The alarming trend of trial by police
"The police should always recognise the need for strict adherence to police-executive functions, and to refrain from even seeming to usurp the powers of the judiciary of authoritatively judging guilt and punishing the guilty."
—Sir Robert Peel
A young female is reported missing. The police find a dead body. The relatives identify the body. The police make an arrest and question the suspect. His full identity is revealed. The police hold a well-publicised press conference and announce that the offender (the term suspect is no longer used) has confessed to the murder. They disclose his motive, and incriminating items they found are displayed for all to see. Everything is stated as a fact, not as untested raw information. The court allows further time for questioning. In the next few days, the media frantically updates the public, citing police sources. The detained person is then paraded before the media, flanked by police officers. The bulk of the police investigation finishes there, as the suspect is sent to prison until he appears before a trial judge. Meanwhile, although still innocent in the eyes of the law, a de facto trial, firmly establishing the guilt of the accused in public mind, has already taken place.
The above is an illustration of the way many serious criminal investigations are handled by the various branches of the police services in Bangladesh. The higher judiciary has repeatedly expressed concerns about this growing trend. In a published decision in August 2019, the High Court bench of Justice M Enayetur Rahim and Justice Md Mostafizur Rahman warned that an investigating officer cannot step into the shoes of the trial judge. In the same month, while delivering their decision on a bail petition, the same bench observed that parading suspects in front of the media even before their first court appearance was unconstitutional and unacceptable.
Recently, the same judges, while reportedly considering a writ petition, expressed deep concerns about the way the police were communicating their investigation findings to the public, and articulated the necessity for binding regulations to stem this disturbing trend. Moreover, a number of prominent legal experts have voiced disquiet about the detrimental impact of such practices on the country's criminal justice system. In this respect, this article simply repeats a platitude. In the words of Andre Gide, "Everything has been said already, but no one has listened. So, it must be said again."
Criminal investigation is a major function of the police services in all common law countries, including Bangladesh. Such investigations are carried out for the sole purpose of enabling the court system to utilise, evaluate and scrutinise the resultant evidence from the investigation, in order to deliver justice. But the due process of law is liable to be undermined in two significant respects when the police embark on sharing their investigation results prematurely with the public. Firstly, the police, in communicating their impression of a suspect's guilt, largely rely on the confession secured through their interrogation and their own opinion. But under the Code of Criminal Procedure of Bangladesh, neither a confession made to the police nor the opinion of the police about a suspect's guilt is admissible in court. Therefore, it is perfectly possible for a court, after considering the admissible evidence and following the due process, to make a decision about a suspect that is in sharp conflict with the impression the police give to the public beforehand. This brings the judiciary into disrepute.
Secondly, police's duty to collect evidence continues until a suspect appears before a trial court. However, when the police prematurely communicate their opinion of the suspect's guilt to the people, any subsequent evidence pointing against that would be difficult for them to submit to the court, as that would discredit them in the public eyes. Yet, non-disclosure of any subsequent evidence to the court would create grounds for the miscarriage of justice.
Parading an arrested person before the media is of equal concern. Sometimes, such spectacles take place even without any admission or confession of an offence. The police appear to be content to allow the media to publish their views of the individual's involvement in a crime, masquerading as tested facts. Such practices not only breach that individual's constitutional rights—as observed by the High Court bench—but also have potentially serious implications for the police services in Bangladesh. It is not inconceivable that such an individual, especially if they are subsequently found not guilty by the court, could bring a civil defamation action for damages against the police services. Indeed, a floodgate of such proceedings could ensue if police practices remain unregulated in this regard.
Police in many common law countries with exemplary criminal justice systems, such as England, Australia and Singapore, also communicate directly with the general public. An investigating officer in those countries may appear before the media to ask people to help with information if they have witnessed a particular crime. The investigation results are never disclosed directly to the public in order to maintain the integrity of the evidence. However, once the court has found a person guilty, the police then may disclose information about how the evidence was secured against the suspect, if the nature of the case generates public interest. This way, the due process of law is upheld while enhancing the image of the judiciary and the police alike. The police services in Bangladesh should aspire to emulate this process.
Bangladesh's new chief justice was sworn in on December 31, 2021. On the eve of his appointment, the prime minister urged the judiciary to ensure complete justice for all. The chief justice has since declared his determination to work towards such goals. It is suggested that the chief justice may consider that the Supreme Court urgently needs to assist and bind the police services in regulating its investigative process, in order to serve the interests of justice in the country. Such efforts by the chief justice would be a tangible stride towards his declared goals.