Q&A – 4 July 2016
Questioning by police
Can a police officer start asking a suspect questions without following some procedures? In other countries, there is a strict protocol to follow including informing the suspect their rights before one can be questioned. I ask this because one of my colleagues was arrested and was aggressively questioned without being told his rights.
FR, Dar
Questioning in criminal law is governed by the Criminal Procedure Act which states the following clearly and unambiguously in section 53: Where a person is under restraint, a police officer shall not ask him any questions, or ask him to do anything, for a purpose connected with the investigation of an offence, unless– (a) the police officer has told him his name and rank; (b) the person has been informed by a police officer, in a language in which he is fluent, in writing and, if practicable, orally, of the fact that he is under restraint and of the offence in respect of which he is under restraint; and (c) the person has been cautioned by a police officer in the following manner, namely, by informing him, or causing him to be informed, in a language in which he is fluent, in writing in accordance with the prescribed form and, if practicable, orally– (i) that he is not obliged to answer any question asked of him by a police officer, other than a question seeking particulars of his name and address; and (ii) that, subject to this Act, he may communicate with a lawyer, relative or friend.
A critical right is access to a lawyer or friend as the law does not want suspects to make statements without presence of some support for the suspect, which is their right whether or not the suspect is guilty or not.
Section 54 further states that (1) Subject to subsection (2), a police officer shall, upon request by a person who is under restraint, cause reasonable facilities to be provided to enable the person to communicate with a lawyer, a relative or friend of his choice. (2) A police officer may refuse under subsection (1) for the provision of facilities for communicating with a person being a relative or friend of a person under restraint, if the police officer believes on reasonable grounds that it is necessary to prevent the person under restraint from communicating with the person for the purpose of preventing– the escape of an accomplice of the person under restraint; or the loss, destruction or fabrication of evidence relating to the offence.
You can see from the above that there are cases where the police officer may deny the suspect from making a call to a friend or relative.
Provocation as a defence
I am a law student and find the defence of provocation somehow too far fetched and unfair for the victim. Is this a defence that has recognition in our law or is it a common law import?
GO, Mtwara
The penal code in section 201 states that when a person who unlawfully kills another under circumstances which, but for the provisions of this section would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, he is guilty of manslaughter only. We also invite you to read section 202 which is too long to reproduce here but defines provocation.
The defense of provocation was first developed in English courts in the 16th and 17th centuries. During that period, a conviction of murder carried a mandatory death sentence. As such, the need for a lesser offense arose. At that time, not only was it seen as acceptable, but it was socially required that a man respond with controlled violence if his honor or dignity were insulted or threatened. It was therefore considered understandable that sometimes the violence might be excessive and end with a killing.
During the end of the 20th century and the beginning of the 21st century, the defense of provocation, and the situations in which it should apply, have led to significant controversies, with many condemning the whole concept as an anachronism, and arguing that it contradicts contemporary social norms that people are expected to control their behavior, even when angry.
Today, the defense is generally controversial especially in murder cases, because it appears to enable defendants to receive more lenient treatment because they allowed themselves to be provoked. Judging whether an individual should be held responsible for their actions depends on an assessment of their culpability. This is usually tested by reference to a reasonable person: that is, a universal standard to determine whether an ordinary person would have been provoked and, if so, would have done as the defendant did. Thus, if the majority view of social behavior would be that, when provoked, it would be acceptable to respond verbally and, if the provocation persists, then to walk away, that will set the threshold for the defense.
A controversial UK case that you should read is R v Ahluwalia which came to international attention after an Indian woman married to a British man of Indian origin burned her husband to death in 1989. She claimed it was in response to ten years of physical, psychological, and sexual abuse. After initially being convicted of murder and sentenced to life in prison, Ahluwalia’s conviction was later overturned on grounds of inadequate counsel and replaced with manslaughter. The case changed the definition of the word ‘provocation’ in cases of battered women and brought in the defence of battered wife syndrome in criminal law.
The phrase “sudden and temporary loss of self-control” encapsulates an essential ingredient of the defence of provocation in a clear and readily understandable phrase. It serves to underline that the defence is concerned with the actions of an individual who is not, at the moment when he or she acts violently, master of his or her own mind.
All in all, the defence has recognition in our statutes and is further reinforced by case law from around the world.