n Acta Juridica - Undue delay in criminal cases : the Scottish and South African courts' response : evidence, criminal process and criminology




If we consider the rules governing civil or criminal matters, it is evident that time fulfils an important function in most legal systems all over the world. Much depends, for example, on the lapse of time between the issuing and serving of a legal document; or bringing a matter to trial before the prescription period of the offence; or disposing of a matter without it being unduly delayed. Despite varying practices which regulate these processes that are all concerned with a period of time, we find that time itself is neither specified nor defined as a standardised unit in most criminal justice systems. Nevertheless, courts are expected to determine whether a criminal matter has been unduly or unreasonably delayed without being given a yardstick by which to measure it. In some cases it is crucial to determine the starting point from which the time period should be calculated. Should one begin the calculation when an accused person is charged or start counting from the first day of appearance in court? It is essential to analyse these questions in order to consider the approaches adopted by the courts in South Africa and Scotland in deciding whether a matter has been unduly or unreasonably delayed, in circumstances where time is not standardised.

Why should we look specifically at the systems of these two countries? The answer is simple. First, both Scotland and South Africa recently adopted human rights laws that impact drastically on their criminal justice systems and secondly, the way trials are conducted in both countries. Furthermore, both countries have 'mixed' legal systems, reflecting influences from 'Civilian' and 'Anglo-American' systems and facing similar challenges in the criminal justice sphere. In this chapter the different responses of the two systems to the notion of undue delay will be examined and specific attention will be paid to the shortcomings of each system.


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