Ghana School of Law PLC: Criminal Procedure (GLC) cheat sheet

Article 19 of the 1992 Constitution guarantees fair trial: presumption of innocence, adequate time and facilities to prepare a defence, counsel of choice, free interpreter, public trial, and trial within a reasonable time.

Article 14 permits deprivation of liberty only on grounds permitted by the Constitution; a detained person must be informed in a language he understands of the reason for arrest and the right to a lawyer.

Article 15 protects dignity; evidence obtained by torture or inhuman treatment is inadmissible and a confession so obtained is void (Article 15(2) and (3)).

Article 19(10): a person convicted must be allowed to appeal to a higher court; Article 19(11) bars conviction for an act that was not an offence at the time it was committed.

Article 19(5): a person who has been pardoned or acquitted cannot be tried again for the same offence - the constitutional anchor of autrefois acquit.

Article 19(13): a person tried for an offence is entitled to be present, unless he misconducts himself so as to make continuance in his presence impracticable.

Article 33 (human rights enforcement) is available where an alleged breach of a fair trial right is not remediable in the ordinary criminal process.

Article 130: the Supreme Court has original exclusive jurisdiction over questions of interpretation or enforcement of the Constitution, including fair trial claims.

Article 19(2)(c) and (d) require trial in public save where a court orders otherwise for good cause, and require the accused to be given adequate facilities to prepare his defence.

Under sections 3 and 4 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), an arrest may be made with or without a warrant; a private person may arrest only for an offence committed in his presence or on reasonable suspicion of a felony.

Section 10 of Act 30: a person arrested shall not be kept in custody longer than 48 hours unless brought before a court; Article 14(3) of the Constitution imposes the same limit.

A warrantless arrest is lawful where the officer has reasonable grounds to suspect the person has committed or is about to commit an offence, or where the person obstructs a police officer in the execution of his duty.

Before searching a person, the arresting officer must inform him of the grounds of arrest and the right to counsel; failure to do so weakens the prosecution's case.

Section 8 of Act 30: the person arrested must be informed of the reason for arrest and, as soon as practicable, be permitted to communicate with his lawyer and family.

A search warrant must specify the place and items to be searched and seized; a general warrant is void for overbreadth.

Evidence obtained through an unlawful search is subject to exclusion at the court's discretion; the court balances probative value against unfairness to the accused (Article 19 fair trial considerations).

Habeas corpus: a person unlawfully detained may apply to the High Court for an order of release; the burden is on the detaining authority to justify the detention.

Article 14(4) of the Constitution: a person who is arrested or detained shall be entitled to be released on bail, with or without conditions, pending trial, unless the court is satisfied that he may not appear or may interfere with witnesses or the investigation.

Section 96 of Act 30: the High Court and Circuit Court may grant bail in any case; the District Court may grant bail in respect of offences other than those specified (e.g. treason, murder, robbery, narcotics offences) where the court has no jurisdiction.

Bail is discretionary in non-capital cases; in capital offences (treason, murder, robbery, narcotics) the High Court may grant bail only in exceptional circumstances.

When considering bail, the court weighs: nature and seriousness of the offence, strength of the prosecution's case, character and antecedents of the accused, ties to the jurisdiction, risk of flight, and risk of interference with witnesses.

A refusal of bail must be reasoned; an unreasoned refusal is vulnerable on appeal and on an application under Article 14.

Sureties must be persons of means and standing who can produce the accused; a surety's recognisance is forfeited if the accused absconds.

Remand: where bail is refused, the accused is remanded in custody and the case must be mentioned periodically; remand should not become punitive detention before trial.

Section 99 of Act 30: a court may vary or revoke bail conditions on application by either party where circumstances change.

The High Court has original jurisdiction in all criminal matters (Article 140 of the Constitution) and may try any offence; it also hears appeals from the Circuit and District Courts.

The Circuit Court has jurisdiction over offences punishable by imprisonment exceeding 10 years or by death, except where the High Court has exclusive jurisdiction.

The District Court has jurisdiction over summary offences punishable by up to 2 years' imprisonment or a fine, and may commit an accused for trial at the High Court where the offence exceeds its jurisdiction.

The Supreme Court has appellate jurisdiction in criminal matters (Article 131) and may review its own decisions in exceptional circumstances (Article 133).

Venue: the proper venue is the court within whose district the offence was committed; where the offence is committed across districts, either court may try it.

Section 45 of Act 30: a court may order transfer of a case to another court of competent jurisdiction in the interest of justice.

The Juvenile Court (now the Family Tribunal and Juvenile Court under the Juvenile Justice Act, 2003, Act 653) has jurisdiction over offences committed by persons under 18.

Courts martial and disciplinary tribunals have limited jurisdiction over service offences; their decisions are subject to review by the High Court on grounds of excess of jurisdiction.

Criminal proceedings may commence by complaint, by charge, or by information/indictment; summary offences are commenced by complaint or charge in the District Court.

Section 56 of Act 30: a charge must be in writing, signed by the prosecutor, and must state the offence with sufficient particulars to enable the accused to know what he is charged with.

A charge must contain the statement of the offence and the particulars of the offence; a defective charge may be amended by the court at any time before judgment.

An indictment is filed in the High Court by the Attorney-General or a public prosecutor; it must be accompanied by a summary of evidence and witness statements (disclosure).

Section 63 of Act 30: where the charge is defective, the court may order amendment; an amendment that prejudices the accused's defence may result in an adjournment or a new trial.

Duplicity: a single count should charge a single offence; a charge that is duplicitous is bad for uncertainty and may be quashed.

Alternative counts and multiple counts are permissible where the evidence is unclear as to which offence was committed; the court may convict on one and acquit on the other.

The right to be informed promptly of the nature of the charge (Article 19(2)(b)) is fundamental; a charge served late may support an abuse of process application.

First appearance: the accused is arraigned, the charge is read to him in a language he understands, and he pleads guilty or not guilty (section 63 of Act 30).

Where the accused pleads guilty, the court must satisfy itself that the plea is voluntary and unequivocal; a guilty plea must be entered personally by the accused.

Disclosure: the prosecution must disclose witness statements, exhibits, and any material that may assist the defence; failure to disclose may lead to a stay of proceedings or exclusion of evidence.

Case management: the court sets timelines for filing of statements, lists of witnesses, and pre-trial applications; non-compliance may attract costs or dismissal.

Section 70 of Act 30: the court may order a preliminary inquiry (committal proceedings) in the District Court before trial in the High Court for indictable offences.

A submission of no case at the close of the prosecution's case is made under section 173 of Act 30; the court may acquit if there is no evidence on which a reasonable court could convict.

The court may order further particulars of the charge where the particulars are insufficient to enable the accused to prepare his defence.

Plea bargaining: the Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079) introduced plea bargaining into Ghanaian criminal procedure.

The prosecution opens its case with an address and calls witnesses; the accused may cross-examine each witness and the court may put questions to a witness.

The accused is presumed innocent; the burden of proof lies on the prosecution throughout, and the standard is proof beyond reasonable doubt (Article 19(2)(c)).

Hearsay evidence is generally inadmissible; exceptions include dying declarations, confessions, and statements in documents where the maker is unavailable.

A confession is admissible only if it is voluntary; the court conducts a trial-within-a-trial where voluntariness is challenged.

Section 173 of Act 30: at the close of the prosecution's case, the court may acquit the accused if there is no evidence that he committed the offence; the test is whether there is some evidence, not whether the evidence is sufficient.

If the submission of no case fails, the accused may give evidence on oath, make an unsworn statement, or remain silent; the court may draw an adverse inference from silence.

The defence may call witnesses and the prosecution may re-examine its witnesses; the court has discretion to allow rebuttal evidence.

Closing addresses: the prosecution and defence address the court on the evidence and the law; the court then delivers judgment, which must be reasoned.

Appeals from the District Court lie to the Circuit Court or the High Court; appeals from the Circuit Court lie to the High Court; appeals from the High Court lie to the Court of Appeal (Article 137).

An appeal must be filed within 14 days of the decision in summary cases and within 30 days in cases tried on indictment, unless the court extends time.

Section 385 of Act 30: the appellate court may allow the appeal, dismiss it, order a retrial, or substitute a different sentence.

An appeal does not operate as a stay of execution unless the court so orders; a convicted person may apply for bail pending appeal.

The Supreme Court has final appellate jurisdiction (Article 131) and may review its own decisions in exceptional circumstances under Article 133.

Revision: the High Court may exercise revisionary powers over the District and Circuit Courts in respect of any criminal matter, on its own motion or on application, to correct errors of law or fact.

A convicted person may apply for review of sentence under section 390 of Act 30 where new facts or circumstances emerge.

The Court of Appeal may order a retrial where the interests of justice require it, provided the accused is not prejudiced by delay.

Section 296 of Act 30: the court may impose imprisonment, a fine, both, or a suspended sentence; the sentence must be proportionate to the offence and the offender's circumstances.

Aggravating factors include the use of violence, the vulnerability of the victim, the offender's previous convictions, and the prevalence of the offence.

Mitigating factors include a guilty plea, cooperation with the investigation, remorse, restitution, the offender's age, and the absence of previous convictions.

The court must consider a pre-sentence report where the offender is a first offender or a juvenile, and where the offence carries a mandatory minimum sentence.

Section 304 of Act 30: a suspended sentence may be imposed where the sentence is not more than 3 years and the court is satisfied that the offender is unlikely to reoffend.

Community service orders may be imposed in lieu of short custodial sentences for minor offences, subject to the offender's consent.

Restitution and compensation orders may be made under section 314 of Act 30; the court may order the offender to compensate the victim for loss suffered.

The sentence must be pronounced in open court and the reasons for the sentence must be stated; an unexplained sentence is vulnerable on appeal.

A lawyer must act in the best interests of the client, keep client confidences, and avoid conflicts of interest; the Legal Profession Act, 1960 (Act 32) and the Legal Profession (Professional Conduct and Etiquette) Rules, 1969 (L.I. 613) govern.

A lawyer must not mislead the court; he must disclose adverse authorities and correct any misstatement of law or fact made in the course of proceedings.

A lawyer must not communicate with a party who is represented by counsel without the consent of that counsel.

Fees: a lawyer may not charge a contingency fee in a criminal case where the fee is contingent on the outcome; fees must be reasonable and disclosed in writing.

A lawyer must maintain client accounts and keep proper records; commingling of client funds with the lawyer's own funds is prohibited.

A lawyer who is a witness in a case should not act as counsel in the same case, save in exceptional circumstances with the court's permission.

A lawyer must not undertake a case where he lacks competence, unless he associates with a competent lawyer or takes steps to become competent.

Duty to the court: a lawyer must be punctual, prepared, and respectful to the court; repeated non-attendance may attract costs or contempt proceedings.