THE LAW REFORM COMMISSION SHOULD TAKE NOTE WHERE SHOULD A REMANDED PRISONER BE DETAINED AND FOR HOW LONG BEFORE TRIAL?

The detention of remanded prisoners at the NIA as a result of a court order has led some people to ask questions whether courts could make such orders. Some have also asked whether a person could infinitely be remanded by a court without court proceedings.

Section 24 Subsection 3(a) of the Constitution states:

“Every person who is charged with a criminal offence shall be presumed innocent until he or she is proved or has pleaded guilty.”      

It is this presumption of innocence which has also given rise to the right to a fair hearing before an independent and impartial tribunal.

How should the court treat the accused person? Could the court order an accused person to be remanded in custody in a place other than a prison?

The Criminal Procedure Code creates two different standards which need to be harmonised through the Law Reform Commission.

In terms of trial before a subordinate court Section 162 of the Criminal Procedure Code indicates that in case of an adjournment, the court may order   “the accused person to go at large, or may commit him to prison, or may release him upon his entering into recognisance with or without sureties, at the discretion of the court, conditioned for his appearance at the time and place to which such hearing or further hearing shall be adjourned.” Hence it is clear that anybody who is tried before a subordinate court must be remanded in a prison if not released on bail.

Needless to say, such adjournment has limits. Section 162 did add that “..no such adjournment shall be for more than fifteen clear days, or if the accused is committed to prison, for more than seven clear days, the day following that on which the adjournment is made being counted as the first day.”

Hence, it is also clear that one cannot be remanded for more than seven days without appearing in a subordinate court for the continuation of the case.

Prisoners under remand have privileges. Section 37 of the Prisons Act states:

“A civil or unconvinced prisoner may be permitted to maintain himself, and to purchase or receive from private sources at the proper hours food, clothing, bedding or other necessaries, but subject to examination and to such other conditions as may be prescribed.”

Rule 58 of the Prisons Rules also indicates the rights to be exercised by remanded prisoners. It states: “A prisoner awaiting trial on remand shall be afforded immediate and ample facilities for communicating with his friends and legal advisers. Letters shall be sent by post or otherwise with the least possible delay. Telegrams shall also be sent at once, if a prisoner so desires, but at his own expense.”

On the other hand, Section 226 of the Criminal Procedure Code deals with cases before superior courts. It states:

“If, from the absence of witnesses or any other reasonable cause to be recorded in the proceedings, the Court considers it necessary or advisable to postpone the commencement of or to adjourn any trial, the Court may from time to time postpone or adjourn the same on such terms as it thinks fit for such time as it considers reasonable, and may by warrant remand the accused to some prison or other place of security.

During a remand the Court may at any time order the accused to be brought before it.

The Court may on a remand admit the accused to bail.”

Those detained in other places of security should enjoy the same rights as that of a Remand prisoner.

In our view, the Police and NIA Headquarters should not be transformed into remand wings.   This provision in the criminal procedure code should be amended to delete the power to remand the person to other place of security. Furthermore, the limit set for the mandatory continuation of cases before subordinate courts should also be extended to superior courts through an amendment of the Criminal Procedure Code. This is the way to prevent justice from being delayed and, by extension, also denied.