The criminal process is normally set in motion with a complaint to the police or appropriate law enforcement agency.
-Investigation may end the matter either because no substance to the complaint is found, or does not involve commission of any crime known to our law.-Police have to find out whether commission of any offence in our written law – Criminal Code, Act 29.
-The place that we find the investigation not well founded or the wrongdoing is not subject to any offence in our written law, or relates to a civil matter, which is not business of police.
-Suppose investigations prove to be well founded and suspicion cast in direction of someone, then we say that person is a suspect. Person may be asked to write a ‘cautioned statement.’ Our law prevents self incrimination and person must be told that whatever he writes may be used in trial if there is a trial.
-It is possible that level of suspicion/involvement may be sufficiently grave for person to be charged.-Police may give what is known as ‘Police Enquiry Bail.’
-Articles 14 and 19 of the 1992 Constitution on arrest.-An arrest is not effected by asking a person to come to the police station.
-Investigation must provide enough information before police effect arrest.-In proper functioning of criminal process, there must be evidence before arresting you, not arrest you, and then look for the evidence.
-They have to explain in ordinary, everyday language why they are arresting you – Cannot give just any reason, as in CHRISTIE v. LEACHINSKY.
-Must charge you and bring you before court within 48 hours.-If cannot bring you within 48 hours, must put you on police enquiry bail. You deposit some money and they may ask you to keep reporting at the police station.
-If formally charged, have to bring you before court and from that point onwards, you are the charge of the court.
Trial can be either summary or an indictment.
-Difference between summary and indictment can be explained as the difference between serious offences and less serious offences, although in the law, it is possible to try a serious offence summarily.
-It is the more formal trial process which is used for trying more serious offences.
-Once you are charged, you have to be arraigned before court.
Arraignment involves 3 steps/events. Arraignment means,
1.) The calling of accused person into dock. Every courtroom must have a dock for accused persons and a dock for witnesses. In Ghana, we have only one – when it is witness, we call it witness box, when it is accused person, we call it dock.
2.) Reading charge to the accused person
3.) Taking plea of the accused person
-Then the person may be returned to custody. If person has a good defense attorney, will apply for bail.
When the person’s plea is being taken, person has four, plus one, options:
1.) Can plead guilty. Law requires that should be done very clearly. Very often, people plead “guilty with explanation” but that is not known to our law. Court usually asks that explanation be recorded. Court is required to ask for explanation and record it and once done that, record appropriate plea of the explanation.-If from the explanation, accused person is guilty but should influence punishment, guilty plea should be recorded.
2.) Can take a plea to jurisdiction of Court. Generally speaking, our criminal law operates territorially so may be saying that his offence is one in which no court has power to try, or particular court in which he is being tried has no power to try him. Courts are limited by territory as well as jurisdiction.
3.) You may take a plea of AUTRE FOIS ARQUIT CONVICT. In both cases, person saying already tried for that offence and has been acquitted, or already tried and convicted. To succeed must show that tried for same offence by a court of competent authority. Therefore, to be tried again for that offense will violate constitutional provision against double jeopardy.
4.) Not Guilty Plea: Denial of the charge. If you deny the charge, then we need a trial to determine if guilty.-Sometimes when charge is read to person, he refuses to take a plea. Court is supposed to take a mini-investigation to see whether sane or is just playing games. If found that person is found to be okay, not guilty plea entered and trial proceeds.
Trial on indictment is a two stage.
1.) Winnowing Stage – The Committal Stage
2.) Actual Trial: Where there is credible evidence
Committal proceedings can usually take place before a magistrate and it is a preliminary inquiry to see whether accused has a case. At the committal hearing, prosecution required to provide committal court with
1.) A Bill of Indictment: In the past, the bill would be by a special paper. It is simply the document that contains the charges against the accused person. If it is a summary trial, that same sheet is called a charge sheet. Second document is
2.) Summary of Evidence: It contains a list of witnesses if the case should go on trial and summary of evidence that witnesses will give. It contains a list of all witnesses.
At the hearing, the parties, the prosecution and the accused person, may address the court, but there is no obligation to do so. – Kwakye and Another v. State
-The duty of the committal court is to examine the Bill of Indictment and Summary of Evidence, and to determine whether case to be answered for trial. Their job is to determine whether from the documents, the case for accused person to answer and if so, case goes to trial.
Kumah v. Republic
Ex parte Kumah 68 GLR 954
While examining these documents, committal magistrate may ask accused person if wants to make a statement, but he is under no obligation to make a statement.-Each offence in our law has constituent elements so if magistrate finds that if prosecution do not call witnesses related to these constituent elements, they know case cannot proceed to trial.-After committing, the committal court may ask the accused person if he has any witnesses will be calling at the trial, but he is under no obligation to do so.
Balance favors accused person at committal stage because prosecuting side forced to display all its cards while accused person does not.-Once the person is committed, trial will come. The prosecution will plead evidence, call its witnesses, accused person will have chance to examine, case of prosecution will close.-Accused person has 2 options – to open his/her defense, and then the accused person will rest/close his defense. Other option of accused person is to submit a plea of ‘No Case.” If you feel that prosecution has not made a case that requires for you to defend yourself, you can submit a ‘No Case’ so that trial can be aborted etc. If it is overruled, it does not mean that you still have to give evidence.
Overruling is not necessarily to say accused person is guilty. It is merely informing him that it has on record some evidence that requires at least some explanation from the accused.
In a criminal trial, the Attorney General always has the chance to address the court last. The Attorney General is the nominal head of the profession. And generally speaking, the Attorney General hardly goes to the Court himself.-When the Attorney General is in Court, it means that the matter affecting the very foundations of the Republic is in Court.
-After judgment, appeal can be made all the way to Supreme Court. Appeal can be against conviction and sentence, or sentence alone. Both defense and prosecution can appeal against sentence.
-There are 3 judges for treason, Chairman and Tribunal in case of Regional….Judge and Assessors….
-In case of trial by jury, division of labor between jury and judge. The judge is in charge of legal questions that arise from trial, and the jury determines question of fact, and not important question of whether guilty or not.-You may find yourself in jail if summoned for jury trial and you do not go.-In case of trial by judge and jury, whole point is that do not want to be managed entirely by professionals. It allows members of society to determine, to generate confidence in the trial process. You participate in the trial using skills that you use in your ordinary day to day life.
-Our jury panel made up of 7. In other jurisdictions, it is 12. They select a foreman. When selection is taking place, accused person can object to 3, without giving reasons at all. It is called PEREMPTORY CHALLENGE. The state does not have that right and must challenge for cause. Accused can also object for cause after exhausting his 3 options.
-If trial is by judge and assessors, the assessor’s job is to advise the judge but in a trial by judge and assessors, the judge is judge of both fact and law.
What are some exceptions from jury duty?
1.) The President and Ministers of Parliament
2.) Judges, District Magistrates
3.) Legal Practitioners in actual practice and all other court officers
4.) Registered medical practitioners and registered dentists
5.) Registered pharmacists in actual practice
6.) Prison officers and warders
7.) Police Officers
8.) Officers and other members of the armed forces on full pay
9.) Public Officers (other than those engaged in clerical duties)employed in the Medical, Posts and Telecommunications, Customs and Excise, or Railway Department under the Takoradi Harbor Authority
10.) Persons actually officiating as priests or ministers of their respective religions
11.) Schoolmasters actually engaged in teaching in a school
12.) Persons employed in any public electric telegraph office or in any electric power station
13.) Diplomatic and consular representatives and all salaried functionaries of foreign governments
14.) Editors of daily newspapers
15.) Other persons exempted by the Chief Justice
The whole point is that we have an obligation to participate.
What are the types of Bail?
Bail: 2 types of bail
1.) Bail which is granted by the courts which the appeared
2.) Bail pending appeal
The most difficult part of the bail is bail pending appeal.-As a general rule, think carefully before applying for it.-Sentence to be served must be considered, and likely length of time it will take to hear an appeal.-Bail pending appeal not a good idea because when your client has been living relatively freely and the appeal is heard and is unsuccessful, and he will have to go to jail, the look the client will give you is one of utter anger. Let’s say the trial takes 7 years and the person has been on bail, and taken to jail to serve 18 months sentence, the person would have been out a long time ago.
If appeal successful and he was in jail, constitution guarantees him compensation.
On question of bail, read Republic v. Gorman and others
REPUBLIC V MAIKANKAN….judge and jury are used in cases of serious offences punishable by sentence to death or life imprisonment…any others may be tried by the judge with the help of assessors or the judge with a jury as an enactment or the court may decide.
LETANG V COOPER….action for negligence (3) and not trespass as the plaintiffs claim (6) years and so the action is time barred, thus statutory barred from being litigated.
Trial by jury and assessors are mainly of the criminal procedure of trial. Trial by Jury is normally in serious criminal cases where the matter is a first degree felony as provided for by article 19(1). Meanwhile both jury and assessor trials are both on serious offences by indictment, thus more official offences. The main distinguishing feature between trial by jury and trial by assessor is that in the later, judges sit with a number of seven jurors, for the dispensation of justice.
The jury determines the questions of fact while the judge determines the questions of law. At the end of the case, the final verdict is given by the jury and this is binding on the judge. No decision report is written for by the judge. In life imprisonment the majority vote of the jury is ok and acceptable but in the case of life imprisonment, the vote decision of the jurors must be unanimous. The judge directs the questions of law and at the end before the verdict, the jurors retire to an isolated place to ponder and vote on the issue whether the accused is guilty or not guilty.
The assessors trial is by no means different from the jury just that here, they are used in summary offences which are not too serious as trial by indictment. The verdict is given by the judge. The assessors are only there to advise and direct the judge but their decisions are not binding on the judge who may comply or decide not to. Here the judge directs the case in terms of the principles of established laws and finally comes to the conclusion which is whether the accused is guilty or not. The judge in this case writes out his judgment and the reason he or she held as such. These may either be recorded or not. In the case of trial by judge and assessors, both the questions of law and that of facts are determined by the judge as said According to the piece criminal court in action by Bannard.
According to EK Quansah, in his book The Ghana Legal System, he explains that the selection of jurors and assessors in the legal processes of the criminal procedure can be said to be related to only trial by indictment. These persons are people who are illiterate of the legal law. The therefore exclude teachers, lawyers, students and many others. These people must be between the ages of 25 to 60 years and they must be literate and knowledgeable in both analyzing, understanding and speaking the English language and also a resident in Ghana.
Before the trial of a criminal case by indictment, the juries or assessor are all informed to be present for the trial. Before the trial, the accused is given the rights to exempt some of the jurors till he or she gets the final seven whom he or she thinks are free from bias and can competently therefore hear his case. Here the names of these registered jurors in the court are called out one after the other where the accused is at the liberty to reject some from trying the case, thus the peremptory challenge.
Those who in one way or the other may be rejected are those who are personally liable to being bias and an example is where the case is about the murder of a child and one of the jurors recently lost his or her child. There is a likelihood of bias that this particular juror will probably hold the accused guilty. And such will be rejected by either the court or the accused.
The Attorney General may also argue for the case to favour him by arguing for the case to be handled by assessors and not jury so as to make him more confident in the application of the statutes to the case to make the justice more ensured.
According to D. Barnard, in his book the Criminal Court in Action, 2ND edition, he firmly distinguished between a challenge for cause and a peremptory challenge. He said that in any criminal proceedings where the charge leveled against the accused is that on a first class felony, being either an offence of treason or other offences of whose punishment is life imprisonment or sentencing to death, the judge must sit on the case with a jury, and the jury are to give the final decision in the case which is binding on the judge. This is where the two concepts come in, with the empanelling of the jurors.
Its can be said the he made it clear that only the accused has the right to the exercise of the peremptory challenge where before the case is heard the right is given to the accused to object to the empanelling of specific jurors as result of their probability of being biased in the case without giving reasons why. This right is said to be exercised three times by the accused and the right is exhausted after the rejection of a third juror by the accused to sit with the judge on the case. This right as he explained is limited to only the accused.
The challenge for cause which is open to both the accused and the prosecution is the rejection of jurors to sit on the case with reasons why the rejected jury shouldn’t sit with the judge on the case. This right is exercised by the accused after exhausting all his three rights under the peremptory challenge but for which he gives reasons. The prosecution also exercises this right by giving reasons always for his rejection for the empanelling of a particular juror or jurors.
According to D Barnard, he explain that taking a plea is a negotiation between the defense council and the prosecution in the absence of the accused although with his consent to plead guilty to the charge brought against him for a bargain or for a lesser punishment and for no trial to be conducted by the courts. The prosecution most at times accepts this on the grounds that it saves time and resources which is going to be incurred if the case is to be litigated. Their decision is brought before the court and the court may adhere to the negotiations or may not accept the taking of plea especially where the bargain is seen to be lenient and his objection to it means that the taking of the plea cannot be relied on and the accused must therefore be submitted to trial.
During this process thus the taking of the plea, the accused person according to EK Quansah in his book The Ghana Legal System is open to various options at his own discretion. He says that the accused must voluntarily enter into the taking of the plea by the help of his lawyer and the consequences of that process be explained to him. First of all, he must acknowledge the fact that upon entering the taking of the plea, his rights to trial has been waived. Thus, no need for the trial and compensation is to be paid to the prosecution. Before the whole process of negotiation is completed, the accused may opt for the renunciation of the process and the option to face trial is ok with him.
There is a contract between the prosecution and the accused after the negotiation of the accused to take the plea. In case where the accused afterwards renounces the contract, it isn’t binding on the prosecution and the accused shall be entitled to face trial at which he may plead guilty or not guilty. This can be said to be an option for the accused since the prosecution isn’t entitled to breech the contract by rescinding since the accused by that act of the prosecution, apply to the court for the case to be dismissed or to enforce the trial.
All these are the options opened to an accused to taking a plea in a criminal procedure. Taking the plea therefore may be explained as where, the defendant agrees to plead guilty in exchange for something, either for a conviction of an offence to a lesser offence with less jail time, or they were offered the opportunity to plead to a lesser offense in exchange for giving up information to law enforcement or agreeing to enforce law in a way.