Criminal Procedural Law (guide + examples)

This is a comprehensive guide to criminal procedural law.

The focus of this guide is to make sure you know and understand the basic procedures and basic activities involved in the criminal procedural law and criminal justice system at large during the administration of justice.

See also: Classifications of law

What Is Criminal Procedural Law?

Criminal procedure is a branch of law that deals with a set of procedures through which substantive criminal law is enforced.

The state must follow the criminal procedure strictly to safeguard the interest of the offender and the state.

Criminal procedural law is the most important area of law in any country. It involves public/state interests and individuals/citizens’ interests.

It is the branch of law that seeks to harmonize individual liberty and public/state interest.

Procedures in the criminal procedural law show the rights and duties of the offender in relation to that of the republic during the criminal offense.

Procedure and Practice in Criminal Procedural Law

It is worth noting that, in criminal justice, every person is presumed to be innocent until proven guilty by the court.

This simply means that an offender must be treated with respect, dignity, and humanity when determining his/her fate.

The basic procedures in the criminal justice system include investigation, arrest, search, seizure, prosecution, judgment, and sentence.

Pre-trial procedure in Criminal Procedural Law

The following are the Pre-trial procedure in Criminal Procedural Law

Investigation

An investigation is a process of finding the existence or the non-existence of a certain fact.

This is a very important step in criminal justice. It forms the basis of other steps. This step begins immediately when the police officer or any bodies vested with powers to investigate, receives information concerning the commission of a certain offense.

Why Investigation?

in criminal law and procedure investigation is conducted with the aim of finding the important particulars of the offense like the time in which the offense was committed, the place where the offense was committed, the people involved, and items used in the commission of the offense, etc.

Investigating is the basis of the prosecution. It enables police officers to get suspects, relevant witnesses, and shreds of evidence.

It facilitates other steps in criminal justice like arrest and search.

Activities Involved in the Investigation

Interrogation

Interrogation refers to the process of asking questions to a person for the purpose of finding the truth about something.

During the investigation, a police officer may ask any person who knows the circumstance of the case to explain for his best knowledge what he knows about the incident.

It is an offense for a person to refuse to give co-operation to a police officer during the investigation. From interrogation, suspects, witnesses, and evidence may be obtained.

Interview Suspect

During the investigation, a police officer may interview a person suspected to commit an offense. This interview is conducted at a police station.

During the interview police officer must inform a suspect, his name and rank and the offense he investigates about.

The suspect can communicate with a lawyer or relative for assistance. A police officer is not allowed to torture the suspect during the interview.

Identification Parade

Identification parade refers to the parade conducted by a police officer to ascertain whether the victim or witnesses can properly identify a person suspected to commit a crime.

It is conducted by a parade of several people including the real suspect and the victim or witness is required to select the real suspect out of that parade.

A police officer may require any person to participate in the identification parade. It is an offense for a person required, without reasonable excuse to refuse to participate in the identification parade.

Where, with evidence, a person is convicted, prosecuted, punished on mistaken identity or suffers any loss or injury due to mistaken identity has to be compensated as a victim of the crime.

If such a person dies his legal representative will be compensated.

Medical Examination

During the investigation, a medical examination may be conducted by a medical officer to a victim or offender so as to ascertain the existence of certain medical issues regarding the basic incidents of the offense committed.

In most cases, a medical examination is conducted in offenses like rape, murder (post-mortem), grievous body harm, etc.

Other investigation activities include taking photos, fingerprints, measurements like height, length, and weight, recording voice, etc

Arrest

Arrest refers to the depriving of a person’s freedom of movement by taking him to lawful custody with a view of bringing him before a court on a criminal charge, or for the purpose of investigating his liability in respect of a criminal charge.

This is the second procedure in criminal justice. After the investigation is complete, the suspect is arrested and put under police retrains.  However in some cases arrest may precede an investigation, this is common when the accused has been caught on the scene of the crime.

The arrest may be affected by police officers, magistrates, or private persons. It can be done with a warrant or without a warrant.

Unlawful Arrest

Arrest becomes unlawful when it was conducted in a manner that contravenes the provision of the law regarding the arrest. The arrest may become unlawful when:

1. Arresting a person without lawful authority.
2. Arresting a person without informing him of the grounds for his arrest.
3. Use of unlawful, unreasonable, and excessive force when arresting a person.
4. Unlawful detaining a person for a longer period without releasing him on bail or taking him to court.
   Subjecting the suspect to unnecessary restraint, indignity treatment, cruelty, and inhuman acts.

Use of force during the arrest

A police officer is allowed by law to use force during the arrest. However, the force used must be a reasonable force.

The test applied to determine whether the force used was reasonable or not is by looking at the nature/gravity of the offense committed.

Discharge of Arrested Person

A person arrested may be absolutely discharged when it is discovered that he was unlawfully arrested or when it may appear that the person arrested is innocent.

Also, a person arrested may be discharged by police bail after fulfilling all bail conditions or taken to the court within24 hours since being arrested.

Generally, the arrest must be conducted with good utmost faith. A person under arrest must be treated with humanity.

See also: Rights of an arrested person

Search and Seizure

In criminal justice, a search is conducted in order to find something which is connected with the offense committed. Search can be conducted to persons, premises, and motor vehicles.

A search may be done immediately after arresting the person or later on depending on the circumstance of the case at hand.

Modes of Conducting Search in a criminal investigation

A search must be conducted with care and goodwill. Women must be searched by women police or by any decent women in case there is no woman police.

During a search, a Police should stand back from the person searched and start to search the suspect from the head downwards.

The searched person must stand straight leg open and puts hands on head. All articles found during the search must be seized, preserved, and listed on the registry.

A search of premises is conducted when there is a belief that it may afford evidence of the offense committed. A search of premises may be conducted with a warrant or without a search warrant.

The criminal trial procedures in Criminal Procedural Law

The following are the criminal trial procedures

Prosecution

This is the stage where a suspect is taken to the court for the determination of his case. Court proceedings are initiated by filing a document called charge before the court of competent jurisdiction

A charge may be defined as a written accusation against the accused of an offense or an allegation of an offense, that he is said to have committed.

It contains the parties of the case, the statement of the offense committed, and particulars of who, where, when, and how the offense was committed in summary form.

Main Activities in Prosecution of the accused person

Plea Taking

Plea refers to the formal statement by the accused person as to his admission or denial of his guilt to the charge.

The prosecution of an accused person is not complete until he has pleaded to the charge. Where no plea is taken, the trial is a nullity.

When the accused person has been taken to the court for the first time he must plea to the charge. The plea must be voluntary and personal.

An accused person may plead guilty or not guilty.

When the accused plead guilty, the court will make sure he understands the circumstance of the offense and that his plea is not made out of a mistake and proceed to convict him accordingly and issue sentences.

When pleading not guilty the following activities proceeds.

See also: Plea in a criminal case – meaning, types, and everything you need to know

Bail Pending Trial

Bail refers to the conditional discharge of the accused person pending the determination of his case. Bail hinges on the doctrine of presumption of innocence.

When the accused person is charged with a bailable offense he may pray/ask the court to realize him on bail pending the determination of his case.

When there is no objection from the prosecution side, and after fulfilling all bail conditions, the court will discharge the accused person.

see also:  why the court may refuse to grant bail on someone?

Preliminary Hearing (PH)

A preliminary hearing refers to the hearing conducted for the purpose of determining the disputed and undisputed facts of the case.

It is usually conducted by reading a memorandum of facts prepared by the public prosecutor to the accused, and The accused has to admit or deny a certain fact. After that, the court will prefer the memorandum of undisputed facts signed by the accused and the public prosecutor.

A preliminary hearing helps to determine the witnesses and evidence to be brought by both parties before the court for the purpose of proving disputed facts.

Prosecution Case Opens

The prosecution case is opened when the republic starts to give evidence before the court.

The first witness to give evidence before the court is a victim or complainant followed by other witnesses.

There is no limited number of witnesses required in a certain case. The number of witnesses will vary according to the nature of the case.

After the prosecution case closes, the court will make a ruling on whether the evidence adduced by the prosecution has established the case to be answered by the accused person.

If not, the court will realize/ acquit the accused person. If yes, the following activity commences.

Defense Case Opens

The court will give a chance for an accused person to defend himself in relation to the offense charged.

An accused person may defend himself or may be assisted by his Advocate.

He is allowed to call witnesses and provide relevant evidence to prove his innocence.

After the defense case is closed the following step follows.

See also: How to win a criminal case in court

Judgment and Sentence

Judgment refers to the final decision of the court.

The court after hearing the prosecution and the accused person’s case must write a judgment.

If satisfied that the evidence adduced by the prosecution proved the case beyond reasonable doubt shall convict the accused accordingly and enter the sentence.

If not court shall acquit the accused person.

The sentence refers to the punishment that a court imposes after convicting an accused person.

Before sentence court allows the accused to produce reasons to mitigate the sentence example of mitigation reasons include; the accused being the first offender, he was cooperative from the beginning of the case, etc., and the prosecution producing factors to aggravate the sentence example the accused is a habitual offender, the crime committed is trending, etc. After that court enters a sentence.

Judgment must be read in the presence of both parties, in the language which both parties understand.

Post-trial procedures in Criminal Procedural Law

The following are Post-trial procedures in Criminal Procedural Law

Appeal

Appeal is a constitutional remedy available to the party who does not satisfy by the decision of the court. Any party to a case may appeal to the higher court if he is aggrieved by any finding; sentence or order made or passed by a subordinate court.

The subordinate court is required by law when any finding, sentence, or order is made or passed to inform any person or party who may be aggrieved, the limit of time to which if he wishes to appeal may do so.

The court is also required to inform him of the period required to give notice of his intention to appeal and the period to lodge his petition of appeal.

See: Sample of Petition of appeal