A Smooth Investigation Process Law General Essay

Published Date: 02 Nov 2017

Chapter 2

Police Powers

To ensure a smooth investigation process, the law does confer certain powers to the police as defined in the PA 1974.

Stop and Search

S 9 (1) of C provides that ‘except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises’. The exception to this rule is where the person himself agrees to a bodily search of his person or the entry and search on his premises. S9 (2) of C refers to situations where the exception applies: public safety, public order, public morality, etc. Stop and search is based on reasonable suspicion. Even though police do have such powers, they need to obtain a warrant before proceeding with their search. As far as bodily search is concerned, a woman shall be searched by someone of the same sex, since it may involve complete undressing.

There is no provision of law as to the mode of conducting the stop and search apart from a proper entry in the Diary Book and Stop and Search Register.

Power of Arrest and Detention

Article 9 of the UDHR [1] proclaims that "no one shall be subjected to arbitrary arrest." Article 9(1) of the CCPR [2] adds that "no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law." The protection of Human Rights is recognized in Mauritius.

The term "arrest" is explained in the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment as "the act of apprehending a person for the alleged commission of an offence or by the action of an authority". In Mauritius we recognize the right to liberty as expressed under S 3 of C. The exception is stipulated in its S 5 "No person shall be deprived of his personal liberty save as may be authorized by law..." This was confirmed in Victor v State [3] .Subsection (e) even provides for the arrest on somebody "under reasonable suspicion of having committed, or about to commit, a criminal offence".

The PA 1974 regulates the power of arrest and detention. However as explained in Sheriff v. District Magistrate of Port Louis [4] , this restriction to liberty should not be interpreted in such a way that arrest and detention becomes the rule and liberty becomes the exception.

The purpose of arrest is to prevent the commission or the continuance of a criminal offence, to enable investigation or to present somebody into Court. There are two types of arrest;

Arrest with a warrant

Arrest without a warrant

The police are protected by S 11 of the PA when arrest is done by virtue of a warrant. It is an offence by virtue of S 258 of the Criminal Code Act to arrest a person unlawfully. S5 (5) of C provides that any person unlawfully arrested or detained shall be subjected to compensation. It is important to know when the arrest has taken place ‘because of the requirements of the 1964 Judges Rules (JR) framed by the Judges in England and adopted in Mauritius in 1965." [5] In Alderson v. Booth [6] , the Court held that "an arrest is effected either through form of words that makes it clear that the arrestee is no longer free or by physically seizing or touching his person and telling him that he is temporarily under arrest."

Access to Legal Advice & Police Interviewing

Under S5 (3) of C, any person who is arrested and who is not released shall be afforded reasonable facilities to consult a legal representation of his choice. This shall be read together with the JR, which even though not binding acts as a guide to investigators.

Is there is a duty on the police to inform the suspect of this right or whether it was for the suspect to raise this right, himself?

In State v. Coowar [7] , the Supreme Court held that there is a constitutional right to inform a suspect that he may have access to counsel. In Wadud v. State [8] , the Supreme Court approved that even though it is cardinal to inform a suspect of such right not every breach would result in a confession being excluded. Finally the reasoning of Queen v. Boyjoo [9] was adopted. It was confirmed that the right enshrined under S 5(3) of C includes the right to be informed of counsel. There is a duty on the police to do so.

The legal advisor acts as a safe guarder of the rights of the suspect. Obtaining legal advice before police interviewing is crucial as often it is the starting point of investigation .S 58(1) of PACE 1984 provides for a statutory right of access to legal advice for arrested persons. Nowadays police no longer regards the presence of a legal advisor as a threat. Instead it facilitates questioning. This is so because legal advisors think that their client’s silence may have negative effect on the outcome of the case.

While interviewing, JR need to be abided by. It was held in Rosin v. Queen [10] that even though not binding, JR is administrative guidelines to police authorities. It ascertains that the police do not abuse of their powers and that the rights of citizens are not infringed. Interview starts usually with a caution. "You are not obliged to say anything unless you wish to do so, but what you say may be put into writing and given in evidence." [11] The caution also includes the ‘right to silence’. The arrestee needs to be also advised as to his right to consult a lawyer [12] . The police should equally ensure that the person has understood these rights. If a person agrees to speak then it should be out of his free will, without any oppression. This was defined clearly in Pryestly 1965 51 CAR. [13] 

A brief outline of the Law of Evidence

In practice, the Law of Evidence is used mostly in criminal cases. "Evidence is a means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved." [14] Proper gathering of evidence ensures that the accused is ascertained of a fair trial-a right accorded under Article 6 of the European Convention on Human Rights 1950.

We are here concerned most specifically with murder cases. Since, Mauritius operates in an adversarial system of proof, the object of adducing evidence, is to prove guiltiness or non-guiltiness of an accused. Before trial, a PI is carried out, as discussed previously. At this stage, there is no intervention of the Court. However, the way evidence are gathered, may have evidential consequences at trial if the substantive provisions of the law are not complied with.

To be accepted before a Court of Law evidence needs to be admissible, relevant and the correct weight needs to be attached to it. This is why police officers need to be careful whilst gathering evidence. The least evidence overlooked may mean that the accused is scott-free or even that justice is not rendered to an Innocent.

Our main focus being murder cases we shall refer to that evidence relevant for this purpose.

A crime is normally three dimensional. We have the local, investigative and collateral evidence.

Local Evidence

This is collected at the locus [15] . These may include fingerprints, bloodstains, DNA and items left by the murderer. Such evidence may have the role of linking a suspect to the crime. For instance, footprints match the shoe of the suspect.

Investigative Evidence

This is gained from PI in direct link to the hard solid evidence from the scene of crime.

Collateral Evidence

This is received from the laboratory and is supportive in nature. These may be the findings of DNA, fingerprints and even as to the cause of death of the victim.

Police Powers in relation to the collection of Evidence

Since our prime motive here relates to PI. We need to focus more on whether police officers can easily gather such types of evidence or is there hurdles impeding in their way.

Are our police equipped enough to gather sufficient evidence? On the Locus, most of the evidence may be found but what if some are overlooked?

As per Chris Moore [16] in the Michaela Hearthe case, vital evidence was not collected. No fingerprints were taken at the murder scene and the doors were not checked for possible DNA. The doors were a means of escape. The entry and exit points should have been examined to collect DNA or fingerprint evidence. As per Dr. John Bond, a forensics’ expert with 20 years’ police experience in England, DNA evidence collected was limited in that case in the sense that it could not link any one person to the murder. This reflects amateurism on the part of our PF. They do not have the required training, in collection of evidence especially where high profile cases are concerned.

Equally in the same case, two important witnesses were not called, the bellboy who allowed John McAreavey into the hotel room where his wife lay dead and the hotel security guard on duty at that time. This could have amounted to direct evidence; however, due to improper investigation carried out, the police did not consider it important to question them. May be their information could have led to the real killer.

Indeed, the police do have the power of interviewing suspects but much time, it was observed that this power was abused. In the Gorah Issac case, the politician, Cehl Meah was forced to divulge information with the use of coercion. Confessions are extracted through undesirable means instead on focusing on the collection of evidence. The prime motive for police investigation is to gather sufficient evidence to punish the culprit. Unfortunately, this part is not emphasized on in Mauritius. In the case of Avinash Treebohun and Sandeep Moonia, the confessions were ruled as admissible. This led to an unsolved case with valuable evidence still missing.