BASL Chief on procedure to arrest and remand suspects | Sunday Observer

BASL Chief on procedure to arrest and remand suspects

13 September, 2020

“The media has a huge responsibility in educating the public of a nation. Accurate reporting and information relating to factual incidents must be done correctly by the media,” said President of the Bar Association of Sri Lanka PC Kalinga Indatissa.

He said that even at this age of technology, people place a lot of reliance on what is reported in the media. Therefore, it is essential that all media personnel are properly trained in the reporting of legal matters.

Q. In your experience what are the key issues you have seen in media reportage of legal matters?

A. There is no proper and adequate training provided to journalists in this field. Often, they would pick up the facts of a case from a lawyer representing one of the parties in a case and report it as indicated. This practice has to stop. First, the ethical rules pertaining to the legal profession indicate that lawyers cannot advertise themselves.

In my opinion, giving a voice cut in respect of a case where a lawyer represents a particular party raises ethical concerns. On the other hand, lawyers and journalists have to be extremely careful on matters pending before a court.

The ‘sub judice rule’ mandates that nobody can speak about a matter pending in court. Of course, journalists are free to report the facts of a case without expressing opinions in respect of judicial orders. Lawyers representing a party are precluded from commenting upon or expressing opinions on the matter before court.

Sometimes, it is common to see headlines of certain articles containing words which are out of context. This leads to a problem as the contents of the article are not compatible with the headline.

Q. There seems to be a grey area when it comes to the arrest and the remand of a person. Can you shed some light on this subject?

A. One of the areas where the public are not informed of the correct legal position is the area relating to arrests and remanding of persons. When persons are arrested and granted bail, there have been instances where the general public debates whether the release of such person on bail is legal or not. The commencing point of the criminal justice system is when a complaint is recorded at a police station. There are two types of complainants, in the first category, the alleged offenders may be known and may have been arrested by the police after recording the complaint. In the second category, the offender may be unknown or he may not have been arrested when the police reports the facts to court.

Whenever a complaint is received, a criminal investigation begins. When a suspect is arrested, the police are required to report the facts to court and produce the suspect in court. The arresting of a person involves the personal liberty of an individual. The personal freedom of every citizen is guaranteed by the Constitution and any deprivation of such personal liberty can take place only within the law. Article 13(1) specifies that ‘no person shall be arrested’ contrary to the procedure established by law.

Q. How can a person be arrested as mentioned in the Legal system?

A. Arresting a person is discussed under the legal system in two ways. There are cognisable offences where a person may be arrested by a police officer without a warrant, whereas in non-cognisable offences a warrant is required for the arresting of the person.

In the case of offences where a police officer may arrest without a warrant a discretion is placed on the investigating police officer. Such an arrest may be made either on a credible information, a reasonable suspicion or a reasonable complaint. Wherever the concept of reasonable suspicion is involved, the arresting officer must form that suspicion in his mind. Hence, investigating police officers should bear this fact in mind at the point of arrest.

Q. What are the grounds on which a remand order can be given?

A. When a person is produced before court, the initial question the court has to answer is whether a suspect should be released on bail or whether he should be remanded. Bail and remand are governed by the Bail Act 1997. In terms of this law, the rule in the Bail Act is that suspects should be granted bail wherever possible.

This is a recognition of the constitutional provision relating to freedom of individuals and the presumption of innocence which is a hallmark under our legal system. Judges are guided by this principle which is contained in the Bail Act.

Accordingly, a person can be remanded only in certain circumstances, as spelled out in section 14 of the Bail Act. The primary purpose of bail is to ensure that the accused would stand the trial and attend court hearings. The grounds upon which a remand order may be made depend on:

a) Whether the suspect would interfere with the witnesses

b) Whether he would obstruct the course of justice

c) Whether he would not appear to stand this inquiry or trial

d) Whether he would commit further offences while on bail

e) Whether there is public reaction in respect of the offence which would give rise to public disquiet

When you consider the above reasons, it is evident that the purpose of remanding is not to punish the offender but to facilitate the investigation. It is relevant to note that the previous conduct of the individual would matter a great deal in making an order for remand.

For example, if the suspect does not have a permanent place of residence or changes his residence from time to time, he could be remanded on the first ground. Similarly, if the suspect has control over the witnesses or access to evidence and where investigations have not been concluded there is a likelihood that he could influence the witnesses or tamper with the evidence or in such circumstances remand order may be justifiable under the second law. Similarly, if the previous conduct of the suspect discloses that he has been a habitual offender he could be remanded under the fourth law.

The fifth ground of ‘public disquiet’ means the offence is grave and the public at large would react to the offence resulting in a public disquiet.

This would arise where the mechanism adopted to create the offence involves cruelty, unacceptable violence or similar ground. On many occasions, there have been instances where people stand close to a courthouse holding placards requesting the remand of persons.

In my view, this is not ‘public disquiet’ that the law speaks of. What is envisaged as public disquiet in this section would be a circumstance where there is an actual effect on the public. In other words, where the conscience of the public suffers a shock.

Q. What is your advice to journalists reporting legal issues in Sri Lanka?

A. Very often, some of the headlines in newspaper articles convey a wrong impression on orders made by learned Judges. It is an established rule that a remand order cannot be punitive or operate as a punishment as stated before, the only purpose of remanding a person is to facilitate an investigation. Hence, a complete understanding of the law is necessary in reporting matters pertaining to arrests.