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Criminal- Procedure- Manual

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Course

Ghana Legal System (FLAW 103)

71 Documents
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Academic year: 2022/2023
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joel yeng
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G HA NA S CH OOLOF

LAW

Ghana School of Law Board of Legal Education

Design & Print: G-Pak Ltd. 024 256 6771

STUDY MANUAL

CRIMINAL

PROCEDURE

Copyright © 2019 by Ghana School of Law

All rights reserved. No part of this book maybe reproduced, stored in a retrieval system, or transmitted in any means electronic, mechanical, recording, photocopying or otherwise without the prior written permission of the author.

This book may not be lent, sold or hired out or otherwise by the way of trade or whichever way in any form or language or binding or cover without the prior written permission of the author.

TABLE OF CONTENT

  • INTRODUCTION TO CRIMINAL PROCEDURE CHAPTER PAGE NO.
  • CONSTITUTIONAL AND INDIVIDUAL RIGHTS
  • THE POWERS OF THE POLICE
  • INSTITUTION OF PROCEEDINGS
  • THE ATTORNEY-GENERAL
  • CRIMINAL JURISDICTION OF THE COURTS
  • BAIL
  • SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR
  • DRAFTING OF CHARGES
  • DEFENCES
  • EVIDENCE ON COMMISSION
  • PRESERVATION OF TESTIMONY IN CERTAIN CASES
  • DISCLOSURE IN CRIMINAL PROCEEDINGS
  • MODES OF TRIAL
  • PUNISHMENT
    • APPEALS
  • JUVENILE JUSTICE SYSTEM
  • THE OFFICE OF THE SPECIAL PROSECUTOR
  • GHANA CODE FOR PROSECUTORS

Overview

This manual is divided into 18 chapters. Each chapter provides a general overview of the topic. The various areas to be considered under each topic are clearly set out together with the objectives, pointing out the knowledge the student is expected to acquire by the end of the topic. Relevant legislation and case law have been provided to help the student in his or her understanding of the topic.

This manual only serves as a guide to the student in his or her understanding of the course and should be used together with the relevant legislation, textbooks and case law. The main pieces of legislation for the Criminal Procedure Course are the 1992 Constitution of Ghana; Criminal and Other Offences (Procedure) Act, 1960 (Act 30); Criminal Offences Act, 1960 (Act 29); Courts Act, 1993 (Act 459); and Juvenile Justice Act, 2003 (653). The relevant textbooks for the course are A.N Amissah, Criminal Procedure in Ghana and S Brobbey, Practice & Procedure in the Trial Courts & Tribunals of Ghana (2nd edn.). Students are encouraged to acquire these materials to assist them in their understanding of the course.

Course Outline

  1. Constitutional and Individual Rights a. Right to life – Article 13 b. Right to Personal Liberty – Article 14 c. Right Human Dignity – Article 15 d. Fair Trial – Article 19

  2. The Powers of the Police a. Arrest and search (S-21 of the Criminal and Other Offences Act, 1960 (Act 30) b. Search Warrants (S. 88-95 of Act 30)

  3. Institution of Proceedings (S. 60 – 61 of Act 30) c. Summons (S. 62-70, 82, 83,87 of Act 30) d. Warrant of Arrest (S. 71 – 87 of Act 30)

  4. Disclosure in criminal proceedings

  5. Modes of trial

a. Summary Trial (Part 111 – S-177 of Act 30) b. Trial on Indictment (Part IV-S-286)

  1. Punishment (Part V1-S. 294-303 of (Act 30)

15 Appeals (Part VIII-S. 325-333)

16 Juvenile Justice System (Juvenile Justice Act, 2003, (Act 653)

  1. Office of the Special Prosecutor Act, 2017 (Act 959)

  2. Ghana Code for Prosecutors

INTRODUCTION TO

CRIMINAL PROCEDURE

Criminal procedure is the process by which criminal matters are dealt with in accordance with the law. The essence of having laws to regulate our criminal procedure is to ensure that justice is done to all manner of persons; the victim/ complainant, the accused person and the Republic in general. The main sources of our Criminal Procedure are identified as the 1992 Constitution of Ghana, the Criminal Offences Act, 1960, (Act 29), the Criminal and Other Offences (Procedure) Act 1960, (Act 30), and the Courts Act,1993 (Act 459).

The topic looks at a general introduction of what Criminal Procedure entails. Students will be introduced to the various laws and materials that would be useful for the course.

Objectives

By the end of the topic the student is expected to have a general understanding of what Criminal Procedure entails and be introduced to all the relevant materials needed for the understanding of the course.

Chapter 1

Right to life – Article 13: Generally, all persons have a right to life and nothing must be done to deprive a person of this right. There are, however, exceptions to this general principle and these exceptions are set out in clauses 1 and 2 of Article 13 as follows:

  1. Where a person is sentenced to death, after having been convicted of a criminal offence.
  2. Where a person loses her or her life as a result of a lawful act of war.
  3. Where a person loses his or her life as a result of a reasonable application of force justifiable under the circumstances set out in sub-clauses (a) – (d).

Article 14 – protection of personal liberty: Generally, everybody is entitled to his/her personal liberty without any inhibition or restriction. There are, however, exceptions to this rule as set in sub-clauses (a) – (g). The exceptions related to our purposes are (a), (b), (c), (f ), and (g).

Article 14(2) – the right of an arrested person: A person who is arrested, restricted or detained has a right to know the reasons for his arrest, restriction or detention and also of his right to a lawyer of his choice. This must be communicated to the person in a language he understands. See: Republic v Akosah [1975] 2 GLR 406; Okorie alias Ozuzu [1974] 2 GLR 272.

Article 14 (3) – 48-hour rule: A person who is arrested, restricted or detained shall not be kept for more than 48 hours without bringing him/her before the Court. Such a person is entitled to be released either unconditionally or upon reasonable conditions if he/she is not brought before a court within 48 hours.

Article 14(4) – the right of accused to be released unconditionally or upon reasonable conditions if not tried within a reasonable time: What constitutes reasonable time has been held to depend on the circumstances of each case. See: Gorman v. The Republic [2003 – 2004] 2 SCGLR 784; Brefo v The Republic

[1980] GLR 679; Dogbe v The Republic [1976] 2 GLR 82; Martin Kpebu v. The Attorney-General, unreported, Suit No. J1/13/2015, 5th May 2016

Manual for Legal Accountancy 9

Article 14 (5) – right to compensation for unlawful arrest, restriction and detention: This is a right to be enforced in the civil courts. See: Dr Solomon Sarfo v IGP & Attorney-General

Article 14(6) – The period of lawful incarceration in respect of an offence is to be taken into consideration after a person is convicted of an offence and is being sentenced: The courts have held that this provision does not allow the court to impose a sentence less than the minimum set by statute. Neither does it permit the court to give the sentence a retroactive effect. The Supreme Court has held in the case of Gabriel Bosso v. The Republic [2009] SCGLR 420 that it should be made clear expressly or impliedly on the face of the judgement that the court has taken into consideration any period of time spent in custody by the accused before the sentence. See, Ojo & Anor v. The Republic [1999-2000] 1 GLR 169.

Article 14(7) – Right to compensation after an acquittal on appeal: This constitutional provision sets out the procedure to be followed in seeking compensation where the accused person is acquitted on appeal. The Supreme Court has set out the conditions under which such compensation shall be granted by the court in the case of Dodzie Sabbah v The Republic, Supreme Court judgment dated 11TH June 2015 Suit No. J3/3/2012.

Article 15 – Right to human dignity/ Respect for human dignity: The article frowns on all forms of torture, cruel, inhuman and degrading treatment or punishment. It also makes provision for remand prisoners to be kept separately from convicted persons; right of the juvenile offender to be kept separately from the adult offender.

Article 19 – Fair Trial, right to fair hearing within a reasonable time: Every accused person is entitled to a fair hearing within a reasonable time. This refers to both the accused who is on bail and the accused who is on remand. The article mandates a jury trial for offences which are punishable by death or by imprisonment for life. In such cases, the verdict of the jury ought to be unanimous. There is however an exception in respect of the trial of the offence of treason which is tried by 3 justices in the High Court whose decision shall be unanimous. The articles states that every person who is accused of an offence is entitled to be presumed innocent until proven guilty. See, Martin Kpebu v. The Attorney-General, unreported, Suit No. J1/13/2015, 5th May 2016; Gorman v. The Republic [2003 – 2004] 2 SCGLR 784.

  1. Where the original trial is in respect of an acquittal for the offence of high treason or treason.
  2. Where a member of the disciplined force is being tried for a criminal offence after having been convicted or acquitted under the disciplinary law of the Force. See (article 19(8) and 19(16) (b).

Article 19(10) – Right of an accused to remain silent at his trial. The accused shall not be compelled to give evidence at the trial. He may testify on his own volition. See, Okyere v Republic 1972 1 GLR 99.

Article 19(11) – No person is to be convicted of a criminal offence unless the offence is defined and the penalty for it prescribed in a written law. An exception to this rule is set out in article 19(12) in respect of contempt of a superior court. See, British Airways v AG 1997-98 1 GLR 55; 1996-97 GLR 547; Tsatsu Tsikata v The Republic 2003-2004 2 SCGLR 1068; Ali Yusif Issa v The Republic No. 2. [2003 – 2004] 1 SCGLR 174.

Article 19(13) - This bothers on the principle of natural justice. An adjudicating authority shall be independent, impartial and any case brought before it shall be given a fair hearing within a reasonable time. See, Aboagye v Ghana Commercial Bank Ltd. 2001-2002 SCGLR 797.

Article19(14) - Proceedings before an adjudicating authority to be generally held in public. The only exception is when in the interest of public morality, public safety or public order the adjudicating authority orders that the hearing would not be in public.

Article 19(15) - This article allows for proceedings before a court to be held in camera if the adjudicating authority considers it expedient to do so and in circumstances where publicity would prejudice the interest of justice. The court may also exclude members of the public where the welfare of a minor is concerned and for the protection of private lives.

In spite of the presumption of innocence under article 19(2)(c), provision is made for an enactment to place the burden of proving certain facts on the accused and this shall not be held to be inconsistent with the constitution.

Article 19(16) (b) - This article allows for the trial of a member of the disciplined force for a criminal offence notwithstanding any trial, acquittal or conviction under the disciplinary law of the force. The court is however bound in the case of any such trial to take into consideration any punishment suffered by the accused under the disciplinary law before passing sentence on him.

Articles 13,14,15,18,19 of the 1992 Constitution; Tsatsu Tsikata v. Republic;

Gorman v. The Republic [2003 – 2004] 2 SCGLR 784; Ali Yussif Issa No. & 2 v. The Republic; British Airways v. The Attorney-General; Dr Solomon Sarfo v. The IGP & The Attorney-General, unreported, Martin Kpebu v. The Attorney-General, unreported, Suit No. J1/13/2015, 5th May 2016.

Objectives

By the end of the topic the student is expected to know: 1. The importance of all the rights enshrined under Chapter Five of the 1992 Constitution. 2. The exceptions to these rights. 3. The right to personal liberty and how the right can be lawfully curtailed. 4. All the provisions under article 19 of the 1992 and what constitutes fair trial under the article.

must actually touch or confine the body of the person to be arrested. The person can also submit to the arrest willingly by word or action. Where the person to be arrested takes refuge in a house or any place, the police officer or person acting under a warrant ought to be allowed free entry to the place and offered reasonable facilities and assistance to search and arrest the person.

The police can in order to gain entry or access to a place break any outer or inner door or window provided the police produced the notice of authority and purpose and were refused entrance. The Police officer may also break out of any place to liberate himself. The law does not allow the police or person effecting the arrest to subject the arrested person to more restraint than what is necessary to prevent his escape. The arrested person has the right to be informed in a language he understands of the reason for his arrest.

The police have powers to arrest with or without a warrant. The police may arrest a person without a warrant under the following circumstances if the person: a. commits an offence in the presence of the police officer. b. obstructs a police officer in the performance of his duties c. escapes or attempts to escape from lawful custody d. has in his possession without reasonable explanation, an implement adapted for the purposes of unlawfully entering a building. e. has in his possession a thing which is reasonably suspected to have been stolen. f. is reasonably suspected by the police officer to have committed an offence or being about to commit an offence. g. has a warrant already issued against him by a Court. h. is a deserter from the Armed Forces. i. is a fugitive.

A private person may also arrest without a warrant under the following circumstances: a person who in the presence of the private person commits an offence involving the use of force or violence, bodily harm, offence in the nature of stealing or fraud, injury to public property, property owned by or in the lawful custody of that private person.

NB: A private person’s power to arrest without a warrant under these circumstances is restricted to where any of the offences listed above has actually been committed.

See: Articles 14, 15 of the 1992 Constitution; Sections 3 – 16 of Act 30; Asante v The Republic [1972] 2 GLR 177; Adekura v The Republic [1984- 86] 2 GLR 345.

Objectives

By the end of the topic, the student is expected know: 1. The powers of the police to effect arrest under Act 30. 2. The various circumstances under which the police can arrest a person with or without a warrant. 3. The powers of the private person to effect an arrest and its limitations. 4. The rights of the arrested person under article 14 of the 1992 Constitution.

B. Searches

The topic looks at the following:

  1. The power of the Police to conduct a search of a place entered by person sought to be arrested.
  2. The power of the police to search an arrested person.
  3. Search warrants and the procedure for issuing same.
  4. Form and content of a search warrant.
  5. Execution of a search warrant.
  6. Detention of articles seized under a search warrant.
  7. The power of the police to conduct a search without a warrant. The Police also have powers to conduct searches on persons, places and things.

These powers are guided by provisions of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), and the fundamental human rights under the 1992 Constitution. Sections 4, 8, 73(1) (3), 75, 76, 78, 79, 80, 83, 88 – 95 of Act 30; Articles 15 and 18 of the 1992 Constitution.

INSTITUTION OF PROCEEDINGS

There are three main ways of instituting criminal proceedings

i. Complaint to the magistrate i. Summons/Warrant of Arrest ii. Charge sheet

The topic looks at the following:

  1. The issuance of a criminal summons.
  2. Form and content of a summons.
  3. The service of a summons.
  4. The issuance of a warrant of arrest.
  5. Form, content and duration of a warrant of arrest.
  6. Execution of a warrant of arrest. Under article 88 of the 1992 Constitution, the Attorney-General is responsible for instituting criminal proceedings. Criminal proceedings may be instituted by arraigning an arrested person before court on a charge sheet, indicating the name of the person charged, the offence for which the person is being charged and the time and place the offence was committed. Criminal proceedings may also be instituted by bringing a person before a court by a summons or warrant. Since the charge sheet is treated as a main topic on its own, this topic is restricted to summons and warrants of arrest as a means of bringing a person before a court. See: Sections 60 – 87 of Act 30.

Chapter 4

Summons

A summons is a document in duplicate signed by a Magistrate or such other officer of the Court as the Chief Justice may direct. The document requests the person named therein to appear before the court at a specified date and time. It must be directed to the person to be summoned requesting him to appear at a time and date. It must also indicate the offence the person is alleged to have committed.

Warrants

A warrant is issued on a suspect when he has refused to attend court on a summons. It could also be issued without first having recourse to a summons if a complaint is made on oath to the Magistrate. It must state the offence that has been committed, the person to be arrested, and it is directed to a police to execute same. A warrant remains in force until it is executed or cancelled by the court which issued it. It can be issued at any time including Sundays. It can also be executed outside the Republic.

Objectives

By the end of the topic the student is expected to know:

  1. The form and content of a criminal summons.
  2. How a summons is served under the various circumstances.
  3. The consequences of disobeying a summons.
  4. Circumstances under which a warrant of arrest would be obtained or issued.
  5. The form and content of a warrant of arrest.
  6. Executing a warrant of arrest in Ghana and outside of the Republic.
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Criminal- Procedure- Manual

Course: Ghana Legal System (FLAW 103)

71 Documents
Students shared 71 documents in this course

University: University of Ghana

Was this document helpful?
GHANASCH
OO
L
O
F
L
A
W
Ghana
School of Law
Board of Legal
Education
Design & Print: G-Pak Ltd.
024 256 6771
STUDY MANUAL
CRIMINAL
PROCEDURE

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