By: Samuela Amma Boakye-Appiah, Esq.

Taking the plea of an accused person is a very important aspect of criminal procedure in Ghana. It can be likened to the effect of a defendant in a civil matter entering appearance to the matter. Even though in civil procedure failing to enter an appearance can lead to a judgment in default, in criminal law, refusing to take a plea does not lead to a conviction in default.

In criminal procedure, taking the plea of an accused person goes beyond the effect of entering an appearance; it signifies the start of a contest, triggering the state’s burden of proof (beyond reasonable doubt) and dictates the procedure which will follow in the course of the trial.^[1]

Under Ghanaian criminal procedure, there are two modes of trial, namely, summary trial and trial on indictment. In summary trials, the accused appears before the trial court, the charge is read, and the plea is taken immediately. For trials on indictment, there is a committal proceeding in a District Court to determine whether there is enough evidence for an accused to be committed for trial before the High Court. The formal plea is only taken at the High Court after the committal is done at the District Court. The procedure for taking the plea under summary trials is governed by section 171 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) and section 238 of Act 30 governs the same procedure for trials on indictment.

Under Section 171, an accused person in every criminal matter must be called upon to plead to the charges preferred against him by the prosecution. This provision aligns with the fair trial rights of all accused persons under article 19 of the 1992 Constitution. It is essentially an opportunity for accused persons to be heard regarding the accusations that have been levelled against them.^[2] In the case of Mensuo v The Republic,^[3] the High Court on appeal overturned the conviction of the appellant at the District Court because he was not given the opportunity to plead to the charges and was tried summarily. 

The accused person has the option of pleading guilty or not guilty to the charges.^[4]  Aside from these two forms of pleas, it is perfectly within the right of the accused to refuse to plead, in which case the court is obliged to enter a plea of not guilty. This situation is governed by section 171(4) of Act 30 which states that:

“If the accused or his advocate, as the case may be, refuses to plead …, a plea of not guilty shall be entered and the plea so entered shall have the same force and effect as if the same had been actually pleaded.” 

 Section 171(4) serves as a procedural safety net. It ensures that the machinery of justice does not grind to a halt due to an accused’s silence, while simultaneously upholding the presumption of innocence under article 19(2)(c). 

For trials on indictment, section 238(1) of Act 30 goes further. It provides as follows; 

“If any accused being arraigned upon, or charged with, any indictment, stands mute of malice, or neither will, nor by reason of infirmity can answer directly to the indictment, if it thinks fit, may cause a plea of not guilty to be entered on behalf of the accused, and the plea so entered shall have the same force and effect as if the accused had so pleaded …’’ 

In trials on indictment, where an accused person refuses to plead, the trial court is under the obligation to consider if this silence is as a result of some infirmity or disability, and if the court deciphers that the silence is due to malice (refusing to speak out of defiance), the court will enter a plea of not guilty on his behalf. This means that under indictable offences, the court does not just enter a plea of not guilty when the accused person does not give a plea, but rather investigates to ascertain the reason behind the silence before taking that decision.  

These provisions of the law, albeit the fact that it predates the 1992 Constitution, is actually in line with the right of the accused person to be presumed innocent until proven guilty. By article 19(2)(c) of the 1992 Constitution, a person charged with a criminal offence shall be presumed innocent until proven guilty or pleads guilty. This is popularly known as the presumption of innocence. It makes sense that a court will enter a not guilty plea for an accused person who refuses to plead to the charges since he is presumed innocent until proven guilty or pleads guilty. 

Furthermore, article 19(10) guarantees the right of the accused person to remain silent. No person who is tried for a criminal offence shall be compelled to give evidence at the trial. Therefore, refusing to plead is a manifestation of that right. Sections 171(4) and 238 of Act 30 are the procedural tools that protect the right of an accused to be presumed innocent until proven guilty and to remain silent while allowing the wheels of justice to keep turning. 

What happens if a judge fails to take the plea of an accused person? Does it constitute a miscarriage of justice and automatically nullifies the trial? 

Jurisprudence suggests that failure to take the plea of an accused person does not automatically mean a miscarriage of justice or nullify the trial. The law is that where the court fails to take the plea of an accused person yet proceeds with the trial and offers the accused person an opportunity to cross-examine witnesses and put up a case, no miscarriage of justice has been occasioned.^[5]  

In the case of Adabele and Others v The Republic,^[6] the pleas of the accused persons were not taken during the trial. However, the prosecution witnesses were cross-examined by the counsel for the appellant. Subsequently, counsel for the appellants made a submission of no case and lost. Counsel also had the opportunity to address the court at the close of their case. Throughout the different stages of the trial, he never raised any issue against the fact that the pleas of the accused persons were not taken. 

The High Court sitting at Bolgatanga held that the fact that the counsel participated in the trial from its inception to the end shows that the appellants were being tried on a plea of not guilty. The court was of the view that the appellants’ case was not prejudiced in any way and as such, on appeal, the conviction of the appellants could not be interfered with solely on the ground that their plea was not taken. This stance is entirely reasonable since, essentially, a plea serves the purpose of enabling the accused person to declare his/her intention to contend a particular charge made against him/her. 

The Supreme Court further clarified this principle in Ben Okeke v The Republic^[7], where it distinguished the earlier holding in Mensuo v The Republic. The Court noted that in Mensuo, the conviction was quashed because the accused was denied both the opportunity to plead and the right to present a defense. However, where a trial proceeds without a formal plea but the accused is given a full opportunity to defend the charges, the proceedings are equivalent to a ‘not guilty’ plea. In such instances, the procedural omission does not result in a miscarriage of justice. 

In conclusion, if an accused person in Ghana refuses to plead, the court will enter a not guilty plea for them. This rule makes sure a trial can still go on, even if the accused stays silent. It also protects two rights under the 1992 Constitution: the presumption of innocence and the right to remain silent. On the other hand, failure to take a plea does not nullify a trial, as long as the accused still gets to defend themselves. 

Note: The author is a prosecutor at the Office of the Attorney-General and Ministry of Justice, Ghana.

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^[1] Kofi Dagaarti (at large), Kadri and Proxy (at large) v The Republic (2016) JELR 66235 (CA)   

^[2] Ben Okeke v The Republic (2012) JELR 68556 (SC)  

^[3] (1971) 2 GLR 30 

^[4] Isaac Anim v The Republic (2016) JELR 66783 (CA); Dorvlo v The Republic [2001 – 2002] 1 GLR 679.

^[5] Frederick Annor (alias Nana Bonsu) v The Republic (2018) JELR 63813 (CA)   

^[6] Adabele and Others v The Republic [1984-86] 1 GLR 478-481

^[7] (2012) JELR 68556 (SC)