Effective from 1 March 2023, Federal Decree Law No. 38 of 2022 shall repeal and replace Federal Law No. 35 of 1992 regarding Penal Procedures.
Mohamed Al MarzouqiDeputy Managing Partner,Dispute Resolution
Seif ElfarTrainee Solicitor,Dispute Resolution
Effective from 1 March 2023, Federal Decree Law No. 38 of 2022 (the “New PPL”) shall repeal and replace Federal Law No. 35 of 1992 regarding Penal Procedures (the “PPL”). The New PPL addresses a number of procedural gaps featured in practice across the various stages of penal proceedings in the UAE, from the very first step of filing a criminal complaint and the investigations conducted by the public prosecution, to the trial and issuance of judgements before the competent criminal court. This article focuses on the introduction of what is known in overseas jurisdictions as the Newton hearing to the UAE penal system, along with an overview of other ancillary changes featured in the New PPL as a result.
It is worth highlighting at the outset that not only will the amendments featured in the New PPL result in procedural efficiencies, but the direction which the legislator has decided to take represents a major development in the context of a more common law oriented legal system. We have noticed such development in the civil front of litigation proceedings in the UAE, however the New PPL may represent the first step towards a penal system that is more reminiscent of a common law system, as opposed to a civil one, the latter of which forms the basis on which the legal system in the UAE was designed.
The mechanics of a Newton hearing differ slightly from one jurisdiction to another. In its simplest terms, a Newton hearing is a form of mini trial whereby the defendant would plead guilty to an offence, but the prosecution disagrees with the factual basis on which the defendant would be sentenced, leading to a material difference in the sentence imposed. In Singapore, for example, the Newton hearing is held at which the accused, the prosecutor and the supervising judge are present. After presenting the facts and the charges made against the accused to the judge, the accused may admit the charges, in which case a more lenient sentence may be issued if the judge accepts mitigating circumstances presented by the accused. If the charges are not admitted by the accused, a meeting is held with the judge before the case is referred to the court, where the charges are discussed and points of difference and agreement between the prosecution and the accused can be agreed to amend the charges or provide a more lenient sentence after the charges have been admitted.
A Newton hearing is a form of mini trial whereby the defendant would plead guilty to an offence, but the prosecution disagrees with the factual basis on which the defendant would be sentenced, leading to a material difference in the sentence imposed.
In the event of a failure to reach an agreement, the prosecution and the accused shall specify the names of the witnesses to be called on by each party to testify and the number of hearings required, after which the judge shall determine the dates of the hearings and issue subpoenas to the witnesses requested by each party. Each party shall also prepare the documents and notes to be submitted to the court. Once the pleadings are concluded, a judgement shall be issued by the court.
There is currently a mechanism in the UAE pursuant to the PPL known as the Penal Order, which may be compared to a certain extent to the Newton hearing described above in Singapore and other Anglo-Saxon jurisdictions. However, in the case of a Penal Order, it is issued by the public prosecution with the agreement and admission of the accused to the charge, and therefore does not require a court judgement. The purpose of which is to reduce the court’s caseload and to accelerate the proceedings in minor criminal cases, thereby reducing the costs borne by the judiciary.
As a by-product of the Newton hearing mechanism and as an extension of the Penal Order, the New PPL has introduced the concept of reconciliation through penal mediation pursuant to article 352. Prior to referring a dispute pertaining to misdemeanours (and other offences to which reconciliation is applicable) to the competent criminal court, the public prosecution based on its own discretion and with the agreement of both the victim and the accused, or based on their own request, may refer the case to penal mediation to reconcile the dispute between the victim and the accused. When exercising its discretion to make such a referral, the public prosecution shall have regard to the extent to which such a referral would extinguish the effects of the crime or compensate the victim for the harm suffered as a corollary the crime.
The duration to carry out the mandate assigned by the public prosecution to the penal mediator shall be specified in the referral order and, in all cases, shall not be longer than 1 month from the date of notifying the mediator of the same. The penal mediation proceedings shall remain confidential, and the mediator may not be called upon before any judicial body or tribunal to testify in relation to the information acquired during the mediation proceedings, except in specific cases prescribed in article 353(3) of the New PPL, including if a request is made by the victim or the accused to the mediator and in the event that such confidentiality threatens the life of another person.
The penal mediation process shall be considered completed once the victim and the accused sign their reconciliation agreement, or if the victim and the accused reach an agreement to conclude the penal mediation for any other reason. The minutes before the public prosecution approving the reconciliation between the accused and the victim shall be considered a writ of execution, thereby concluding the case or staying the enforcement of any judgement thereto. This form of dispute resolution offers both the victim and the accused a means to reconcile under the supervision of the public prosecution, on a strictly confidential basis. Resolving misdemeanour disputes by way of penal mediation will allow courts to allocate their time and resources towards more complex and fatal crimes that are less likely to be reconciled or settled.
By virtue of article 358 of the New PPL, the legislator has protected the victim’s right to resort to civil litigation to claim final compensation for the harm suffered as a result of the crime, irrespective of whether or not the victim has agreed to reconcile with the accused. This is the case provided that the reconciliation agreement did not already consider the victim’s compensation or contain a waiver of the victim’s right to claim compensation.
In addition to the penal mediation route detailed above, which is applicable only to the misdemeanours and violations set out in article 349 of the New PPL, the legislator has introduced the mechanism of penal settlements for felonies and misdemeanours. The exact procedure of triggering the settlement process for each type of crime differs in terms of the steps involved, but there is one overarching objective that is evident irrespective of the type of crime, and that is to streamline the caseload of the judiciary to promote efficiency in the context of criminal litigation, and to promote a more “user-friendly” penal system.
The exact procedure of triggering the settlement process for each type of crime differs in terms of the steps involved, but there is one overarching objective that is evident irrespective of the type of crime, and that is to streamline the caseload of the judiciary to promote efficiency in the context of criminal litigation, and to promote a more “user-friendly” penal system.
In the context of misdemeanours, in cases where the criminal dispute fulfils the requisite criteria to be referred to the Criminal Court, the public prosecution may propose to the victim a final settlement of the criminal case should the accused agree to being sentenced to one or more of the punishments and measures set out in article 362 of the New PPL. The options available to the accused are varied, including temporary compensation to the victim, performing social services and paying no more than half of the maximum statutory fine for the relevant crime. The accused shall have 5 working days from the date of being notified of the settlement proposal to respond. In case the accused fails to respond, the settlement proposal will be considered rejected. In case of acceptance, the public prosecution shall refer to the Criminal Court a record signed by the accused including details of the accused, the relevant charges and the proposed sentencing. The Criminal Court shall issue a final judgement, which shall not be appealed, either approving or rejecting the settlement referred by the public prosecution after evaluating the validity and legality of the procedures leading up to the settlement. This mechanism is expected to ease the caseload of the Criminal Court, since the court will not delve into the merits and legal arguments pertaining to the case at hand, and merely approve the settlement. Should either the court or the accused reject the settlement, it shall be considered as though it was never made, and the case shall be adjudicated in accordance with the relevant provisions of the New PPL.
The penal settlement is also applicable in cases involving felonies but is limited to those punishable by temporary imprisonment pursuant to article 369 of the New PPL. In such cases, where the investigations have been completed and strong evidence has been identified against the accused, the public prosecution may propose to the accused (or the accused may, by their own initiative, request from the public prosecution) a reduced sentence in return for the accused admitting to the acts constituting the crime in question. The accused is granted 10 days to consider the settlement, as opposed to 5 days for cases involving misdemeanours, since the punishment is more serious. In case the settlement is accepted by the accused, the same process is followed whereby the record of the settlement is referred to the court for approval and the subsequent issuance of a judgement, as in the case of misdemeanours. However, in the case of felonies, considering the seriousness of this category of crimes, the member of the prosecution must interrogate the accused in detail to assess the evidence in question and to ensure that the accused’s admission is genuine and corresponds to the facts of the case. The accused may retract their admission at any point leading up to the issuance of the judgement by the court, in which event the case shall be referred to the public prosecution to be adjudicated in accordance with the relevant provisions of the New PPL. To ensure that the accused is able to make an informed decision as to the settlement, the legislator has mandated that the accused be accompanied and represented by their attorney throughout the penal settlement procedures in cases involving felonies, in accordance with article 376. If the accused cannot appoint an attorney due to financial reasons, the public prosecution shall appoint an attorney whose fees shall be borne by the State. The legislator has also protected the rights of the victim to seek civil compensation, as is the case in disputes involving misdemeanours.
The anticipated resolutions to be issued by the Minister of Justice or the President of the Local Judicial Body, pursuant to article 359 of the New PPL, shall provide greater clarity as to the realms and procedures governing penal mediation in practice. In any case, based on the direction which the legislator has taken in their drafting of the New PPL, both penal mediation and settlement are welcomed developments to litigants and the judiciary alike. On the one hand, the UAE penal system will become more “user-friendly” and agile for the parties to a dispute, considering the available mechanisms that may lead to more lenient sentencing and faster proceedings. On the other hand, the Criminal Courts will be able to devote their resources towards cases involving more complex crimes and therefore reduce any current and future backlog.
For further information,please contact Mohamed Al Marzouqi.
Published in January 2023
