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Legal Terms in Criminal Cases Explained

As part of the Law Society’s continuing public education outreach efforts, the Law Society has developed this glossary to provide an additional resource for legal fact-checking by members of the public. 

Through this glossary members of the public will be able to obtain a more comprehensive understanding of frequently used terms and frequently asked questions arising from criminal cases that have been reported in the media. This glossary may be updated by the Law Society from time to time. 

Arrest

Q. How is a citizen’s arrest different from a police arrest?

In limited situations, the law permits private individuals who are not police officers to arrest a person who has committed an offence if certain conditions prescribed by law are satisfied. This is known as an ‘arrest by a private person’, or sometimes referred to as a ‘citizen’s arrest’.

For more information on the conditions prescribed by law for a private individual to make a citizen’s arrest, please see our primer here.

Burden of Proof

Q. What is meant by the statement that “the burden of proof in a criminal case is on the Prosecution”?

If a person alleges a certain fact in issue in a criminal case, it is for him or her to prove it. In a criminal trial, the accused person is presumed innocent until proven guilty. Hence, the burden of proof generally rests on the Prosecution to prove each element of the offence in question beyond reasonable doubt.

If a reasonable doubt is found by the court pertaining to any element of the offence, the Prosecution would have failed to discharge its burden of proof and accordingly, the accused person will be acquitted.

Gag Orders

Q. Why does the Court make a gag order in a criminal case?

To prevent the disclosure or identification of a victim or witness, the court may make a gag order to prohibit members of the public and the media from:

  • publishing a victim’s or witness’s name, address or photograph;
  • publishing any evidence or any other thing likely to lead to identifying a victim or witness; or
  • doing any other act which is likely to lead to identifying a victim or witness.

A gag order may also be made to prohibit the disclosure of the identity of an accused person, if such information is likely to lead to identifying the victim(s).

For more on gag orders and the applicable laws that prohibit the disclosure of a victim’s or witness’s identity in legal proceedings, please see our primer here.

Short Detention Order

Q. What is the purpose of a short detention order?

A short detention order (“SDO”) is a type of community-based sentence given by the court which focuses on the sentencing principles of rehabilitation and prevention. Community-based sentences are generally suitable for regulatory offences, offences involving younger accused persons and persons with specific and minor mental conditions. Unlike the effect of a traditional sentence such as imprisonment or a fine, the offender will not carry a criminal record once his/her sentence has been served.

A SDO may be ordered for offenders who are 16 years of age or above and are convicted of an offence. In determining whether to impose an SDO on an offender, the court will take into account factors such as the nature of the offence and the character of the offender. Generally, an SDO has been ordered in cases where the court is of the view that the offender has the potential to rehabilitate, taking into account, for example, whether the offender has a previous criminal record and whether there is a low risk of re-offending. Under an SDO, an offender will be detained in prison for a maximum period of 14 days.

Please refer to Section 348 of the Criminal Procedure Code for the provision governing short detention orders and Section 337 of the Criminal Procedure Code which sets out the circumstances in which a community-based sentence cannot be ordered.

 

Last updated on 19 November 2020

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