Bail Application- Your Rights And Perils - Research & Information

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Created on Monday, 24 August 2015 00:00

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RESEARCH & INFORMATION

The Ghana’s Criminal Procedure Code, 1960 (Act 30) describes at its Section 3 how arrest ought to be made- stating that “in making an arrest the police officer or other person making the same shall actually touch or confine the person to be arrested, unless there be a submission to the custody by word or action.” The Section 8(2) of the Act 30 adds that “Whenever the person arrested can be legally admitted to bail and bail is furnished, he shall not be unless there are reasonable grounds for believing that he has about his person, any- (a) stolen articles; or (b) instrument of violence; or (c) tools connected with the kind of offence which he is alleged to have committed; or (d) other articles which may furnish evidence against him in regard to the offence which he is have committed.” Whatever might be the reasons for our arrest and detention, the Prosecution’s crucial interests, as stated above, had been arguably, to allow evidence to be gathered; to thwart the unpredictable suspect from further crime or bolting away. Yet bail application at the courts had arguably, travelled not more than 5-15 minutes. So what could be the issue in securing prompt release of suspects in Ghana if no such inherent threats exist?

In the UK the criminal justice and public order Act 1994, gave the police power to impose conditions on granting bail. The types of conditions that may be imposed include: suspect has to surrender his passport; report to the police station at regular intervals set by the custody officer; and have another person stand as surety for his surrender These conditions are, per inbrief.co.uk [2], imposed to ensure that the defendant follows the conditions of his bail, does not commit another offence whilst on bail and does not interfere with any witnesses during his release. “If the custody officer decides to refuse bail, then the defendant must be taken in front of the magistrate court at the first possible opportunity. If the magistrates' court cannot deal with the whole case at first instance, then the court will decide upon the granting of bail until the trial date in which they will set. If a defendant is charged with an offence that is not punishable with a prison sentence, then bail can only be refused if [he] has failed to surrender to bail in the past and there are grounds for reasonably believing the defendant is likely to do the same again.”

From legal standpoint, it could be argued that the doctrine of rule of law, human rights and justice, kick in our favour the moment the police intends to arrest and detain us for a suspected crime. In Ghana, the Chapter Five 1992 Constitution- which deals with Fundamental Human Rights and Freedoms- envisaged this in Articles 12; 13; 14 and 15. The Article 12(1) states that “The fundamental human rights and freedoms enshrined in this chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies and, where applicable to them, by all natural and legal persons in Ghana, and shall be enforceable by the Courts as provided for in this Constitution.” The Clause (2) of this article provides with the emphasis that “Every person [rich/poor] in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter[five] but subject to respect for the rights and freedoms of others and for the public interest.”

Perhaps, the cross-reference to this is Article 13 which states: “(1) No person shall be deprived of his life intentionally [and indeed civil liberties- freedom of movement] except in the exercise of the execution of a sentence of a court in respect of a criminal offence under the laws of Ghana of which he has been convicted. (2) A person shall not be held to have deprived another person of his life in contravention of clause (1) of this article if that other person dies as the result of a lawful act of war or if that other person dies as the result of the use of force to such an extent as is reasonably justifiable in the particular circumstances.- (a) for the defence of any person from violence or for the defence of property; or (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or (c) for the purposes of suppressing a riot, insurrection or mutiny; or (d) in order to prevent the commission of a crime by that person.” In the United Kingdom, the general principles relating to arrest, and where applicable detention and prosecution, are that Prosecutors may only start a prosecution if a case satisfies the test set out in the Code for Crown Prosecutors. This test, per the DPP, has two stages set out below:

The first is the requirement of evidential sufficiency and the second involves consideration of the public interest. According to DPP, as far as the evidential stage is concerned, a prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. The interpretation given to this is that an objective, impartial and reasonable jury (or bench of magistrates or judge sitting alone), properly directed and acting in accordance with the law, is more likely than not to convict. This is an objective test based upon the prosecutor’s assessment of the evidence (including any information that s/he has about the defence). A case which does not pass the evidential stage shall not proceed, no matter how serious or sensitive it may be. According to DPP, it has never been the rule that a prosecution will automatically take place once the evidential stage is satisfied. “In every case where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest. Every case must be considered on its own individual facts and merits… prosecutors should only decide whether to prosecute after the investigation has been completed. [3]

However, it is said that there will be cases where it is clear, prior to the collection and consideration of all the likely evidence, that the public interest does not require a prosecution. In these cases, prosecutors may, according to DPP, decide that the case should not proceed further. The futility in this is to ensure that individual’s personal liberty is cherished and respected. In Ghana Article 14 of the Constitution states that “(1) Every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law –

(a) in execution of a sentence or order of a court in respect of a criminal offence of which he has been convicted; or (b) in execution of an order of a court punishing him for contempt of court; or (c) for the purpose of bringing him before a court in execution of an order of a court; or (d) in the case of a person suffering from an infectious or contagious disease, a person of unsound mind, a person addicted to drugs or alcohol or a vagrant, for the purpose of his care or treatment or the protection of the community; or (e) for the purpose of the education or welfare of a person who has not attained the age of eighteen years; or (f) for the purpose of preventing the unlawful entry of that person into Ghana, or of effecting the expulsion, extradition or other lawful removal of that person from Ghana or for the purpose of restricting that person while he is being lawfully conveyed through Ghana in the course of his extradition or removal from one country to another; or (g) upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana.

What might be of interest here are set out as follows: Art 14- “(2) A person who is arrested, restricted or detained shall be informed immediately, in a language that he understands, of the reasons for his arrest, restriction or detention and of his right to a lawyer of his choice. (3) A person who is arrested, restricted or detained - (a) for the purpose of bringing him before a court in execution of an order of a court; or (b) upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana, and who is not released, shall be brought before a court within forty-eight hours after the arrest, restriction or detention. (4) Where a person arrested, restricted or detained under paragraph (a) or (b) of clause (3) of this article is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released wither unconditionally or upon reasonable conditions, including in particular, conditions reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial. (5) A person who is unlawfully arrested, restricted or detained by any other person shall be entitled to compensation from that other person.”

The relevance of clauses 2-5 of the Article 14 imposes a duty on the arresting and/or prosecution officers in their decisions/judgments to arrest, detain or to prosecute. And our rights and perils begin on the hour of our detention. Art 14(6) states that: “Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he has spent in lawful custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment.” The clause (7) explains that “Where a person who has served the whole or a part of his sentence is acquitted on a appeal by a court, other than the Supreme Court, the court may certify to the Supreme Court that the person ac quitted be paid compensation; and the Supreme Court may, upon examination of all the facts and the certificate of the court concerned, award such compensation as it may think fit; or, where the acquittal is by the Supreme Court, it may order compensation to be paid to the person acquitted.”

For example, Art 15(1) states: “the dignity of all persons shall be inviolable [that] (2) No person shall, whether or not he is arrested, restricted or retained, be subjected to - (a) torture or other cruel, inhuman or degrading treatment or punishment; (b) any other condition that detracts or is likely to detract from his dignity and worth as a human being. (3) A person who has not been convicted of a criminal offence shall not be treated as a convicted person and shall be kept separately from convicted persons.” In the UK, the process of arrest and detention is regulated by the following laws: Bail Act 1976 (The Act); Bail (Amendment) Act 1993 (The BAA); Magistrates' Court Act 1980; Magistrates' Court Rules 1981; Supreme Court Act 1981; Rules of the Supreme Court; Criminal Procedure Rules 2005; Police and Criminal Evidence Act 1984; (PACE) and the Consolidated Criminal Practice Direction as amended. [4]