Category: Criminal Procedure

Summary of the Plot

The main plot mostly centers on the life of Ron Williamson, who can be considered the primary suspect in the investigation of the book. Having returned to the small city of his birth after an unsuccessful baseball career, accidentally became involved in a murder case (Grisham, 2007). His life took a sharp turn for the worst in the time prior to the murder of Debra Carter, leading the man to suffer from depression, alcoholism, and being involved with drugs (Grisham, 2007). The circumstances surrounding his life were perfect for the police to put the blame for the recent murder on him, and the evidence found on the scene of the crime scantly connected Williamson with it too. Furthermore, his friend Dennis Fritz was also involved in the story, for much of the same reasons as the other man.

The Murder

In 1982, a murder took place in the small town of Ada, Oklahoma. A woman by the name of Debra (Debbie) Carter was dead in her apartment. It was reported that the woman visited the bar she worked at before that night, leading to the police investigating the potential connections to it. The initial overview of the murder confirmed that the woman died from suffocation, as well as noted instances of her being beaten and raped (Grisham, 2007). The police have to lead the investigation for five years, with no solid evidence to prove their guilt of any individual. Desperation to make an arrest or potentially find the real killer has led the investigators to jump and any potential possibility of an arrest. In particular, the police decided to focus on two men, Ron Williamson and Dennis Fritz as the potential suspects (Grisham, 2007). The connection between them and the murdered Carter was flimsy at best and substantiated by a combination of a witness record and his general reputation both held in the community. The initial questioning after the murder also concerned the two men, but no solid physical evidence was found to signify their involvement. Williamson was questioned using two separate polygraph tests, both of which showed no signs of guilt. The main witness of the case was Glen Gore, who repeatedly asserted both men were seen frequenting the bar Carter worked at. Williamson has had a history of drug use and mental health issues, both of which made him a suitable potential candidate for being a murderer. Glen Gore and has stated that Williamson was seen arguing with Carter on the day of her death, leading the police to believe he was the most prominent suspect (Grisham, 2007). The man was also characterized as making the victim uneasy, also by Gore. A need to quickly solve the case after a five-year period and a lack of leads have driven the police to ignore many of the possible factors regarding the murder in the vein of focusing on Williamson and Fritz. Another contribution to the murder conviction Williamson has received was a testimony from a prison whistle-blower connected with the police, who has reported the man confessing to the murder while serving his time for another crime in jail (Grisham, 2007). Terri Holland has been an informant for the police force for a continuous period of time and was a major contributor to both Carter and Haraway cases. The woman has since been found to state false testimonies to the authorities for rewards.

Additional Circumstances

In addition, it can be noted that the occurrence of a similar murder near the period of the investigation may have contributed to the investigations haste. Just a few years prior, Donna Denice Haraway was dead after being reported missing and being shot in the head by an unknown assailant. Two men were similarly accused of murder, followed by both of them admitting to having committed the crime (Grisham, 2007). While their testimonies have been vague at best, and have actively contradicted the findings of the police, both men were convicted of murder and put to life imprisonment. The admissions, similarly to the Carter case, were justified by dream testimonies and rushed through the court system.

Investigation and Investigation Conduct

Physical Evidence in the form of hair was also found, thought to have possibly belonged to the killer. Hair samples gathered from the scene of the crime were identified to have belonged to at least one of them, an assertion that held the conviction together (Grisham, 2007). During the process of the investigation, both men were repeatedly questioned and pressured by the police, as a way to ensure a guilty verdict could be made. Williamson has recalled a dream where he had committed murder during the process of being investigated, which was admitted into court as evidence of the crime and possible admission of guilt.

The Convictions

By the end of the long-stretched investigation, Williamson was sentenced to death, while Fritz faced a life prison sentence. The former was put on death row where he remained for 11 years until the sentence was halted by the court. Numerous appeals to court were made during that time by the man, all of which were denied (Grisham, 2007). Only through a number of connected petitions, public unrest, and further investigation from the interested parties, was the truth uncovered. The execution was stopped just 5 days before its scheduled date. A petition for The sentencing largely relied on witness testimonies from Gore and Holland, whose words were unreliable and unsupported by the other findings of the police. Eleven years after the event, the two men have acquitted of their charges thanks to the use of DNA testing, which proved that the hair samples found on the murder scene did not belong to them. The DNA examination of the hair instead implicated the key witness to the case, Glen Gore, who later admitted to the murder and was put in prison for life.

The Evaluation

Police Conduct

The police have appeared to be extremely uncoordinated and incompetent in solving this case, collecting evidence, analyzing it, as well as interacting with the potential people involved in it. Their investigation of the murder scene has to lead to them finding evidence of the rape and murder, but the assumptions of guilt and charges thrown against the potential suspects after the fact were not as well-made. From the very beginning, the police were led to assume the involvement of Williamson and Fritz, who were nothing more than acquaintances to Carter, and have not had any sufficient evidence found against them. While releasing them initially, the police had repeatedly pursued them as suspected afterward, lead on by the testimonies of Gore and Holland. Holland was an unreliable source and a person in direct and consistent contact with the police, and a person that could gain significant benefits from rushing a police arrest. Her testimony against Williamson was likely motivated by ideas of personal gain, and should not have been presented as a vital part of the case. Furthermore, the testimony of Glen Gore, a person closely related to the murder investigation ever since its beginning. Glen has provided his version of the events stating that Williamson was seen arguing with the victim on the day of her murder, continuously pushing his persona as the one responsible for the event. He has further implicated Fritz as well, also on a rather weak excuse of the man frequenting the same bar.

Glen Gore as Murder Suspect

Glen Gore has been a person closely associated with the investigation since its beginning, the one mainly responsible for the witness testimonies against the two men. The man has also had a history of violent and criminal behavior, which was overlooked by the investigation. The mans continued presence and potential involvement in the case were also ignored, as the police were chasing other suspects without properly questioning or investigating the possibility of Gore as a suspect. The hair found on the murder scene had been misanalyzed, being attributed to either Williamson or Fritz, while later testing revealed it to have been Gores. It should be also noted that not enough attention was paid to the scene of the crime. The body was found in a naked state, with ketchup used to write a message on her body. The words are written on Carters corpse and walls, and the kitchen table was used to implicate two other men, named Graham and Smith. Both were found to have not been involved in the case, but, notably, had had relations with Glen Gore. The connections between the names written and gore were fully overlooked, and no further decisions to consider Gore as a possible murderer.

Overall, it can be said that the police and the investigators involved in this case have displayed gross incompetence when working, neglecting some parts of the evidence collected and misinterpreting others to push a comfortable agenda. Palm prints collected in connection with the murder were not properly utilized leading to the police have not been able to gather the necessary proof to lead a good investigation. The witnesses in the case were all largely unreliable and either had external motivations for lying to the police or could themselves be involved in the murder. The bar of evidence and testimony admitted to the court in connection with the murder was very low, and every piece of proof connecting Williamson and Fritz to the event was unreliable at best. The police have used recollections of Williamsons dream as evidence of him committing a murder, which could not have possibly been considered an admission of guilt. The procedures for testing and identifying biological evidence were also used against the two men, with the possibility of hair samples matching presented as valid and crucial pieces of evidence. The erroneous nature of the case was finally resolved 11 years later, with the confession and arrest of Glen Gore, who was found to be the real criminal in the event. The use of DNA recognition was crucial in determining his guilt, as well as the testimonies of the people around him. It is extremely important to uphold the standards of quality in police procedure, as a way to ensure that the events of the Carter murder never take place again.

Reference

Grisham, J. (2007). The innocent man: murder and injustice in a small town. Modan Publishing House.

The research paper will address the procedural process of a legal stop and frisk and illegality of the practice. In addition, it will also include other related issues brought about by stop and frisk, including the right to stop and frisk, reactions from the community, cases and other issues of interests, as well as a position on stop and frisk. It will also incorporate Saint Leo Core Value of Integrity.

One of the chief legal systems for effecting order maintenance policing among the public is to use stop and frisk. The stop-and-frisk practice is a non-consensual interaction between a police officer and an individual that borders a total arrest (Keenan & Thomas, 2014). Stop and frisk practices, also known as Terry stop procedures are faultlessly tolerable because of the action of the Supreme Court in the case of Terry v. Ohio. Terry stop therefore has a constitutional legitimacy. A police officer requires only a judicious ground for believing that a criminal activity has been committed, may be in the process of taking place, or is about to be committed. Further, an officer can only perform a limited frisk aspect if they suspect that an individual is armed and dangerous. In this case, the role of frisk is to guarantee the safety of an officer before they can start interrogating a person or a suspect.

Rational and Justification

Stop and frisk emanated from the action of the Supreme Court to support police officers as they interact with members of the community when executing order-maintenance policing activities. It was generally intended to ensure that officers could stop an individual based on reasonable grounds. Over time, however, community members have largely expressed their dissatisfaction with stop and frisk activities. It is has been observed that police officers have expanded, influenced, and applied the Terry standard to justify some policing actions that are clearly out of the contexts of the doctrine as it was originally intended. As such, many have argued that police officers, who execute the law, have failed to uphold the provisions of the Fourth Amendment, and citizens have gradually lost their judicial protection. The doctrine of reasonable suspicion is not based on practices observed in police-citizen interactions, but rather the judiciary, which has not been keen to protect citizens and police officers who are not accountable, have largely shaped problems noted with reasonable suspicion in stop and frisk and pat-down requirements.

Legal Terms for Stop and Frisk

Stop and frisk and pat-down may be referred to as investigatory detention. Two parts are recognized in stop and frisk. While stop and frisk are two distinct practices, they are usually viewed or performed together. However, stop and frisk must meet some legal requirements to establish its legality. First, for stop, an officer must have reasonable suspicion based on certain facts that a person has committed, is committing, or is about to commit a crime. Frisk is normally conducted when a police officers judicious doubt is driven by facts that a person is currently armed and dangerous and, thus, putting life in danger.

In this regard, officers may only stop an individual if they judiciously believe that a suspect is somehow linked to criminal activities. Thus, there must be sufficient facts to support a suspicion. It is, however, imperative to note that case law has demonstrated that pretext motives for conducting stop and frisk are not valid. At the same time, courts are also expected to use an objective basis when reviewing such cases.

Theoretically, the frisk is used for the purpose of searching and confirming that suspects do not have any concealed weapons on their person and, thus, they do not pose any danger. In this case, however, frisk is restricted to plain feel. That is, a police officer may only use their hands on the clothing to feel a weapon, but not enter into a pocket. Officers cannot do the following. First, a police officer may not stop and frisk to search for evidence except when a valid search warrant has been issued. Second, it is not permissible for an office to search for any evidence in closed effects, such as pockets, containers, wallets, purses or any other items carried unless such effects may be concealing a weapon. Finally, the law does not allow an officer to squeeze or manipulate such effects.

During frisk, an officer may get illegal contrabands like drugs using plain feel. Such contraband items can be used as admissible evidence in a court. For instance, an officer may discover an illegal contraband other than a gun during the search. In this case, the suspect may face charges of possessing drug. This charge however may be influenced by facts of the case. Officers are only allowed to search for concealed weapons during stop and frisk practices.

Stop and Frisk: the Issue, the Fourth Amendment and Citizen-Police Interaction

One area in specific in which courts have improperly disregarded the rule of law is in the jurisdiction of searches, seizures, and reasonable suspicion found under the Fourth Amendment. Under the Fourth Amendment, individuals have the right be secure in their persons, houses, papers, and effects against unreasonable searches and seizures (Sexton, Sommerkamp, & Martin, 2014, p. 729). These individuals rights are found under the collection of obligatory freedom and should not be violated. Therefore, such rights can only be safeguarded by ensuring that each indefensible intrusion by law enforcement officers upon the privacy of a person, whatever the means used, must be viewed as a disregard and disrespect of the Fourth Amendment. Notwithstanding its alleged honored status, provisions on the rights of individuals under the Fourth Amendment continue to suffer drawbacks at any given chances through any special situations.

At the center of the issue and challenges involved in protections noted under the Fourth Amendment are two vital communal values in opposing sides. The law enforcement officers require favorable and flexible power to fulfil their obligations and ensure their safety when engaged in criminal activity investigations. On the other hand, the declared rights of individuals that citizens should be free from subjective, illegal government intrusion into their private lives also contribute to the dilemma.

All States, including Florida and New York among others, have used Terry stop a basis for the law. Chief Justice Earl Warrens opinion on Terry stop forever transformed how police officers interact with the public (Sexton, Sommerkamp, & Martin, 2014). It is imperative to appreciate that the Judges opinion did not provide a broad recognition of police power to stop and frisk the public as desired. Nevertheless, many critics have argued that it was the basis of disregard for the Fourth Amendment (Hutchins, 2013; Mathias, 2015). It is observed that after the Terry stop, jurisprudence on the stop-and-frisk has resulted in a sustained increment of police authority over citizens. As such, the practice has deviated from the original language of the Judge and weakened the Fourth Amendment (Sexton et al., 2014).

Before 1968, the year associated with the Terry stop, police officers involved in a search or seizure had to have probable cause to back their claims and beliefs that the suspected individual was linked to some acts of crime. Under the Fourth Amendment, it is constitutionally recognized that a legal police-citizen interaction can only take place based on voluntary individual cooperation, or when the police have probable cause to support their claims (Sexton et al., 2014).

With the introduction of Terry stop, however, a new form of police-citizen interaction emerged  Terry stop or investigative stop. Terry stop was not based on probable cause or voluntary police-citizen interaction. The Court argued that Terry stop was controlled by the Fourth Amendments common provision of reasonableness instead of the Warrant Clause. For police to detain an individual lawfully for a short investigative stop, they need only to have a judicious and some suspicions that a criminal activity has occurred , is taking place, or is about to take place. In addition, a police officer applying stop and frisk may also extend a pat-down to conduct a weapon search if an officer rationally believes that the suspect could be armed and currently dangerous.

As a case example, the NYDP practices involving stop and frisk present some interesting facts. In fact, the public and other concerned bodies have raised questions about privacy rights, racial profiling, and illegal stops (Mathias, 2015).

Based on data captured by the Department, one can confirm these facts (New York Civil Liberties Union, 2016). Most people in communities have confirmed their experiences with stop and frisk activities. Specifically, people of color have long experiences with stop and frisk practices. The NYDP has stopped hundreds of thousands of innocent members of the public every year. Most of these individuals stopped are mainly African Americans and Latinos (New York Civil Liberties Union, 2016). Analyses conducted by the New York Civil Liberties Union have demonstrated that many innocent individuals have been subjected to constant police stops and street interrogations. The number has exceeded 4 million since the year 2002. In addition, African Americans and Latinos have repeatedly been the targets for stop and frisk in New York. It also noted that about nine out of ten persons subjected to stop and frisk in New York have been utterly innocent based on the reports from the NYDP. In the year 2015, for instance, the police stopped some New Yorkers 22,939 times. From this figure, 18,353 (80 percent) were innocent, 12,223 (54 percent) were Black, 6,598 (29 percent) were Latino, and 2,567 (11 percent) were white.

In the State of Florida, stop and frisk activities have become scandalous. For instance, there are documented reports detailing stop and frisk activities involving thousands of children and senior citizens. For instance, the Miami Gardens police data showed that stop and frisk seized some 8,489 children and about 1,775 senior citizens aged between 70 years old to 99 years old. In fact, the report showed that a five-year-old child was reported as suspicious (Brennan & Lieberman, 2014).

In the recent past, communities have started to challenge stop and frisk policies, and in most cases, they have been successful. In the 2011, for instance, Philadelphia opted for judicial monitoring of stops instead of a lawsuit by ACLU. In the year 2012, Seattle also opted for a similar approach after the Department of Justice launched an investigation. In addition, the most significant event occurred in August 2013 in the Federal District Court when the judge allowed an opening order against NYDPs stop and frisk practices. In a divisive ruling in the case of Floyd v. City of New York, Judge Shira A. Scheindlin established that the City of New York had been consciously apathetic to an illegal policing policy that allowed stop and frisks to be done with a minimal reasonable suspicion. In addition, the Judge also determined that the policy had been relying on racial categorization to identify whom to stop-and-frisk and pat-down.

Reasonable Suspicion

According to the US Supreme Court, reasonable suspicion reflects common sense conclusions that any person would reach by considering facts of the situation (Izzi, 2015). That is, reasonable suspicion is not an elusive hunch or thoughts. Instead, it relies on facts to support a given conclusion reached by a police officer.

When compared against probable cause, then it is noted that a reasonable suspicion is based on low standards that an officer requires to arrest a person or perform a full search. However, the outcome of an investigation of a suspect may lead to probable cause. The Court had observed that Terry conviction was necessary, but it appreciated the Fourth Amendments roles that a detained individual, for investigative purposes, was undeniably seized and any ensuing frisk was automatically a search. There are reasonable grounds for an investigative stop as previously mentioned while a seizure involves accosting a person and stopping them from walking away. These policing activities require specific and articulable facts noted during seizure. When all these are take into account together with rational arguments, then the action taken could be deemed appropriate by considering reasonable caution expressed by officers.

According to Saint Leo University, its core value of integrity reflects excellence. That is, members, including the faculty, staff, and student live and deliver the mission of the Institution. It requires honest, fairness and consistency in words and deeds (Saint Leo University, 2016). Based on this view, police officers should not act on a mere hunch and pure imagination. Instead, they should support their actions with verifiable facts and accurately use of evidence to support probable cause. In this case, when an officer stops a five-year-old child and a 99-year-old citizen, then their integrity is questionable.

Likewise, community members should also reflect the core value of integrity. Any individuals subjected to a stop and frisk should maintain their integrity. For instance, one should cooperate, avoid resisting the authority, or running away because an attempt to resist could lead to other charges, including obstruction of justice. Suspects should remain silent and polite, and volunteer information if necessary, but they must understand how such information will affect them.

Presently, community members must understand that stop and frisk practices are vital part of policing, and they are based on the law. However, officers must act with integrity to end a search and detention if a suspect does not violate any laws. Community members are encouraged to ask whether they are under arrest, free to leave, or if they need a lawyer.

Acceptability

Terry stop became widely acceptable after 1968. As such, police officers expanded, manipulated, and abused it without establishing reasonable suspicions. These practices could explain why Miami police have subjected children and senior citizens to stop and frisk. In fact, in the year 2009, in the case of Arizona v. Johnson, the Court consistently reiterated its support for Terry stop policing (Hutchins, 2013). In this case, an officer attached to the Arizona gang taskforce lawfully stopped a car. According to an officers observation, Johnson, one of the passengers, was dressed in a way that reflected gangs dressing patterns (Hutchins, 2013). Subsequently, the police asked Johnson to step out of the car for questioning and suspected that the suspect could be armed. The officer then patted Johnson down to search for a weapon, and a gun was found. Johnson was charged with weapon possession, but he challenged the case based on its consistency with the Terry stop. However, unanimous Court decision asserted that police officers have the right to frisk passengers in any lawful traffic stop if they have reasonable suspicion that a passenger is carrying a weapon (Hutchins, 2013).

In the recent past, however, some lawsuits and public concerns have led to a widespread objection of the Terry stop. Consequently, the most affected States, including New York, have initiated some forms of stop and frisk reforms.

Reforms

The NYDP has initiated reforms to improve stop and frisk policing practices. These reforms are aimed at reining in questionable tendencies of officers.

Police officers will no longer rely on a hunch to stop a person. In addition, it is noted that officers would no longer stop and frisk a person merely because of a furtive movement, a mere presence in identified high crime locations, or a lone person standing. These observations are viewed as deficient bases for stop-and-frisk policing.

Police officers will be required to have individualized or specific reasonable suspicions to show that the suspect has committed, is committing, or is about to commit a crime.

Conclusion

In 1968, the Supreme Court established that Terry stop was an appropriate means of effecting order maintenance in communities. It was generally meant to facilitate questioning of suspects and protecting officers. Over the years, however, law enforcement agencies, specifically the police and the judiciary, have expanded, manipulated, and abused Terry stop. In this regard, the vital concept of a reasonable suspicion has taken a new direction and no longer protects citizens based on the provisions of the Fourth Amendment. Consequently, the police are not accountable for their actions. This situation has led to unlawful interactions between police and members of the public.

On this note, it is observed that Terry stop requires reforms to protect human rights while safeguarding police officers during the course of their duties. The reforms will ensure that the gains provided under the Fourth Amendment are not degraded while guaranteeing the rule of law in the US.

References

Brennan, A., & Lieberman, D. (2014). Florida citys stop and frisk nabs thousands of kids, finds 5-year-olds suspicious. Fusion. Web.

Hutchins, R. (2013). Stop Terry: Reasonable Suspicion, Race, and A Proposal to Limit Terry Stops. Legislation and Public Policy, 16, 883-917.

Izzi, M. (2015). Stop and Frisk Laws. Web.

Keenan, D., & Thomas, T. M. (2014). An Offense-Severity Model for Stop-and-Frisks. Yale Law Journal, 123(5), 1448.

Mathias, C. (2015). NYPD Cant Just Stop And Frisk People For The Hell Of It Anymore, Says Department Memo.The Huffington Post. Web.

New York Civil Liberties Union. (2016). Stop-and-Frisk Data. Web.

Saint Leo University. (2016). Core Values at Saint Leo University. Web.

Sexton, J., Sommerkamp, J., & Martin, J. (2014). Ineffable Intuition and Unreasonable Suspicion: Our Rule of Law Failure. SMU Law Review, 67(4), 729-744.

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.

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.

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).

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.

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

The issue of conducting interrogation has already proved to be the arguable concept in the criminal procedure as there is only a set of recommendations and common principles on how to do that; however, there is no universal method to make the person speak or to understand for sure whether he/she is lying or not. The concept of lying is the most worrying one in the process of interrogation, since the facts on which the investigation may be based have to be well-checked and grounded – otherwise they will be useless for the case. For this reason lying and telling the lies from the truth have become the central issues for research and close attention in the world of the criminal law for the last decade. It is still a new field of research, but it may present certain findings that are certain to bring about a significant change in the process of conducting interrogations.

The techniques of distinguishing lies and the truth have been closely examined by Dave Zulawski, the coordinator of Wicklander-Zulawski & Associates – the worldwide famous training center for interrogation. Dave Zulawski makes the major emphasis on the body language, voice peculiarities and other physiological distinctions in order to identify the measure of a person’s sincerity. In his discussion with the Fox News Chicago Dave showed the way lies are identified in the process of investigation on the example of the Rod Blagojevich and Senator Roland Burris issue – both of these political leaders have consistently been trying to prove they are right, but Zulawski explicitly showed the indicators of insincerity in their conduct.

The video starts with the basic principles on which the organization of Zulawski grounds their activity: an erratic movement, a shift of eyes, exaggerated gestures – everything can give a hint to the investigator that the person is withholding something (To Tell the Truth, 2009). When asked by the interviewer what he is looking for in the videos that are studied, Zulawski replied that it is not only the body language and intonation, there are other things to be considered, for example, subtle changes and inaccuracies in the person’s character and conduct (To Tell the Truth, 2009).

The point is illustrated by a fragment from the interview with the Senator Roland Burris saying that he feels terrific because he is in the right and he has nothing to get nervous about. Zulawski notices that Burris consistently shakes his head ‘no’ while saying yes, showing the incongruence between his words and his attitude to them. Zulawski also admits that “sometimes a person will be saying ‘yes’ and shaking their head ‘no’, and there is a contradiction of the physical emblem of ‘no’” (To Tell the Truth, 2009).

One more fragment from the case with Rod Blagojevich and Senator Roland Burris is commented by Zulawski – the piece is about Blagojevich trying to justify himself and saying that he hadn’t done anything bad. “When he says ‘it hadn’t happened’, all he is saying is ‘I hadn’t completed the process’, this means to me that something was going to happen and got interrupted” (To Tell the Truth, 2009).

Finally, an important remark of Zulawski worth everyone’s attention is that it is much harder to distinguish the lie of a political person as they are used to lying and accept a lie as a norm of their speech and behavior. For that reason they become less emotional while saying a lie and represent fewer signs of a lie that would be recognized and detected by the interrogation professionals. “They know they are lying, but they don’t have the emotion about it” (To Tell the Truth, 2009).

It is a new branch of studies that Wicklander-Zulawski & Associates undertake; however, it is surely an important breakthrough in the procedures of interrogation and questioning that has an enormous potential. For this reason the studies should be continued and are likely to yield surprisingly good results.

References

To Tell the Truth (2009). Wicklander-Zulawski & Associates. Web.

Introduction

With the global progression and expansion of criminal law and information technology, a need has been identified in almost all nations for the modernization of criminal procedures.

The traditional modes of criminal justice and criminal procedures are gradually becoming obsolete as modern and more practical criminal procedures are being introduced. The reasons for the modification of criminal laws and procedures are among others; the expanding definition of crime and the means through which information can be transferred accurately and confidentially. Governments understand the importance of adjusting criminal procedures to incorporate simplicity and rapidity to reinforce their obligation to ensure the wellbeing of all individuals living in that nation. Straightforward procedures ensure that the time and monetary resources expended during the criminal procedures are minimized. In addition, justice delayed is justice denied and in cases where an innocent individual is facing criminal charges, a conventional, time consuming procedure will actually be facilitating injustice.

The democratic republic of Ecuador in South America is one of the nations that have recognized the need for a more efficient criminal justice system. Improving the competence and efficiency of the criminal justice process has become a primary challenge for the Government of Ecuador.

The Commencement of Criminal Justice System Amendments

The primary measures to modernize the criminal procedures in Ecuador began when Congress passed a new Criminal Procedures Code. The modernization began when the then President of Ecuador Jamil Mahuad proposed changes to the criminal justice system in December 1999 and these changes were fully supported and accepted by Congress in January 2000 (Winslow 12). After the new criminal system became fully functional in July the same year, the new Code essentially altered the Ecuadorian criminal justice system from an inquisitorial system to an accusatorial system (Silvana 14).

Previously it was the responsibility of the judges and the judicial staff to investigate crimes while the police helped in providing statistical and manpower assistance (Cano 8). The role of the public prosecutors was to keep an eye on the judges’ investigation and take into account all the advancements. In accordance with the new criminal system procedures, prosecutors have an extensive mandate in determining which cases are prosecutable in court (Schodt 62). The office of the Chief Prosecutor is legally responsible for probing and taking legal action in crimes and criminal cases. The National Police unit still plays its investigative role in criminal cases but under the new Code, the Police are under the authority of the prosecutor’s office.

The judiciary now attends to criminal cases in oral sessions which are much more efficient when compared with the previous sluggish and mainly written inquisitorial system. The responsibility of judges has been condensed and they are now impartial arbiters in charge of the oral trials (Cano 9). In addition, there are no jury sittings in the new criminal justice system because the new system’s primary objective is to fortify the justice system through the simplification of due process (McLeod 33). The new criminal system’s structure does not only take into account the legal practitioners but also considers the accused individuals. The new Code is meant to preserve the rights of the accused in the course of criminal procedures for instance habeas corpus and through the limitation of precautionary detention (Silvana 15).

THE 1999 Amendments

The government of Ecuador first received the amendment proposals through Congress in December 1999 after the president sanctioned the improvement of the criminal justice system (Winslow 15). Some of the key amendments proposed included:

Use of Agents and non-lawyers

In cases where an accused is charged with a less serious offence that involves fewer procedural requirements also known as a summary offence, it is imperative that the accused has adequate and efficient representation (Navarro 35). The projected amendments would allocate to each region the authority to sanction criminal assessment programs (Cano 9). Each region will thus have an established set of principles that provide guidelines on when an agent or non-lawyer can represent an accused person charged with a summary offence (Winslow 17). The number of agents or non-lawyers to represent the accused would depend on the magnitude of the crime and the maximum term of imprisonment or punishment associated with the offence. The agents or non lawyers would also have the capacity to represent their client in asking for a postponement of summary procedures in spite of the maximum terms of punishment.

The classification of Criminals

These proposed amendments were aimed at modernizing and simplifying the arrest and detainment procedures. Previously, Police officers were not allowed to take photographs of individuals or the fingerprints of individuals in lawful custody until they were charged or convicted of a crime (Silvana 22). This was in accordance with The Identification of Criminals Act which in most cases led to avoidable delays and consequently prolonged an accused person’s stay in police custody (Chinchilla & Schodt 11). The amendments proposed to simplify and hasten this process by giving the police the power to photograph and fingerprint an accused individual who was in lawful custody following an arrest even though the accused person had not been formally charged(World Bank 2).

Physical aggression

It was an offence to have any participation in unlicensed fighting using fists or hands which was known as prize fighting under the previous laws (Chinchilla & Schodt 14). Proletarian combat matches under the regional supervision were legal although those without financial prizes were considered to be an offence. The proposed amendments were introduced so as to legalize proletarian combative sports such as Tae-kwon-do, Judo and Karate which were by then on the Olympic program. The amendments granted the region jurisdiction in deciding which combative sports are legal and also be in a position to organize matches.

Application of warrants

To speed up the function of the police department, the recommended use of telwarrants was introduced. Telewarrants are basically searching and apprehension warrants but they differ greatly from the conventional warrants in the application (World Bank 5). Police officers are required to provide information under oath to a board of Justice through a telephone, fax, internet or other means of telecommunication saving on the time and expenses that could have been exhausted during travel if the officer had to apply in person (McLeod 24). Previously, telewarrants were available exclusively when it was impossible for the officer to appear in person, and the availability was limited to a certain category of warrants (Silvana 19). The proposed amendments would do away with the conditions necessary to gratify the impossibility requirement in cases where the telewarrant application had to be presented by hand. Furthermore, the amendments would also spread out the accessibility of telewarrants to public officers, officials who implement the national non-Criminal Code legislation, but are essentially not police officers (Navarro 43).

Expert Witnesses

The previous Criminal Code accommodated the disclosure of expert reports but did not allow the other party to satisfactorily counter the reported evidence (Chinchilla & Schodt 40). Amendments in Expert Witness allowed for ten days of compulsory adjournment in cases where notice provisions had not been observed. Additionally, an indefinite adjournment could also be referred to during cases where notice provisions were followed but it was proved that a party still had inadequate time to organize an ample retort for the expert witness (Winslow 20). Another amendment gave the Court total jurisdiction on whether or not to allow for a deferment of a case and also the power to add to or reduce the timeframe of an adjournment. If the Court denied a deferment or reduced the period, the amendments stipulated that the Court should provide a concrete reason for its decision (World Bank 7). Expert witnesses through such amendments were taken seriously by the court and their argument weighed heavily on the court’s final decision.

Flight risk control

This amendment proposed the recognition of leaving a jurisdiction against the orders of the court as an offence. The amendment was introduced to prosecute persons who fled from a specific jurisdiction in contravention of their bail terms. The amendment generated a comprehensible limit to flight risk individuals that were leaving a jurisdiction and set up conclusive documentation of violators of that law (Silvana 26). The judicial access to such records would raise a red flag and stop the release of an accused individual who had previously violated the bail conditions that limit movement between jurisdictions. The responsibility would therefore be left on the accused to give good reason for the necessity of their consequent release on bail.

Betting System amendments

The proposed legislative alterations were to make sure that the legislative betting lingo was modernized and betting agencies were required to modify the method in which foreign pool payouts were calculated (World Bank 10). The commonly known pari-mutuel betting system allowed an organization to accumulate all the bets made on one event into one pool and the winners share the profits equitably from the collective pool, most common in horse racing (Navarro 23). The role of the organization was to host the occasion and control the betting system, and they only profited from keeping a certain percentage of all the bets, both the winning and losing bets (Chinchilla & Schodt 43). The amendments proposed a new betting system to ensure unbiased allocation of profits among participants.

The 2009 amendments

The 2009 legislative amendments also known as The ABA Rule of Law Initiative (ABA ROLI) were backed by the U.S government and the program aimed to further fortify the criminal justice system in Ecuador.

In a bid to reinforce the performance of an accusatorial system, ABA ROLI called together an inter-institutional functional group of international and national experts to inform the national assembly on reforms to the Criminal Procedure Code (Hendrix 38). The group of experts made proposals for the formation of a universal reform program through out Ecuador, and five of the proposals were among the amendments in March 2009 reforms.

Incarceration

In the current system, incarceration was based on accusation or suspicion which led to several false detentions. In the new amendments, it was proposed that pre-trial incarceration be allowed only in exceptional cases, where the accused was either a danger to self or society (Hendrix 43). The accused could also posses a flight risk warranting pre-trial detention. Furthermore, the accused could be of an unsound mind and these conditions are to be determined by a judge consequently protecting the accused against unnecessary detention. Furthermore, the previous criminal system gave the judge authority to issue a written order of arrest which would be used to arrest an individual (Schodt 78). The system therefore bestowed upon the judge excessive power to act subjectively and enact an arrest through the police. Proposed amendments allowed for the discussion and argument of an accused individual’s incarceration in court. The discussion ensured a fair hearing for both sides before the judge ruled on the court’s decision (Hendrix 46).

Synchronization of the prosecution and the judiciary

The former criminal procedure allowed the criminal investigations to be carried out by judges and their assistants with the help of the police (Navarro 45). The role of the prosecutor was basically to supervise the work of the judges. After the 1999 amendments, the roles of the judges and the prosecution were modified and separated. The police were also assigned a more active role as far as criminal investigations were concerned and were largely separated from the judges and later associated with the prosecution (McLeod 31). However, the 2009 amendments proposed a form of merger between the judges and the prosecution. The amendments granted the prosecutors discretion to select and dismiss the cases before them but in consultation with judges, in order to minimize the backlog of cases that was common in the previous system (USDS 24).

Alternative conflict resolution methods

The proposed amendments also tried to vet the cases that entered the criminal courts by providing alternative means of dispute resolution. Methods like community elders, churches and families were first to be considered as primary means of conflict resolution before presenting a case to court (Hendrix 35). Criminal cases are therefore required to be solved at lower local levels before they can be recorded as criminal cases and presented in front of a criminal judge. Such an initiative was aimed at reducing the number of cases in the criminal courts consequently decongesting the criminal justice system (USDS 41).

Adversarial trials

Court cases have been modified in order to accomplish improved uniformity with the application of the adversarial system.

This method of trial limits the involvement of judges and is more engaging to the concerned parties thus facilitating superior and vigorous arguments and exhibition of evidence (USDS 27). Adversarial trials basically let the prosecutor and the accused argue their case in front of a judge who is unbiased and the judge draws a tenable conclusion based on the antagonizing arguments consequently ruling on the case (McLeod 67).

Outline of the ecuadorian criminal justice system

Mandate over any criminal offence is investigated and prosecuted by the Chief Prosecutor’s office and these kinds of cases are tried by a head judge of the District Court, a Senior District Judge or a District Judge sitting alone or by a Court of Appeal (Hendrix 123). A single Judge has the authority to try and rule on all cases liable to be punished by incarceration for a term limited to five years or with a fine not exceeding fifty thousand dollars or both(Cano 14). A Judge also has the power to order a person who has been found responsible for a criminal offence to pay compensation not more than three thousand dollars to the party offended by the crime. A Judge can receive approval from the Attorney General in order to assume control, try and rule on any criminal case. The punishment granted to the judge is limited meaning that the judge cannot impose harsher punishment on an offender exceeding the stipulated limits (Silvana 28).

The court of Appeal is made up of three Judges and has the authority to try all the criminal cases which are liable to be punished by the Criminal Code or any other law of the land (USDS 16). The court of appeal has the clout to enforce the highest sentence granted by the pertinent law. The Rent Control Tribunal has the authority to try and settle all the cases which transpire from the use of the Rent Control Laws. Rent disputes include the payment of rent, the standardization of rent, tenant exploitation and recovery of possession (Silvana 36). A Rent Control Tribunal is composed of a senior judicial officer and two members of the public to stand for the renter and the owner of the property.

The Industrial Tribunal has the mandate to take into consideration the court cases filed by members of any company’s human resource for unwarranted removal from office and redundancy payments. The Industrial Tribunal is composed of a senior judicial officer and two members of the public who stand for the employers and employees (Cano 17). In addition, The Military Court has the authority to try and settle military offenses under the Criminal Code and any other law committed to by members of the armed forces (Hendrix 129).

It is made up of a head judicial officer and two assistants who are selected by the Supreme Council of Judicature from a list of military officers(USDS 23).

Conclusion

The Government of Ecuador has strongly collaborated with its regional and territorial partners to generate 26 legislative revisions that will echo the dynamic criminal justice system and seal recognized loopholes in the law. The proposed amendments to the Criminal Code came in two phases, the first being in 1999 and the other being in 2009. The amendments created more awareness for the Corruption of Foreign Officials Act, the Identification of Criminals Act and the Ecuador Evidence Act, which will facilitate the assurance that Ecuador’s laws will continue to protect the citizens.

By persistently modernizing the criminal procedures in the judiciary system, the Government of Ecuador is building a justice system that can positively react to modifications in criminal habits and adjust according to the constant progression of technology. ABA ROLI has provided pivotal improvements to the criminal justice system in Ecuador and continues to work closely with the Ecuadorian government to establish a long-term solution. The inter-institutional working group, which also includes representatives from the Public Prosecutor’s Office and the Public Defender’s Office, is on the forefront in ensuring the total overhaul of the criminal justice procedures. With strong support from the U.S government there has been a dynamic shift towards a more inclusive reform process that incorporates opinions from all departments involved in the criminal justice system.

Nonetheless, regardless of the change in the internal mechanism and advancement procedures in the criminal justice system, the Government of Ecuador is still slow in compiling an organized central managerial body. The body is essential for effective training, planning and overseeing of cohesive functioning of the components of the criminal justice system. Such a body will also be responsible for procurement of adequate resources in supplies and also ensure the restructuring of the various departments in order to conform and generate paramount results.

References

Cano, Claudia. Judicial Reform of Criminal Justice in Latin America. 2003. Web.

Chinchilla, Laura and Schodt, David. The administration of justice in Ecuador. 1991. Web.

Hendrix, Steven. Recommendations for Improving Ecuador’s Approach, 20 Inter-American Law Review. California: Prager Security Publishing, 2009. Print.

McLeod, Allegra. Exporting US Criminal Justice. January 2010. Web.

Navarro, Luz. The management of e-documents in Latin America. 2009. Web.

Schodt, David. Ecuador: An Andean Enigma. Boulder: Westview Press, 1989. Print.

Silvana, Pinto. Shadow report to the committee on the elimination of discrimination against women. 2008. Web.

U.S Department of State-USDS. 2009 Investment Climate Statement – Ecuador. 2009. Web.

Winslow, Robert. A Comparative Criminology Tour of the World. 2006. Web.

World Bank. Legal and judicial reform. World Bank report. 2005. Web.

Modern technological advancements have influenced virtually all sectors in the society. The various procedures of identifying crime are now conducted using technology. A number of technological advances have helped law enforcement agencies in accurately identifying a criminal suspect. The most popular one which has been discussed is the deoxyribonucleic acid (DNA) analysis. Biometric identification, intra-agency databases for DNA, fingerprint and palm print, and camera and wiretap surveillance have been very effective in enhancing criminal identification.

It has emerged that these advances have significant effects on the efficiency of the criminal justice system, particularly from the perspective of crime control. Post-conviction DNA testing has become a major concern in the criminal justice system. In some instances, DNA tests give negative results on the evidence which means the convict is exonerated (Houck, 2005). However, it has always been argued in forensics that lack of DNA traces that does imply lack of commission of a crime. Therefore, criminals are aware of the fact that their attempts to ensure no traces of blood or body fluids containing DNA will not imply that they are innocent when DNA test is done. It can be agreed that DNA analysis is one of the ways of control crime but it has its limitations and strengths depending on how it is used and the nature of crime (Semikhodskii, 2007). Since DNA analysis of evidence from a crime scene can be used to identify a suspect, the number of crime has notably gone down.

Intra-agency databases for DNA have also contributed to fighting violent crime. Databases for DNA are in the custody of the government in the Combined DNA Index System (CODIS). This system relies on biological traces left on the crime scene to come up with investigative leads that may result in apprehension of the suspects. The two indices; Convicted Offender Index (COI) and the Forensic Index (FI) are used in the investigation. COI contains DNA of persons convicted of felony sex crimes and related violent offenses while FI contains DNA profiles gathered from evidence collected from the crime scene (Semikhodskii, 2007). Since all the states in the U.S have laws demanding that DNA samples of specified offenders be forwarded to the CODIS, the frequency of crime is checked especially by ex-convicts due to the fact that they would have been earmarked (Houck, 2005). As time goes by, more DNA samples are collected and forensic officers are undergoing further training, implying that these technologies have helped significantly in crime control. This has added to the efficiency of criminal justice system since there are fingerprint databases which can be used to identify multiple time offenders.

However, these developments in technology and their application in the criminal justice system have not been without fierce criticisms from concerned individuals. DNA databases have been blamed as infringing on innocent people’s privacy (Semikhodskii, 2007). Unlike fingerprint databanks, DNA databases provide comprehensive details of intimate details about an individual and relatives, especially diseases, sexual orientation, and other legitimate concerns. This may result in discrimination from other stakeholders like government, insurers, banks, and employers. This compromises the otherwise efficient method of controlling crime in the society.

Reference

Houck, M. M. (2005). Technological advancements: DNA and the criminal justice system. Journal of Clinical Investigation, 155(6): 1398.

Semikhodskii, A. J. (2007). Forensics: understanding DNA evidence and analysis. Routledge.