The Falkland Islands Constitution Order 2008

Provisions to secure protection of law

6.—(1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, he or she shall have the right to a fair hearing within a reasonable time by an independent and impartial court established by law.

(2) Every person who is charged with a criminal offence—

(a) shall be presumed to be innocent until he or she is proved to be or has pleaded guilty;

(b) shall be informed orally and in writing as soon as reasonably practicable, in a language that he or she understands and in detail, of the nature of the offence charged;

(c) shall be given adequate time and facilities for the preparation of his or her defence;

(d) shall be permitted to defend himself or herself before the court in person or, at his or her own expense, by a legal representative of his or her own choice or, when the interests of justice so require, by a legal representative at the public expense;

(e) shall be afforded facilities to examine in person or by his or her legal representative the witnesses called by the prosecution before the court, and to obtain the attendance and carry out the examination of witnesses to testify on his or her behalf before the court on the same conditions as those applying to witnesses called by the prosecution;

(f) shall be permitted to have without payment the assistance of an interpreter at any court hearing at which that person is required to be present if he or she cannot understand or speak English; and

(g) shall, when charged on information or indictment in the Supreme Court, have the right to trial by jury or before a judge sitting alone, as he or she may choose.

(3) Except with his or her own consent, the trial of a person charged with a criminal offence shall not take place in his or her absence, unless—

(a) that person so behaves in the court as to render the continuance of the proceedings in his or her presence impracticable and the court has ordered that person to be removed and the trial to proceed in his or her absence; or

(b) the court, being satisfied that no injustice will result, orders the trial to proceed in that person’s absence on account of the abscondment or the involuntary illness or incapacity of that person.

(4) When a person is tried for any criminal offence, that person or any person authorised by him or her in that behalf shall, if he or she (the accused person) so requires and subject to the payment of such reasonable fee as may be prescribed by law, be given within a reasonable time after judgment a copy for the use of the accused person of any record of the proceedings made by or on behalf of the court.

(5) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed.

(6) No person who shows that he or she has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he or she could have been convicted at the trial for that offence, save upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal, or save where a court makes an order under an Ordinance permitting a person to be retried for an offence of which he or she has been acquitted where in all the circumstances a retrial is in the interests of justice.

(7) No person shall be tried for a criminal offence if he or she shows that he or she has been pardoned for that offence.

(8) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.

(9) When a person has, by a final decision of a court, been convicted of a criminal offence and, subsequently, his or her conviction has been quashed, or he or she has been pardoned, on the ground that a newly-disclosed fact shows that there has been a miscarriage of justice, he or she shall be compensated out of public funds for any punishment that he or she has suffered as a result of the conviction unless it is proved that the non-disclosure in time of that fact was wholly or partly his or her fault.

(10) For the determination of the existence of extent or his or her civil rights and obligations, every person shall have the right to a fair hearing within a reasonable time before an independent and impartial court or other authority established by law.

(11) Except with the agreement of all the parties to them, all proceedings for the trial of any criminal charge or for the determination of the existence or extent of any person’s civil rights or obligations before any court or other authority, including the announcement of the decision of the court or other authority, shall be held in public.

(12) Nothing in subsection (11) shall prevent the court or other authority from excluding from the proceedings persons other than the parties to them and their legal representatives to such an extent as the court or other authority—

(a) may by law be empowered to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice or in interlocutory proceedings or in the interests of the welfare of minors or the protection of the private lives of persons concerned in the proceedings; or

(b) may by law be empowered or required to do in the interests of defence, internal security, public safety, public order or public morality.

(13) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of—

(a) subsection (2)(a), to the extent that the law in question imposes on any person charged with a criminal offence the burden of proving particular facts;

(b) subsection (2)(e), to the extent that the law in question imposes reasonable conditions that must be satisfied if witnesses called to testify on behalf of an accused person are to be paid their expenses out of public funds; or

(c) subsection (6), to the extent that the law in question authorises a court to try a member of a disciplined force for a criminal offence notwithstanding any trial and conviction or acquittal of that member under the disciplinary law of that force, but any court so trying such member and convicting him or her shall in sentencing him or her to any punishment take into account any punishment imposed on him or her under that disciplinary law.