A Death Of Ghana’s Probation Service?

Reflections- “From Criminal to Criminology” (Mirror UK, 15 July 2014): How a 25-year-old woman with 50 criminal convictions overturned her troubled past to the admiration of UK’s academic world…

BRIEFS & MEMOS

PRE-SENTENCING REPORT (PSR) – In the Kingdom of Great Britain, Section 156 of the Criminal Justice Act 2003 states that the court is required to obtain a Pre-Sentence Report (PSR), or a Specific Sentence Report (SSR) before imposing a custodial or community sentence. According to Prison Reform Trust, the PSR can help to determine if a community order and its requirements is a suitable sentence for a particular offender. The PSR should include: an analysis of the offence; an assessment of the defendants risk to the community; the likelihood of re-offending; and a proposal for sentencing. “There are a limited set of situations in which consideration of a report will not be necessary. These are: Magistrates or district judges might have received adequate up to date information about the offender from their current mental health professional(s) during proceedings, and therefore do not require another medical report prior to sentencing. The offender may have already spent as much time in custody on remand as would be served under sentence, and so will be released immediately. The sentence is fixed by law, namely mandatory life imprisonment for murder.” [But] “When considering the circumstances of mentally disordered offenders, a medical report might still be necessary prior to administering a life sentence as the court may wish to consider a hospital order. Any failure to obtain a medical report does not invalidate a sentence. However, if the case is taken to appeal, the court must obtain a report.” [1]

INTRODUCTION

Probation means you’re serving your sentence but you’re not in prison[2] In Ghana, s.354(1) of COOPA provides that where a person is charged with either a summary or indictable offence, and the court thinks that the charge is proved but is of the opinion that having regard to the youth, character antecedents, home surroundings, health, or mental condition of the offender, or to the nature of the offence or any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation- the court may make a probation order, putting the offender on probation…[But]Professor Quansah(2011) seems to suggest that the Republic of Ghana, lacks the required infrastructure for effective utilization of this alternative means of punishment. Probation is consequently, hardly used. [3]

THE PROBLEM

The Ghana Prisons: the United Nations Office on Drugs and Crime (UNODC) highlights detrimental social impact and the cost of imprisonment, stating in its research findings that imprisonment disrupts relationships and weakens social cohesion, since the maintenance of such cohesion is based on long-term relationships. It’s said that when a member of a family is imprisoned, the disruption of the family structure affects relationships between spouses, as well as between parents and children, reshaping the family and community across generations. That mass imprisonment leads to a deep social transformation in families and communities. “Taking into account the above considerations, it is essential to note that, when considering the cost of imprisonment, account needs to be taken not only of the actual funds spent on the upkeep of each prisoner, which is usually significantly higher than what is spent on a person sentenced to non-custodial sanctions, but also of the indirect costs, such as the social, economic and healthcare related costs, which are difficult to measure, but which are immense and long-term.” [4]

While in Ghana; media reports, personal observations and interactions revealed troubling growing trends- mass youth unemployment, child prostitution occasioned by school-drop-outs, divorce, single-parenting, untimely death of parents/guardian, diseases and family poverty. Youth disillusionment, arm-robbery and imprisonment had therefore, been re-occurring frontage news items and topical discussions.

After visiting several prisons around the country, reviewing studies, and speaking with prison employees and inmates, UN Special Rapporteur- Juan Mendez, concluded that “the state of prisons in the country amounts to cruel, inhuman and degrading treatment. The majority of the poor conditions reportedly stem from Ghana’s prison-overcrowding problem. While authorities have stated that the official statewide capacity-to-population ratio is 140 percent, some prisons reportedly have ratios as high as 200 to 500 percent. As a result, prison staff members are unable to provide inmates adequate nutrition, sleeping accommodations, hygiene, medical care, recreation activities and clean air. The independent UN expert added that these conditions have led to the spread of diseases such as malaria and tuberculosis.” [5]

Stephen Adelgren cites Mendez to have asserted that, as a legal matter, overcrowding [in our] prisons is a direct result of Ghana’s tendency towards the imposition of lengthy prison sentences, coupled with strict appeals and relief processes. “Under Ghanaian law, only 10 percent of a lengthy prison sentence may be remitted for good behavior. Mendez reported that there is also a substantial shortage of legal aid workers laboring to address these problems. The Special Rapporteur recommended that Ghana ratify and implement the Optional Protocol to the Convention Against Torture [UN backgrounder] immediately, which, he argues, would allow national prisons to be regularly monitored by independent experts.”[6]

By virtue of section 356 of COOPA; placing an offender on probation in Ghana, is without prejudice to the power of the court, under any law for the time being in force, to order the offender to pay costs or damages for inquiry or compensation for loss as the court may think reasonable. However, probation has according to Prof Quansah, been used mainly for young offenders as one of the methods designed by section 29 of Act 653 for dealing with juvenile offenders [3]. Section 355(1) of COOPA provides that ‘The order must contain such provisions as the court may deemed necessary for the supervision of the offender by a probation officer and such additional conditions such as residence and other matter as the court, having regard to the circumstances of the case, considers necessary for securing the good conduct of the offender or for preventing a repetition of the same offence or the commission of other offences.”

In the words of Professor Quansah, the disadvantage for ordering probation for an adult offender is that the order may be made only if the person is willing to comply with the conditions of the probation and that this dependence on the will of the convicted person severely limits the court’s power to impose probation of its own.” Section 31 of Act 653, talks about a social inquiry report- similar to the terms in the legal dispatch set out below and that such an order shall be valid for between six months and eighteen months [Section 31(5) of Act 653]. If a juvenile offender breaches the conditions of the probation order, the juvenile is liable to be sentenced for the original offence [Section 31(4) of Act 653]

LEGAL DISPATCH

Learned Principal, Natalie Atkinson, had been be awarded first class in Bsc. Policing, Investigation and Criminology degree, at the University of Cumbria. Thanks in part to UK’s prisons reform project and its Offender Management strategy. Find below in outline the role of probation and community sentences:

1. Probation- Overview: You could be put on probation because: you’re serving a community sentence; you have been released from prison on licence or on parole. While on probation, you may have to: do unpaid work; complete an education or training course; get treatment for addictions, like drugs or alcohol; have regular meetings with an ‘offender manager’

2. Meetings with your offender manager: When you’re on probation you may have meetings with your offender manager. This will usually happen at your local probation office. At your first meeting your offender manager will explain: the rules of your probation; the dates, times and places of future meetings; any appointments you must go to: training courses or treatment; what happens if you don’t do what you are asked. Your offender manager will ask you to read and agree to a ‘sentence plan’. This will tell you the rules of your probation and your responsibilities. You must tell your manager if you:

Plan to change your name or address; you won’t be able to make any meetings you have arranged with them; you’re having problems sticking to the rules of your probation. If you miss a scheduled meeting with your offender manager, you should get in touch and tell them why. You may need to provide proof, like a letter from a doctor or your employer. You are allowed to miss meetings or appointments to attend religious or other important events if you give your offender manager advance notice.

3. Breaking the rules of probation: You could go back to court if you break any rules of your probation. For example, if you: do something your sentence bans you from doing; commit another crime; miss meetings and appointments without a good reason; behave in an aggressive, racist or other unacceptable way at a meeting, appointment or conditions of your licence or parole, you can be taken back to prison.

4. Being taken back to prison: You can be taken straight back to prison if you have been released on licence or parole and you break any rules. This is known as a ‘recall’. Your offender manager will tell you why you are being recalled.

There are three types of recalls- Fixed-term: With this recall, you will go back to prison, be released on probation again after 28 days and you will be on licence until the end of your sentence. Standard recalls: you will stay in prison until the end of your sentence, unless a Parole Board decides otherwise. Your case will be sent to a Parole Board automatically after 28 days. They will either release you straight away or set a date (within 1 year) when you can be released on licence. Third, extended sentences: If you’re on this, your case will be sent to a Parole Board within 14 days of you going back to prison. They will either release you straight away or set a date (within 1 year) when you can be released on licence.

5. Ask to be released again on probation: If you have been taken back to prison and you think you should be released from prison on probation again, you can ask the parole board. This is called ‘making representations’. You can speak to the parole board yourself, or ask a family member, friend or legal adviser to do it. You must do this within 2 weeks of being told why you are being recalled to prison [7].

Commenting on PSR in the UK; Barrister Lorna Elliott, points out that it is essentially an impartial report that gives the sentencing judge (or magistrates) an idea of your background and the most suitable punishment for the offence that you have committed and must be written with the seriousness of the offence in mind and that if a PSR is ordered in your case, you will have an interview with a probation officer who then writes the report on you. “For obvious reasons it is important to cooperate with the preparation of the report as otherwise this can have a negative impact on the sentence you are given. Some courts actually make it a condition of post-conviction bail that you cooperate with the probation service in ensuring that the report is written…You will have the opportunity to read through your report before the sentencing hearing. “If you disagree with any of the contents you should let your lawyer know before you get into court so that the issue can be raised. The report will not be read out in court but the prosecution, defence or judge can make reference to it or ask questions about it.” [8]

Community Sentences

1. Overview: You may get a community sentence if you’re convicted of a crime by a court but are not sent to prison. You may have to do unpaid work in your local community, like removing graffiti. This is called Community Payback. Community sentences can be given for crimes such as: damaging property; benefit fraud; and assault. You may get a community sentence if: the court thinks you’re more likely to stop committing crime than if you go to prison; it’s the first time you have committed a crime and you have a mental health condition that affects your behavior.

2. Community Payback- this is unpaid work like: removing graffiti; clearing wasteland; decorating public places and buildings – eg. a community centre. You will usually work in your local area, and be managed by a Community Payback supervisor. You must wear a high visibility orange vest while you work. You can expect to complete anything from 40 to 300 hours of Community Payback, depending on how serious your crime was. You have to work 3 or 4 days each week if you’re unemployed. This will be arranged outside your working hours if you have a job, eg evenings or weekends.

3. Treatment and programmes- They are intended to help with problems that led you to commit crime in the first place. They’re also to stop you committing more crime. It could be used to help with: any addictions you have: drugs; a mental health condition; getting new skills and qualifications. Depending on the treatment or programme, it could involve: counselling sessions- where you get support from a medical professional drug testing; ‘accredited programmes’, such as anger management courses, to help with your behavior; mental health treatment with a doctor or psychologist; improving your reading and writing; getting help with a job application; learning interview skills; meeting people who were affected by your offence, as part of a restorative justice programme. If you don’t complete a treatment or programme, or fail a drugs test, you could be sent back to court and your punishment could increase.

4. What you can and can’t do while on a community sentence is decided by: a court when you are sentenced; the person dealing with your sentence once it’s started- is called the ‘offender manager’. This can include: being at a particular place at certain times – known as a ‘curfew’; wearing an electronic tag to check that you stay there; appointments with an offender manager; being stopped from going to certain places or areas, eg your victim’s home; being stopped from taking part in certain activities, eg going to a pub or a bar; being told where you have to live, eg a family member’s home. If you don’t stick to the rules while you’re on a community sentence, you could get a warning or be sent back to court, and your punishment could increase.

5. Community sentences if you are under 18: These differ from those given to adults. There are 3 main types a court can give you: referral orders – when, with a panel of people from your local community and your youth justice workers, you are asked to agree a programme of work to address your behavior; reparation orders – when you make up for the harm caused by your crime, like repairing any damage to the victim’s property. Youth Rehabilitation Order – when a court decides on different things that you have to do or must not do, which can last for up to 3 years. You can also be given a discharge, when the court decides that the experience of being arrested and going to court is enough of a punishment.

As part of your community sentence you may also have to speak to the victim and: listen to their side of the story; apologise to them, either in writing or, if the victim wants, face-to-face. If you break the rules of your community sentence you could end up back in court, and if you have recently been released from custody you could be sent back [9].

SUMMARY OBSERVATION

With the seemingly overcrowding prison population, dominated by youthful offenders and the death of probation services, a public or privatized services that focus on offender management, is long overdue in Ghana. Yes, recognizing the particular vulnerability of pre-trial detainees, international human rights instruments provide for a variety of specific safeguards [to be considered in future], to ensure that the rights of detainees are not abused, that they are not ill-treated and their access to justice not hindered.

Compiled and Dispatched By Asante Fordjour LLB(Hons)LLM International Law And Criminal Justice; on behalf of the Samaritan Street Project, to be considered by the Government of the Republic of Ghana.

JusticeGhana
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References

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