Disclosure In Our Criminal Trial Process

Lawyer Seth

Does the Supreme law of the land, the 1992 Constitution, prohibit the disclosure of information to the defence prior to the commencement of a criminal summary trial? Is the criminal trial procedure abreast with best international practices and standards?

Sadly, in our criminal justice system, the Attorney General, per its representative, the police and prosecution, refuses to disclose information and documents to the defence for the preparation of defence prior to the commencement of a criminal trial.

The Ghana Bar Association, in conjunction with the Law Reform Commission, must therefore take a critical look at Article 19(2) e of the 1992 Constitution and call for reform of the Criminal Procedure Code that would afford judicially enforceable rights to the accused person in a criminal trial.

It is true that in indictable offences, both sections 181 and 182 of the Criminal Procedure Code call upon the prosecution to disclose, by way of a bill of indictment, a summary of the evidence against the accused prior to the commencement of a criminal trial.

Unfortunately, this is not so in summary trials where such trials constitute the majority. Rather, the functions of cross-examination and examination in chief become the principal method to gather information, test the credibility and reliability of witnesses and the prosecution's exhibits. Clearly, this causes unnecessary delays, offends the constitutional principle of fair trial, trial within a reasonable time and equality before the law.

Of course, during the trial process, the defence may make an application for copies of all documents tendered at trial. Regrettably, such application in the middle of trial does not allow the defence to adequately prepare their case against the state. In fact, the strife in the courtroom where contention becomes the life blood does not allow the defence enough time to adequately prepare to an offence like robbery that could likely cause a jail sentence of 25 years.

Indeed, it is time we moved from the aged old strategy of springing a surprise in a criminal trial to an era in conformity with international standards of fairness and efficiency in the administration of justice.  As the courts have reiterated, ' The fruit of a criminal investigation are not the property of the prosecution for use in securing a conviction but the property of the public to be used to ensure that justice is seen to be done'.

Article 14(3) b of the International Covenant on Civil and Political Rights of which Ghana is a signatory states that: 'A person charged with a criminal offence shall have the rights to adequate time and facilities for the preparation of his defence with counsel of his choosing'. This international legal instrument has found its way in Articles 19(2) (e) of our 1992 Constitution which provides that: 'A person charged with a criminal offence by a court shall be given adequate time and facilities for the preparation of his defense.

A solicitous and meticulous reading of the linguistic expression of the said Article 19(2) e of the 1992 Constitution is that the following element must be complied with prior to mounting a defence to a charge:

The person must be charged by a court
The person charged must be given adequate time
3.  The person charged must be given facilities
Interestingly, the constitution does not make a distinction between offences, whether it is indictable or summary. The Criminal Procedure code must, as such, be amended in accordance with the provision of the said constitutional provision.

Secondly, an attentive reading of the 1992 constitution and the international legal instrument does not define the word 'facilities' that should be provided to the person charged in order to prepare his defence as contained in the said provisions; neither has our Criminal Procedure Code been amended in accordance with the word 'facilities' that should be provided to a person charged as contained in Article 19(2) (e) of the 1992 constitution.

However, according to Lawyers Committee for Human Rights: A basic guide for legal standards and practice, 2000, the term 'facilities', as contained in Article 14(3)b of the International Covenant on Civil and Political rights and borrowed into  Article 19(2)e of the 1992 Constitution, has been defined. It provides that the term “facilities' within article 14(3) b of the International Covenant on Civil and Political rights means that a defence counsel must be granted access to appropriate information, files and documents necessary for the preparation of a defence and the defendant must be provided with facilities enabling communication, confidentiality with defence counsel.

In jurisdictions like the UK, particularly the Republic of Ireland, the criminal courts there apply a test whether disclosure is necessary in summary trials. In that Irish jurisdiction, the test to disclose information to the defence, prior to commencement of a summary trial, is whether in the interests of justice it will be necessary to provide the defence with disclosure of documents in the hands of the prosecution. In that jurisdiction, their supreme court in the case of Director of Public Prosecution v Gary Doyle 1994 2IR 286 identified four factors as possibly relevant to the court's decision in disclosing information to the defence prior to trial:

The seriousness of the charge
The importance of the statements or documents:
The fact that the accused has already been adequately informed of the nature and substance of the accusation;

The likelihood that there is no risk of injustice in failing to furnish the statements or documents in issue to the accused.

In our Ghanaian jurisdiction, a person charged with the summary offence of robbery, for instance, can easily get the maximum of 25 years in jail sentence, if convicted. Yet in the interest of justice, he will not be given a pre-trial disclosure documents to prepare a defence.

Unlike in Ghana, in Canada, a person charged with a serious offence has a constitutional right to disclosure as a component of his right to life, liberty and to make full answer and defence. As such, that country's criminal code has been amended. Their section 603 is as follows: An accused is entitled, after he has been ordered to stand trial or at his trial,

a.  To inspect without charge the indictment, his own statement, the evidence and the exhibits, if any; and

b.  To receive, on payment of a reasonable fee determined in accordance with a tariff of fees fixed or approved by Attorney General of the province, a copy

i)            Of the evidence,
ii)         Of his own statement, if any, and
iii)      Of the indictment;
But the trial shall not be postponed to enable the accused to secure copies   unless the court is satisfied that the failure of the accused to secure them before the trial is not attributable to lack of diligence on the part of the accused. 

The Ghana Bar Association, as men and women of law and the Law Reform Commission, must go beyond waiting for the Supreme Court to determine what constitutes fair trial. We must also make proposals to amend the criminal procedure code in accordance with the 1992 constitution that relates to fairness and fair play in the administration of justice.

The following recommendation in light of Article 19(2) e of the 1992 Constitution may be added to the criminal procedure code as follows:

A prosecutor shall not proceed with a criminal prosecution at the time that the accused first appears unless he has satisfied himself:

That the accused has been given a copy of the charge sheet, police investigative report, witness statement and all other relevant document against him in the prosecution.

That the accused has been advised of his right to request for facilities for the preparation of his defence.

Upon request to the prosecutor, the accused is entitled to be provided with all relevant facilities before being called upon to plead to the charge of an indictable/summary offence.

That the accused has received upon payment of the required statutory fee, a copy of the charge sheet, police investigative report, his own statement and other relevant document

The term 'facilities' should in our code be defined as all relevant documents in the possession of the prosecution and the police that may aid a person charged with an offence to prepare for his defence.

Constitutional Law has a pervasive and foundational influence on criminal law and it is relevant at all stages of the trial process. There can be no doubt that the enactment of the recommendation above would mark a significant innovation in the criminal procedure code in conformity with the 1992 Constitution that would afford judicially enforceable rights to the accused. It will also reduce the unnecessary adjournments, delays and backlog of cases in the court as well as reduce the overburden workload on judges, especially in the circuit courts where they still do not have automated system of recording proceedings.

Seth K. Awuku, Barrister & Solicitor, Takoradi