Detectives and the Rule of Law

The development of the detective service has, for obvious reasons, been influenced by the structure and functions of the various policing agencies with investigative roles which were amalgamated in 1994. In turn, these investigative functions had previously been shaped by the nature of criminal law, the culture of the agency concerned, and the nature of the South African state.

Extending this logic, it may be possible to trace the roots of the detective service back to colonial and pre-colonial times. While this task will be left to others, much work remains to be done in exploring the extent to which policing in general and the investigative function in particular have been affected by the transition from apartheid to democracy. What is clear about the transition is that the SAPS as an institution is ambivalent towards democratisation. On the one hand, democracy has brought with it an unprecedented opportunity for legitimacy and social acceptance. On the other, the police have lost much of the political power they enjoyed under apartheid.

These considerations aside, police officers are divided over the degree to which the transition is in their own interests. Obviously, divisions between black police officers and their white colleagues over recruitment, appointment and promotion procedures are to be expected. So too is some division over the internal allocation of resources among provinces, areas and stations. While this is not the place to explore these issues, there is one feature of democratisation which is highly relevant to any study of the investigative function of the SAPS: the attitude of the police to the post-apartheid legal order.

The popular understanding of the attitude of the SAPS to the constitution is one of police officers being inured to the rights of suspects and victims alike, and rejecting the rights-oriented jurisprudence and practice associated with South Africa’s new democracy. At its most extreme, police officers are regarded as something of a threat to democratisation, because they fear its consequences and because they reject the philosophical foundation of the country’s new order.1

While it is indeed true that there is a degree of resistance to the constitution among police officers, its philosophical foundations and its operationalisation, the source of this resistance is by no means clear-cut. Surprisingly, very few of the respondents had any concrete examples of how the constitution in general and the bill of rights in particular had made policing more difficult. While they cited numerous examples of how policing in the new South Africa had become more difficult — a number of which are explored in this monograph — the causes of surprisingly few of these could be traced back to the constitution. It is therefore possible that police officers blame the constitution for a range of problems associated with democratisation, but that these are not directly related to the bill of rights. These may include tighter resource constraints; changes in management; affirmative action (which is not criticised for the same reasons by all police officers); and so on.

In this section, the changes in law found to be most significant by respondents will be documented. As will become evident, however, the changes in question are not generally directly linked to changes in the legal order. Indeed, most police officers stated that the laws governing investigations were virtually unchanged, and that, as far as they could see, the constitution had had very little effect in this regard.2

Detectives and democracy3

Perhaps the most powerful force shaping the investigative function of any policing agency is the character of the legal regime under which it operates. There can be little doubt that the nature of detective work in the People’s Republic of China must be quite different from the activities of the crime investigation departments in England and Wales, largely because of differences in the legal frameworks in terms of which they operate.

Prior to the transition, criminal law in South Africa was governed by a combination of statute, common law and precedent. Because, in the absence of a justiciable bill of rights, parliament was sovereign, criminal law was ultimately in the hands of parliament, which could choose to abrogate the rights of the accused more or less as it saw fit.4 Perhaps surprisingly, however, the constitutional court has not struck down a large number of statutory provisions in the process of reviewing criminal law inherited from apartheid — perhaps because the rights actually abrogated by the apartheid legislature were frequently confined to detainees and suspects in security-related trials.5

That said, the constitutional court has intervened on a number of issues. These include reversing the onus of proof where statutory intervention had created certain presumptions of guilt (such as the presumption that a person in possession of more than 75 grammes of marijuana intended to deal in the substance, and that an unlicensed firearm found on a person’s property or in his or her car was in that person’s possession). These decisions, based on the right to be presumed innocent, change the basis of convictions in a number of instances. At the same time, however, these changes hardly represent substantial changes to the nature of criminal law, either in theory or in practice.

Perhaps more significant, from the perspective of the process of attaining convictions in South African courts, is the constitutional court’s decision to reverse the onus of proof in the so-called ‘trial within a trial’. This occurs when an accused who has made a confession to the police recants that confession in court, claiming that he or she had been unduly influenced or coerced into making it.

In the past, the onus rested on the accused to prove that the confession had not been made voluntarily; however, the constitutional court has decided that this procedure created an unnecessarily large space for the police to exploit in obtaining evidence leading to a conviction, and has reversed the onus of proof. Now, when an accused recants, the state must prove that the confession has in fact been made voluntarily.

Respondents disagreed over the extent to which this change in legal procedure affected the efficacy of police investigations. Some argued that confessions were seldom the sole basis for convicting suspects;6 others argued that, while confessions were used extensively, they were usually not contested by the accused; and still others argued that, even under the old system, checks and balances ensured that the police could, in fact, usually prove that a confession had been made voluntarily. They did agree that forced confessions were illegal, and some even acknowledged that the previous system had been abused.7

Piecing together these views, it seems there is no single assessment that covers all the police all the time. Some units — such as Brixton murder and robbery — were frequently cited as having a reputation for extracting confessions.8 Others, mostly those dealing with less serious crimes, seem either to rely less on confessions, or to comply more closely with the law. Thus the effect of the changed system seems different for those who previously violated the law more or less frequently. What is clear, however, is that confessions do remain a fairly important source of evidence in criminal trials in South Africa.

Putting all this together, it would be hard to argue that the constitution’s effect on criminal law has been very far-reaching. While parliament’s loss of sovereignty and the introduction of the bill of rights means that the task of the judiciary has changed (as has the framework it uses for interpreting statutes), the effect on criminal law does not seem to be all that significant.

That said, the legal regime within which the police operate is more than the sum of the rules of common law, statute, regulation and precedent. These are crucial, but so too are the attitude of the courts to such issues as due process and the credibility of police evidence when contested by the accused. Thus, when looking at the role of the law in shaping the practice of investigating officers, it is worth bearing in mind that the law consists of more than legislation and legal precedent. Besides these elements, the legal system is an institution of practices, attitudes and modes of behaviour. All of these directly or subtly influence the police in general, and detectives in particular.9

Perhaps the most obvious example of the way in which practices within the CJS can impact on the nature of justice and the quality of investigations is how, in the past, legal proceedings frequently occurred in a language foreign to the accused who appeared in court without legal representation. It is hard not to believe that, under these circumstances, the odds were stacked against the accused — even where good translators were available10 — because the legal traditions, codes of practice and modes of argument used would have been totally opaque and inaccessible. Under circumstances in which disempowered accused defended themselves poorly, a ‘negative feedback’ would conceivably arise which could serve to lower pressures on the police and prosecutors to prepare cases as well as possible. Whether this did or did not happen under apartheid should be answered empirically. However, it does seem likely that judicial safeguards against this happening might not have been as strong as they could have been.

While obtaining direct evidence for this assertion is difficult, it seems to be reinforced when one looks at some of the submissions to the TRC hearings on the role of the judiciary and the legal system in gross violations of human rights under apartheid. While the submissions themselves focused primarily on the extent to which the courts acquiesced in the abrogation of civil liberties, some comments on the effect of racism in the legal system on the functioning of criminal justice were made. In the submission of present members of the constitutional court, for instance, it is argued that:

"In the courts themselves, black people accused of criminal offences often felt alienated and marginalised by proceedings largely dominated by white judicial officers and lawyers. The vulnerability of such accused persons was greatly aggravated by the widespread absence of legal representation. The fact that trials were conducted in languages which they did not speak also created difficulties."11

The National Association of Democratic Lawyers (Nadel) offered further evidence that the court environment was inimical to the proper protection of the rights of the accused. It argued, for instance, that magistrates — who do not enjoy the same protection as judges, whose tenure and salary, for instance, cannot be altered by the department of justice — had pressures placed on them to avoid criticising the police. Nadel also claimed that the ministry of justice had issued orders to magistrates that they be ‘cautious and restrained’ when commenting adversely on police conduct in their judgements.12

While these comments were made in the context of a critique of the handling of trials arising from political conflict, it seems plausible that such pressures must have affected the degree of protection an accused would have had before a magistrate when contesting police-led evidence.

This attitude may have been reinforced by state functionaries’ perception of apartheid. If, for instance, officers of the court saw the role of the state as that of imposing the norms and standards of ‘western civilisation’ on the otherwise ‘savage’ masses, and that the savages themselves were liable to commit crimes and to lie, they could have been more willing to accept the word of a white policeman than of a black accused. This is not to say that they would always accept the word of a white policeman, but merely that the accused (and witnesses in his or her defence) may have had a harder time trying to persuade the presiding officer of their version of the facts.13

This does not mean that the institutional logic of the CJS under apartheid served to undermine the quality of work in the detective service. It would be more appropriate to see the investigator’s work as an element of the CJS, and to understand the CJS as a whole as producing convictions which may have been based on flawed investigations. Therefore, the CJS as a whole may have set itself lower standards than it might otherwise have done. Thus it may be argued that apartheid did not reduce the quality of investigations, because the system never demanded investigations of the highest quality in the first place.

While the role of the constitution in changing the nature of investigations will be explored below, it is worth anticipating the argument here by saying that the constitution, together with a new human rights-minded ambience in the courts, has served to set higher standards for investigations. This underlies some of the dissatisfaction among police officers with the impact of the bill of rights on the fight against crime.14

Earlier, it was argued that the antipathy that many police officers feel towards the constitution and the rights enshrined in it cannot be ascribed to any significant and material changes in the rules governing the admissibility of evidence or the criteria for the determination of guilt, since these changes have been relatively minor.

However, it was noted that there have been changes regarding the substantive rights of the accused in the legal process that have been associated with the process of democratisation. The most frequently mentioned of these are the right to bail,15 the rights of juvenile suspects,16 the right of the accused to have access to the state’s case,17 and the right to legal representation.18

Bail

Bail provisions in any democracy are loaded and controversial because they are designed to balance two sometimes conflicting imperatives. On the one hand, they are designed to give effect to the presumption of the innocence of the accused, and to avoid punishing a person who has yet to be convicted. On the other, society has a legitimate expectation that persons suspected of having committed a crime should not be free to interfere with the course of justice, or to commit further criminal acts.

It is by no means the case that the police or prosecutors want every accused person to be detained without bail. Through their experience of the system, their understanding of the role of bail, and their recognition that, in the absence of a conviction, the interruption of the ordinary rights enjoyed by every person represents an injustice, they are quite willing to allow the accused to apply for, and be granted, bail. Indeed, in recognition of this, the police are entitled to grant bail to accused persons in minor cases without having to take the matter to court.19

But the right to bail and the process which gives effect to this right are not uncontroversial. There have been numerous infamous and tragic cases in which crimes have been committed by people who, but for the right to bail, would have been behind bars. Thus the right to bail is almost inherently controversial, because it seeks to balance the rights of the accused and the rights of the community.

In representing the rights of the community, the state argues that the interests of justice require that the accused should be detained until his or her trial. In order to show this, various types of evidence may be led, but the court is generally influenced most by two factors: the extent to which the person can be expected to show up for trial, and the likelihood that the person will commit further crimes.

In endnote 15 below, the rights underpinning bail were described by reversing the order in which they appear in the constitution. This was done because the right to be released if the interests of justice permit (s35 (1) (f)) applies from the moment of arrest, while the right to appear in court within 48 hours of arrest (s35 (1) (e)) applies whether or not the accused applies for bail before that. The former section therefore entrenches the right of an accused to apply for bail as soon as he or she is taken into custody. For this reason, after-hours bail hearings are common.

When bail is opposed, the state needs to show that it would not be in the interests of justice to release the accused. While this can never be established with absolute certainty, the courts look to a number of indicators which help them to determine whether the accused is likely to turn up for trial and not commit further crimes. The key indicators are:

the nature of the offence (which can indicate that the accused is likely to commit more crimes, or that he or she may have the means to flee justice);



the status of the accused in the community (does he/she have a fixed address, fixed employment, family, etc); and



whether the accused has a criminal record, has outstanding warrants of arrest against him/her, or is currently out on bail.

The ease with which the state can obtain evidence for opposing bail on each of these three grounds is quite different. While it may be relatively easy to oppose bail on the first count, it can be very difficult to obtain the information needed for either of the other two. To understand why, it is important to realise that most arrests made do not follow long, meticulous investigations.

Rather, the bulk of arrests are made in the course of operations, when a police officer notices suspicious activity, at the scene of a crime, or shortly after a complaint has been laid at a police station. In any of these circumstances, the exact identity of the arrested person can be unknown — particularly when criminals have the motive and the opportunity to obtain false identity documents. In each of these cases, the only basis for accurately identifying the arrested person — and therefore establishing whether or not there are outstanding warrants for his or her arrest, or whether he or she has a criminal record — will be via fingerprints.20

Fingerprints are an indispensable tool of policing. They can provide indisputable evidence that someone was present at a crime scene, or held a weapon; they can be used to tie cases together; and they can be used to build records of an individual’s criminal activities. However, the sheer magnitude of fingerprint records, and the subtle differences between them, means that processing requests for identification is very time-consuming. Thus a request to check for a criminal record on the basis of a set of fingerprints will take some 24 hours if it is made to a local criminal record centre (CRC). Unfortunately, however, a local CRC will not necessarily have a complete record of convictions and outstanding warrants of arrest, if these were issued elsewhere. Thus, in order to get a complete picture, it may be necessary to request records from the national CRC — which can take a month to arrive.21

The arrested person’s right to apply for bail as soon as he or she is arrested22 has been given effect via the system of after-hours bail hearings. This system, which was introduced in 1993 before the interim constitution was adopted, often makes it very difficult for the state to oppose bail, precisely because it is difficult to obtain the necessary evidence at that time. Ironically, these difficulties are magnified the worse the criminals are, because, as their degree of involvement in crime increases, the more likely they are to have been convicted elsewhere, the more interest they have in investing resources in disguising their identity, and the more likely they are to have access to (and be able to afford) a lawyer.23

One option available to the state is to apply to the magistrate to remand the hearing for up to a week. This is often done, but detectives complain that magistrates react inconsistently to such requests.

The system which gives effect to the accused’s right to bail is therefore a source of frustration for police officers, and causes problems for the efficacy of the CJS as a whole. This is particularly true when people who have been let out on bail fail to appear in court when their cases are due to be heard. When this happens, a warrant is issued, and the investigating officer must find and arrest the accused.

However, detectives do believe that judges’ and magistrates’ attitudes towards bail have changed. Whereas it was once quite easy to have bail denied, they now find there is more sympathy for the rights of the accused. On the whole, detectives believe magistrates will refuse bail when adequate grounds for doing so are supplied. At the same time, standards of adequacy seem to have been raised, with the result that it is more difficult to have applications for bail denied, or prisoners remanded for further investigation.

These are key problems in the functioning of the CJS, as well as in the politics and publicity surrounding it. As is well known, members of the public are often very unhappy when criminals are arrested on the strength of information given to the police, only to be released on bail the next day.24 With that said, the problems surrounding the administration of bail are not wholly a result of incompatible imperatives (ie the right of the accused to be presumed innocent and not to be punished before being convicted, and the rights of the victims or witnesses and the community to protection).

In fact, much of the problem is a question of resources and technology, and could therefore be resolved if the money was found. It is clear that there are some resource constraints which, if lifted, could improve the functioning of this process. Most obviously, the installation of an automated fingerprint identification system (AFIS) and the rapid computerisation of existing records would go some way towards speeding up the process of obtaining information relevant to a bail application.25

Juveniles

If the problems surrounding the right to, and process of granting, bail are a combination of different imperatives and resource constraints, this is even more true of the rights and administration of juveniles under the CJS. Further, in this area, if not in many others, the effects of the constitution (and the policies adopted to give effect to it) are much more apparent.

Detectives argue that the rights afforded to juvenile offenders under the new constitution have had three major effects:

the process of taking a juvenile through the CJS has become more time-consuming and difficult, being subject to an inordinate number of obstacles;



juveniles are now less likely to be successfully convicted than they were in the past; and



more and more juveniles are becoming criminals, with adult criminals either using juveniles to commit crimes or claiming to be juveniles themselves (even to the extent of obtaining false identification documents).

Again, in looking at these issues, it is worth bearing in mind that the rights granted to children in the constitution reflect values and norms with which it would be difficult to argue. The constitution appears to be informed by the principle that juvenile offenders should be treated primarily as children and not as criminals. Detectives, especially those who work in the CBDs of South Africa’s major cities, do not agree. They argue that juvenile criminals are criminals who happen to be juvenile, and moreover that they are just as capable of dreadful crimes. Making it easier for them to escape justice — even for relatively minor crimes — means that the opportunity to make them aware of the consequences of a criminal career is lost.26

However, the standards of evidence required to convict a juvenile have not changed, and neither has the nature of the defence available to the child.27 Whatever increased opportunity a juvenile offender has to escape justice is not therefore a function of any changes in the principles or letter of the criminal law. What has changed, however, is the nature of the route which juveniles follow through the CJS.

Whereas in the past juveniles arrested for serious crimes had no special rights to be released, the constitution stipulates that the detention of children must be a measure of last resort; that it must be for the shortest appropriate time; and that the child must be held apart from adults, and under conditions that take account of the child’s age. In giving effect to these provisions, the legislature and the executive have tried to build a system within which these rights can be materially expressed. Some of the problems surrounding these policies are well known: the absence of secure care facilities has meant that some juvenile offenders have not in fact had their rights protected; the same lack of facilities has also meant that juvenile detainees have been ‘bursted’ (released en masse); the facilities are often ill-equipped to deal with some accused or convicted youths, and as a consequence they have either failed to offer the sorts of services required, or failed to prevent escapes.

There are other, less well known, difficulties surrounding the implementation of these policies. Chief among these is the fact that, given the constitution’s prescriptions, juveniles are often returned to their parents when existing facilities are full. However, this is no guarantee that the juveniles concerned will either be properly supervised, or return to stand trial.28 Indeed, it also appears that, when facilities for juveniles are crowded, magistrates will sometimes warn children to appear in court even when their parents cannot be traced.

The net effect of these measures, aimed at protecting juveniles from the full force of the CJS, must be evaluated in terms of two entirely different criteria. On the one hand, the provisions have had the intention of preventing some children languishing in prisons where they are liable both to become more dangerous criminals (by making contacts with, and learning skills from, adult criminals), as well as victims of sexual and physical abuse (which is closely correlated with later criminality). On the other hand, the treatment afforded children by the CJS has had the perverse effects of convincing some that it is relatively easy to get away with crime, and actually encouraging them to resort to crime (by lowering the potential cost to them). Detectives in Cape Town, for instance, insisted that they were arresting fewer and fewer adults because children, who were less likely to face the legal consequences of their crimes, had squeezed out adult criminals, or had been recruited by adults to do their dirty work.

Again, the problems surrounding child criminals seem to be twofold. The first results from the incompatibility of the various objectives of the state in general and the CJS in particular. On the one hand, the state is seeking to protect child offenders from some of the more damaging consequences of their contact with the CJS. It seeks, as far as this is possible, to protect them from adult offenders and from the trauma of prison. At the same time, there is a legitimate public interest in the capture and punishment of young criminals both because they have committed crimes, and because of the potential value the CJS can have in ‘scaring them straight’. On the other hand, the policies and processes adopted are potentially sound, but founder on the scarcity of the requisite resources. Thus the conflict in social values manifested in juvenile justice policy is accentuated by the difficulties associated with its implementation. The effect is to place the dilemma squarely in the hands of the CJS, which must seek the best resolution of the problem in each particular case. It is not surprising that there is no consensus on the desirability and success of existing policy within the CJS, nor that police officers — who usually see themselves as responsible for the punishment of offenders, and not their welfare — resent the increased chance that young offenders have of escaping justice.

Docket privilege and the right to representation

Detectives largely agree on the effects of the changed atmosphere in court with regard to bail applications, and the effect of the constitution and government policies on the prosecution of juvenile offenders. However, they disagree far more on the effect on the degree of access accused have to their dockets, as well as their right to state-financed legal representation.

As regards the former, it is quite difficult to understand whether there has been a significant change, and, if so, what the nature of the change is. The ‘privilege’ attached to certain aspects of the state’s case in the old order was, depending on whom you talk to, either a necessary feature of many criminal trials, or a relatively minor arrow in the quiver of the state during trials concerned with matters of state security. It is therefore difficult to establish the importance and effect of the changed rules, which now require that all the relevant sections of a docket be made available to an accused to help him or her prepare their case.

A docket is divided into three sections. The first contains the statements of the various witnesses — including the police officers who will testify. A second contains the investigation diary which describes the process of the investigation, stating, for instance, who was interviewed as well as when, where, and why these interviews occurred, and the basic import of their statements. A third section contains correspondence relating to the case, if any. Some detectives assert that, at least in respect of criminal trials, the whole of the first section, and only that section, has always been available to the defence — a situation which persists today.29 They argue further that, where necessary, it is still possible to get a court to protect some of the information in that section where, for instance, it might be used to identify an informer. Basically, they argue that this state of affairs is identical to that which prevailed before the bill of rights. However, others argue that the accused’s access to information in the docket is now far greater than it was, and, especially in complex investigations into organised crime (which rely heavily on informers and agents), this imperils both the investigation and the sources of information.30

While it is hard to judge which view is more accurate, the difference of opinion may reflect the difference in the nature of the crimes or criminals being investigated. Where criminals are more organised, the investigation may require techniques which are more susceptible to failure when information is made available to the accused than in the bulk of cases in which the evidence against the accused is not primarily generated by informers.31

While respondents disagree about the implications of the loss of privilege regarding some sections of dockets, they also disagree about the effects of the right of access to state-financed legal assistance. Here, however, they do not differ about the actual effect as much as the desirability of the provision (though this may mask a concern that conviction rates will drop if more accused are legally represented).

Sarkin32 has quoted figures showing that, in 85 per cent of the 2,25 million criminal cases in South Africa in 1990, the accused had no legal representation. In commenting on the constitutional court’s 1995 decision not to provide guidelines to the courts on the application of the right of the accused to state-financed legal representation where ‘substantial injustice’ will result in the absence of such representation, Sarkin argues that, in effect, this right is still upheld in the breach. Similarly, according to many of the respondents, most cases in which the accused is not represented still proceed. Thus, despite a substantial increase in the budget for legal aid, the real effect has been quite limited.

That said, a few detectives interviewed believe quite strongly that the state’s financing of the legal representation of the accused contradicts its pursuit of a conviction. They argue that the resources used to finance the accused’s defence will be better spent on investigating and prosecuting criminals. In this regard, however, it is hard to argue with the comments of Nicholas A J A in a 1991 judgement that:

"The priority of calls for legal aid, as against calls for social welfare, housing, education and health facilities, and so on, is a matter for the government, not the courts, and the courts cannot issue a mandamus on the government to provide legal aid."33

Conclusion

Detective work is shaped by the nature of the legal regime within which it is undertaken. That regime is neither cast in stone nor infinitely flexible, but is subject to policy intervention. There is no doubt that, on the whole, detectives would prefer a legal system — in respect of both its laws and its ambience — which is less protective of the rights of suspects and accused. There is also little doubt that, on the whole, detectives do not experience the changes to the legal system as radically more ‘offender-friendly’ than the previous dispensation. There are differences, and those do tend to make convictions more difficult. But they are not so dramatic that they contribute significantly to the current distress and unhappiness in the detective service. Rather, these feelings are related to the transformation of policing and the police service, which is considered in the next section.

Endnotes