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Arrested, detained and accused persons

The rights of arrested, detained and accused persons are the Bill of Rights key influence on the criminal justice system, although many of the other rights such as equality access to information still have an effect. It outlines numerous conditions for the fair treatment of such persons.

These rights were considered important to outline in light of the cruel way in which persons were arrested, detained and put to trial during Apartheid. One of the most important aspects of the right is the right to be presumed innocent - every time a person is charged with a crime the state is the one who pursues the action against them. The Bill of Rights therefore needs to do everything it can to ensure equality between the two sides when considering the power of the state in contrast to the lack of power of individuals.

1. Everyone who is arrested for allegedly committing an offence has the right ­

1. to remain silent;
2. to be informed promptly ­

1. of the right to remain silent; and
2. of the consequences of not remaining silent;
3. not to be compelled to make any confession or admission that could be used in evidence against that person;
4. to be brought before a court as soon as reasonably possible, but not later than ­

1. 48 hours after the arrest; or
2. the end of the first court day after the expiry of the 48 hours, if the 48 hours expire outside ordinary court hours or on a day which is not an ordinary court day;

5. at the first court appearance after being arrested, to be charged or to be informed of the reason for the detention to continue, or to be released; and

6. to be released from detention if the interests of justice permit, subject to reasonable conditions.

2. Everyone who is detained, including every sentenced prisoner, has the right ­

1. to be informed promptly of the reason for being detained;
2. to choose, and to consult with, a legal practitioner, and to be informed of this right promptly;
3. to have a legal practitioner assigned to the detained person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
4. to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released;
5. to conditions of detention that are consistent with human dignity, including at least exercise and the provision, at state expense, of adequate accommodation, nutrition, reading material and medical treatment; and
6. to communicate with, and be visited by, that person's ­

1. spouse or partner;
2. next of kin;
3. chosen religious counsellor; and

4. chosen medical practitioner.

3. Every accused person has a right to a fair trial, which includes the right ­

1. to be informed of the charge with sufficient detail to answer it;
2. to have adequate time and facilities to prepare a defence;
3. to a public trial before an ordinary court;
4. to have their trial begin and conclude without unreasonable delay;
5. to be present when being tried;
6. to choose, and be represented by, a legal practitioner, and to be informed of this right promptly;
7. to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
8. to be presumed innocent, to remain silent, and not to testify during the proceedings;
9. to adduce and challenge evidence;
10. not to be compelled to give self-incriminating evidence;
11. to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language;
12. not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted;
13. not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted;
14. to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and

15. of appeal to, or review by, a higher court.

4. Whenever this section requires information to be given to a person, that information must be given in a language that the person understands.

5. Evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.



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