In the matter of Ato Forson & Jakpa: Did the Court Err?

Feature Article In the matter of Ato Forson & Jakpa: Did the Court Err?

Stay of Proceedings in a Criminal Trial: Common law courts have long recognised that once a person has been accused of a crime, the accused must be tried unless:

  1. The charges are held to be defective in substance or form;
  2. A plea at the bar is successful;
  3. A nolle prosequi is entered by the AG or
  1. The indictment disclosed an offence for which a particular court has no jurisdiction to try. Refer to relevant cases such as R v. Chairman, County of London Quarter Sessions; Ex parte Downes [1954] 1 QBJ at 6, Republic v. Tsikata [2003-2005] 1 GLR 336, and Blackstones Criminal Law and Practice 2021 Section D3 paragraph 66 for detailed insights.

In Republic v. High Court Human Rights; Ex Parte Naa Otua Swyne; Interested Party Prince Kofi Amoabeng Civil Motion № J5/8/2015, the Supreme Court overturned the High Court Human Rights division's ruling that Mr. Kofi Amoabeng's prosecution violated his human rights.

However, with the emergence of constitutionalism, common law courts have come to recognise a fifth limb under which the Court would stay criminal proceedings. This aspect is derived from the Court's inherent authority to prevent the abuse of the legal process.

Inherent Jurisdiction and Power
It is established that every Superior Court has the authority to intervene to prevent an abuse of process, although this authority is rarely exercised by the courts. See Republic

v. Akim Kotoku Chieftaincy Tribunal Ex Parte Adu and Others [1987-88] 1 GLR 118-122 CA.

This power is not derived from the Court's original, exclusive, or appellate jurisdictions; rather, it is the result of the residual powers required for the Court to perform its duties and functions arising from the exercise of, or in connection with, those jurisdictions.

Limitations on the Court's Inherent Jurisdiction

However, the inherent jurisdiction of the court is not unlimited. It arises only in situations where statute has made no prescription for a particular situation or circumstances. It was therefore held in Joseph v. Fabriso (Ghana) Ltd. (1991) 2 GLR 464–471, by the

Supreme Court that 'the inherent jurisdiction of a court could not be called in aid to resist or avoid a sanction the imposition of which was by the operation of law, nor could it be invoked to assist a party evade the requirements of a statute or a law for that matter."

This follows the fundamental common law rule that 'when a remedy is given by the Constitution and a forum is given by either the Constitution itself or statute for ventilating that grievance, then it is to that forum that the plaintiff may present his petition.' per Hayfron-Benjamin in Yeboah v. Mensah, citing Pasmore v. Oswald Twistle UDC [1898] AC 387 at 394, HL, the House of Lords, where Lord Halsbury said:

“The principle that where a specific remedy is given by a statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the statute is one which is very familiar and which runs through the law.” See also Republic v. High Court, Ho Ex-parte: Attorney General [2021] GHASC 11 (5 January 2021).

And in Joseph v. Fabriso (Ghana) Ltd. (1991) 2 GLR 464–471, the rule was set by the Supreme Court that 'the inherent jurisdiction of a court could not be called in aid to resist or avoid a sanction the imposition of which was by the operation of law, nor could it be invoked to assist a party evade the requirements of a statute or a law for that matter."

Inherent jurisdiction to ensure a fair trial

While the authority derives its source from the common law's 'insecapable duty to secure fair treatment for those who come or are brought before' any court, in Ghana, the 1992 Constitution entrenches this authority through Article 19, which establishes and guarantees the right to a fair trial. See also Lord Devlin in Connelly v. DPP [1964] Ac 125, page 1354.

According to that constitutional provision in criminal proceedings, there must be a fair trial in accordance with 'the law,' ensuring fairness for both the defendant and the prosecution, which represents the state's interests. The role of the Court is also established in this process as an independent and neutral arbiter, interpreting and applying the law in order to achieve justice.

Upon this arrangement, a duty falls on the Court to preserve its own purposes and functions from abuse, guarantee the legal process is not abused for unjust goals, and have the inherent power to accomplish that duty. Broadly speaking, therefore, the Court can stay any process or use of the legal process that is obviously intended to accomplish an unjust end.

Categorization of Abuse of Process in Criminal Proceedings

In Maxwell [2010] UKSC 48, the UK Supreme Court, per Lord Dyson, set out the common law scope of abuse of process as falling under two broad categorizations and involving a. those cases where the Court concludes that the accused cannot receive a fair trial and b. those cases where the Court concludes it will be unfair for the accused to be tried.

If the Court determines that a defendant cannot receive a fair trial, it must halt the prosecutions without considering competing interests. However, where the Court forms the view that it would be unfair to try the accused, the Court must undertake a further balancing assessment to identify where the interest of justice lies before making a determination. See Sir Brian Leveson P's summary on the scope and distinction between the two grounds at common law in Crawley [2014]. EWCA CRim 1028, {2014] 2 CR, and Lord Justice David in D Ltd v. A [2017] EWCA at 35.

In other words, while the first ground focuses on the trial process and compliance with the legal framework concerning the trial, such as the ongoing duty on the prosecution to disclose evidence in their possession and adverse to their case, the second limb focuses on whether the accused person should be standing trial at all.

However, what ties both categories together is the need for the court to seriously evaluate

  1. To what extent has the accused been prejudiced and
  2. To what degree are the rule of law and the administration of justice undermined by the behaviour of the investigators or prosecution?

Two of the grounds that fall under the second limb of the categorisation requiring the Court to undertake a balancing exercise before the grant of a stay of proceedings in a criminal trial are breach of legitimate expectation not to prosecute and abuse of executive power.

Breach of Legitimate Expectation
In Abu Hamza [ 2006] EWCA Crim 2918, the Court of Appeal for England and Wales established the common law proposition that where a person has been told they will not be prosecuted for an offence, and a subsequent prosecution follows, it is unlikely to constitute an abuse of process unless

  1. There has been an unequivocal representation by those involved in the conduct of the investigation or prosecution of a case that the defendant will not be prosecuted and
  2. The defendant has acted on that representation to his detriment.

This is, however, not a test, as satisfaction of the same would not automatically lead to a grant of a stay, but rather an assessment guide employed by the courts to identify where justice falls. Therefore, in Killick [2011] EWCA Crim 1608, Lord Justice Thomas said in stating the applicable guidance that 'there must be an unequivocal represensation..upon which the defendant relies to his detriment', the Lord Justice was however quick to add , 'there can be circumstances where, even in that situation, it would not be an abuse of process.'

The logic underlying this approach was stated in Abu Hamza by Chief Justice Philips when he said that 'it is usually in the public interest that those who are reasonably suspected of criminal conduct should be brought to trial. Only in rare circumstances will it be offensive to justice to give effect to this public interest' .

Executive Misconduct
In Ahmed [2011] EWCA Crim 184, situations where the alleged wrongdoing did not connect to the actual trial were ruled out as being capable of invoking the jurisdiction of the Court to stay proceedings of a criminal trial.

It was held by the Court of Appeal per Lord Justice Hughes that 'the jurisdiction [to stay proceedings for abuse of process] does not exist to discipline the police or other executive arms of state (although, of course, it will incidentally do so) but rather to protect the integrity of the process of justice.'

Law Justice Huhges, in commenting on the circumstances in which the jurisdiction to stay prosecution on the ground of abuse of executive powers was exercisable, said the jurisdiction was exercisable 'where, by reason of gross executive misconduct manipulating the court process,the defendant has been deprived of the protection of the rule of law and it would, as a result, be unfair to put him on trial at all.'

Therefore, in Ahmed, even though the defendant had been tortured outside the jurisdiction, the Court of Appeal held it was right that an application was refused by the trial judge since no evidence that was the product of the torture or ill-treatment had been adduced at the trial, nor did the prosecution attempt to make their case on the basis of any evidence obtained as a result of the torture of the defendant outside the United Kingdom.

Situations where the alleged wrongdoing could not be connected to the trial were thus ruled out as invoking the jurisdiction of the court to stay proceedings as an abuse of the process.

And in Warren v. A-G for Jersey [2011] UKPC 10, Lord Justice Kerr established, at paragraph 83, the factors to be taken into account before granting a stay of proceedings on the premise that the continuous prosecution of the accused would bring the administration of justice into disrepute due to an abuse of executive powers.

  1. A stay in the second category of cases shall be given where necessary to maintain the integrity of the criminal justice system;
  2. A balancing of interests should be done in evaluating whether a stay is warranted to serve the fundamental goal of protecting the integrity of the justice system. And while the court should not allow any approach that indicates the ends justify the method adopted in criminal litigation, the court must accord sufficient weight to the public interest that those charged with grave crimes should be tried;
  3. The but for element, where if it can be proven that but for the misuse of executive power, the defendant would not have stood trial, is only one of the reasons the Court should take into account but shouldn't be determinative of the issue; and
  4. A stay should not be granted solely for the purpose of punishing or disciplining misconduct by prosecutors or police. But rather, the focus should always be on whether a stay is required to maintain the integrity of the legal system.

Applying the principles to the facts
Jakpa's Application
Jakpa's application in the recent ambulance trial was founded on the premise that the AG previously communicated to him an intention not to prosecute. His legal argument therefore is by going back on the promise, the honourable Attorney-General has engaged in a breach of legitimate expectation not to prosecute. And therefore, his prosecution engages the second limb of the abuse of process categories.

However, it is evident that a comparable standard applies to actions involving misrepresentation. To succeed on this point, therefore, Jakpa had to demonstrate that :

  1. The AG had made 'an unequivocal representation' not to prosecute;
  2. that he had relied on that representation to his detriment; and
  3. his prosecution under the circumstances would be against the public interest and offend the Court's sense of justice and propriety.

It is clear from the above that there is a huge evidential burden on those seeking to halt proceedings on this ground, which was simply not fulfilled by Jakpa in his application.

He never exhibited any document or otherwise established the so-called unequivocal promise made by the state not to prosecute him, nor did he show how he relied on that promise to his detriment or, even assuming his allegations to be true, how his continuous prosecution, in a case where the Court has ruled he has a case to answer, would be against the public interest or be offensive to justice.

The Court could therefore not stay proceedings on the basis he had requested. Upon the evidence, the Court could not have concluded that Mr. Jakpa would not receive a fair trial, nor could it have reasonably concluded that it would have been unfair for the State to continue prosecuting Jakpa. The application was therefore properly dismissed, even if on grounds separate from what has been canvassed above.

Ato Forson's Applications
Ato Forson's applications were built on the premise that, due to executive misconduct or abuse of executive powers in bringing the prosecution, his continued prosecution violates his fundamental human rights and will offend the Court's sense of justice and propriety by bringing the administration of justice into repute. The sum effect of his claim was therefore to enforce his fundamental human rights to a fair trial and administrative justice.

Alternatively, it could be seen as an application brought on the basis that his continuous prosecution is an abuse of process due to executive misconduct.

If seen as a claim to vindicate fundamental human rights, then it would be dubious for the High Court, exercising criminal jurisdiction, and in the clear face of Article 33(1) and Order 67 of the High Court (Civil Procedure Act) to accept the application.

That is because the law defines a procedure to be taken for those claims for enforcement of human rights where a person elects to resort to the legal system . Ohene-Djan v. Attorney-General [1979] GLR 213-218.

The treatment of the claim as a human rights claim finds support in the test set by Mrs Justice Bamford-Addo JSC in Abel Edusei v. The Attorney-General & Director, Bureau of National Investigations (BNI) [22/04/1998] CM No 21/96 to the effect that in determining whether a court has jurisdiction,'matters to take into consideration included the statute that invests jurisdiction, as well as the true nature of the claim having regard to the pleadings,issues, and reliefs. For the purposes of this paper, the application is considered an application founded on abuse of executive powers.

However, as set up above, the evidential burden in relation to this ground must demonstrate conduct by the prosecution that is so gross in its proportionality in manipulating the court process so as to entirely deprive Ato Forson of the protections inherent in the right to a fair trial as well as a sufficient nexus between the prosecutorial misconduct and the actual trial.

The evidence upon which Ato Forson founded his application, however, was primarily the tape conversation between the Honourable Attorney-General and Mr. Jakpa and reports in the media arising out of it. Concerning the matters on the tape, two points can be raised.

First, even if it is accepted that by having the conversation, the Attorney-General misconducted himself, the jurisdiction of the High Court to inquire into the matters would be specifically ousted by the operation of Regulation LI 2423 with the same vested exclusively in the Disciplinary Committee of the General Legal Council.

Second, even if the conversation is taken to amount to prosecutorial misconduct, it fails the common law standard requiring the misconduct to be so gross as to entirely strip the defendant of the right to a fair trial. On the evidence presented at the trial, the trial court overruled a submission of no case that had not yet been appealed. The Court was therefore convinced upon the evidence adduced that the prosecution had established the essential elements of the crime charged and was in a position to safely convict upon the evidence should Ato Forson and Jakpa elect not to open their defence.

None of the evidence relied on by the Court in arriving at this determination was based on any admissions by Jakpa. Neither did Jakpa at any point turn King's evidence due to the conversation with the AG. Thus, there was no direct connection between the tape conversation and the trial proceedings. Rather, in applying the guidance set by the Privy Council in Warren, it would be seen that even on the assumption that the AG engaged in misconduct, such misconduct was not capable of bringing the administration of justice into disrepute among sane minded persons, nor would the public interest justify a stay of proceedings, which is entirely purposed to defeat the Court's ruling that a case to answer has been built upon evidence not tainted by the misconduct.

In conclusion, the Court was right to dismiss the application as its inherent jurisdiction was not properly invoked in relation to the exercise of the court's inherent jurisdiction and the evidence adduced did not meet the requisite standard for the court to exercise its unusual powers.

Kofi Opare Hagan Barrister, Middle Temple
LLM Advanced Advocacy, Advice and ADR

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