This paper is focusing on the fundamental changes brought by the Hungarian Criminal Procedure Act Act XC of 2017, which entered into force on 1st of July 2018. New or renewed legal constructs of the ...criminal procedure are being reviewed. These range from the introduction of a split model of the investigation, to the introduction of two ways of cooperation with the defendant and affect several legal institutions. The new procedural act brings a completely new approach to the parties' right of disposal, the extension of the victim's rights, the secret information gathering, and many other issues. The author seeks to capture those provisions of the act that fundamentally define and reflect this new image of the criminal procedure.
Introduction:
Social factors are increasingly being used to determine health outcomes. The concept of social determinants of health has been used to shape policies that address disparities. There is ...a paucity of such studies in the forensic setting. This study aimed to use social determinants of health to identify social factors that are associated with being a male forensic patient.
Methods:
The study was a retrospective two-group (forensic and non-forensic) comparison clinical record review. Association was identified through independent and multivariate statistical analysis.
Results:
The study sample comprised of 296 patients, 56.4% (n = 167) of which were non-forensic. The majority of the sample was black African, 50 years and older, single, unemployed and had attended main-stream schooling. Race (p < .01), employment status (p < .02), not completing high school (p < .01), previous imprisonment (p < .01), drug use (p < .01) and not being on medication prior to admission (p < .01) were significantly associated with being a forensic patient. Multivariate logistic regression analyses also confirmed these associations.
Conclusion:
Social determinants of health ought to be targeted to improve health outcomes of psychiatric patients. Collaborations between mental health, public health, law and policy makers as well as non-/governmental agencies may lead to change. Human rights of individuals with mental illness may thus be enhanced in the long run.
General consensus exists that the adversarial nature of the South African criminal procedure with its often aggressive cross-examination of a witness, sometimes by an accused himself, will in most ...cases expose a child to undue mental stress or suffering when having to testify in court. In confirmation of this fact and with a notion to shield child witnesses from the stress or suffering when having to testify in the presence of an accused the function of an intermediary was introduced with the insertion of section 170A into the Criminal Procedure Act 51 of 1977. In terms of section 170A(1) a court may if it appears to such court that it would expose any witness under the biological or mental age of eighteen years to undue mental stress or suffering if he or she testified at such hearing, appoint a competent person as an intermediary in order for the witness to give evidence through that intermediary. Section 170A(1) contemplates that a child complainant will be assessed prior to testifying in court in order to determine whether the services of an intermediary should be used. If the assessment reveals that the services of an intermediary are needed, then the state must arrange for an intermediary to be available at the commencement of the trail. The aforementioned procedure of section 170A(1) was followed in Kerkhoff v Minister of Justice and Constitutional Development 2011 2 SACR 109 (GP) and is the subject of this discussion.
Modern-day research studies conducted on the victimisation of children in South Africa show that South African children in particular experience and witness exceptionally high levels of crime and ...consequently represent a significant portion of the victims and witnesses that have to appear in court to testify about these crimes. In South Africa, as in many other countries, a child is, however, permitted to testify in a criminal court only once the presiding officer is satisfied that the child is competent to be a witness. The competency test, though, presents a critical initial challenge for child witnesses, as it focuses on their ability to answer questions about the concepts of truth and lies. These inquiries can be intimidating and confusing, especially to younger children, and may result in children who would otherwise have been capable of giving evidence being prevented from giving their testimony. Various legal and psychological fraternities have accordingly called for the abolition or amendment of the truth-lie competency requirement. Recent psychological research about the potential of a child to lie has once again raised fundamental questions about the competency inquiry, suggesting that an assessment of children's understanding of truth and lies has no bearing on whether the child will in fact provide truthful evidence in court. These empirical findings precipitated the amendment of competency rules by various countries such as the United Kingdom and Canada. The findings likewise raise serious questions and or doubt about the suitability of the South African competency requirements. The purpose of this paper is to review the current South African position with a view to proposing suggestions for meaningful legal reform.
The right of a child offender to participate effectively in criminal proceedings is a fundamental aspects of a right to a fair trial and is guaranteed in the Constitution of the Republic of South ...Africa, 1996 as well as in international instruments, including the United Nations Convention on the Rights of the Child. An arguments is made that ensuring that this right is fully realised at domestic level, allowances should be made for child offenders to be included in the provisions of section170A of the Criminal Procedure Act 51 of 1977. Section 170A makes allowances for the use of an intermediary by witnesses and victims when presenting testimony in criminal proceedings. It is argued that the best interest of the child principles as well as other rights such as the right to dignity and equality enshrined in the Constitution and guaranteed in international instruments warrants the inclusion of child offenders in the enabling legislation. An interpretation and implementation of Section 170A of the Criminal Procedure Act in line with the Constitution and international instruments that gives recognition to the child offender’s vulnerability and enforces the best interests of the child offender is accordingly advocated
The constitutional right to privacy is enshrined in section 14 of the Constitution of the Republic of South Africa, 1996. It is premised on the notion that all persons should be protected from ...intrusions on their privacy by any person or institution. The Constitutional Court has also, on numerous occasions, held that the right to privacy is bolstered by its connection with the right to human dignity. It is undeniable that every person's right to privacy should be protected. However, a person's right to privacy is violated when police officials conduct warrantless search and seizure operations. Generally section 22 of the Criminal Procedure Act provides for warrantless search and seizure operations when a police official has a reasonable suspicion that a search warrant will be issued to him and that a delay in obtaining such a warrant would defeat the object of the search. Warrantless searches are important for the prevention of crime, but recent case law has suggested that there has been a progressive shift towards protecting the right to privacy of the individual subjected to warrantless searches, since there are a number of laws besides section 22 that regulate warrantless searches and which have been declared to be constitutionally invalid. This article seeks to demonstrate that the current regulatory framework for warrantless searches should be reviewed in order to protect the legitimacy of the police as well as the dignity and privacy of the citizens of South Africa.
The protection of child victims and witnesses in the criminal justice system is of vital importance, as present-day research studies conducted on the victimisation of children in South Africa show ...that South African children in particular experience and witness exceptionally high levels of crime, and consequently represent a significant portion of the victims and witnesses that have to appear in court to testify about these crimes. This contribution consists of an in-depth discussion of the rights of the child victim and witness encompassed in the Constitution of the Republic of South Africa, 1996 in order to determine whether the current protection afforded to child victims and witnesses while testifying in criminal proceedings in South Africa is in line with South Africa's constitutional obligations. In this regard the general constitutional rights in the Bill of Rights relating to child victims and witnesses as well as the specific constitutional rights of child victims and witnesses in section 28 of the Constitution are discussed.
The protection of child victims and witnesses in the criminal justice system is of vital importance, as present-day research studies conducted on the victimisation of children in South Africa show ...that South African children in particular experience and witness exceptionally high levels of crime, and consequently represent a significant portion of the victims and witnesses that have to appear in court to testify about these crimes. This contribution consists of an in-depth discussion of the rights of the child victim and witness encompassed in the Constitution of the Republic of South Africa, 1996 in order to determine whether the current protection afforded to child victims and witnesses while testifying in criminal proceedings in South Africa is in line with South Africa's constitutional obligations. In this regard the general constitutional rights in the Bill of Rights relating to child victims and witnesses as well as the specific constitutional rights of child victims and witnesses in section 28 of the Constitution are discussed.
Burchell explains that mental illness may deprive persons of the capacity to appreciate the unlawfulness of their conduct. It may also deprive them of the capacity to control their conduct. Persons ...who suffers from a mental illness that has such an effect is said (in legal terms) not to be accountable due to their mental illness. The mentally ill, however, are a distinct subgroup within the penal system. The underlying premise of the defence of mental illness is that persons with mental illness are the victims of an affliction that causes them to behave in an abnormal manner due to their mental illness. They cannot be blamed for their conduct while afflicted by the illness as they lack criminal capacity, or their capacity is diminished. The test for capacity is entirely subjective, relating for example to the capacity of the particular accused person who is alleged to be mentally ill. This note discusses the concept of forensic psychiatry, which is relevant with regard to the defence of mental illness; the concept of mental illness; the defence of mental illness; and how mental illness is interpreted in criminal cases. A conclusion is then drawn to summarise the findings.
Section 79 of the Criminal Procedure Act 51 of 1977 provides for the appointment of mental health professionals to assess an accused’s fitness to stand trial and/or criminal capacity if the court ...orders such an enquiry in terms of sections 77 and 78 of the Criminal Procedure Act. In terms of section 79, one mental health professional must assess an accused charged with a non-violent offence, whereas a panel of such professionals must assess an accused charged with an offence involving serious violence. The legislative provisions regarding the appointment of mental health professionals to a section 79-assessment panel are not without ambiguity. Section 79(1)(b) read with section 79(13) is problematic. Directives issued by the National Prosecuting Authority in terms of section 79(13) do not aid in clarifying the legal position either. The main point of contention is whether a section 79-assessment panel must consist of a minimum of two or three psychiatrists. This ambiguity creates challenges for presiding officers tasked with appointing section 79-assessment panels. When presiding officers appoint these panels incorrectly, it causes delays in the assessment process and the delivery of justice to the accused and the victim. The court considered the interplay between section 79(1)(b) and section 79(13) in S v Pedro 2015 1 SACR 41 (WCC). The judgment highlights the need to clarify the position in the Criminal Procedure Act regarding the appointment of section 79-assessment panels. This case provided the impetus for the amendment of section 79 through the Criminal Procedure Amendment Act 4 of 2017. This contribution explores the composition of section 79-assessment panels as provided for in the Criminal Procedure Act. Section 79(1)(b) and the seemingly contradictory provisions contained in section 79(13) are discussed. The S v Pedro judgment is discussed with a specific focus on the court’s interpretation of the interplay between these two provisions. Following the S v Pedro judgment, the Criminal Procedure Amendment Act 4 of 2017 amended section 79. This contribution explores the clarifying provisions of the Amendment Act regarding the composition of assessment panels.
PDF