The criminal justice system characterized by a continual clash of values and interests. It is little wonder that miscarriages of justice occur.“- Discuss.
The function of the criminal justice system is to deliver justice to those who has been a victim of a crime.
In general, the criminal codes and procedures in effect in Bangladesh derive from the period of British rule, as amended by Pakistan and Bangladesh. These basic documents include the Penal Code, first promulgated in 1860 as the Indian Penal Code; the Police Act of 1861; the Evidence Act of 1872; the Code of Criminal Procedure of 1898; the Criminal Law Amendment Act of 1908; and the Official Secrets Act of 1911.
Classification of crime:
The major classes of crimes are listed in the Penal Code, the country’s most important and comprehensive penal statute. Among the listed categories of more serious crimes are activities called “offenses against the state.” The Penal Code authorizes the government to prosecute any person or group of persons conspiring or abetting in a conspiracy to overthrow the government by force. An offense of this nature is also defined as “war against the state.” Whether or not an offense constitutes a conspiracy is determined by the “intent” of the participant, rather than by the number of the participants involved, so as to distinguish it from a riot or any other form of disturbance not regarded as antinational. Section 121 of the Penal Code makes antinational offenses punishable by death or imprisonment for twenty years. The incitement of hatred, contempt, or disaffection
toward a lawfully constituted authority is also a criminal offense punishable by a maximum sentence of life imprisonment. Among other categories of felonies are offenses against the public tranquility (meaning unlawful assembly), rioting, and public disturbances; offenses relating to religion; and offenses against property, such as theft, robbery, and dacoity (robbery by a group of five or more persons).
Consequences of committing a crime:
Punishment is divided into five categories: death; banishment, ranging from seven years to life; imprisonment; forfeiture of property; and fines. The imprisonment may be “simple” or “rigorous” (hard labor), ranging from the minimum of twenty-four hours for drunken or disorderly conduct to a maximum of fourteen years at hard labor for more serious offenses. Juvenile offenders may be sentenced to detention in reform schools for a period of three to seven years. For minor infractions whipping, not exceeding fifteen lashes, may be prescribed as an alternative to detention.
Preventive detention may be ordered under the amended Security of Pakistan Act of 1952 and under Section 107 of the Code of Criminal Procedure when, in the opinion of the authorities, there is a strong likelihood of public disorder. Bangladeshi regimes have made extensive use of this provision. Similarly, Section 144 of the Code of Criminal Procedure, frequently invoked by magistrates for periods up to two months, prohibits assembly of five or more persons, holding of public meetings, and carrying of firearms. In addition, the Disturbed Areas (Special Powers) Ordinance of 1962 empowers a magistrate or an officer in charge of a police contingent to open fire or use force against
any persons breaching the peace in the disturbed areas and to arrest and search without a warrant. The assembly of five or more persons and the carrying of firearms may also be prohibited under this ordinance.
The custody and correction of persons sentenced to imprisonment is regulated under the Penal Code of 1860, the Prisons Act of 1894, and the Prisoners Act of 1900, as amended. The prison system has expanded but in 1988 was basically little changed from the later days of the British Raj. The highest jail administration official is the inspector general of prisons or, if this office is not separately assigned, the inspector general of police. At the division level or the police range level, the senior official is called director of prisons; at the district level, he is the jail superintendent. Below the district jail level are the subdistrict and village police lockups. Dhaka Central Jail is the largest and most secure prison and has more extensive facilities than those at the successive lower echelons. All installations are staffed by prison police usually permanently assigned to this duty. In general, prisons and jails have low standards of hygiene and sanitation and are seriously overcrowded. Rehabilitation programs with trained social workers were rudimentary or nonexistent through the late 1980s. Overcrowding–the most serious basic problem–was likely to worsen as the 1990s approached because of the mounting number of arrests connected with opposition campaigns to oust Ershad from office.
However, the justice could not be served in a proper manner, hence miscarriage of justice. A miscarriage of justice primarily is the conviction and punishment of a person for a crime they did not commit. The term can also apply to errors in the other
direction—”errors of impunity“, and to civil case. Most criminal justice systems have some means to overturn, or “quash”, a wrongful conviction, but this is often difficult to achieve. The most serious instances occur when a wrongful conviction is not overturned for several years, or until after the innocent person has been executed or died in jail.
Miscarriage of justice” is sometimes synonymous with wrongful conviction, referring to a conviction reached in an unfair or disputed trial. Wrongful convictions are frequently cited by death penalty opponents as cause to eliminate death penalties to avoid executing innocent persons. In recent years, DNA evidence has been used to clear many people falsely convicted.
Scandinavian languages have a word, the Norwegian variant of which is justismord, which literally translates as “justice murder.” The term exists in several languages and was originally used for cases where the accused was convicted, executed, and later cleared after death. With capital punishment decreasing, the expression has acquired an extended meaning, namely any conviction for a crime not committed by the convicted. The retention of the term “murder” represents both universal abhorrence against wrongful convictions and awareness of how destructive wrongful convictions are.
Also, the term travesty of justice is sometimes used for a gross, deliberate miscarriage of justice. The usage of the term in a specific case is, however, inherently biased due to different opinions about the case. The concept of miscarriage of justice has important implications for standard of review, in that an appellate court will often only exercise its discretion to correct plain error when a miscarriage of justice (or “manifest injustice”) would otherwise occur.
In Bangladesh, for instance, national daily newspaper, The Prothom Alo, reported on 13 March 2008 that a court convicted three persons to rigorous imprisonment for life, which means 14 years in jail, for an alleged charge of kidnapping of a girl in Jhalakathi district where, in fact, the said crime did not take place. The girl herself fled herself from her maternal home as result of being tortured by her aunt and uncle.
Cases of miscarriage of justice in British context:
Until 2005, the parole system assumed all convicted persons were guilty, and poorly handled those who were not. To be paroled, a convicted person had to sign a document in which, among other things, they confessed to the crime for which they were convicted. Someone who refused to sign this declaration spent longer in jail than someone who signed it. Some wrongly convicted people, such as the Birmingham Six, were refused parole for this reason. In 2005 the system changed, and began to parole prisoners who never admitted guilt.
English law has no official means of correcting a “perverse” verdict (conviction of a defendant on the basis of insufficient evidence). Appeals are based exclusively on new evidence or errors by the judge or prosecution (but not the defense), or jury irregularities. A reversal occurred, however, in the 1930s when William Herbert Wallace was
exonerated of the murder of his wife. There is no right to a trial without jury (except during the troubles in Northern Ireland when a judge or judges presided without a jury).
During the early 1990s, a series of high-profile cases turned out to be miscarriages of justice. Many resulted from police fabricating evidence to convict people they thought were guilty, or simply to get a high conviction rate. The West Midlands Serious Crime Squad became notorious for such practices, and was disbanded in 1989. In 1997 the Criminal Cases Review Commission was established specifically to examine possible miscarriages of justice. However, it still requires either strong new evidence of innocence, or new proof of a legal error by the judge or prosecution. For example, merely insisting you are innocent and the jury made an error, or stating there was not enough evidence to prove guilt, is not enough. It is not possible to question the jury’s decision or query on what matters it was based. The waiting list for cases to be considered for review is at least two years on average.
There are certain reasons why such miscarriage of justice has occurred:
Firstly, it could be the manner in which confessions are taken. The police authority must not oppress or pressure the witness or the suspect in such way that they may give wrong confessions.
Secondly, some commentators have pointed out that the flawed forensic reports may have played an important role in miscarriage of justice.
Thirdly, the prosecution at times may not disclose certain evidence that may favour the opponent party.
Lastly, the procedures after the trials are slow and cumbersome which may also lead to miscarriage of justice.
It can be said that the judiciary plays an active part in the lives of citizens and they look forward to seek justice from them. So, if the judiciary does not provide proper justice then it is unfortunate that citizens would lose their credibility. In order to avoid such miscarriage of justice, there must be an efficient system where justice will be done not denied.
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The English legal system, 8th Edition, Slapper and Kelly
Dhaka center for Law and Economics library