HIGH COURT, HO
Date: 14 OCTOBER 1974
ANDOH J
CASES REFERRED TO
(1) R. v. Kendrick and Smith (1931) 144 L.T. 748; 23 Cr.App.R.1; 29 Cox C.C. 285, C.C.A.
(2) R. v. Barron [1914] 2 K.B. 570; 83 L.J.K.B. 786; 78 J.P.311; 30 T.L.R. 422; 58 S.J. 557; 10 Cr.App.R. 81, C.C.A.
(3) R. v. Jinadu (1948) 12 W.A.C.A. 368.
(4) R. v. Sheridan [19371 1 K.B. 223; [19361 2 All E.R. 883;155 L.T. 207; 106 L.J.K.B. 6; 100 J.P. 319; 52 T.L.R. 626; 80 S.J. 535; 30 Cox C.C. 447; 26 Cr.App.R. 1, C.C.A.
NATURE OF PROCEEDINGS
APPLICATION for an order of prohibition to restrain the respondent from conducting a disciplinary inquiry on the grounds that the plea of autrefois convict was applicable. The facts are adequately stated in the ruling.
COUNSEL
Dr. O. Asamoah for the applicant.
E. Akwei-Addo, State Attorney, for the respondent.
JUDGMENT OF ANDOH JA
Suspect in custody escaped from the hands of the applicant herein resulting in a service inquiry being held on him. The officer charged with the inquiry, found the applicant guilty of the offence of misconduct as defined by section 17 of the Police Service Act, 1970 (Act 350), and he was thus convicted.
The officer’s recommendation as to sentence was that the applicant be severely reprimanded. These were the recommendations sent to the Regional Disciplinary Board, Ho, by the official but upon the recommendation of the Regional Disciplinary Board, Ho, the Central Disciplinary Board, Accra, which had no authority whatsoever to impose a major penalty purported to impose that penalty by reducing the applicant from the rank of a sergeant to that of a corporal in the Ghana Police Service. Upon application by the applicant for an order of certiorari to issue and quash the said order of the Central Disciplinary Board, Accra, the court readily ordered that the order be brought before it for the purposes of being quashed as the Central Disciplinary Board, Accra, had no power to impose a major penalty, the only authority competent to impose a major penalty being the Inspector-General of Police: see section 19 (5) of the Police Service Act, 1970 (Act 350). In fact the learned state attorney, Mr. Addo, who appeared for the Central Disciplinary Board, Accra, and the Regional Disciplinary Board, Ho, unreservedly conceded that point. Costs of 050.00 were awarded against the Ghana Police Service. It is significant to observe at this stage that it was only the order of the Central Disciplinary Board, Accra, which was ordered to be brought for purposes of being quashed as it was ultra vires. The recommendation or finding of the officer in relation to the conviction of the applicant stood good and it still of full force and effect. About seven months later, the applicant herein was again summoned before another officer charged with practically the same offence of misconduct falling under section 17 of Act 350. His plea of autrefois convict was rejected and the trial has been ordered to proceed by the second inquiring officer. The jurisdiction to hold this second inquiry is being challenged in these proceedings and an order of prohibition is being sought to restrain the official from further conducting this second inquiry on the ground of double jeopardy-autrefois convict. The question which arises in these proceedings is whether the special plea of autrefois convict will avail the applicant herein in a disciplinary inquiry mounted by the police in respect of the same offence of misconduct. It must be stated from the outset that there was no appeal from the conviction of the inquiring officer by the applicant assuming an appeal lies elsewhere. There was also no appeal against the order of this court quashing the order made by the Central Disciplinary Board, Accra. In fact it is not denied that the reduction of the applicant from the rank of sergeant to one of corporal constituted a major penalty. It was also not denied that the Central Disciplinary Board, Accra, had no authority to impose a major penalty. The charges before the two officers are identical in substance and are based on the same facts and as stated, the sole issue is whether the applicant’s special plea of autrefois convict will avail him in this second police service inquiry? In the first place, I think the test of autrefois convict is not whether the facts relied on in the two trials are the same. It is whether the prisoner has been convicted of an offence which is the same or practically the same offence as that with which he is charged: see R. v. Kendrick and Smith (1931) 23 Cr.App.R. 1, C.C.A. following R. v. Barron [1914] 2 K.B. 570, C.C.A. In the first trial there were two charges against the applicant; these were offences of negligently permitting a prisoner to:
“(1) escape contrary to section 17 (i) of the Police Service Act, 1970 (Act 350);
(2) Doing an act without reasonable excuse which amounts to failure to perform in a proper manner any duty imposed on you as such contrary to section 17 (k) of the Police Service Act, 1970 (Act 350).”
The particulars of the offences were as follows:
“(1) For that you on 3 November 1972 at Nkwantapim near Kadjebi Police Station, while escorting an untried prisoner, one Karimu Kotokoli on inquiries did negligently permit the said prisoner to escape from your custody.
(2) For that both of you on 3 November 1972 at Nkwantapim near Kadjebi Police Station, did an act without reasonable excuse which amounts to a failure to perform in a proper manner any duty imposed on you as such, to wit did lose by neglect one unnumbered pair of handcuffs valued at 05.76 entrusted to your care for escort of one untried prisoner Karimu Kotokoli.”
Now the present charges preferred against the applicant herein are:
“(1) Misconduct contrary to section 17 (1) of the Police Service Act, 1970 (Act 350).
(2) Misconduct contrary to section 17 (2) of the Police Service Act, 1970 (Act 350).”
PARTICULARS OF OFFENCE
“(1) For that you on 3 November 1972 at Nkwantapim near Kadjebi Police Station while escorting an untried prisoner one Karimu Kotokoli on inquiries did negligently permit the said prisoner to escape from your custody.
(2) For that you on 3 November 1972, at Nkwantapim near Kadjebi Police Station, did an act without reasonable excuse which amounts to a failure to perform in a proper manner any duty imposed on you as such, to wit did lose by neglect one pair of unnumbered pair of handcuffs valued at 05.76 entrusted to your care for the escort of one untried prisoner Karimu Kotokoli.”
Now it would appear from the statement of offence and the particulars of offence in the two trials that no matter how the charges were described whether negligence of duty or misconduct, the pith of both charges is that an untried prisoner had escaped while in the custody of the applicant and that he had escaped with a pair of handcuffs; hence the charges. Under section 17 of Act 350, all the offences listed there are described as misconduct. These are the very offences for which the applicant was tried and found guilty and convicted. The same offences (and this cannot be denied when one looks at the particulars of offence in the second trial) are those in respect of which the applicant is about to be tried. It seems to me therefore that if the special plea of autrefois convict can be applied in police inquiry proceedings, then the contention of the applicant as to double jeopardy ought to be sustained. In R. v. Jinadu (1948) 12 W.A.C.A. 368 it was held by the West African Court of Appeal as set out in the head-note that:
“Proceedings against a police officer in a Police Orderly Room for an offence against discipline are not proceedings in a court having jurisdiction to hear and determine a criminal charge and therefore the special pleas of autrefois acquit or autrefois convict cannot be raised upon a criminal prosecution of the police officer for an offence against the Criminal Code arising out of the same facts.”
In this case, the applicant has not been charged with a crime under the Criminal Code. He is charged with misconduct for which he has already been found guilty and convicted. I think that since the Police Service (Disciplinary Proceedings) Regulations, 1971 (L.I. 688), had not specifically taken away the application of these special pleas they should be held to be applicable in cases pending before these disciplinary bodies because these are fundamental principles at common law which an accused is entitled amongst other pleas to avail himself of, in appropriate cases. However the Police Service (Disciplinary Proceedings) Regulations, 1971 (L.I. 688), reg. 9 (4) would seem to make the plea of autrefois convict and autrefois acquit applicable in police service inquiries. Thus sub-regulation (4) of regulation 9 of L.I. 688 reads: “Where he has been either found guilty or acquitted of a charge of misconduct arising out of particular facts, he shall not again be charged for misconduct arising out of substantially the same facts.” (The emphasis is mine).
As I have already stated the charges preferred against the applicant in the first proceedings were misconduct under section 17 of Act 350. The present charges are also for misconduct. For ease of reference I quote section 17 of Act 350. It reads:
“It shall be misconduct for a police officer-
(a) to be absent from duty without leave or reasonable excuse;
(b) to be insubordinate;
(c) to use, without lawful authority, any property or facilities provided for the purposes of the Police Service for some purpose not connected with his official duties;
(d) to engage in any activity outside his official duties which is likely to involve him in political controversy or to lead to his taking improper advantage of his position in the Police Service;
(e) to engage in any gainful occupation outside the Police Service without the consent of the Inspector-General of Police;
(f) to become or be a member of a trade union or any other association (other than an association authorised by the Minister) having similar objects;
(g) to sleep on duty;
(h) to take any alcoholic drink while on duty;
(i) to permit a prisoner to escape through negligence or wilfulness;
(j) to divulge any confidential information to a person not authorised to receive it;
(k) to do any other act without reasonable excuse which amounts to a failure to perform in a proper manner any duty imposed on him as such, or which contravenes any enactment relating to the Police Service, or which is otherwise prejudicial to the efficient conduct of the Police Service or tends to bring the Police Service into disrepute.”
The first trial terminated in conviction. Whether sentence has been passed or not is another matter but I do not think that once the applicant had been tried and convicted in respect of the offence of misconduct, he can be tried again by another officer for the same offence of misconduct: see R. v. Sheridan [1937] 1 K.B. 233, C.C.A. The official is therefore prohibited from further conducting the trial of the applicant as he has already been tried for misconduct and convicted albeit without sentence being passed yet.
I make no order as to costs.
DECISION
Application granted.
S.E.K.
