the expeditious prosecution of crime legislation: aka the 'caught-in-the-act' act
13 May 2008
In view of rampant crime which threatens to derail SA's constitutional commitments and government's manifest difficulty in curtailing it, members of the legal profession have decided to step forward to offer to deploy their services without charge in the establishment of a 24 hour court system. The courts, which will respond to arrests, will be voluntarily manned by members of the profession.
The lawyers behind the scheme ask government to introduce legislation to provide for the seamless arrest, charge, prosecution and conviction or acquittal of an accused where a Senior Prosecutor concludes, having regard to the circumstances of arrest and the immediately available witnesses, there is sufficient evidence for successful and immediate prosecution.
The lawyers argue that the legislation will serve two purposes. First it will demonstrate zero-tolerance by immediately dealing with petty crime, such as shop-lifting as well as non-violent crime such as bribery of government/municipal officials (the zero-tolerance system). Second, it will target violent crimes including murder, rape and armed robbery where the release of an accused or a delay in prosecution may compromise public safety. A typical example would be a botched cash heist, where the accused is arrested at the scene of the crime and the eyewitness account of police officers and other witnesses confirm that the accused participated in the crime (the violent crimes system).
The benefits of such legislation will be many. Its implementation will circumvent over-crowding in prisons by reducing the number of awaiting trial prisoners and by imposing community service on those criminals where a prison sentence might be inappropriate. What is suggested is that the legislation should provide for the establishment of dedicated 24-hour Courts with the status of:
It is proposed that practicing lawyers from the Bar and Side-Bar contribute their services voluntarily and without charge to act as Acting Judges/Magistrates, Prosecutors and/or Public defenders. A pilot scheme should be implemented in Gauteng and, if successful, similar courts should over time be established in other centres.
There are clear benefits to the proposal. The immediate prosecution and punishment of offenders will promote confidence in the justice system and the interests of the public and victims of crime by the efficient and effective punishment of criminals and the removal of violent criminals from society. The immediate prosecution of an accused will avoid prejudice to the State and/or the accused caused by delays which more often than not result in the weakening of the quality of evidence, the possible death, disappearance or non-availability of witnesses, loss of evidence, the accused evading trial, attempting to influence or intimidate witnesses or concealing or destroying evidence, the unnecessary incarceration of an innocent accused pending trial, the adverse effects of delay on the personal circumstances of the accused and witnesses, and the costs and adverse effects of delay on the administration of justice.
The swift prosecution, conviction and punishment of criminals proposed by the legislation is consistent with the views expressed by, so many sectors of the public who correctly believe that that crime in South Africa is a crisis and have called for more radical laws to address crime. The promulgation and implementation of the legislation will also show a clear commitment to reducing and controlling crime ahead of the World Cup and will encourage investor confidence by demonstrating a clear commitment to fighting crime.
The scheme has obvious difficulties. It may be argued that given that there are limited resources they should be applied to address the existing backlog of outstanding criminal prosecutions rather than developing new systems. However, although reducing the backlog of outstanding prosecutions is essential, the legislation is intended to serve a distinct purpose and gives rise to unique benefits, which do not arise from merely reducing the prosecution backlog. In the alternative, the suggested process of 24 hour courts voluntarily manned as set out above could be utilized to deal with the backlog of outstanding prosecutions.
The other main difficulty is the constitutional rights of accused persons. The Constitution gives every accused person the right to have adequate time and facilities to prepare a defence and to choose a legal practitioner, and to be informed of this right promptly. The scheme's proponents believe public defenders should be on hand to ensure that the 24-hour courts operate fairly. But, an accused could thwart the scheme by insisting on more time to prepare or brief chosen counsel. Either the application of the Legislation will have to be limited to accused consenting to fast-track proceedings (rather than face a lengthy stint in prison awaiting trial) or the Legislation will have to weather constitutional challenges by showing that rights-limitations are reasonable and justifiable in an open and democratic society.
The rights of victims of crime must be balanced against those of the accused. In times of crisis, the former must surely be taken into account. The proposals are in draft only, and it is obviously necessary to obtain widespread comments regarding the proposed Legislation, particularly from members of the Judiciary, the State attorney, members of the professions, Business against Crime and any other interested parties. The proposal has been forwarded to the SA Law Reform Commission and their response and response for engagement is awaited.
Sharise Weiner SC
Advocate of the High Court of SA
www.legalbrief.co.za