x Abu Dhabi, UAESunday 21 January 2018

Legal rights depend on an impartial prosecutor's office

People in the UAE have many expectations from the criminal justice system.

People in the UAE have many expectations from the criminal justice system. They expect to be able to live a life free from violence. They expect to be able to enjoy protection of their property. And if someone breaks the law and injures them in some way, they expect that the authorities will take the appropriate action.

The same citizens also expect the justice system to provide them with their rights as defendants if they are held as suspects. And they expect to be granted the defence they deserve in UAE courts. They refuse to be abused by the police and prosecution, the everyday guardians of their safety and security.

Public confidence depends on an efficient, responsive prosecutorial system and police that exercise their powers with respect to personal liberties and rights.

Prosecutor must be able to work with police investigators to produce strong cases so that criminals are convicted in line with the rule of law. Because of police culture, investigators come at cases from a different angle, having had personal contact with the tragedies involved in criminal cases. The public prosecutor's role should be to examine police investigative methodology with detachment to ensure that human and other legal rights of the suspect are respected.

We need to look at the boundary between the police and the prosecutor's office. At present, there is no distinction between the two functions of investigation and prosecution in the bulk of criminal cases that are dealt with in the courts. The division between the two functions is quite recent in the UAE, and needs to be implemented further.

A defined and structured cooperation is better for the conduct of prosecutions. The prosecutor should give assistance to police prior to charges being filed and police provide support to the prosecutor's office in preparation for a trial. But it is the prosecutor's impartial, detached and clinical approach to casework that is so necessary in upholding the rule of law - to avoid putting suspects on trial where there is little more than suspicion or outrage.

The fact that grievances in the UAE can be filed with police as a criminal complaint can be quite intimidating. Prosecutors look at the facts of the case and determine whether to prosecute in a system of inquiry known as the Niyaba. Depending on how long this takes, the investigation and possibility of pending charges can in themselves be a traumatic experience for the defendant.

In some cases, people with vendettas have subjected defendants to the trauma and expense of an inquiry even when there are no grounds for prosecution. This is why prosecutors should set a timetable for each case, maintain a detached approach to police work and adopt the "equality of arms" principle, which means that the defence must have access to all relevant information. When that is not possible and a fair trial cannot follow, the prosecutor should not proceed with the case.

Although prosecutors and defence lawyers represent opposite sides, a good working relationship may help their cases. Criminal trials are the most adversarial of all litigation. Defence lawyers assert the rights of their clients, for instance in the process of discovery, pretrial motions and trial tactics. Prosecutors will often view defence tactics as unwarranted, technical, unreasonable or even personally offensive.

In the context of such hotly contested proceedings, relationships between opposing counsel may become strained. Many miscarriages of justice have occurred when prosecutors failed to disclose evidence that would have assisted the defence, sometimes even undermining their own case.

Whatever the provocations of a proactive defence counsel, it is absolutely fundamental for the public prosecutor, and of course the police, to observe due process. Indeed, departures from fair procedures often give the defence their only argument when facing an otherwise strong case. Prosecutors need to be absolutely professional, providing the defence with early details of allegations - and possible weaknesses in the case or information that might help the accused.

The relationship between the prosecutor's office, the police and the defence - the trio of the criminal justice - needs to be considered further and boundaries set in a more transparent way. It is crucial to point out that Dubai Public Prosecution promises to work closely with its partners in protecting the community and legal rights of citizens. Its main objective states: "To create a more secure community by protecting the legal rights and freedom of the community, using justice, independence and cooperation with its partners to ensure a fair and secure society."

A modern criminal justice system is a complex and expensive process. It requires a gatekeeper that only admits cases where the admissible evidence sufficiently points towards guilt. There would be a loss of public confidence in the rule of law if there were too many failures to meet the exacting standards to prove guilt beyond reasonable doubt. This gatekeeping role is that of the public prosecutor.


Diana Hamade is an Emirati lawyer and legal consultant. She is the founder of International Advocate Legal Services in Dubai