Understanding one’s rights when arrested and detained: An assessment of language barriers that affect comprehension

by | Jun 6, 2021 | SACJ, SACJ V34 I1 2021

Understanding one’s rights when arrested and detained: An assessment of language barriers that affect comprehension

Author Terrence R Carney

ISSN: 1996-2118
Affiliations: BA HonsBA (UP) PGCE (Unisa) MA (UP) PhD (UFS) TESOL (Wits), Associate Professor, College of Human Sciences, University of South Africa
Source: South African Journal of Criminal Justice, Volume 34 Issue 1, p. 1 – 30
https://doi.org/10.47348/SACJ/v34/i1a1

 

Abstract

Difficult text formulations, on the one hand, as well as poor linguistic skills and comprehension on the other, can severely hamper the communication effort of basic human rights during the judicial process. The rights entrenched in s 35 of the Constitution of South Africa (Act 108 of 1996), as they apply to individuals who are arrested, detained and accused, and read out by a member of the local South African Police Service (SAPS), are written in a legal register that can be too difficult for additional language speakers to understand. This begs the question of whether arrested, detained and accused individuals are fully aware of their rights and whether they can exercise these rights if they do not understand the language that expresses them. This article appraises the potential comprehensibility of the notice of rights (SAPS 14A), as provided to arrested, detained and accused individuals by the SAPS. The researcher’s assessments indicate that the text is pitched at an English readability level suited to university graduates and could be too difficult for South Africans with limited schooling and linguistic abilities to comprehend. A revision of SAPS 14A is offered as an illustration of a possible improvement to increase readability and, subsequently, better access to the mentioned rights.

Sentenced by an algorithm — Bias and lack of accuracy in risk-assessment software in the United States criminal justice system

by | Jun 6, 2021 | SACJ, SACJ V34 I1 2021

Sentenced by an algorithm — Bias and lack of accuracy in risk-assessment software in the United States criminal justice system

Author Willem Gravett

ISSN: 1996-2118
Affiliations: BLC LLB (UP) LLM (Notre Dame) LLD (UP), Associate Professor in the Department of Procedural Law, University of Pretoria, Member of the New York State Bar
Source: South African Journal of Criminal Justice, Volume 34 Issue 1, p. 31 – 54
https://doi.org/10.47348/SACJ/v34/i1a2

Abstract

Developments in artificial intelligence and machine learning have caused governments to start outsourcing authority in performing public functions to machines. Indeed, algorithmic decision-making is becoming ubiquitous, from assigning credit scores to people, to identifying the best candidates for an employment position, to ranking applicants for admission to university. Apart from the broader social, ethical and legal considerations, controversies have arisen regarding the inaccuracy of AI systems and their bias against vulnerable populations. The growing use of automated risk-assessment software in criminal sentencing is a cause for both optimism and scepticism. While these tools could potentially increase sentencing accuracy and reduce the risk of human error and bias by providing evidence-based reasons in place of ‘ad-hoc’ decisions by human beings beset with cognitive and implicit biases, they also have the potential to reinforce and exacerbate existing biases, and to undermine certain of the basic constitutional guarantees embedded in the justice system. A 2016 decision in the United States, S v Loomis, exemplifies the threat that the unchecked and unrestrained outsourcing of public power to AI systems might undermine human rights and the rule of law.

Demeanour, credibility and remorse in the criminal trial

by | Jun 6, 2021 | SACJ, SACJ V34 I1 2021

Demeanour, credibility and remorse in the criminal trial

Authors Adebola Olaborede & Lirieka Meintjes-van der Walt

ISSN: 1996-2118
Affiliations: LLB (Nigeria), LLM (Stellenbosch), LLD (Fort Hare), Lecturer, Nelson Mandela School of Law, University of Fort Hare; BJuris LLB (UPE) LLM (Rhodes) DJuris (Leiden), Adjunct Professor, Nelson Mandela School of Law, University of Fort Hare
Source: South African Journal of Criminal Justice, Volume 34 Issue 1, p. 55 – 75
https://doi.org/10.47348/SACJ/v34/i1a3

Abstract

This article, referring to South Africa as well as to selected other common law jurisdictions, proceeds from the premise that it is a well-accepted practice for judges to consider demeanour in assessing the credibility of a witness and in assessing whether the accused shows remorse when decisions regarding sentences are taken. However, the article also takes cognisance of the fact that there is a lack of generally agreed-upon objective methods for the identification of remorse. The article was prompted by recent health precautions regarding the mandatory use of face masks, in order to protect people and to contain the spread of the coronavirus, which provides an opportunity to review demeanour in general and perceptions concerning facial demeanour or facial expressions in the courtroom, in particular. The article explores the validity and reliability of findings on remorse and of making credibility assessments based on demeanour evidence. Part 1 of the article is an introduction. Part 2 of the article provides a brief overview of credibility and demeanour evidence in the courtroom. Part 3 of the article examines remorse and demeanour evidence in criminal trials. Part 4 of the article considers demeanour evidence as a ‘tricky horse to ride’. Part 5 of the article provides a discussion of empirical research studies in the field of social psychology relevant to the reliability of finding credibility and remorse on the basis of demeanour evidence. Part 6 briefly discusses COVID-19 face-covering regulations and demeanour evidence in the criminal trial. The article emphasises that although non-verbal cues could be valuable to judges, such evidence may be unreliable and that courts have cautioned against demeanour evidence being afforded undue importance. The article concludes that even when facial expressions are available to the court, it would be in the interests of justice to exercise great care concerning demeanour in general and facial expressions in particular as a guide to assessing credibility and the existence of remorse.

Rape: An unreasonable belief in consent should not be a defence

by | Jun 6, 2021 | SACJ, SACJ V34 I1 2021

Rape: An unreasonable belief in consent should not be a defence

Author PJ Schwikkard

ISSN: 1996-2118
Affiliations: BA (Witwatersrand) LLB (Natal, Pietermaritzburg) LLM (Natal, Durban) LLD (Stellenbosch), Professor of Law, University of Cape Town
Source: South African Journal of Criminal Justice, Volume 34 Issue 1, p. 76 – 102
https://doi.org/10.47348/SACJ/v34/i1a4

Abstract

Section 3 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 defines rape in the following terms: ‘Any person (‘A’) who unlawfully and intentionally, commits an act of sexual penetration with a complainant (‘B’), without the consent of B, is guilty of the offence of rape.’ This paper focuses on one component of the definition, namely fault. It is argued that a mistaken but unreasonable belief in consent should not be recognised as a defence and that a normative approach could soften the focus on the behaviour of the complainant and send a clear signal that our commitment to constitutional values requires us to take due care in our interactions with others. The argument is made with full awareness that law reform is a very small cog in addressing the scourge of rape.