A few days ago, an American friend mentioned that she can never be a prosecutor because of the danger of convicting an innocent person. I explained to her that in the common law system, with its specific criminal justice arrangement, there are ways to ensure that innocent persons are set free. Prosecutors have the capacity to protect and promote a suspect’s innocence so that they are not wrongfully convicted. Within this context, prosecutors can be said to be safeguards of the presumption of innocence. Presumption of innocence is a fair trial principle which means that a person accused of a crime must be presumed to be innocent until he/she has been proven guilty beyond a reasonable doubt in a court of law. In this post, which is the first of a two-part series, I highlight several stages of the criminal justice process and practical safeguards at each stage. Before that, let me briefly explain Ghana’s prosecutorial arrangement. The arrangement plays a role in how prosecutorial interventions manifest.

Overview of Ghana’s Prosecutorial Framework

Ghana’s prosecution system is centralized with the mandate to prosecute vested solely in the Attorney-General (AG) who doubles as the Minister for Justice. This mandate is enshrined in article 88 of the 1992 Constitution. We also practice the adversarial or accusatorial system of law: prosecutors present cases before a judge and the accused (called defendants in other jurisdictions) are permitted to defend themselves or engage the services of a lawyer, or are provided legal representation from the Legal Aid Commission. To assist the AG in the exercise of his prosecutorial mandate, he has delegated his power to different categories of prosecutors: public prosecutors of the Prosecutions Division (Office of the Attorney-General), police prosecutors and prosecutors with fiats in specific institutions like the Ghana Revenue Authority, Social Security and National Insurance Trust, the Electricity Company of Ghana Ltd., and the Economic and Organised Crime Office (EOCO). 

The Office of the Special Prosecutor creates a unique dynamic which I will address in a separate post soon. Also, Ghana’s criminal procedure code, the Criminal and Other Offences (Procedure) Act of 1960 (Act 30) provides for private prosecution, but there are hardly used in practice. The constitutional mandate and setup of prosecutorial power mean that the AG has oversight and control over all these officers who exercise his delegated mandate. What does this mean for safeguarding innocence? Simply, petitions to the AG can trigger a review of cases. Focusing on prosecution by the police and prosecutors from the Prosecutions Division of the Office of the Attorney-General, we can now look at safeguard points based on how those two institutions operate and interact.

Intervention and Safeguard Points in Practice

Investigation and Arrest:

Arrests are primarily carried out by law enforcement (e.g. the police, national security, EOCO and Narcotics Control Commission (NACOC)). In a previous post, I listed all the other persons and authorities (including judges, private persons and senior prosecutors) that can effect an arrest in Ghana but note that they are all mandated to turn over the arrested persons to the police who re-arrest them before commencing their investigation by building a docket on the case. At the point of arrest, prosecutorial power is limited. This is because the law vests investigative powers in these law enforcement agencies. At the end of their investigations, and depending on their mandate and the subject matter, they may forward a copy of the docket to public prosecutors for study and legal advice. Let me illustrate with a few scenarios:

a. In a fatal accident case, the police must forward the docket to the Prosecutions Division of the Office of the Attorney-General for legal advice, but the prosecution is handled by the police prosecutors. 

b. In a stealing case with a subject matter value of less than GHS500,000, the prosecution can be handled by police prosecutors without the involvement of the Attorney-General’s office. The Legal and Prosecutions Unit of the Ghana Police Service ensure legal compliance of all cases prosecuted by the police. 

c. In a defrauding case with a subject matter value above GHS500,000, the police must forward the docket to the Prosecutions Division of the Office of the Attorney-General for legal advice and for prosecution by the public prosecutors in that office.

d. In an organized crime case, EOCO may either forward the docket to the Prosecutions Division or have their lawyers prosecute the case.

e. In a narcotics case, NACOC must forward the docket to the Prosecutions Division for legal advice and prosecution.

As earlier indicated, prosecutorial power is limited at this stage. This is because prosecutors lack investigative oversight during active investigations, but they can request further inquiries once dockets are submitted. In practice, individuals with an interest in the case still petition the AG for redress on the conduct of investigations. Public prosecutors often assess the contents of a petition and may either dismiss it, or call for the docket from the police to study. While early intervention may seem premature, prosecutors can still help redirect investigations toward exculpatory evidence. For instance, if initial investigations have been carried out against one person, prosecutors may request for investigations to extend to other persons based on the contents of the petition: this can lead to exculpatory evidence in favor of the suspect. Another advantage is that the police the involvement of prosecutors may result in faster investigations than those that have not yet come to the attention of the Office of the Attorney-General. 

First Arraignment:

First arraignment is the first time that a person charged with a crime appears before a court. If the suspect is in custody, he has to be presented before a court within 48 hours after his arrest in compliance with article 14(3) of the 1992 Constitution (holidays and weekends included – see Martin Kpebu’s case here). If he is not in custody, there are no time limits for the first arraignment, but article 14(4) still requires that legal proceedings must be carried out within a reasonable time. First arraignment is supported by a charge sheet filed with the facts of the case attached. At first arraignments, a determination is made whether to grant the suspect (now an accused when charged) bail or to remand him in lawful detention. Usually, for those cases that are filed by the police after an arrest, the bail application goes to the Office of the Attorney-General. Charges filed at this stage are usually provisional pending the completion of investigations. On receiving a bail application, prosecutors typically request the docket or case details before filing a sworn affidavit in response. 

Here is the prosecutorial safeguard: where a prosecutor reasonably believes that the facts or the investigations so far conducted do not support the initial charges against the accused, they do not oppose the bail application. This may not be sufficient since it is not a dismissal or acquittal, but bail grants a suspect the opportunity to better prepare his defense, or actively assist with police investigations, like leading them to the location of an actual culprit. There are other reasons not to oppose a bail application, for instance, where there is some certainty that the person will appear to stand trial when granted bail, but that is not the focus of this post.

At this stage, it is often too early to draw any conclusions, and any negative first impression would be unfair against a bail applicant, but, thanks to the principles of separation of powers and checks and balances, the final decision on pretrial detention is made by the judge and not the prosecutor. This means that the outcome can go in two ways: the prosecutor opposes but bail is granted (more common), or the prosecutor does not oppose but bail is denied anyway (this has happened to me on many occasions). 

Completion of Investigation:All prosecutors at the close of investigations exercise discretion whether to charge the suspect with an offence or not. In the civil law legal tradition, the determination of whether to charge a suspect at the close of investigations is made by a judge. For those using the common law system, prosecutors either recommend or do not recommend prosecution. This is where the most significant safeguard manifests. Every jurisdiction has its own considerations and priorities for filing charges. Of course, innocence is the obvious reason to dismiss a case, but it’s not always easy to establish. Some may argue that therein lies the danger of prosecutorial discretion, and that the ideal situation is for a judge to determine that innocence. Imagine how overwhelmed and inundated the courts would be if every case automatically ended up there without the filtering system that prosecutorial discretion affords. Without available institutional data for Ghana, it is difficult to determine what percentage of cases end on the prosecutor’s desk, but from my personal experience, I would say a third for road traffic accidents and a fifth for all other offenses end in a pretrial discharge. In the United States, about 8% of federal criminal cases were dismissed in the year 2018 based on research conduced by the Pew Research Center.

What are the factors that guide the decision to charge? In the United States for instance, their Criminal Justice Standards require that “A prosecutor should seek or file criminal charges only if the prosecutor reasonably believes that the charges are supported by probable cause, that admissible evidence will be sufficient to support conviction beyond a reasonable doubt, and that the decision to charge is in the interests of justice.” The fourth standard for filing charges is that “A prosecutor’s office should not file or maintain charges if it believes the defendant is innocent, no matter what the state of the evidence.” 

What is the standard in Ghana? Similar to the United States, prosecutors in Ghana are guided by internal policies and guidelines in the exercise of this discretion including rules of sufficiency of evidence and public interest concerns. These are contained in the Ghana Prosecutors Code and the Standard Operating Procedures of the Prosecutions Division. Prosecutors thoroughly examine the evidence before making any decision, and to ensure compliance with these internal policies and legal standards, the Office has internal accountability measures with oversight by the Director of Public Prosecutions.

Below are some charge discretion outcomes, some of which serve as safeguards:

a. Recommend prosecution and confirm the charges referred by the police.

b. Recommend prosecution but on different charges.

c. Dismiss the case against some or all of the suspects for reasons including the following:

– determine that the evidence is not sufficient to support the charges.

– determine that the evidence points to another person and request for them to be interrogated or arrested.

– determine that the case is not criminal but rather civil in nature.

d. Request for further investigations to enable a different decision to be made. 

e. Recommend that other measures be used to deal with the suspect(s), for instance encourage the parties to attempt alternative dispute resolution (for the cases that are civil in nature and not criminal), a caution by the police (for juveniles), and security for keeping the peace or for good behavior.

f. Recommend that a suspect be made a witness as a form of a plea deal. The necessary steps must be taken to ensure both legal and internal policy compliance. 

Part 2 of this post will look at the trial and appeal stages and how prosecutors can prevent or reverse a wrongful conviction.

End of Part 1.