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Ensuring Fairness And Evidentiary Integrity In Investigations

Jun 30, 2023


The first stage of a criminal case is the investigation stage. Investigations usually begin when someone makes a report to a law enforcement agency. The person that makes a report is called the Complainant. The Complainant can be the Alleged Victim or someone who knows about the alleged offence.

First Investigation Report

The first report made by the Complainant to the law enforcement agency is called the First Investigation Report (FIR). After the FIR is lodged, the law enforcement officer will then decide if further investigations are required.


In general, an Accused has certain rights upon being arrested:

  • The Accused must be informed of the reason he/she was arrested as soon as possible.
  • The Accused has a right to be represented by a Defence Counsel, or criminal lawyers, within a reasonable time.

Generally, an Accused cannot be detained for more than 48 hours after his arrest without being brought before a Magistrate. This appearance before the Magistrate is called the first mention. For more on mentions, see under “Mentions & Pre-Trial Conferences”. At the first mention, the Magistrate will decide if the Accused should be let out on bail or further detained (see under “Bail”).

The Investigation Process and Statements

The investigation stage may take anywhere between a few weeks to several years. The following factors might affect the duration of the investigation stage:

  • Seriousness of the alleged offence(s)
  • Number of alleged offence(s);
  • Number of co-accused person(s);
  • Number of alleged victim(s);

While investigations are ongoing, the Accused may be contacted by law enforcement agencies for interviews. The statements taken during these interviews are called “long statements”. Such statements must be in writing or be in the form of an audio-visual recording. If recorded in writing, these long statements must be read back to the person giving it and signed by him. If the person does not understand English, it must be interpreted in a language that he/she understands.

Once the Accused is charged with an offence, he will be given a caution. The statement that the Accused makes in response to such a caution is called a “cautioned statement”. The purpose of the caution is to inform the Accused of the charge that he may be facing and to give him a chance to state any fact that will be helpful to his case. If he does not state such a fact at this stage, it may have a bad effect on his case in court.

Voluntariness of a Statement

The Court must ensure that all statements are voluntarily made by the Accused before accepting them as evidence.

Thus, a statement will not be accepted by the Court where:

  • it was made under a threat;
  • it was made because of an inducement;
  • it was made in the expectation of a promise;
  • it was made under oppressive circumstances;
  • it was made under circumstances where the Accused did not comprehend what he/she was saying due to a medical condition/drug withdrawal symptoms.

Ancillary Hearings

An Ancillary Hearing will be held where parties disagree as to whether a statement was made voluntarily. The Court will only be concerned about the voluntariness of a statement in an Ancillary Hearing. Therefore, an Ancillary Hearing would not be held where:

  • the Accused complains about the incompleteness of a statement; and/or
  • the Accused denies making the statement.

The value of the Defence Counsel in the investigations stage

When the Accused is being investigated, there is value in engaging a lawyer. At this stage, even before the charge is finalised against him, the Defence Counsel will be able to write representations to the law enforcement agency or the Prosecution to set out the Accused’s side of the story. Such representations help in assisting in investigations and may even persuade the Prosecution to not proceed against the Accused.

Further, the Defence Counsel would be able to advise the Accused on his rights during the statement taking process. Any statements which were not made voluntarily can be challenged by the Defence Counsel in Court. This can often make a real difference in the outcome of a case.



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