Trial within a Trial

This is with regard to confessions.  The general is that any statement whether written or oral by an accused person relating to the charge against him is admissible in evidence against him.

The courts are however particularly careful about statement made to police offices as a result of the English courts developed what are now known as judges rules to be followed by police officers whenever they wish to take statements from an accused – the procedure is largely governed by law of evidence.

Section 25 of the Evidence Act defines confession as “comprising words or conduct, or a combination or words and conduct, from which whether taken ..

Principally the law in Kenya has changed since the introduction of the Criminal Law Amendment Act No. 5 of 2003 Section 25A of the Evidence Act provides that
A confession or any admission of a fact tending to the proof of guilt made by an accused person is not admissible and not be proved against such a person unless it is made in court.  The effect of the provision is to remove confessions from the mandate of police officers.

Since the introduction of the said amendment there has been differing opinions on its suitability
Human rights activist have hailed the provisions as a s step forward in limited the opportunity for the torture suspects by the police

Judicial officers have been uneasy about a provision that requires them to perform investigation functions and have pointed out the undesirability of judicial officers performing such a function that may lead to a conflict of interests.  The police have argued that since the amendment the re has been a slow down in investigations as well as an escalation of crimes.

The problems posed by the amendment have lead to another proposed amendment i.e. The statute law (Miscellaneous Amendment) Bill 2005 which proposes to amend Section 25A of the Evidence Act as follows:
(i)                Delete the words in court and substitute thereof the words “before a judge, a magistrate or a police officer (other than the investigation officer) being an officer not below the rank of Chief Inspector of Police.
(ii)             The Attorney General shall make rules governing the making of a confession in all instances where the confession is not made in court.

The proposed Bill has attracted criticisms from civil society groups who contend that it is a draw back to the progress made by ct No. 5 of 2003 and maintaining their concern that the police will employ torture, threat and other undesirable and illegal tactics to obtain confessions should the amendment be passed.

Confessions cause a major problem in our system because, the burden of proving a criminal case is on the prosecution, further the accused is protected from being compelled to give evidence against himself; and yet ideally a confession if properly taken would be the best evidence against he accused; note must also be taken of the fact that even where eh police do not produce statements they may still produce evidence such as recoveries and arrests made arising from such confessions.

Historically due to lack of proper safeguards extraction of confessions from accused persons has been characterised by systemic …

It must be noted that he current provisions presume that there is no need for rules or guidelines when confessions are taken before a court.  this raises the likelihood of different standards being applied by different courts and where a dispute arises then it will be difficult to decide with certainty what ought to have been done in the absence of such rules governing how confessions should be taken before the courts.  Nonetheless it is expected that should here be  a dispute that the courts will apply the principles already developed with regard to confessions previously taken by police officers.

Therefore even the current status the accused may therefore dispute a statement if it was not given voluntarily i.e. if it resulted from coercion or inducement which may occur prior to the taking of the statement in which case the court must establish such facts before taking recording a statement from an accused.  It is possible to coerce the accused person and take them to court to record a statement.  If this happens there are no mechanisms to lay out what precautions the court can take when an accused is taken before the court to record a statement.  The court should establish that there was no coercion before the accused was brought to them.

It must be explained to the accused that they tare under no obligation to give the statement but that if they do give it then it can be used in evidence against them.

It is important that the statement should be recorded in the language in which the accused gives it and translated into a court language.  It should be read back to the accused person who must indicate whether or not they agree with the statement as recorded, they should then sign or thumbprint it.

Where a confession has been duly taken from the accused person, the prosecution, depending on the evidence that they have may seek to produce that confession as evidence.  After determining who is to be charged, they don’t have to produce every statement under caution or inquiry or confession, the police usually do not have very good evidence.

The prosecution must inform the court of their intention to produce the confession and then the accused will be required to indicate to the court whether or not they have any objection to the said production.  If the accused has no objection then the statement will be produced where the accused opposes the production then the court will conduct a trial within a trial whose main objective will be to establish the circumstances under which the statement was taken.  The main trial will be interrupted and in the court file, the judicial officer will indicate that a trial within a trial is commenced.  if the trial within trial will start with the witness relating to the manner, conditions and circumstances under which the statement was recorded.  The witnesses will be examined in chief, cross examined and re-examined.

After the close of the prosecution case, the court will not enter a ruling; instead the defence will be given opportunity to adduce their evidence, at the end of the defence case the court will make a ruling.  The ruling will limit itself to the issues raised during the trial within trial and will either allow or disallow the production of the statement.  The magistrate has to determine how the statement was taken.  Where the court rules that the statement was made voluntarily by the accused then the witnesses who produced the statement shall resume his stand in the main trial; and produce it accordingly.

The practice is that during trial within trial the disputed statement should not be read out and that it is only after a ruling favouring its production that it can then be read out.  On production the accused/defence will still have the opportunity to cross-examine the witness and more so on the contents of the statement. 


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