Legal Problems Related to Necessary Causes according to The Criminal Procedure Code Section 89/1 and Section 89/2

Boontida Panpimethong, Dr.Egkapong Sarnnoi

Abstract

The objective of this research is to study background, evolution, theories and concepts
behind detention of suspects or offenders by alternative to incarceration. The research was
implemented by studying legal measures both in Thailand and foreign countries in order to
analyze arising legal problems and search for guidelines in amendment of such legal measures
to be clear, enforceable and effective.

According to the research results, it was discovered that legal measures related to the
detention of suspects or offenders by alternative to incarceration according to the Criminal
Procedure Code Section 89/ 1 and Section 89/ 2 have been in effect since B. E. 2550 (2017) .
However, in practice, it appeared that such measures have not been effectively implemented
because there were many legal problems found in such measures. For example, the criteria
of “ Necessary Causes” have not been determined clearly enough to implement such
measures, and the place of detention correlated with the offender’s necessary cause has not
been specified.

In addition, the law has not yet determined the type or description of the offense that
prohibits such measures from being enforced that law's ambiguity may allow the court to
exercise excessive discretion. As a result, in practice, the court would not apply such measures
at all. From the study of relevant legal measures in foreign countries, it was found that
although the legal measures in the detention of suspects or offenders by alternative to
incarceration have not been determined to enforce by laws that must have necessary causes
or not, the criteria were determined clearly that which types of offenders the court can
consider applying such measures in the United Kingdom and the United States of America. In
England, the place of detention of offenders must be related to the offender while the provisions defined serious offenses that forbidden to apply measures to treat offenders in the community were clearly enforced in the United States of America.

As a guideline for solving such problems, it was suggested that there should be
amendments of the laws related to the legal measures in the detention of suspects or
offenders by alternative to incarceration in order to make the laws clear that it will be able
to enforce the laws to be effective according to the law intention.

Key Words: Detention, Alternative To Incarceration