Akyea, Ayikoi And A Supreme Court Botch - PLEA IN MITIGATION

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Category: Law Commentaries

Created on Tuesday, 09 September 2014 00:00

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PLEA IN MITIGATION

Law Gazette writes that “the aims in making a plea in mitigation are to: (1) obtain for your client the least punishment reasonably available in all the circumstances, consistent with justice; and (2) persuade and assist the court to find the most appropriate form of sentence for your client. As a client plea in mitigation comes in after conviction and immediately before sentencing after pre-sentencing report. [It] is not simply a presentation to the court of the factual background surrounding the offence, some mitigating factors about the accused and the offence, followed by a request for compassion and leniency...effective plea in mitigation must be meticulously prepared, as well as logically and boldly delivered as a reasoned argument directed to achieve a specific result.”

We applaud Nii Ayikoi-Ottoo on his “birthday strategy. But legally, the repeated reference to personal links he has/had with some members on the trial is a legal pitfall. R v Bow Street Metropolitan Stipendiary Magistrate[4][5], Ex Parte Pinochet Ugarte (No. 2)[1] was a case which involved the setting aside of a House of Lords judgment based upon the possibility of bias. Lord Hoffmann's failure to declare links to Amnesty International meant that a previous House of Lords judgment on the immunity of former Chilean dictator General Augusto Pinochet had to be set aside.

The Principle in that case is that “a man might not be judge in his own cause applied not only where the judge had a financial or pecuniary interest in the outcome of the proceedings, but also where the matter at issue was concerned with the promotion of a cause in which the judge was involved together with one of the parties.” From Justice Atuguba’s phrase- “that thing”, referred to Owusu-Afriyie, one is tempted to infer that the justices rather than the Court, felt personally scandalized and could not have been for example, independent and impartial towards Korankye and Sir John in a case they are deeply involved. In other jurisdictions, this together with Nii Ayikoi’s strategy could have prompted a perception of bias or per incuriam- a case decided on a wrong authority or law.

Indeed translegal.com[6] submits that the court is not bound to follow a decision of its own if it is satisfied that the decision was given per in curium, it seems that the SC shouldn’t have had a ready-made judgment by impressing upon the defendants to acknowledge guilty, remorse and apology. It should have rather opened itself to a thorough debate for an authority to be established. The role of a lawyer in a case is not only to cite the relevant law/ policy to the court but also, must have the ability is to point out its defects and weaknesses in a persuasive argument for its development as a poorly argued case can also produce uncertainty or a weak case law.

From this premise, Counsel Atta-Akyea’s demand for the Charge Sheet could not have been interpreted overly ambitious and legally suicidal as it could have contributed in the development of the contemptuous case law. A Charge Sheet shall contain statement of the offence with which the accused person is charged together with the particulars that are necessary for giving reasonable information as to the nature of the charge [see Dadzie v C. O. P. [1963] 1 GLR 244; Act 263 and Article 19(c) of the Constitution]. As it stands now, contemptuous statements against SC in a Presidential Election Petition trial is to have a counsel with a “birthday cake” and some links with judges”. Yes, personal connections of the same to the National Peace Council could also be crucial.

Yes; we are aware that legally, many things transpire behind the curtains of justice. We’re also reminded that the Peace Council has a stake in national security matters. But it is neither a Parole Board nor a Probation Service. Equally so, a newspaper’s report can’t be a Charge Sheet. We prayed not for the hanging of the defendants. But the Supreme Court erred in ruling that: “the court reluctantly avoided imposing a custodial sentence on the two due to incessant pleas by the Peace Council and by the lawyer of the contemnors.” At least not where the Court had flagged that save those involved in the matter, contempt could arise if anyone were to contact the Court in any form?

STRATEGY

It is said that if a client wishes to plead guilty, counsel should- before the commencement of mentions: (i) obtain a copy of the Charge(s) as well as Statement of Facts from the prosecution; and (ii) ascertain from them the client’s antecedent records (if any) and whether they intend to address the court on sentencing matters. “You should then go through the Charge(s), Statement of Facts (‘SOF’), and antecedent records with the client prior to the mentions, and confirm whether: (i) they are correct; and (ii) he is prepared to admit to them...” So, Atta-Akyea was not making a political inquiry that was scandalous or calculated to vilify or insult the Court vis-à-vis the Charge Sheet?

Sentencing Precedents- Yes, the objective of a mitigation plea is to seek leniency and instructions that qualify the plea should be explained to the offender and that there is no meter to measure regret or genuine repentance through admission of guilt and full restitution, generally; accused’s age, health condition family [first offenders], work record or exceptional circumstances, loss of employment, career or pregnancy, are taking into account by the court in assessing sentence. But a full knowledge of the court’s sentencing powers, (sentencing precedents), are said to be essential.

THESIS

Generally, it is said that at least, two or three current and up-to-date key character reference or professional contributions to the community from someone in the accused’s industry are paramount in a mitigation plea [7]. But had it not been legally botched, for the Supreme Court to accept Ayikoi-Otto’s reference to Justices Julius Ansah, Rose Owusu and the “59th Birthday” solemn plea?

This Commentary is authored By Asante Fordjour on behalf of The OmanbaPa Research Group

JusticeGhana

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References

[1] “Plea in Mitigation”, lawgazette.com.sg/2006-1/Jan06-feature2.htm), accessed 20 August 2014

[2] "Legal definition of Nemo iudex in causa sua",legal-glossary.org, date accessed, 01 September 2014

[3] “Definition and types of contempts of court”, (http://www.duhaime.org/LegalDictionary/I/InFacieContempt.aspx)

[4] [1]In re Pinochet, Oral Judgment: 17 December 1998, Oral Judgment: 17 December 1998, [1999] UKHL 52, http://www.independent.co.uk/news/people/tuesday-law-report-interest-in-a-cause-may-disqualify-judge-1074861.html, date accessed, 01 September 2014

[5] “A look at Lord Hoffmann”, BBC News. 1998-12-17. Retrieved 2010-05-10, date accessed, 01 September 2014

[6] Per Incuriam, http://www.translegal.com/legal-english-dictionary/per-incuriam

[7] Plea in Mitigation: character reference, eLibrary, www.lovegroveandlord.com.au