A senior Air warrior and a PG in management and law is well qualified to write on contemporary Legal matters
The law is not universal all over the world. However, we can distinguish between the law which is followed in the democracies and countries that were part of the British Commonwealth and dictatorships and communist countries. Not forgetting countries that follow Islamic law where the rules of jurisprudence do not follow the principle of natural justice, which is the cornerstone of the democracies that follow English law.
Jurisprudence in democracies distinguishes between civil and criminal cases. Both types of cases have different legal aspects and different rules of procedure and punishments. Criminal law is the law that comes into play when a crime has been committed. Crime is a very loose word but generally, it distinguishes crimes that cause physical harm to the body and society as well as property. This is in contrast to other offenses which are known as civil offenses.
Criminal law is a set of rules and statutes which are framed by the government. These generally cause physical harm to the body or property. Criminal cases are against the state and the prosecution of these cases rests with the government and on their behalf the Police and allied organizations. This is a very important point because, in criminal law, the responsibility of its execution rests with the executive.
In case murder is committed, it is the responsibility of the state and the police to prosecute the accused, irrespective of the fact whether a complaint has been lodged or not by an individual.
Offences and free legal aid
Before proceeding further we must understand the difference between cognizable and non-cognizable offenses. Cognizable offenses are those that are classified as criminal cases and the prosecution is carried out, even if no private complaint is registered. In the United States, the power to make certain conduct illegal is granted to Congress by virtue of the ‘Necessary and Proper Clause’ of the Constitution.
The US law guarantees an accused in a criminal case, the right to be defended. No trial can be concluded ex-parte and the accused must be given a reasonable chance to defend himself. Generally, for people who can afford to pay, a string of defense lawyers is available. The list of these lawyers is available with the District Attorney’s office. An accused is at liberty to hire any lawyer to defend his case in court. In case an accused is arrested and in custody, the lawyer can also apply for bail for his client.
The problem arises if an accused in a criminal case is unable to pay for a lawyer. In such cases, it becomes the responsibility of the state to appoint a defense lawyer to fight the case of the accused. Full details on criminal legal aid eligibility are laid down in the Criminal Legal Aid Manual. This was last updated in April 2013. This is a manual authorized by the US Supreme court.
The US constitution authorizes accused that are poor and unable to afford an attorney to be represented by an attorney who will be paid from state funds. Legal aid covers all costs of legal representation in court. This is not applicable to all accused, but to a select few who are unable to pay for their defense. It is need-based.
To avail of this legal aid, an accused must apply for legal aid on a CRM14 or CRM 15 and submit it to the court. The court staff will evaluate and process the application. All decisions will be taken within the purview of the Criminal Legal Aid Manual. A decision on the eligibility of the accused to avail of Legal aid will be made after a study of the documents submitted by the accused.
Generally, a decision will be made on two grounds.
Ø Firstly whether the interests of justice are served by giving legal aid to the accused. Previous convictions, the nature of the offense, and the risk of custody of the accused will have a bearing.
Ø The means test will be applied. This relates to the financial .condition of the accused. All income of the accused including household income, capital, and household expenses will be examined by the court. This test will decide whether an accused is to be given legal aid.
An accused charged with a criminal offense can order the forms CRM 14 and CR15 free of charge from DST Output( the forms supplier).
In the USA Legal aid in criminal cases, is guaranteed by the Sixth Amendment to the United States Constitution. A number of organizations have emerged for this purpose. The Legal Services Corporation is authorized at the federal level to oversee these programs.
The system of justice which has flown from the English common law is generally considered to be the most humane. The cardinal principle is that the accused must get a fair chance to defend himself and laws should be equitable and not be framed in such a way that the accused can go Scott-free. These are referred to as principles of natural justice.
These imply fairness, reasonableness, equity, and equality. Two axioms cover this
1. No one can be the judge in his/her own case
2. Each party has to be given the opportunity to be heard
An example from Islamic law followed in Pakistan will elucidate the principle of natural justice. Under the Hooded ordinance, rape has been put under sharia which implies that to prove a rape 4 eye-witnesses are required and the victim's own statement cannot be used. it also says the evidence of two women would be equal to one man. This actually means that the crime of rape cannot be proved. Such a law will negate the principle of natural justice.
In most of the democracies including India and the USA the principle of natural justice is sacrosanct and from this flows the fact that a man who has been accused of the crime and has no money and is destitute and poor, it becomes the responsibility of the state to arrange for his defense.
This content is accurate and true to the best of the author’s knowledge and is not meant to substitute for formal and individualized advice from a qualified professional.
© 2021 MG Singh emge