DETERMINING TERRITORIAL CRIMINAL JURISDICTION OF A MAGISTRATE COURT

DETERMINING TERRITORIAL CRIMINAL JURISDICTION OF A MAGISTRATE COURT

1. Every Court has authority to cause to be brought before it any person who is within the local limits of its jurisdiction and is charged with an offence committed within The Gambia, or which according to law may be dealt with as if it had been committed within The Gambia, and to deal with the accused person according to its jurisdiction.[1][9]

2. Where a person accused of having committed an offence within The Gambia has escaped or removed from the Division or district within which the offence was committed and is found within another Division or district, the Court within whose jurisdiction he is found shall cause him to be brought before it and shall, unless authorized to proceed in the case, send him in custody to the Court within whose jurisdiction the offence is alleged to have been committed, or require him to give security for his surrender to that Court there to answer the charge and to be dealt with according to law.[2][10]

3. Where the Court decides to send the accused in custody to where he is alleged to have committed the offence, a warrant shall be issued by the Court within whose jurisdiction he is found, and that warrant shall be sufficient authority to any person to whom it is directed to receive and detain the person therein named and to carry him and deliver him up to the Court within whose district the offence was committed or may be inquired into or tried; the person to whom the warrant is directed shall execute it according to its tenor without any delay.[3][11]

4. Every offence shall ordinarily be inquired onto or tried by a Court within the local limits of whose jurisdiction it was committed. This is however subject to the power of the High Court to transfer cases from Magistrates Court to another Court or a District Tribunal.[4][12]

5. When a person is accused of the commission of any offence by reason of anything which has been done or of any consequence which has ensued, such offence may be inquired into or tried by a Court within the local limits of whose jurisdiction any such thing has been done or any such consequence has ensured.[5][13]

6. When an act is an offence by reason of its relation to any other act which is also an offence or which would be an offence if the doer were capable of committing an offence, a charge of the first-mentioned offence may be inquired into or tried by a Court within the local limits of whose jurisdiction either act was done.[6][14]

7. When it is uncertain in which of several local areas an offence was committed; or

a) When an offence is committed partly in one local area and partly in another; or

b) When an offence is a continuing one, and continues to be committed in more local areas than one; or

c) When an offence consists of several acts done in different local areas;

It may be inquired into or tried by a court having jurisdiction over any of such local areas.[7][15]

8. An offence committed whilst the offender is in the course of performing a journey or voyage may be inquired into or tried by a Court through or into the local limits of whose jurisdiction the offender or the person against whom or the thing in respect of which the offence was committed passed in the course of that journey or voyage.[8][16]

9. Whenever any doubt arises as to the Court by which any offence should be inquired into or tried, any Court entertaining such doubt may, in its discretion, report the circumstances to the Supreme (High) Court and the High Court shall decide by which Court the offence shall be inquired into or tried. Any such decision of the High Court shall be final and conclusive except that it shall be open to an accused person to show that no Court in The Gambia has jurisdiction in the case.[9][17]

10. If upon hearing of any proceedings under this Code it appears that the cause or matter is outside the limits of the jurisdiction of the Court, such Court shall, on being satisfied that it has no jurisdiction, direct the case to be transferred to the Court having jurisdiction.[10][18]

11. Whenever it is made to appear to the High Court –

a) That a fair and impartial inquiry or trial cannot be had in any criminal court subordinate thereto;

b) That some question of law of unusual difficulty is likely to arise;

c) That a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same;

d) That an order under this section will tend to the general convenience of the parties or witnesses or the more speedy or satisfactory administration of justice; or

e) That such an order is otherwise expedient for the ends of justice or is required by any provision of this Code;

It may order –

(i) that any offence be inquired into or tried by any court not empowered under the preceding sections of this Part but in other respects competent to inquire into or try such offence;

(ii) that any particular criminal case or class of cases be transferred from a criminal Court subordinate to its authority to any other such criminal Court of equal or superior jurisdiction; that an accused person be tried by itself;

(iii) That an accused person committed to itself for trial be tried summarily under Part V of this Code by any Court (including the Court which committed the accused) in other respects competent to try the offence in respect of which the accused stands committed.

12. The High Court may act on the report of the subordinate Court or on the application of a party interested or on its own initiative.

13. Every application for the exercise of the power conferred by S.63 shall be made by motion, which shall, except when the applicant is the Attorney-General, be supported by affidavit.

14. Every accused person making any such application shall give to the Attorney-General notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application.

15. When an accused person makes any such application the High Court may direct him to execute a recognizance, with or without sureties, conditioned that he will, if convicted, pay the costs of the prosecutor.

16. An application made by the attorney-General under S.63 shall be granted as of course.

17. Whenever in exercise of the powers conferred upon it by S.63 the High Court orders that any accused person be tried by itself, for an offence ordinarily triable by a subordinate Court, it shall follow mutatis mutandis the procedure specified in Part V of this Code for trials before subordinate Courts.[11][19]

CHILDREN’S COURT

This court is established by S.68 of the Children’s Act 2005 in every Division and any other Local Government administrative unit designated by the Chief Justice by notice in the gazette. For now only two of such courts are existing in Kanifing and Bundung.

It is the successor of the Juvenile Court established under the Children and Young Persons Act Cap.45 Laws of the Gambia 1990 which is now repealed by S.241 of the Children’s Act. It is listed as wholly repealed in the Schedule to the said Act. The Juvenile Court thereby ceased to exist.

COMPOSITION OF THE COURT

S.69 of the Children’s Act provide that –

(a) A chairperson who shall be a magistrate, not below the grade of a Magistrate of the First Class, to be designated by the Chief Justice; and

(b) Two other persons of proven integrity from the community, one of who shall be a woman to be appointed by the Chief Justice, on the recommendation of the Judicial Service Commission.

                       

JURISDICTION

S.70(1) of the Children’s Act provide that –

(a) Subject to section 213, criminal charges against a child;

(b) All civil matters concerning a child, including adoption; and

(c) Applications relating to child care and protection.

By virtue of S.70(2), the court can also exercise any other jurisdiction conferred on it by the Children’s Act or any other written law.