprisoned on the ground that the arresting officer had no reasonable ground for considering the arrest necessary’). [11: Reasons for constable to arrest without warrant] [12: Rice v Connolly [1996] 2 QB 414] [13: Richardson v The Chief Constable of the West Midlands [2011] EWCH 773 (QB)]

Concerning the misstep to deliberate about the necessity[footnoteRef:14] of the arrest, Person, Rowe and Turner[footnoteRef:15] wrote: [14: See also, R.C. Austin, “The new powers of arrest: plus ca change: more of the same or major change?” [2007] Criminal Law Review.

And PACE Code G para 1.3; plus, Notes para 2 and 2A] [15: Geoff Pearson, Mike Rowe and Liz Turner, “Policy, Practicalities, and PACE s.24: The subsuming of the necessity criteria in arrest decision making by frontline police officers” [2018]. Journal of Law and Society, v.45, n.2, p 307]

“The failure by officers to consider, even in a ‘fleeting’ way whether the arrest is necessary does not just mean that unlawful arrests and non-human-rights-compliant detentions are occurring, but also that many officers are unconsciously discounting alternative resolutions to incidents”

Caution and Questioning

Mark and Cazza should also have been cautioned[footnoteRef:16] and, at the arrival to the police station presented to a custody officer[footnoteRef:17]; we have no information on the facts of such caution be given but I believe that by “checked in” it is fair to assume that they were presented to the custody officer as it is formal procedure applied to anyone who arrives to a police station (even voluntarily). [16: PACE Codes of Practice C, para.10.4 and 10.5] [17: PACE Codes of Practice C, para.2.1A]

The custody officer has the duty to open a custody record[footnoteRef:18] and to keep it updated[footnoteRef:19] as well as to ensure that, in a case of stop and search, the person is asked if they want a copy of the search record as well[footnoteRef:20]. When under arrest, the person has three rights she should be aware of, which is the custody officer’s responsibility to ensure that awareness following Code C para.3.1, those being: to inform someone of their arrest[footnoteRef:21]; to have legal advice and that “free independent legal advice is available”[footnoteRef:22]; to consult the Codes of Practice. [18: PACE Codes of Practice C, para.2.1] [19: PACE Codes of Practice C, para.2.3] [20: PACE Codes of Practice C, para.2.3A] [21: PACE s.56] [22: PACE s.58 and Code C para.6.1]

Lacking on information if whether the custody officer duties and procedures were followed or not, I may only assume that they were not, at least concerning to the para.3.1 of Code C based on the ground that if the rights have been given to the suspects the interview would not had followed the same path (discussed below). As so, I will proceed on the assumption that Mark and Cazza were not told about the right to free legal advice which incurs on a breach of S.6(3) ECHR – Murray v United Kingdom[footnoteRef:23]. [23: Murray v United Kingdom (1996) 22 EHRR 29: “It was imperative in the interests of fairness for an accused to have access to a lawyer at the initial stages of police questioning”]

Regarding the conduct of the interview, accordingly, with Code C and E of PACE, it was inadequate and misdirected on the following basis: the interviewer failed to “remind”[footnoteRef:24] the suspects of their right to free legal advice[footnoteRef:25]; it was not given a “short break” every two hours[footnoteRef:26] resulting in a continuous 8-hour questioning process which resulted in both of the suspects confessing without guilt as they were clearly coerced by the interviewer, thus the confessions are inadmissible under the Code of Practice C para.11.5 and Ss.76(2)(b) and 78 of PACE and following common law resolutions on the appeals of Fulling [1987][footnoteRef:27] and Zaveckas [1970][footnoteRef:28]. [24: The expression is between quotation marks given the fact the rights had not been giving before, even though they should have.] [25: PACE Codes of Practice C, para.11.2] [26: PACE Codes of Practice C, para.12.8] [27: R. v Fulling [1987] Q.B. 426] [28: Regina v Zaveckas [1970] 1 W.L.R. 516: “…the statement was made as the result of an inducement by a person in authority and that the conviction should be quashed.”]

It is also important to state Code C Note 11B:

“In conducting an investigation, the investigator should pursue all reasonable lines of enquiry, whether these points towards or away from the suspect (…)”[footnoteRef:29] [29: Criminal Procedure and Investigations Act (CPIA) 1996 Code of Practice para.3.5]

Conclusion

The covered contents lead to concluding that the police officers acted unlawfully concerning to the procedures of stop and search, arrest, and interviewing which deviates from what is stated and expected by PACE 1984, the ECHR, and the CPIA 1996 constructing more than enough reasons for Mark and Cazza to bring complaints against the police and be entitled to damages:

“Individuals who believe that their Convention rights have been infringed by a public authority can rely on their rights as a defense in criminal or civil proceedings or as the basis of an appeal, alternatively seek judicial review, or, if no other legal avenue is open, bring civil proceedings for damages.”[footnoteRef:30] [30: Ken Starmer, “The European Convention on Human Rights and the Human Rights Act 1998” [2001] Legal Information Management]

S.67(10) and (11) of PACE predicts that if a provision or Code is not followed that does not constitute a criminal offense or civil wrong[footnoteRef:31] but it is admissible in court and it can lead to a disciplinary offense [footnoteRef:32]. [31: John Sprack, “A practical approach to criminal procedure”. (4th edn. Oxford University Press. 2012) p.23] [32: Ibis]

However, when by violating the provisions or Codes the officers commit a false imprisonment, the victim can take legal actions against the responsible constable and his Chief Officer as co-defendant.[footnoteRef:33] [33: Ibis]

The public authorities are entitled to use the law in order to make the “principles of justice” [footnoteRef:34] prevail, not to sabotage it. [34: Andrew Sanders, Richard Young and Mandy Burton, Criminal Justice. (4th edn. Oxford University Press, 2010)]

Bibliography

Books

1. Andrew Sanders, Richard Young and Mandy Burton, Criminal Justice. (4th edn. Oxford University Press, 2010)
2. Deborah Sharpley, Criminal litigation: practice and procedure. (College of Law Publishing, 2016)
3. Howard Davis, Human Rights and Civil Liberties. (Willan Publishing, 2003)
4. John Sprack, A practical approach to criminal procedure. (14th edn. Oxford University Press. 2012)
5. Michael Naughton, The innocent & the criminal justice system. (Palgrave Macmillan, 2013)
6. Paul Ozin, Heather Norton, and Perry Spivey, A practical guide to the Police and Criminal Evidence Act 1984. (3rd edn. Oxford University Press, 2013)
7. Ruth Costigan and Richard Stone, Civil liberties and human rights. (11th edn. Oxford University Press, 2014)

Legislation

1. Criminal Procedure and Investigations Act (CPIA) 1996
2. European Convention on Human Rights
3. Police and Criminal Evidence Act 1984 and Codes of Practice
4. [bookmark: _Toc535375276]Cases
5. Alderson v Booth [1969] 2 QB 21
6. Castorina v Chief Constable of Surrey [1988] 6 WLUK 85
7. Christie v Leachinsky [1947] A.C 573
8. Lewis v Chief Constable of South Wales [1991] 1 All E.R 206
9. Murray v United Kingdom (1996) 22 EHRR 29
10. R v Bristol [2007] EWCA Crim 3214
11. R. v Fulling [1987] Q.B. 426
12. Regina v Zaveckas [1970] 1 W.L.R. 516
13. Rice v Connolly [1996] 2 QB 414
14. Richardson v The Chief Constable of the West Midlands [2011] EWCH 773 (QB)
15. Wilson v Chief Constable of Lancashire [2000]11 WLUK 671

Websites

1. Parliament website, Human Rights Act 1998 accessed 14 January 2019

Journals

1. Geoff Pearson, Mike Rowe and Liz Turner, “Policy, Practicalities, and PACE s.24: The subsuming of the necessity criteria in arrest decision making by frontline police officers” [2018]. Journal of Law and Society, v.45, n.2
2. Ken Starmer, “The European Convention on Human Rights and the Human Rights Act 1998” [2001] Legal Information Management
3. R.C. Austin, “The new powers of arrest: plus a change: more of the same or major change?” [2007] Criminal Law Review