Bail, which is called in Arabic kafala, is a guarantee by someone to help any person has been suspected in demanding his or her release from detention or to stop legal action against the accused. The sponsor, kafil, carries a legal responsibility if the offender escapes during the period of time specified by the court or police. Kafala could be simply a matter of providing a guarantee for the suspect or, in more serious cases, putting bail money forward as a guarantee. Therefore, the condition of bail Kafala must be dependent on the circumstances of the case concerned in order to prevent the accused from fleeing (Qafisheh 2012 p.498). Shari’ah connects the detention with proof of the accusation; thus, the accused is innocent until proven guilty in court. Also if the prosecutor states that he has no evidence, there is no reason to detain the accused if there is no material evidence. Shari’ah authorizes the judge to release the accused on bail if this is the case (Salamh1986 p.53).
To conclude, the ICCPR Art.9(3) & ECHR Art.5(3) guarantee the right to bail; whereas Shari'ah does not go into detail about bail and the Arab Charter (2008) stays silent about it and that authorizes the judges. However, regulations are stipulated in Saudi Arabia's
108
Code of Criminal Investigation. Therefore, the right to bail will be addressed in the light of the underlying development of criminal justice in Saudi Arabia in Chapter Seven. 2.8. The Right to an Effective Remedy in Shari’ah.
Under Shari’ah rules there are various mechanisms, which the accused could resort to when his or her rights have been violated in order to obtain a remedy. As has been already discussed in ‘The Right to Self-Incrimination’, the remedy for obtaining a confession in violation of the right against-self-incrimination, is the exclusion of such a confession. This applies not just to evidence obtained during a confession, but also to any evidence that has been obtained unlawfully
Islamic law entitles the accused to have compensation when it is established that he or she has suffered damage as a result of a public official’s misconduct. In cases where the judge did not take appropriate time over his verdict or witnesses appeared to have lied, the accused should be exonerated and have suitable compensation (Al-Jofan 2014). As has been mentioned before, Islamic law does not allow accusations on the basis of suspicions and misgivings. Furthermore, Shari'ah has a principle that no punishment can be given unless there is clear proof; it seeks to enforce public accountability and the protection of the rights of the accused by prosecuting those who abuse their power or violate the rights of the accused. These rights and the types of compensation given will be addressed next.
The right of the accused, who has been affected by false accusation, to have compensation is fixed in Shari’ ah. In Verse 21:78, the Qur’an tells of the judgement of Solomon who gave compensation to a farmer whose fields had been used by a shepherd for grazing44 (Al-Damshgy 2002 p.355). This judgement is regarded as one of the origins of the Islamic rules for compensation. Shari’ah requires compensation for the accused who is innocent of the accusations against him. This maintains the dignity and rights of mankind according to Islamic law and also serves to deter people from making false
44 The Qur’an states: ‘And [mention] David and Solomon, when they pronounced judgement concerning
the field - when the sheep of a people overran it [at night], and we were witness to their judgment’ (Verse
109
accusations. In Islamic law any act considered harmful to others is the responsibility of the offender, and commits him or her to making compensation for damage. The Prophet Muhammad said ‘no harm on you and on the others’. Therefore, Shari’ah law states ‘the harm must be lifted’ (Sabrh 2006 p.171). The right to an effective remedy in Shari’ah is divided into two kinds of compensation; civil, and criminal. The right to an effective remedy in the ACHR was vague in Art. 14 (7) and cannot be seen as an absolute right; however, ICCPR Art.2 (3) & ECHR Art. 13 stipulate this right.
Civil compensation for the accused is the money with which the accused is compensated for the physical, financial and/or emotional damage caused to him or her. This kind of compensation is divided into three parts:
A. Physical damage compensation:
The legal writers in Islam say that physical damage must be guaranteed and compensation given to the accused who suffered this damage (Bin Goodmah 1994 pp6- 20). The evidence for that is identified by Aumro bin Hazm who pointed out that the Prophet Muhammad said ‘in one eye fifty camels’, that means if someone pokes out another’s eye he has to pay him fifty camels (Al-Asglany 1964 p.1708).
B. Financial compensation for damage:
This is for all financial disadvantages caused by false accusations and also includes damage to home, car or property as a result of the investigation or if the suspect was disabled because of his arrest and this prevented him from working. The legal writers in Shari’ah agreed that there should be compensation for such material damage (Sabrh 2006 p172).
C. Emotional damage compensation:
Just charging the accused is considered to have harmful effects on the dignity of the accused and his reputation, and to cause moral damage, which cannot be remedied by
110
money. Furthermore, insulting or intimidating him, affecting his work because others lose confidence in dealing with him, and other damaging moral implications of the accusation must be taken into consideration (Sabrah 2006 p.173). The Qur’an states: ‘And those who harm believing men and believing women for [something] other than what they have earned have certainly born upon themselves a slander and manifest sin’ ( Verse 33:58). This is illustrated by the story that Khalifa Umar paid compensation to a pregnant woman who lost her baby as she was frightened by his accusations (Al-Sanany 1983 p.395). From this story, the legal writers agree to the paying of compensation to whoever has been caused harm by others. However, some scholars maintain the inadmissibility of such compensation, arguing that the compensation is not only monetary. As illustrated by the story above, emotional damage is difficult to evaluate financially and in such cases it is better to have a process of reconciliation and forgiveness where the victim is given emotional solace (Sabrh 2006 p.175).
Secondly, Compensation for the criminal damage to the accused:
What is meant here is compensation for the accused for deliberate physical damage, whether from the judge, witnesses or the plaintiff. The defendant can raise a lawsuit asking for his rights against whoever was the cause of this type of damage. If his claim is proven, the penalty will depend on the type of damage inflicted on the defendant (Al- Sanhory 1980). It is important to give compensation in order to prevent feuds and retaliation. The holy Qur’an guarantees equality before the law in Shari’ah, in matters of physical damage and the compensation for it45.
Alharagan points out that Shari’ah makes no distinction between disciplinary and criminal offences, as any abuse of power on the part of an official will either be a sin contrary to Shari’ah or a violation of rules set by those governing and either of these will
45 The Qur’an states: ‘[Fighting in] the sacred month is for [aggression committed in] the sacred month,
and for [all] violations is legal retribution. So whoever has assaulted you, then assault him in the same way that he has assaulted you. And fear Allah and know that Allah is with those who fear Him’ (Verse 2:194).
Also the Qur’an states: ‘And We ordained for them therein a life for a life, an eye for an eye, a nose for a
nose, an ear for an ear, a tooth for a tooth, and for wounds is legal retribution. But whoever gives [up his right as] charity; it is an expiation for him. And whoever does not judge by what Allah has revealed - then it is those who are the wrongdoers’ (Verse 5:45).
111
be considered a criminal offence. (2006 p.112) This is based upon the Qur’an verse which states: ‘O ye who are believers! Obey Allah, and His Messenger and those who are charged with authority among you’. For the sake of clarity, however, the term ‘disciplinary offence’ will be used to refer to an official’s misconduct which is contrary to the rules governing his job, and the term ‘criminal offence’ will be used to refer to criminal offences in the strictest sense.
To conclude this section, the incorporation of the Shari'ah into domestic criminal codes engages a number of human rights issues. Some Islamic scholars, Dacy & Koproste (2008), Al Awabdeh (2005), and Moghaddam (2012), view Shari'ah as consistent with the requirements of international human rights instruments. Furthermore, Shari’ah adds more protections which these international human rights instruments do not make explicit such as civil and criminal compensation. Most Islamic scholars argue that Shari’ah formalized how human life was to be respected long before this was done by Western countries. There are certain authorities in Saudi Arabia who argue that the introduction of Western imports such as pre-trial procedures would be in contravention of the principles of Islam (Alamaj 2001 & Altwojery 2013 p.15). However, as has been shown above, not only would the introduction of pre-trial procedures not be in contravention of Shari’ah, but it would actually be in accordance with the principles that are found in the texts of the Holy Qur’an.
Conclusion
International human rights law (in the ICCPR and ECHR) and Shari'ah guarantee the principle of the rights of the accused at the stage of criminal investigation, with which this thesis is concerned. These rights are more general principles than exhaustive explanations, which may lead to various interpretations and thus be ineffective and lose the purpose for which they were established. Generalisations are not enough and this is why monitoring bodies are important. Shari’ah has the added dimension of monitoring
112
by a God who sees all. Although this can act as a powerful agent of social control amongst believers, it needs backing up by effective state monitoring.
This thesis hopes to demonstrate that the norms of human rights contained in Islamic law (Shari’ah) that apply to pre-trial rights are entirely compatible with international human rights law. Thus, international human rights law can be implemented through Saudi Arabian law or that of any Muslim country. Although, there is a disagreement between Shari'ah and international human rights law on some points, that cannot be seen as rejection of the entire body of international human rights law. Furthermore, there is evidence that the Shari’ah was a forerunner in the protection of human rights in law. As indicated previously, this thesis aims to use the example of pre-trial procedure in England and Wales as it is one of the most exhaustive set of procedures and well- regarded worldwide. In order to understand how pre- trial legislation arose, it is important to briefly explore its history and development of criminal justice in England and Wales more generally, which is the focus of the next chapter.
113 Chapter Four
The History and Development of Criminal Justice in England and Wales
Introduction:
Pre-trial procedures in England and Wales have passed through many stages to be as they are now and, to understand their development into the form they are today, it is necessary to understand what was happening to the legal system in England and Wales in the past. The purpose of this chapter is to outline the development of pre-trial criminal justice in England. It aims to review and investigate the history and development of pre-trial procedures such as arrest, stop, search and seizure, detention and questioning in the Law of England and Wales; in order to demonstrate how these relate to international standards of good practice. It is the contention of this thesis that the contemporary pre-trial procedures generating from this development are a sound basis for the development of good practice internationally and in Saudi Arabia in particular.
The chapter begins with the Norman period, the Marian reforms of the sixteenth century and the pre-trial development of the eighteenth and nineteenth centuries. The Judges’ rules of 1912 are considered and criticised, and the chapter then comes to its main focus – the introduction of the Police and Criminal Evidence Act (PACE) in 1984. This is discussed in general as the specific articles relating to pre-trial procedures are considered in Chapter 6. Finally, the Prevention of Terrorism Act 2000 and 2006, the Serious Organised Crime and Police Act 2005 and Human Rights Act 1998 will be looked at in terms of changes made to pre-trial procedures. A historical overview shows how pre-trial procedures have gradually been refined and come into line with general principles of international human rights. Procedures that would violate human rights principles by modern standards were once commonplace in England and Wales, and it is of interest to see how these were changed, especially as this thesis contemplates such changes for Saudi Arabia.
114
1. Developing the concept of a pre-trial in England and Wales (The Norman period-