This is part two of a two-part series on prosecutorial safeguards of suspects’ innocence. In the first part of this post, I explained how the criminal justice system is structured to allow prosecutors to safeguard the innocence of suspects. I looked at two stages of the criminal process: arrest, end of investigations and first arraignment. Prosecutorial safeguards of innocence are also evident when trial commences, and even beyond the trial process, and so in this part, I address the remaining two stages: criminal trials and appeals. Remember that before the case gets to a prosecutor, other persons or agencies would have expended resources on it including victims, witnesses and law enforcement. These prosecutorial interventions may therefore meet some form of resistance, but as most prosecutors have heard time and again, they are prosecutors, not persecutors. 

Trial Stage:

Prosecutors have the power to terminate the prosecution process if at any time of the trial, information comes to their attention which points to the innocence of the accused, or for any other reason based on their discretion. They can do this by filing a nolle prosequi under section 54 of the Criminal and Other Offences (Procedure) Act of 1960 (Act 30) or by a simple withdrawal under section 59 of the same law. 

Withdrawal: Under section 59 of the Criminal and Other Offences (Procedure) Act of 1960, a Prosecutor has the power to withdraw from the prosecution of any criminal case. This can be done at any stage of the trial before judgment is delivered by the court. Withdrawal can be made either with the consent of the court or on the instructions of the Attorney-General. In practice, Prosecutors withdraw for various reasons including the following:

– To dismiss the charges against the accused.- To correct a fundamentally defective charge sheet.

– To correct jurisdictional issues, such as filing fresh charges before a court of competent jurisdiction.

– To locate material witnesses who may not be available at the time.

– To review the case, or for evidence management e.g. to request for further investigations due to new information coming to their attention.

The withdrawal may be in respect of one charge or all the charges on the charge sheet. The effect of a withdrawal depends on the stage of the trial. If the withdrawal is done before the prosecution closes its case, the accused person shall be discharged in respect of the charges but this does not prevent the prosecution from subsequently bringing charges against the accused person in respect of the same set of facts. If the withdrawal is done after the prosecution has closed its case, the accused person shall be acquitted in respect of the charges. This means that he/she cannot be charged in respect of those same facts as this will amount to double jeopardy. The court strikes out the case as withdrawn after the Prosecutor indicates that the Republic wishes to withdraw.

Nolle Prosequi: The latin expression nolle prosequi means to be unwilling to pursue. In criminal justice, it is the expression of an intention not to continue to pursue the prosecution of a case. The AG has the power to exercise this power under section 54 of Act 30. The termination may be in respect of a count on a multiple count charge sheet, a number of counts, or the entire case. This may also apply to some or all of the accused persons. Although historically and legally, the AG does not need to explain the reason for the termination to the court or to the public, one reason to terminate may be because the Republic no longer has reason to believe that the accused committed the offence. In a later post, I will share an observation a colleague made on the current status of nolle prosequi in Ghana based on a recent decision. If you would like to read more on the current status of nolle prosequi, check out the Afoko case. The termination may be made at any time before judgement and the effect of of a termination under this power is that the accused must be discharged by the court in respect of the count or case, whichever is the subject of the nolle prosequi. 

Appeal Stage:

Criminal cases are sometimes handled at different stages by different prosecutors or prosecutorial offices, which is another reflection of how the structure of the prosecutorial system influences the role of prosecutors in safeguarding innocence. Several reasons account for this situation.

First, it may be as a result of the ranking of the prosecuting officers and the limitations attached to those ranks. For instance, Senior State Attorneys and above can advocate at the Court of Appeal while Principal State Attorneys and above can do same before the Supreme Court. High Court appeals (from the Circuit and the District Courts) are handled by Assistant State Attorneys and State Attorneys. Although all ranks prosecute cases, not all ranks respond to appeals above the High Court. No such rank restrictions apply to private legal practitioners. 

A second reason is the limited location of the Courts of Appeal and the Supreme Court which means that appeals of cases originally tried by prosecutors in regional offices are sometimes handled by Attorneys in the few regions where these courts sit. To illustrate, prosecutors in Accra handle Supreme Court appeals from cases tried in Accra and cases tried by regional offices in southern Ghana including the Volta region. A similar situation can be observed in Kumasi for those regional offices in the northern parts of the country.

A third reason is the limitation placed on police prosecutors to handle criminal trials only, and at the lower courts. All appeals of police-prosecuted cases are dealt with by prosecutors. At the High Court, a State Attorney may respond, and if it progresses to the Court of Appeal, a Senior State Attorney may respond. Should it proceed to the apex court, a Chief State Attorney may respond.

To restate the point, appeals against convictions and sentence may be handled by different prosecutors depending on the situation, and there is a likelihood that they may not agree with the guilt of the appellant. It must be noted that the system described above does not in any way detract from the internal coordination and communication between Attorneys, and it is also not common for prosecutors to disagree with their colleagues work, but it does happen sometimes.

Since it happens, we can argue that the system creates problems which the same system is set up to fix at a later stage: for instance, why should a different prosecutor see my innocence after my conviction when the trial prosecutor could have seen same and prevented my incarceration? It is the same reason that makes all legal systems imperfect, the reason why two lawyers may not agree on the application of the same law to the same set of facts, and the reason why one judge considers evidence sufficient while another dissents. 

One such scenario described above happened in the case of Yirenkyi vrs The Republic. The appellant, a policeman, and five others were convicted for stealing by the Circuit Court, Tema in 2011. He appealed against his conviction and sentence to the High Court which was dismissed in 2012. He again appealed to the Court of Appeal which again dismissed the appeal in 2014. The Supreme Court in 2016 allowed the appeal, stating that the evidence did not support the conviction. The interesting thing about this case is that at both the Court of Appeal and the Supreme Court, the Attorneys at the AG’s office agreed with the appellant that his conviction was wrong based on the evidence adduced by the police at the Circuit Court. At the Court of Appeal, the justices scolded the Attorney and accused her of being compromised, and not representing the interest of the Republic. The Supreme Court on the other hand disagreed with the manner in which the Court of Appeal handled the Republic’s concession of a wrongful conviction and encouraged parties to make concessions in good faith. After all, all lawyers including prosecutors are officers of the court who must assist the court in coming to a just outcome regardless of the stage of a case. 

Another intervention point at this stage is the hearing of an application for bail pending appeal. Similar to what I described in Part 1 in respect of bail pending trial, there is a likelihood of a non-opposition to the application pending appeal when from the prosecution’s assessment, the conviction ought not to be sustained. The circumstance typically arises, albeit not often, from appeals to the higher courts from police-prosecuted cases the lower courts.

Conclusion:

This two-part series has looked at instances in the criminal process where prosecutors can take steps to safeguard the innocence of persons caught up in the criminal justice system. It was observed that the structure of our criminal process influences these intervention points, especially with the role of police prosecutors, the use of ranks to determine which courts prosecutors can advocate in, and the availability of legal mechanisms for the termination of prosecution by the AG. There are paragraphs that show that there is room for legal reform, to better streamline prosecutorial continuity in case handling across regions, agencies and ranks.

Regardless of the challenges with the system, prosecutors remain advocates of justice who play a key role in protecting and promoting the presumption of innocence of suspects. No prosecutor has any business wrongly prosecuting anyone, and they cannot claim credit for protecting a wrongly accused person, but they are enjoined to carry out their function in good faith, within the confines of the law, and to the best of their abilities. Additionally, the outcome of their duties are still regulated by the judges who determine the guilt of an accused.

The point is that prosecutors are not enemies; they pursue cases based on the evidence before them and their application of the law to the facts. The next time you are involved in a criminal case, take steps to assist the prosecutor in seeing your perspective or point of view, rather than demonizing them. The seasoned defense Attorneys know this, especially when pursuing appeals. There is much to learn from how they navigate the system—observe them closely.