Lectures

Criminal Procedure - Lecture 8

By: CHRISTOS CLERIDES Dec. 02, 2009

The law relating to Criminal Procedure is to be traced, as strange as it may sound  first, in the Constitution and of course the European Convention for the Protection of Human Rights, then in the Criminal Procedure Law Cap 155 and the Criminal Procedure Rules adopted thereunder.

The most important matters relating to the practice in the Criminal Law field,are to be traced in the Criminal Procedure Law Cap 155 and its 176 Sections.

The law itself is divided in 5 important parts which also highlight the most important stages in the criminal process starting with the investigation of offences and leading up to appeals.

In section  3 of the Law it is provided that English practice is Applicable in the absence of any Cyprus provision.

A. Investigation of offences and proceedings antecedent to prosecution

Investigation is usually carried out by police officers. Under Section 5 he has the power to request any person to attend the police station for purposes of examination and take statements.

Any person refusing to attend is guilty of an offence. In addition he has power under Section 6 to require the production of a document and any person failing to do so is also guilty of an offence. The accused is entitled under Section 7 as amended to copies of all statements of all witnesses and documents to be put in evidence. Under Section 8 the “Judges Rules”  applied in England regulate the taking of statements.

In addition a police officer may under Section 9 carry out an arrest and use reasonable force to effect it and unless during the commission of the offence the officer shall inform the person arrested of the cause of the arrest.

Under Section 10 an arrested person may be searched and under Section 11 if a person to be arrested has entered into any place, any person in charge of that place shall  allow entry and if not the police may enter anyway. Under Section 14 the police officer may arrest without a warrant of arrest in certain specified cases which mainly cover situations where the police officer has reasonable grounds to suspect that a serious offence punishable with more than two years imprisonment has been committed or where in his presence an offence punishable with imprisonment is committed. There are more categories including cases where there is an obstruction of a police officer, where stolen property is found ,or in cases where it is believed that a warrant of arrest has been issued and where a suspect refuses to give his true name and address.

Under Section 15 a citizen’s arrest is allowed in a more limited number of cases that is where in the presence of a citizen an offence carrying imprisonment exceeding two years is committed. In addition a person found committing any offence involving injury to property may be arrested by the owner of the property. Under Section 18 a judge may issue a warrant for the arrest of any person in all cases where it is deemed necessary or desirable. Finally under Sections 25-29 provision is made for the search of a person and places including means of conveyance with or without search warrants. Under Section 25 search without warrant is allowed where there is reasonable suspicion of a person carrying any article involving the commission of an offence. Ιn  addition he may enter any place without a warrant if he has reason to believe that an offence punishable with two years imprisonment is committed or the occupier of the place calls for his assistance . Under Section 26 a right to stop and search a vehicle is given to police officers for the purpose of ascertaining upon reasonable suspicion whether explosives or offensive weapons are being carried. It is obvious that this provision was enacted to deal with the liberation struggle against the colonial yoke 1995-1959. Under Section 27 a search warrant may be issued by a judge for the purpose of obtaining evidence where there are reasonable grounds that an offence has been committed. All the above provisions in the 1959 edition of Cap 155 are subject of course to the provisions of the Constitution and the analogous provision of the European Convention for the Protection of Human Rights. In particular Article 11 of the Constitution provides in which cases a person maybe deprived of his liberty, Article 11. 3 provides that an arrest can be made only under arrest warrant except in cases of a flagrant offence punishable with imprisonment. Furthermore under Article 16 of the Constitution, no entry into a mans home is allowed except with a judicial warrant or the consent of the occupier or fax the purpose of saving the victions of any offence of violence or disaster.

Further under Article 11.3 it is impermissible to search a person without a warrant.

B. Prosecution proceedings.

This is large part of criminal procedure and covers the commencement of criminal proceedings, the trial including preliminary inquiries and judgments.

 The usual way of commencing criminal proceedings against a person is by a charge in a specified form. This is provided for in Sections 37, 38 of CAP 155.

Usually a charge in Cyprus is not open to objection in respect of its form and in any event may be amended. A number of counts for the same offences or different offences may be included in the same charge. In other words it is not necessary where a series of events leads to the commission of different offences to file separate charges i.e commence numerous criminal proceedings. All the offences are included in the same charge, in what are called different counts.

Further there can be many accused in  the same charge for the same or different offences , See generally Sections 37-42. The charge is usually presented to a judge who directs that it be filed and subsequently a summons is issued to compel the attendance of the accused in the prescribed form. The summons is served personally or by leaving it with another person leaving with him or in charge in the place of his residence or business. An accused Corporation is served by leaving it to the principle place or business or with an officer of the corporation. See generally Sections 43-46.

Detailed provisions are made for compelling the attendance and examination of witnesses in Sections 49 to 61 ,the principle being that the Court upon the request of the prosecution or the accused ,issues a witness summons compelling a witness to attend and give evidence . 

It is an offence not to attend to give evidence. In all criminal cases whether in the District or Assize Court a witness is first examined in chief then cross examined and re examined in the same fashion as in civil case.

In summary trials and trials on information i.e in Assize Court the accused answers to the charge or in Assize Court the information, pleading guilty or not guilty, see Sections 62-68 . Section 69 provides for special pleas i.e that the Court has no jurisdiction or that he has been previously convicted or acquitted ( autrefois convict or autrefois aquis ) or that he has been pardoned of the offence.

If insane accused may be detained under Section 70 and after trial if acquitted on grounds of insanity again the accused any be detained as an insane person although this procedure has fallen into disuse in the sense that mental patients are regulated under other special laws.  In fact section 70 has been amended in 1997 and provides for a special procedure in case of insanity. Under Section 72 a corporation appears by representative and enters a plea in writing.

The accused is always deemed innocent until proven guilty. See Article 12.4 of the Constitution. After the plea the Court proceeds with the Hearing with the prosecution calling its evidence . The defence upon completion of the prosecution case may submit that a prima facie case has not been made out. If the submission is successful then the case is dismissed and the accused acquitted. If not the Court calls upon the accused for his defence, but a)  has to advise the accused that he may make a statement without be sworn b) in such a case he will not be liable for cross examination.  or c) that he may give evidence after been sworn and d) in such a case he will be cross examined.

The accused is always called first under Section 74 (d) and then the other witnesses are called. The prosecution may be allowed after closure of the case for the defence to adduce evidence in rebuttal for unforeseen new matter.

The party who has last called the witness may address the Court first and the other party shall reply. At the conclusion (Section 77) judgment is delivered.

The Court may find the accused guilty and pass sentence or acquit the accused. Under Section 88 it is worth mentioning that no charge shall be brought against any person for any offence the punishment of which does not exceed imprisonment for 3 months or a fine of £125 pounds unless the charge is brought within 6 months. Under Section 89 in summary cases the court may if the accused fails to appear either issue a warrant of arrest or proceed in absentia. Under Section 91 the Court may give leave to the prosecution to withdraw a charge, in which case the accused is acquitted unless the withdrawal is made before the plea in which case the discharge does not operate as an acquittal . Sections 92-106 provide for the institution of the more serious proceedings i.e for offences which are not tried summarily by the District Court. A preliminary inquiry by the judge, must be held. The object of the preliminary inquiry is to do what it expressly says i.e it is for the judge to carry out a preliminary inquiry to establish where there are sufficient grounds on the basis of the evidence for the accused to stand trial. It is not a trial but a preliminary inquiry with the prosecution and the accused giving evidence by witnesses or nowadays witnesses statement. The procedure is detailed and has to be followed and it relates to the examination of witnesses to the record of the proceedings to the rights of the accused to address the Court, to call for witnesses , or for the accused to give evidence etc. If the judge decide to commit the accused for trial the record is transmitted to the registrar of the court in which the committal was made, i.e the Registrar of the District Court and from thereon to the Chief Registrar for transmission to the Assize Court.

Special provisions apply in trials on information , See Sections 107 -111. Section 107 provides that no person shall be put upon trial except upon an information filed by the Attorney General in the Assize Court. In other words for the less serious offences the prosecution files with the District Court the charge as we have seen above. In the most serious cases a charge is filed in the District Court and then a preliminary inquiry is held and if the person is committed for trial in the Assize Court the Attorney General has to file an information in the Assize Court  in which the Attorney General charges the accused with any offence that he deems appropriate and justified as a result of the preliminary inquiry. (See section 108) The form of the information is laid down in the section 109 and is similar to the charge and counts in the District Court.

C.Executions and recovery of penalties

Sections 118 to 130 provide for execution and recovery of penalties,. If the penalty is not ordered to be paid forthwith then it will be recovered afterwards see Section 118. The Court may inquire into the means of the person for payment. When ordering the payment of a penalty the court may stipulate the period of imprisonment in default of payment. . Penalties are paid under a warrant of execution on the movable and immovable properties of the offender. The warrant is issued by the judge and executed by the bailiffs of the court nowadays by the police officers. If no property is found the court may issue a warrant of commitment i.e arrest and imprisonment of the offender . Section 128 of the law provides that where  person is committed to prison the period of imprisonment shall not exceed the term specified in the table of Section 128 and depending on the size of the penalty the days of imprisonment are  5 days  to 1 year.

D. Appeals , reserved questions of law etc.

Sections 131 -149 provide for appeals and related matters. Appeals from Assize Courts may be filed against conviction or sentence. It is no longer necessary as provided in Section 132 of the criminal procedure law to obtain the leave of the Supreme Court. An appeal maybe on questions of law evidence and fact. This is provided for in Section 25 of the Courts of Justice law. The same is true as far as appeals are concerned from judgments of the District Court and as a result of an amendment of the law appeals may be also filed on restricted legal grounds by the prosecution in case of acquittal. See new Section 137 amended by Law 54 (1) 98. The period for appeal is 10 days as from the date of sentence. This is applicable in both jurisdictions. In the appeal the full grounds of the appeal are stated. The hearing of the appeal is regulated by Section 133 of Cap 155. The appellant is heard and then the respondent. Of great importance is Section 145 of Cap 155 which provides for the powers of the Supreme Court in determining Appeals. It is provided that the court may dismiss or allow the appeal or order a new trial. There is a special provision in Section 145 (1) (b) which allows the Supreme Court even where the point of appeal might have been successful to nevertheless dismiss the appeal “if is considers that no substantial miscarriage of justice has actually occurred”

The Supreme Court has the power on the evidence before it to convict on a different offence and sentence accordingly. Under Section 146 it even has power to hear further evidence  or accept evidence wrongfully excluded or reject wrongfully admitted evidence. Under Section 147 the Supreme Court may fix the date as from when sentence is to commence. If not the commencement of sentence is from the judgment of  the Supreme Court.  This harsh provision was amended by Law 12/75.  Any detention period pending appeal counts unless the Court otherwise orders.

A useful procedure is that of Section 148 which provides that any Court exercising criminal jurisdiction may reserve a question of law  arising during the trial for the opinion of the Supreme Court. Usually the Court decides the issue and then reserves the question transmitted to it through the Registrar to the Supreme Court. The Attorney General has the extra power within 14 days apply to the judge to stay a case for the opinion of the Supreme Court where he believes that a decision is erroneous.

Bail

Any Court exercising in criminal jurisdiction may if it thinks proper at any stage of the proceedings release on bail any person charged or convicted of any offence upon the execution of a bail bond provided in the law as to its form and contents. It may be with or without sureties. If the condition of the bail bond is not met i.e the accused fails to appear then the Court may order the amount of the bond to be forfeited. In serious crimes or where there is a risk of the defendant absconding  the Court will not allow an accused persons to be discharged from custody although the practice nowadays except in the most serious cases is to allow an accused person to remain free until trial. But the Court may at any stage order that the accused whether in a summary trial or in the Assize Court to remain in custody pending his trial. The provisions for bail are to be found in Sections 157-165. 

Conclusion:   By and large English practice followed in the 50s is still followed in Cyprus.  As in the case of Civil procedure there is certainly room for improvement. Certain improvement to Law have been introduced recently such as the possibility of obtaining prosecution evidence in advance, and the unrestricted right of appeal.  Nevertheless the issue of warrants of arrest needs to be carefully scrutinized as warrants of arrest are rather easily obtainable.  In addition special provision should be made for immigration cases as the Courts are flooded with this type of case.  Minor offences should also be dealt with otherwise so that the criminal process proper should remain with the more serious offences.

Dr. Christos Clerides
Associate Professor
European University

2.12.2009