Complaints, arrests, and detention in criminal law
Trilingual legal discussions series ‘Law is Light’
By Zeenath Zakir
Law is Light is a series of trilingual legal discussions organised by the Pro Bono Committee of the Law Students’ Association of Sri Lanka to educate the general public of the laws in our country. In its second discussion, the programme focused on “Crime and Law” to provide an understanding of criminal law and the due process.
The discussion featured Attorneys-at- Law Practicing Criminal Lawyer and Colombo School of Business and Management Advisor Nalinda Indatissa PC; Consul General for Seychelles in Sri Lanka and University of Colombo Faculty of Law visiting lecturer Prasantha Lal De Alwis PC, and practicing in the fields of Public and International Law, Criminal Law, and Human Rights Law and Colombo law society President in 2005 Kanagasabai Shanmugaratnam Ratnavel.
What is a crime?
A crime is an offence committed against the entire society. When a person upsets the social order, it constitutes a crime. The State takes the responsibility of punishing the person for doing the wrong or to compensate the person who has been wronged.
Could we elaborate on the types of crime?
The basic accepted school of thought is that a crime can be divided into personal crimes, property crimes, inchoate crimes, statutory crimes, and financial crimes.
Personal crimes are assault of a person, kidnapping, and domestic crime where people in the household are affected.
Property crime is more serious in nature; for example, if somebody writes a forged deed for a property owned by another person – forgery of a document where it says it has been represented by a person where it has not been. In theft, although only one party is affected, society looks down upon such activity because there is psychosis in permitting theft to take place. Robbery and extortion are more serious property crimes.
Statutory crimes are not orthodox crimes but those that you come across with the development of chemistry and society. The drug-related crimes come under the Provisions of Poisons, Opium, and Drugs Act. Possession of certain chemical substances were not known to the society prior to the development that took place. The possession of it alone is considered a crime. These crimes affect the entire fabric of society. Then you get alcohol-related offences, such as drunk driving and manufacturing and possession of illicit liquor.
Financial crimes involve moveable property. When a person is in possession of a property he either probates a property or he uses the property in violation of the entrustment that it becomes a criminal breach of trust. A criminal misappropriation; cheating, occurs where a representation is made and used to get someone to deliver some property. Those are the olden day financial crimes. With the development of society and international trade, crime has become transnational. So we have crimes like terrorist financing or money laundering, where people commit crimes of bribery, corruption, or exchange control violation and that ill-gotten money is invested in the financial system of a different country. Today there are computer crimes; for example, entering a database of a bank or company and giving a command to transfer some money to a different account. Or you intercept two parties engaged in international crimes.
Inchoate crimes – aiding and abetting any of the principal offences or conspiracy to commit any of the principal offences. This includes attempting to commit offences.
Any act against the state or society we live in is considered a crime.
How can an arrest be made?
When we know a crime has been committed, we go to the police. They are the most common forms of peace officers that we know of. A peace officer is the word for a legally recognised law enforcement officer. First you make a complaint to the police officer, and he will analyse the material available and see whether there can be a reasonable suspicion where an offence can be made out.
Once a reasonable suspicion has been made, the police officer will see whether the offence revealed is an offence where a person can be arrested without a warrant. A person can be arrested without a warrant in serious offences, when time is insufficient for the police officer to obtain a warrant from the magistrate because of the damage that can be caused by delays. The law has recognised these serious offences in Schedule 1 of the Criminal Procedure Code.
If it’s not a cognizable offence, he has to report the facts to the magistrate, and perhaps the magistrate may need some evidence to be satisfied as to whether there is a reason to give a warrant of arrest. Once a warrant is issued, the arrest can be made.
There are two ways of causing arrest: if it is a cognizable offence the arrest can be made without a warrant and the person produced in court. If it is a non-cognizable offence, the person has to go to the Magistrates Court, report facts, and satisfy the magistrate to obtain a warrant and perform the arrest.
Other than the Police, who else can make an arrest?
The Grama Sevakas, in the good olden days, were given police powers. Wildlife officers under the WildLife Act can perform police duties. Under the Custom Ordinance, there are custom officers, Forest Ordinance – forest officers, and under the Food Act – the PHIs. They are also termed as Peace Officers.
Does the person performing the arrest state reasons when the arrest is made?
You have to make the arrest in accordance with the Constitution and the Code of Criminal Procedure Act. It is a fundamental right that the person arrested ought to know the reasons for an arrest. In the instance where a person is trying to prevent the arrest, you could use minimum force to cause the arrest.
What does minimum force mean?
Sufficient force required to arrest a person can be deployed but you cannot use more force than it is reasonably necessary.
When a person is investigated, should a lawyer be present?
- 41 Judicature Act states that a person has the right to represent his client in any court of law or any institution established for the administration of justice.
What is the duty owed by the police towards a person held under custody?
According to Article 11 of the Constitution they should not be subjected to cruel and inhumane degrading treatment. They owe a duty not to inflict bodily or mental harm.
Act 13 speaks of presumption of innocence but the general public tends to brand a person guilty the moment they hear it on the news. Can you tell us how the Law looks at it?
Article 13(5) states, until a person is proven guilty, he is presumed to be innocent. The prosecution will have to establish beyond reasonable doubt that the accused is guilty of the offence that he is charged with. Today what happens is, there is media coverage before a trial and it puts forward a superficial theory without any cross examinations. They do not dwell into the credibility of the witness. The evidence has to be investigated properly for there to be justice.
Is contempt of court a criminal offence?
Anybody trying to interfere with the administration of justice would be committing the offence of contempt of court. It is a criminal offence and they will be sent to prison.
If the Police do not accept the complaint what action can be taken?
Police can investigate only criminal complaints and not civil ones. So if they refuse to accept a criminal complaint, you can complain to the IGP, the Human Rights Commission, or go to the Court of Appeal.
(The writer is Secretary 2020-2021 of the Pro Bono Committee of the Law Students’ Association of Sri Lanka)