Balancing Law Enforcement Interests and Privacy Rights Under Section 205 of the Criminal Procedure Act

Abstract

Section 205 of the Criminal Procedure Act allows a judicial officer to require the attendance before him or her of a person who is likely to give material or relevant information as to any alleged offence. The procedure enables a Director of Public Prosecutions or a duly authorised prosecutor to examine the witness in the presence of the judicial officer to obtain the information. Should the person furnish the information to the satisfaction of the Director of Public Prosecutions or prosecutor before the date of the inquiry, the obligation to appear at the inquiry falls away. The question arises as to whether this procedure offers adequate safeguards to protect against the infringement of a suspect's constitutionally protected right to privacy, especially when so-called historical records, such as financial statements and cell phone records, are handed over to authorities during a criminal investigation. In this contribution it is submitted that the intrusion into private lives of persons is best understood by analogy to search and seizure law, where the right to privacy in criminal investigations is prominently implicated, and the courts have developed specific procedural safeguards. It is argued that section 205 will not present challenges if the requirements for ex parte applications are properly adhered to and the rights to dignity and privacy are respected in the application thereof. In addition, the procedure requires proper judicial oversight to determine whether the circumstances warrant a subpoena to be issued.