The Police, BNI and the Rule of Law
ABSTRACT Clive Ponting a former senior civil servant at the UK Ministry of Defence (MoD), became well-known in July 1984, when he sent two documents to Labour MP- Tam Dalyell, about the sinking of an Argentine naval warship General Belgrano. This led to his trial that was seen as a celebrated case in British legal history, as it centred on serious issues about the validity of the 1911 Official Secrets Act and the public's “right to know”. Ponting's resignation as a civil servant and the ensuing serialisation of his book The Right to Know: the inside story of the Belgrano affair, by The Observer, raised security eye-brows to the extent that the then Conservative government of Margaret Thatcher, counteract it with the UK secrets legislation, and the introducing the 1989 Official Secrets Act and removing the public interest defence which Ponting, had successfully used to avoid being convicted.
INTRODUCTION The rights of individuals, according to A.V. Dicey (1), are determined by legal rules and not the arbitrary behaviour of authorities- whether elected or appointed. There can be no punishment unless a competent court decides there has been a breach of law. Thus everyone, regardless of his/her position in society, is subject to the law. The critical feature to this rule is that the realisation of individual liberties depended not only on the role of trial by jury and the impartiality of judges, but also hinges on Prerogative Orders.
Ghana In Retrospect
In the 1992 Republican Constitution of Ghana, the President and by extension his ministers of state wield the prerogative powers. The imports of rule of law, is that the prerogative powers of the King and in our current consideration the Executive- be it Presidential, Parliamentary or a fusion of both- as the Ghanaian Constitution appears, must be exercised with discretion. A.V. Dicey (ibid) defines Prerogative Orders as the residue of discretionary or arbitrary authority, which at any given time, is legally left in the hands of the Crown and in our modern societies, as in the Republic of Ghana, often exercised by either (un)elected ministers of state as well as inherent powers and discretions granted by states' constitutions to governmental institutions and/or agencies. Yet the prescripts and dictates of civil society, and here God-given rights considerations have come to contain their scope of operations through various human rights legislations. It is suggested that this observation, is undoubtedly right in that the answer to the question of what constitutes prerogative powers as evoked by most presidents and their appointed ministers varies depending on whether the commentator was a staunch monarchist or not and/or s/he believed in the doctrine of the divine right of kings or not. So in The Royal Prerogative Revisited ((1965)) AC 75, Lord Reid seemed to suggest at 99 that it is extremely difficult and yes, to be precise about the definition of Prerogative Order because in former times there was seldom a clear cut view of constitution position.
In other words the 'constitutional position' was as much political statement as a matter of legal fact. Lord Reid clarified by pointing out the uncertainty inherent in prerogative- that the old authorities may not be satisfactory to modern era: “I think we should beware of looking at the older authorities through modern spectacles. We ought not to ignore many changes in Constitutional law theory which culminated in the Revolution Settlement of 1688-1689 and there is practically no authority between that date and 1915,” he reasoned. What then, was the 'Revolution Settlement of 1688-1689? Dr Edward Vallance (3) writes that the Revolution replaced the reigning king, James II, with the joint monarchy of his protestant daughter Mary and her Dutch husband, William of Orange… Yes even the Kingdom of Great Britain where Republic of Ghana arguably, benefited much from its institutional architecture (politics/societal norms), has indeed its own odds.
It is contended that central government has sought and seeks to weaken the three basic tenets of Dicey's code with an increase in things such as: the Official Secrets Act, the attempt to remove an individual's right to trial by jury, the activities of the Secret Service (after 9/11) in removing what were considered traditional rights (such as the workers right at GCHQ to belong to a trade union under the Thatcher (restored, since 1997). Not forgetting the gagging clause that now has to be signed by those in the Civil Service after the Clive Ponting and Belgrano issue shortly after the end of the said Falklands War. Introspectively argued, in the Republic of Ghana various civil/military regimes had also sought to weaken individual freedoms and liberties. So even in our current democratic trials many had come to the conclusion idea that state actions, could be beyond rebuke?
Under the heading “BNI can interrogate you without counsel” (myjoyonline, Thursday 19 June 2009), a leading member of the ruling National Democratic Congress Mr. David Annan, submitted that the Bureau of National Investigations (BNI), violates no law of the land when any of its personnel interrogate people in the absence of their counsel. “The fact that Article 14 (2) (of the constitution) does say that a person who is arrested, restricted or detained must be informed in detail of the reasons for his arrest and the right to a counsel of his choice does not mean that after the arrest, restriction or detention and after them informing you of your right to the lawyer of your choice, that lawyer goes through every single procedure that then follows,” lawyer Annan had said.
Mr. Annan is said to have argued that “from practitioner point of view, counsel comes in when you have to write a statement, and that that has been the practice so far.” In the Kingdom of Great Britain, individual(s)- be you a citizen or foreigner (White Brits or minorities), still retain a great measure of personal freedom although many, it is argued, and it seems so, will never be affected by the Official Secrets Act or the activities of Britain's secret services (though it is said, many may not know if they are being investigated or not). The argument here is that as a law-abiding citizen- you need never worry about organisations such as the Police, MI5 and MI6 because there are rules and indeed bodies– such as the Council of Tribunals and the Parliamentary Commissioner that theoretically monitor and yes, oversee the work/activities of these government agencies.
It is undoubtedly true that these bodies help to protect the rights of the individual at the expense of any unjustified incursions into their personal freedom by government agencies. In the context of judicial practice, there are for example, three Prerogative Orders: Certiorari calls a case up from an inferior court to a superior one to ensure justice is done. Prohibition prevents an inferior court from hearing a case it does not have the power to listen to and Mandamus orders an inferior court to carry out its duties. It might have been this premise that various political and legal commentators had construed Lord Reid's legal position on royal prerogative of state functionaries to mean that the old authorities have to be read in their context, which includes constitutional theory as well as law- meaning political and practical political arrangement of each era.
The legal twist in Ghana today appears to be the right to intimation and legal advice for individuals suspected of criminal offence. The old practice, as our learned David Annan seems to allude here, is the rather uncomfortable truth about how perhaps out of frustration, security services and sometimes, the civilian population, mishandled alleged criminals. More often than not some are mercilessly, beaten and in worse cases, killed. For this reason we are told by Mr Annan- counsel for the jailed armed-robber Atta Ayi that in Ghana, “the law is that evidence, no matter how improperly it is obtained, is admissible in court if it is relevant to the matter.”If you give answers that incriminate, it is for your lawyer to before then, tell you that 'do not answer any question which will incriminate you'. What answer will incriminate you is particularly within your own knowledge, you are the only one who knows what answer will incriminate you so your lawyer is not supposed to be answering questions…,” the Ghanaian legal practitioner and, NDC guru Annan had told JoyFM's Super Morning Show presenter Kojo Oppong-Nkrumah.
Indeed lawyers are neither trained to mislead the court nor champion the cause of inconsistent client but we could sense the obvious bottlenecks and frustrations within our judicial system. But make no haste in throwing stones in that even in the Kingdom of Great Britain with the said constitutional experiment since 1066, some supporters of a written and clearly defined constitution concede with some justification that a modern society such as the UK and in our present case Republic Ghana, with nearly out-of-control cases of immigration controls at our porous frontiers, arm robberies and contract killings, bodies like BNI, MI5 and MI6 are surely needed. Simply because there might be a tiny number of individuals who might yes, wish to subvert society and have to be dealt with ruthlessly. Yet Mr Ace Ankomah, another legal practitioner, according to the report, disagreed with the NDC legal luminary Annan, arguing that the right to counsel is not as hollow as he is putting it- that it is at the point of bail that” the counsel must be present.
“When you are arrested, at every stage of your being questioned, you are entitled to have the lawyer of your choice present or you (can) say 'I will not answer the questions if my lawyer is not present,'” he stated. In making his case Ankomah refreshed learned Annan's memory on The Republic vs Otoo and Kwapong, where in the words of Ankoma, the defendants had been called upon to speak on matters which might incriminate them, but they refused to speak, and were taken to court on contempt where the court held that no, you could not compel them to speak under those circumstances.” From this reasoning, learned Ankoma is said to have submitted that the “most reasonable and sensible thing to do is to recognize the meaning of the right to counsel- the lawyer being there and being an advocate, he is not answering questions but he is guiding his client.” This is consistent with perhaps, the imports of one of the most famous legislations in UK.
Police Powers and Authority
We begin by highlighting that the police like all other security agencies, are not our enemies but rather, friendly forces who rely on our co-operation to be efficient in their roles. The fundamental role of the security forces and here- the Police and the Bureau of National Investigations (BNI)- an offshoot of the then “Special Branch” of the Ghana Police Force, is to protect life, property and in the judgement of JusticeGhana, individual freedoms and liberty. For example, Article 200(1) states that there shall be Police Service of Ghana; (2) No person or authority shall raise any police service except by or under the authority of an Act of Parliament. Sub-section 3 provides that the Police Service shall be equipped and maintained to perform its traditional role of maintaining law and order.
The performance of this role is guided by the spirit and letter of the Preambles of the Constitution which are- friendship and peace with all peoples of the world; and above all, commitment to the Rule of Law- Freedom, Justice, Probity and Accountability. These are reinforced in the provisions of Chapter Five and indeed Chapter Six of the Constitution. Article 12 to 41, set out a whole range of fundamental human rights and freedoms considerations as well as state policy directives and principles. But like any member of the Executive and here, law enforcement agents around the world; it is certainly true that some of their (in)actions might be undoubtedly professionally biased in favour of the ruling government which is/was the source of their power, influence and authority. So there are instances where police (in)actions might be even politically/culturally personal.
Perhaps, it is in response to some of these cries and wails of the general public that the UK legislators came up with the Police and Criminal Evidence Act 1984 (PACE) and its accompanied Codes of Practice. These provide the fundamental regime of police powers and safeguards of reoccurring and contentious issues such as stop and search, arrest, detention, investigation, identification and interviewing detainees. According to UK Home Office, PACE sets out to strike the right balance between the powers of the police and the rights and freedoms of the public- maintaining that balance is a key element of PACE.
What is of comparative interest here is that under traditional English common law which our learned Annan points out, improperly obtained evidence has always been prima facie admissible so long as it was relevant to an issue in the case. In Kuruma v. The Queen  A.C. 197 ((an unlawful search by the police,)) Lord Goddard rejected the contention that evidence illegally obtained was inadmissible by saying that: “the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained”. Yet he went on to say that: “No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused”. For example, under the current UK law- PACE S.78, evidence obtained by tricks, entrapments or coerced confession could be inadmissible.
For example, unlike Kuruma, in the UK FA Cup-winning club manager Harry Redknapp's High Court case (Times Online, 23 May 2008), Lord Justice Latham and Mr Justice Underhill had said that flaws in the arrest warrant were “wholly unacceptable” and that “the obtaining of a search warrant is never to be treated as a formality ((because)) it authorises the invasion of a person's home”. The police staged a dawn raid on his home in Sandbanks, Dorset, while he was returning from watching a match in Germany. According to Times, when Redknapp went voluntarily from Gatwick to meet officers at Chichester police station later that day, he was arrested and put in a cell in connection with an inquiry into football transfers at the Portsmouth club but was freed later on bail.
Mr Redknapp successfully sued City of London Police on two grounds: that the police failed to explain to a magistrate why they needed a warrant: why they thought that they could not communicate with the occupier, why the occupier would not let them in or why it was suspected that the subject of the investigation might destroy evidence. The other argument was that the document omitted his address. The search warrant given to Mrs Redknapp while her husband was away, failed to state that police were entitled to search that home. It was deemed therefore, as trespass and police will have to pay £1000 damages, which will be donated to charity. The force was also ordered to pay 25 per cent of Redknapp's legal costs. This case cost the UK tax payer around £50,000. In Ghana, there had been instances where BNI officials, with conflicting defined roles, are engaged in ordinary immigration/police duties as passport controls and impounding cars. The lessons here are that notwithstanding the complexities of modern crimes, any attempt on the part of law enforcer to rush or swim hurriedly through the process might not only have adverse effect on the poor who could hardly engage skilful lawyers in defence of an allegation that s/he might be innocent but also could even glorify a well-known alleged corporate or political crimes because of perceived bad faith, abuse of process, and improper conduct of the law enforcement agents. In UK, the police's failure, before questioning or interviewing, to caution (Code C 10, PACE) a suspect about the consequences of his right to silence and its plausible adverse inferences in future trial, might likely affect the prosecution's case. So could the failure to inform him about his right to legal advice (s58 PACE) and where possible, to intimation- making someone of his choice aware of his arrest/detention (s56 PACE). JusticeGhana.com may be sounding like “neo-colonial provocateur”. But since Ghana has neither “State Duma, Reichstag nor asafo/police”, but rather Parliament/Supreme Court, it may have been honest apprentice.
Conclusion It seems but with caution that no matter the magnitude of our crimes, the security forces, cannot interrogate you if we were to exhaust any of the cited human rights. The old rules no longer apply- thus, the basic principles on the role of lawyers, as adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders (Havana, Cuba, 27 Aug. - 7 Sept. 1990), among others, “is to advising clients as to their legal rights and obligations, and as to the working of the legal system in so far as it is relevant to the legal rights and obligations of the clients…” If not, why academics/ legal practitioners hunt not only for relevant rules but also, attempt to expose its flaws?
By Justicehana.com/The OmanbaPa Research Group