METHODS OF INSTITUTING CRIMINAL PROCEEDINGS

The law outlines the method by which criminal proceedings can be instituted in the courts
vested with the criminal jurisdiction. We will now consider the methods by which criminal
proceedings are instituted in the Magistrates’ court and High Court since most criminal
prosecutions in The Gambia are conducted at the High Court and Magistrates’ Courts.

MAGISTRATES’ COURT
BY PREFERRING A CHARGE BEFORE A MAGISTRATE
As we noted above criminal proceedings may be instituted in the Magistrates’ Court by bringing
a person arrested with or without warrant to a Magistrates’ Court upon a charge signed by a
police officer. See s. 69 (1) of the CPC. This is the most common method of instituting criminal
proceedings in Magistrates’ Courts in the Gambia.

HIGH COURT

BY FILING AN INFORMATION ACCOMPANIED BY PROOFS OF EVIDENCE.

As we noted above, the AG or anybody authorized by him or her may commence criminal
proceedings in the High Court by filing with the High Court Registrar information in the form of
indictment. Such information must be in writing and must also state the charge or charges
against the accused person. It shall also be filed with a list of witnesses to be called by the
prosecution and a summary of the evidence to be adduced by each witness. All documents and
things that put in evidence shall be delivered into the custody of the court. See ss. 175B and
175C of the CPC.

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LIMITATION OF TIME FOR INSTITUTION OF CRIMINAL PROCECEEDINGS

When a person commits an offence, a charge may be preferred against that person. The right
to institute criminal proceedings against the offender is a right in perpetuity. That is, criminal
proceedings can be instituted against the offender at any time, irrespective of when the offence
was committed. The criminal cause of action does not become statute barred so as to
extinguish the right of action.

However, there are a few exceptions to the said general rule. Sometimes a statute creating an
offence provides that criminal action in respect of offences created by the statute or by certain
provisions of the statute shall be instituted within a specified time period. Action must
therefore be instituted within the specified time period, otherwise the criminal cause of action
would be statute barred and thus the right of action extinguished. For example:

a. Criminal proceedings in respect of offences under section 52 of the Criminal Code

(sedition) must be instituted within 6 months after the offence is committed. See
section 53 of the CPC. It should be noted, however, that where a person commit an
offence under section 52 CC from outside The Gambia or where a person leaves The
Gambia within six months of committing such an offence, the prosecution for the
offence may be begun within six months from the date when the person first arrives in
or returns to The Gambia after committing the offence or leaving The Gambia, as the
case may be.

b. Section 174 of the CPC provides:

“Except where a longer period is specially allowed by law, no offence, the
maximum penalty of which does not exceed a fine of D500 or imprisonment for a
term of 6 months or both such fine and imprisonment, shall be triable by a
subordinate court, unless the charge or a complaint relating to it is laid within 12
months from the time when the matter of such charge or complaint arose.”

c. Section 213 of the Customs Act (Cap 86:01) provides:

”No proceeding civil or criminal shall be instituted under the customs laws in
respect of any act or omission done or made or offence committed except within
the period of seven (7) years from the day of such act, omission or offence.”

Thus for customs offences, criminal proceedings must be instituted within seven years
after the offence is committed.

d. Section 124 of The Gambia Armed Forces Act (Cap 19:01) also provides:
“(1)Except in respect of an offence specified in subsection (2) of this section, a person is
not liable to be tried by a court-martial unless his or her trial begins before the
expiration of a period of three years from the date on which the offence was alleged o
have been committed.

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 (2) A person subject to this Act at the time of the alleged commission by him or her of
the offence of mutiny, desertion or absence without leave or an offence for which the
maximum punishment that may be imposed is death, shall continue to be liable to be
charged, dealt with and tried at any time, under this Act

The issue of limitation of criminal action is fundamental. Where it is alleged by the accused
person that the criminal action instituted against him is statute barred it has to be resolved
before further steps are taken in the proceedings. The court before whom the accused is
arraigned must resolve the issue of limitation or otherwise of the criminal action by computing
the time within which the alleged offence was committed. In the computation of time, the day
on which the alleged offence was committed is excluded. Time begins to run from the
following day until the day when the criminal proceedings are instituted against the accused
person. For example, a statute might provide that criminal proceedings in respect of an offence
should be commenced within one month of the commission of the offence. D is alleged to have
committed the offence on the 2nd January 2005. By the said statutory provision, for the right to
institute criminal action to subsist, criminal proceedings must be brought against D on or before
but not later than 2nd February 2005. This is because in the computation of time the day the
offence is alleged to have been committed, i.e., 2nd January 2005 is excluded and time begins to
run from the 3rd January 2005.

In Radcliffe v. Bartholomew (1892) 1 QB 161,a criminal action was instituted against the
accused under an Act which stipulated that criminal proceedings for offences constituted under
the Act must be instituted within one Calendar month. It was alleged that the offence with
which the accused was charged was committed on the 30th of May and criminal proceedings
were instituted on the 30th June. Counsel for the accused raised a preliminary objection that
the criminal action was statute barred because the action was commenced outside the
statutory period of one calendar month. The court rejected counsel’s contention and held that
in reckoning the time within which an action was to be instituted, the day on which the alleged
offence was committed was excluded. Therefore the objection was overruled. On a case stated
to the English High Court, it held that there was no difference in the reckoning of time for the
institution of both civil and criminal proceedings. In both types of proceedings, the day on
which the cause of action arose was excluded. Thus the English High Court affirmed the
decision of the lower court.

Note that in calculating the period of limitation with respect to offences referred to in The
Gambia Armed Forces Act, there shall not be included:

a. Any time during which a person was a prisoner of war;

b. Any period of absence in respect of which a person has been found guilty by a court-
martial, of desertion or absence without leave; and
c. Any time during which a person was serving a sentence of incarceration imposed by
any court other than a court-martial1

1
See s. 124 (3) of The Gambia Armed Forces Act

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