Ghana School of Law PLC: Criminal Procedure (GLC) common mistakes
Ghana School of Law PLC: Criminal Procedure (GLC) · Understand the traps and how to avoid them.
When answering a question on bail, the candidate states that bail is at the discretion of the court but fails to cite the constitutional presumption in favour of bail under Article 19(2)(c) of the 1992 Constitution and the exceptional circumstances under which bail may be denied (e.g., when the accused is charged with a capital offence and there is a risk of flight or interference with witnesses). The candidate also omits the requirement to give reasons for refusing bail.
Candidates memorise the general rule that bail is discretionary and overlook the constitutional framework that makes bail the rule and refusal the exception. They also conflate the old Criminal Procedure Code (Act 30) provisions with the current constitutional standards and the new Criminal and Other Offences (Procedure) Act, 1960 (Act 30) as amended, and fail to appreciate that denial of bail must be justified with reference to specific statutory and constitutional criteria.
What to do instead
For every bail question, start by stating the constitutional presumption of innocence and the right to bail under Article 19(2)(c). Then list the factors a court must consider under section 96(4) of Act 30 (nature of the offence, character of the accused, risk of absconding, interference with witnesses, etc.) and the requirement under Article 19(2)(c) that reasons be given for refusal. Practise applying these factors to hypothetical facts and always cite the relevant article and section.
In questions on arrest without warrant, the candidate states that a police officer may arrest any person who is suspected of committing an offence, without mentioning the requirement of reasonable grounds and the constitutional safeguards under Article 14 of the 1992 Constitution (right to personal liberty, right to be informed of grounds of arrest, right to remain silent, right to counsel, and the 48-hour rule for bringing an arrested person before a court).
Candidates rely on a simplified version of section 10 of Act 30 (arrest without warrant) and ignore the constitutional overlay. They also forget that the 48-hour rule is mandatory and that failure to comply renders the detention unlawful, entitling the accused to habeas corpus and possibly exclusion of evidence or civil action.
What to do instead
Create a checklist for any arrest scenario: (1) Was there a warrant? If not, does a statutory power of arrest without warrant apply? (2) Were there reasonable grounds? (3) Was the accused informed of the grounds of arrest and right to silence and counsel? (4) Was the accused brought before a court within 48 hours? (5) Was the arrest necessary and proportionate? Apply this checklist to past questions and cite Article 14 and sections 3 and 10 of Act 30.
When discussing the submission of no case, the candidate merely states that the prosecution has not made out a prima facie case and asks for an acquittal, without applying the test in the Criminal Procedure Code and the leading case law (e.g., the principle that the court must consider whether there is evidence on which a reasonable tribunal, properly directed, could convict). The candidate also fails to distinguish between a submission of no case and a submission of no case to answer at the close of the prosecution's case, and omits the option for the court to call on the accused to enter a defence.
Candidates memorise the phrase 'no case to answer' but do not understand the legal threshold. They often confuse the test with the civil standard or with the test on appeal, and they forget that the court has a discretion to allow the submission or to call for a defence. They also fail to cite the relevant provisions of Act 30 (sections 173 and 174) and the case law.
What to do instead
Learn the statutory framework: section 173 of Act 30 (submission of no case) and section 174 (effect of submission). Memorise the test from cases such as R v. Galbraith (though Ghanaian courts have their own formulation) and apply it step by step: (1) Is there evidence to support each element of the offence? (2) Is that evidence credible? (3) Could a reasonable tribunal convict on it? Practise writing a submission of no case using a hypothetical fact pattern, citing both statute and case law.
In questions on sentencing, the candidate lists the available sentences (imprisonment, fine, community service, etc.) but fails to apply the sentencing guidelines, consider aggravating and mitigating factors, and give reasons for the sentence. The candidate also ignores the statutory maximum and minimum penalties for the specific offence and does not address the possibility of compensation, restitution, or other ancillary orders.
Candidates treat sentencing as a matter of common sense rather than a structured judicial exercise. They are unaware of the Sentencing Guidelines (e.g., the Ghana Sentencing Guidelines 2018) and the requirement under section 34 of Act 30 for the court to take into account the circumstances of the offence and the offender. They also forget that failure to give reasons may render the sentence appealable.
What to do instead
For any sentencing question, follow a structured approach: (1) Identify the offence and its statutory penalty range. (2) List aggravating factors (e.g., use of weapon, vulnerability of victim, previous convictions) and mitigating factors (e.g., guilty plea, remorse, restitution). (3) Apply the sentencing guidelines to determine the starting point and range. (4) Consider ancillary orders (compensation, restitution, costs). (5) State that reasons must be given. Practise with scenarios and cite the guidelines and section 34 of Act 30.
When answering a question on criminal jurisdiction, the candidate states that the High Court has jurisdiction in all criminal matters and fails to distinguish between the jurisdictional limits of the District Court, Circuit Court, and High Court, and the special jurisdiction of the High Court in cases of treason, murder, and other capital offences. The candidate also ignores the rules on venue (the court in whose district the offence was committed) and the power to transfer cases.
Candidates conflate the general jurisdiction of the High Court with its exclusive jurisdiction. They do not study the Courts Act, 1993 (Act 459) and the Criminal Procedure Code provisions on jurisdiction and venue. They also forget that some offences are triable summarily only in the District Court and that the High Court may have supervisory jurisdiction but not original jurisdiction in certain minor offences.
What to do instead
Make a table of courts and their criminal jurisdiction: District Court (summary offences and specified offences with limited sentencing powers), Circuit Court (more serious offences but not capital), High Court (all offences, including capital, and original jurisdiction in murder, treason, etc.). Note the venue rule: the court of the district where the offence was committed, subject to transfer for convenience or to avoid prejudice. Study sections 1-10 of Act 459 and sections 1-5 of Act 30.
In questions on charges and indictments, the candidate fails to identify defects in the charge sheet, such as duplicity, misjoinder of counts, failure to state the essential elements of the offence, or failure to comply with the rules on particulars. The candidate also does not know the procedure for objecting to a defective charge and the consequences of such objection.
Candidates focus on the substance of the offence and ignore the technical rules of pleading. They do not study sections 20-30 of Act 30 on the form and content of charges, and they are unfamiliar with the case law on duplicity and misjoinder. They also forget that a defective charge can be amended and that failure to object at the right time may waive the defect.
What to do instead
Learn the rules: a charge must contain a statement of the specific offence and the particulars necessary to give the accused notice (section 20 of Act 30). It must not be duplicitous (charging two offences in one count) or multifarious. Objections to defects must be raised before the accused pleads, and the court may order amendment or quash the charge. Practise drafting a charge and identifying defects in sample charges.
When discussing appeals, the candidate states that an appeal lies as of right from the District Court to the Circuit Court and from the Circuit Court to the High Court, but fails to mention the time limits for filing the appeal, the requirement of leave in certain cases, and the powers of the appellate court (e.g., to dismiss, allow, order retrial, or vary the sentence). The candidate also confuses appeal with revision and fails to explain the supervisory jurisdiction of the High Court.
Candidates memorise the basic structure of appeals but do not study the detailed provisions in Act 30 (sections 320-340) and the Courts Act. They often overlook that appeals from the High Court go to the Court of Appeal and that further appeal to the Supreme Court is only with leave. They also conflate revision (which is not an appeal and can be initiated by the court or a party) with appeal.
What to do instead
Create a flowchart of criminal appeals: from District Court to Circuit Court (as of right, within 14 days), from Circuit Court to High Court (as of right, within 14 days), from High Court to Court of Appeal (as of right on facts and law, within 30 days), from Court of Appeal to Supreme Court (with leave, on grounds of law or miscarriage of justice). Note the powers of the appellate court under section 331 of Act 30. Distinguish revision under sections 314-318 of Act 30.
In questions on legal ethics, the candidate fails to identify conflicts of interest, such as representing two co-accused with conflicting defences, or fails to recognise the duty of confidentiality and the duty to disclose adverse authorities. The candidate also does not address the duty to act competently and diligently, and the consequences of professional misconduct.
Candidates treat ethics as a soft subject and do not study the Legal Profession Act, 1960 (Act 32) and the Ghana Bar Association rules of professional conduct. They often rely on general moral principles rather than the specific rules, and they do not apply them to concrete scenarios.
What to do instead
Memorise the key ethical rules: (1) Conflict of interest: a lawyer must not represent two clients with conflicting interests (Rule 5 of the Legal Profession (Professional Conduct and Etiquette) Rules, 1969). (2) Confidentiality: duty not to disclose client information without consent. (3) Competence: duty to act with reasonable diligence and skill. (4) Duty to the court: not to mislead the court. Practise applying these rules to hypothetical scenarios and cite the specific rules and the Legal Profession Act.
When answering a question on preliminary proceedings and disclosure, the candidate omits the requirement for the prosecution to disclose its case to the accused before trial, including witness statements, exhibits, and any exculpatory material. The candidate also fails to mention the procedure for case management, such as the pre-trial review and the duty of the court to ensure a fair trial.
Candidates focus on the trial itself and overlook the pre-trial phase. They are unaware of the constitutional right to disclosure under Article 19(2)(e) and the statutory provisions in Act 30 (sections 151-160) and the Criminal Procedure (Amendment) Act, 2003 (Act 633). They also do not appreciate that failure to disclose can lead to a stay of proceedings or exclusion of evidence.
What to do instead
Study the disclosure obligations: the prosecution must disclose all relevant material, including witness statements and exhibits, before the trial. The accused must also disclose any alibi or expert evidence. Learn the case management powers of the court under the new High Court (Civil Procedure) Rules, 2004 (C.I. 47) as applied to criminal cases, and the pre-trial review procedure. Cite Article 19(2)(e) and the relevant sections of Act 30.
In questions on search and seizure, the candidate states that the police may search a person or premises without a warrant if they have reasonable suspicion, but fails to mention the constitutional requirement for a warrant under Article 18(2) of the 1992 Constitution, the exceptions (e.g., search incidental to lawful arrest, consent, exigent circumstances), and the requirement that the search be reasonable and not excessive. The candidate also does not address the consequences of an unlawful search, such as exclusion of evidence under Article 18(2) and section 109 of Act 30.
Candidates rely on a general police power to search and ignore the constitutional protection against unreasonable search and seizure. They also forget that the burden is on the prosecution to justify a warrantless search and that evidence obtained in violation of the Constitution may be excluded if its admission would render the trial unfair or bring the administration of justice into disrepute.
What to do instead
Learn the constitutional framework: Article 18(2) requires a warrant for search and seizure, except in specific situations (e.g., search incidental to arrest, consent, hot pursuit, or where the delay would defeat the purpose). The search must be reasonable in scope. If evidence is obtained unlawfully, the court has discretion to exclude it under section 109 of Act 30. Practise applying these principles to fact patterns and cite Article 18 and section 109.