Introduction

The District Court, also known as the Magistrate Court, has three of the most interesting criminal jurisdictions within our court system. Among other things, it hears juvenile cases, determines extradition applications brought by the State, and, most critically for this discussion, decides whether persons charged with the gravest criminal offences should be committed to stand trial before the High Court. This third function is striking when placed in context. Although the District Court sits at the lowest level of the court hierarchy, it determines whether an accused person must answer to a court two levels higher for offences that are undoubtedly of the highest gravity, like murder and manslaughter.

In a thought-provoking and well-researched article by my colleague, Gloria Teye (read full article here), she discussed the history, form, challenges and contemporary relevance of the committal process. I will not revisit the legal or technical concerns of the committal process, as Ms. Teye thoroughly and competently covered those. My purpose here is more practical: to break down what happens in the courtroom at the committal hearing for the curious, the newly called lawyers and for those encountering the process for the first time. I also aim to highlight matters that legal practitioners on both sides of the bar should pay close attention to. In my personal experience, and from what I have observed in cases handled by other prosecutors, committal proceedings can make or break a case.

What is a Committal Proceeding/Hearing?

In plain terms, to commit is to entrust responsibility for a person or matter to another authority. In Ghanaian criminal procedure, committal refers to the preliminary process by which a District Court determines whether there is a sufficient evidentiary basis to send an accused person before the High Court for trial. Note that at this stage, the District Court does not decide whether the accused person is guilty or innocent. That determination is reserved exclusively for the trial court. Instead, the court examines the prosecution’s summary of evidence to assess whether the case against the accused is maintainable, that is, whether the evidence is capable of supporting the charge. 

This standard of scrutinizing evidence differs from what is applied at trial, where evidence is tested in detail for admissibility, relevance, weight and sufficiency. Those concepts are not the focus at this stage. The committal court only needs to check that there is some evidence to warrant the accused person being put on trial.

Committal proceedings are a procedural requirement for all cases tried on indictment. An offence is triable on indictment if it is punishable by death, classified as a first degree felony (such as rape), or expressly designated by any law as indictable. Before the committal hearing, the police typically file initial charges before the District Court while the docket is transmitted to the Office of the Attorney-General for study and advice. Where the Office of the Attorney-General decides to proceed, a Bill of Indictment (BI), together with a Summary of Evidence and a List of Exhibits, is filed at the same District Court. It is during the period between the laying of initial charges and the filing of the Bill of Indictment that complaints of unreasonable delay most frequently arise. Once the BI has been filed, the court fixes a date for the committal hearing.

Below is a sample Bill of Indictment with a fictional case for illustration purposes only. We will use the sample BI to test our understanding of the committal process at the end of the write-up.

The Procedure

A few things to note about the procedure:

1. The committal hearing is generally held in public. However, the Magistrate may decide to exclude persons where the circumstances of the case make that necessary in the interest of justice.
2. Children under 18 years are not committed to stand trial. They are subject to juvenile procedures under the relevant laws. The process described here applies to adults only.
3. The hearing is attended by the accused person, defence counsel (where engaged), and a State Attorney from the Office of the Attorney-General. Although Police Prosecutors ordinarily handle the matter while it is pending before the District Court, they do not conduct the committal hearing once a Bill of Indictment has been filed. At this stage, “handling” the case prior to committal typically means calling the case and updating the court on the status of advice from the Attorney-General’s Office.
4. When filing the BI, the prosecution usually attaches copies of the accused person’s statements and, in death-related cases, the post-mortem report.
5. Although the BI is filed at the District Court, it is formally addressed to the trial court (the High Court), before which the accused will stand trial if committed.
6. At the committal stage, there is no legal requirement that the accused must be represented by a lawyer although in practice, legal representation is common because of the seriousness of indictable offences.
7. Where necessary, the court must ensure that the proceedings are interpreted into a language the accused understands. The court must ensure that the accused understands and is able to follow the proceedings.
8. Similarly, where the conduct of the accused raises concerns about their mental health, the court must ensure that the accused is assessed by a medical professional. The committal court must be satisfied that the accused is mentally fit before it can lawfully commit the accused for trial.

And now the Procedure:

To begin, the case is called by the court clerk, and the accused person is required to stand in the dock, the area designated for accused persons. The lawyers announce their appearance, typically with the prosecution introducing themselves first, followed by defence counsel where applicable. The Magistrate then informs the accused person of the purpose of the proceedings, namely, that the court is to determine whether the accused should be committed to stand trial before the High Court. At this stage, the court confirms certain preliminary matters. The Magistrate asks the accused which language he is most comfortable with and ensures that interpretation is provided where necessary.

The court also verifies whether the accused has been served with a copy of the BI, together with any attached documents, including the accused’s statements. This step is critical, as the accused is required to respond to the charges contained in the BI. I will return to this point later. Once service is confirmed, the charges are read to the accused by the court clerk. It is important to note that no plea is taken at the committal stage. The court is not concerned with guilt or innocence at this point, but only with whether the case should proceed to trial.

Next, the court calls on the prosecution to present the facts of the case. The prosecution then provides an explanation of the case by outlining a summary of the facts, essentially their version of events, which is recorded by the Magistrate as part of the record of proceedings. The prosecution concludes this explanation by stating the number of witnesses they intend to call at trial and identifying the list of exhibits they propose to tender at the trial. At this stage, the prosecution hands over all original exhibits to the court. These exhibits are verified, labelled, and properly bagged. The court does not assess admissibility, relevance, weight, or sufficiency at this point. Its role is limited to ensuring that the exhibits produced correspond with what the prosecution claims them to be.

Once verified, the exhibits are kept in the custody of the court for transmission to the High Court at the conclusion of the committal proceedings. The defence is permitted to inspect the exhibits, not to challenge their evidentiary value, but to confirm that they are what they purport to be, for example, an alleged murder weapon, photographs of the deceased, a flash drive containing video footage, or written statements. This process is particularly important because the introduction of new evidence at the trial stage is not automatic. It is a difficult process that must be fully justified, usually with leave of the trial court.

The Court of Appeal underscored the importance of this stage in The Republic v. Maikankan and Others [1973] 2 GLR 384, where it held: “The list of documents and things form an essential part of the summary of evidence. The absence of such an essential, material part of the summary of evidence detracts from its worth and quality as to affect, in my view, adversely, the proceedings before the High Court of Justice. The learned trial judge was therefore right to insist on the inclusion.” Prosecutors, defence counsel, and the court must therefore pay close attention to what is listed and physically produced at the committal stage, as omissions or inaccuracies may have serious consequences at trial.

Here is where it gets tricky. Where the accused person is represented, counsel may be invited to give a reply on behalf of the accused to the prosecution’s narrative. Many lawyers use this opportunity to emphasize that the accused is innocent. Other common defence arguments include assertions that the evidence does not support the charge, that prosecution witnesses are not credible, or that the evidence is not authentic. These submissions, however, are largely misplaced at the committal stage, for three key reasons.

First, the reply by defence counsel is not recorded as part of the proceedings and has no evidentiary or legal value at the trial court. It does not bind the prosecution, does not limit the trial court, and does not form part of the record transmitted to the High Court. 

Second, a committal proceeding is not a trial. The Magistrate does not determine the admissibility of evidence or assess credibility. Those are functions reserved exclusively for the trial court. Arguments directed at credibility, authenticity, or probative value therefore fall outside the scope of the Magistrate’s mandate. 

Third, the evidentiary threshold at the committal stage is low. Both statute and case law make it clear that the Magistrate is only required to determine whether there is a maintainable case for the accused to answer at trial. The court in State v. Bisa [1965] GLR 389–393 described the required standard as a “scintilla” of evidence, defined in the Oxford Dictionary as “a spark” or a very small amount of something. Once such a scintilla exists linking the accused to the offence charged, the Magistrate is obliged to commit the accused for trial. In practical terms, this means that arguments relating to innocence, credibility, and sufficiency or strength of the evidence are procedurally premature at the committal stage.

What defence counsel should be concerned with at the committal stage is ensuring proper service and procedural regularity, scrutinising the BI to confirm that it discloses some evidentiary link between the accused and the offence charged, and verifying that all listed exhibits are actually produced before the court. It is also an appropriate stage to observe and note potential evidentiary issues such as chain of custody concerns or discrepancies between listed and produced exhibits, so that these matters can be properly raised at trial. Defence counsel should further ensure that the accused does not inadvertently incriminate himself during the proceedings and that the accused fully understands the nature and purpose of the hearing. Where an alibi exists, committal proceedings also provide an opportunity for counsel to formally notify the court so that it is investigated.

At the end of counsel’s reply, or where the accused is not represented, the court invites the accused to give an answer to the charges and facts narrated by the prosecution, if he so wishes. This is referred to as a Statutory Statement. Before the statement is taken, the court explains its purpose and implications to the accused. The explanation includes a warning that the statement may be used against the accused at trial, and that failure to make a statement may also be taken into account. The court records everything the accused says in response to the charge(s). Where any part of the statement contradicts a prior police statement, the court must draw this to the accused’s attention so that he can provide clarification or make corrections. At the conclusion of the statement, the court reads the written statement back to the accused to ensure it captured everything they intended to say. The accused may add further explanations or clarifications. Finally, the Magistrate certifies the statement, which is then transmitted to the trial court along with the exhibits.

Attention to the statutory statement is critical for all parties. For the defence, this is an opportunity to correct any inconsistencies in the cautioned statement given to the police. If there is an intention to dispute a confession statement, this is the first stage to formally place on record that the accused does not agree with certain parts of that statement. Arguments concerning the “freshness of memory” are more likely to be accepted at committal than later at trial. The statement also provides an opportunity to assert the accused’s innocence or restate any defence or alibi.

For the prosecution, the accused’s account can be very significant. There have been numerous instances where an accused person’s credibility has been undermined because their story changed at three points: first during police interrogation, second at committal, and third at trial. Some accused persons have also confessed at committal hearings. Arguments against confession statements taken at the police station will not work against such confessions. At the trial, it is not practical for the defence to claim coercion when the confession was made before a Magistrate and in open court. In such situations, ensuring that the statutory statement is accurately recorded is important as it serves as additional evidence for the trial court.

The final stage of the committal process is for the court to determine whether the accused should be committed to stand trial before the High Court. Where the court finds that there is a maintainable case, the accused is formally committed for trial. Where the court is unable to make that determination, the accused is discharged. It is important to note that a discharge at committal is not an acquittal and does not bar the prosecution from bringing fresh charges against the accused on the same set of facts. Are discharges common? No, but they do happen. 

Once a committal order is made, the court must ask if they want to call any witnesses, record the witnesses’ details, make any present witnesses promise to attend the trial, and explain to the accused how to ensure their witnesses appear in court. Lastly, the court considers issues relating to the custody of the accused, including whether the accused should be remanded or admitted to bail pending trial. There is an ongoing debate as to whether the District Court has jurisdiction to grant bail at this stage, or whether that power lies exclusively with the High Court. That issue, however, is beyond the scope of our current discussion. What you should know is that to be on the safe side, bail applications are sent to the High Court. The decision to remand is made having regard to the nature of the offence, the circumstances of the accused, and the need to secure the accused’s attendance at trial.

The District Court is required to transmit the record of proceedings and all exhibits to the High Court within one month of the committal. In practice, this timeline is not always met. Upon transmission, the prosecution is notified by the High Court registry, and a date is then fixed for the accused’s first appearance before the trial court.

Procedural Problems and Possible Remedies

1. Exhibits stored by the court sometimes get lost or mixed up, but with diligent effort and tracing through the registry, they are often recovered.
2. There have been instances where statutory statements have been lost or omitted from the case docket transmitted to the High Court. In such situations, returning to the committal court to check the records can be helpful.

Commentary: Would The Case in the BI Template Survive Committal?

The committal process ultimately traces back to the BI. The fictional case set out in the template above is useful for illustrating how the process operates in practice and for assessing whether a case is capable of surviving committal.

On the face of the Summary of Evidence, the prosecution discloses a case that is clearly maintainable and ready for trial by the High Court. The evidence is capable of supporting the elements of the offence charged. Murder requires unlawful death of a person which was caused by the accused intentionally using unlawful harm. First, there is clear evidence of death and its cause. The pathologist’s report attributes the death to severe head injury following suspected homicide involving a vehicle. That alone establishes that a death in an unlawful manner.

Second, the act alleged to have caused the death is supported by direct eyewitness testimony. The waiter’s account places the accused at the scene, describes the argument, and narrates the accused’s conduct in driving over the deceased before fleeing (speaks to intentionality). Third, there is corroboration by the Manager, the CCTV footage, photographs of the scene and the accused’s vehicle. At the committal stage, the court is not required to test the authenticity, admissibility, or weight of these materials. It is sufficient that such evidence exists and is capable of supporting the charge. Whether or not this is actually murder will be determined at the trial.

This is exactly what the committal process is designed to achieve; to filter out cases that are hopeless while allowing those with evidentiary basis to proceed to trial. It is not an opportunity to dispute facts or present a defence. For committal purposes, the prosecution has disclosed evidence to justify the committal of the accused to the trial court.

For a full lecture on committal proceedings, click here to check out a video by the Digital Law Village!