Without a doubt, the Police are the gateway to the criminal justice system.
This is because, in most cases, they set the criminal process in motion by effecting arrests, even though ordinary citizens can also arrest in what is termed ‘a citizen’s arrest’, and then hand the suspects to the Police. The Police also investigate crime and, in some cases and mostly at the district and circuit court level, prosecute offenders. Generally, the Police have the power to arrest, investigate crime and prosecute suspects if there is enough evidence for a successful prosecution.
A Police Officer can arrest a person if he has reasonable grounds that a crime has been committed and he/she believes the suspect might abscond. The officer has the power to detect and secure as evidence in court.
The law governing the arrest and possible prosecution of suspected criminals largely derives from the Constitution, the Criminals and Other Offences (Procedure) Act, 1960), (Act 30). The rights of arrested persons, in no particular order of importance, are largely but not limited to the following:
• The right to be told, in a language that the suspect understands, the offence committed and the reason for the arrest.
• The right of the suspect to remain silent except on questions designated to find his/her identity and address.
• The right to be informed to consult a lawyer of his choice.
• The right to be taken to a police station or an authorised detention centre for questioning.
• The right to be allowed to a near relative of the arrest and/or detention.
• The right to an interpreter who speaks his/her language to facilitate questioning.
• The right to bail after 48 hours of questioning.
• The right not to be tortured, coerced or humiliated.
• The right to be presumed innocent.
Arrested persons
There is a general dearth of research into the observance or otherwise of the rights of the suspect and the views expressed here are personal and derived from my engagement with the criminal justice system in Ghana, following my return from law practice in England.
Arrests
Most of the clients I have represented have told me that those rights were not either explained properly to them on arrest or at all.
Questioning of arrested persons
This aspect of the criminal process is by far the most crucial of all pre-trial police work: it gives the police the chance to ascertain whether to proceed to trial and also offers the arrested person the opportunity to give out facts that may move to his release or defence. The law provides for the presence of an independent observer and also of a lawyer for the suspect.
With regard to an independent observer, this aspect is largely complied with but there are operational problems as most of these so-called ‘independent observers’ are either members of the police or other security personnel. In the cases where they are ordinary members of society, they are repeat observers. The right to have a lawyer present is not always honoured as many of the cases in which I have been involved have recorded this phenomenon. Even though many of these suspects have signed or thumb-printed to the effect that their rights were read to them in their police caution statement, many allege they are coerced or beaten to sign or thumb-print.
Challenging caution statement
A suspect can challenge a caution statement at trial which will lead to the not admitting to a confessed statement in a mini-trial (voir dire). Most of such challenges fail, even when the suspects have visible scars or injuries because largely, it is the word of the Police against theirs and the courts tend to accept the version of the police.
Also, the independent observers invariably give evidence in the mini-trial that the rights of the accused persons were read to them and they understood.
The solution to this problem lies in Ghana adopting best practices from other jurisdictions in having the police questioning videoed or at least audio recorded. To offset arguments of lack of resources to videotape every police questioning, it is recommended that police stations are equipped with smartphones that can record.
Again, the courts have to be circumspect in accepting caution statements where no counsel was available for the suspect and refuse the evidence of a confession if the police are unable to provide a reasonable excuse why the confession was obtained in the absence of a lawyer.
