H.H. BERTHA ANIAGYEI
CIRCUIT COURT JUDGE
The centrality of the right to fair trial, and in particular, the presumption of innocence of an accused person in a criminal trial casts a duty on a court to ensure and satisfy itself that a plea of guilt entered by an accused person is voluntary, well-informed and not actuated by fraud, inducement or some other vitiating circumstance. It is in this regard that this article proposes to set out a series of steps for a judge or magistrate to follow in the event an accused person pleads guilty.
A little over a decade after the House of Lords in the celebrated case of Woolmington vrs. DPP[1] had laid out the presumption of innocence as the “golden thread” that ran through English criminal jurisprudence, the UN General Assembly in 1948 adopted the Universal Declaration of Human Rights that recognized and affirmed the presumption of innocence as an essential aspect to a fair trial.[2] Since then, the right to fair trial, including the presumption of innocence, has been guaranteed in numerous international instruments such as the International Covenant on Civil and Political Rights,[3] the African Charter on Human and Peoples’ Rights,[4] the European Convention on Human Rights[5] and the Inter-American Convention of Human Rights[6]. Closer home, the Ghanaian Constitution, 1992 also guarantees the right to a fair trial, especially, the presumption of innocence of an accused person.[7]
The right of an accused to a fair trial includes the right to be given a fair hearing within a reasonable time, be tried by a court of competent jurisdiction, be presumed innocent until proved guilty or has pleaded guilty, be informed in a language she understands and in detail of the nature of the offence she has been charged with and be given adequate time and facilities for the preparation of her defence.[8]
In furtherance of the principles of fair trial, an accused also has the right to defend herself in person or by a lawyer of her own choosing, to be afforded the facilities to cross examine prosecution witnesses and be permitted at no cost to herself to have an interpreter who understands her language of preference[9] . One of the most jealously guarded fair trial principles is the presumption of innocence of an accused person. In this regard, clause (2) (c) of Article 19 Constitution, 1992 provides that ‘’A person charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty’’. This principle is enshrined in Article 11(1) of the Universal Declaration of Human Rights, Article 14 of the International Covenant on Civil and Political Rights, and Article 7(b) of the African Charter on Human and Peoples’ Rights.
As noted earlier, the presumption of innocence is so fundamental that it is regarded as the golden thread that runs through the criminal justice system and the cornerstone that underpins the same criminal justice system[10]. The presumption of innocence is inextricably linked to the legal maxim ‘’it is better that ten guilty persons escape than that one innocent suffer. To this, Voltaire adds that ‘’the great principle is that it is better to run the risk of sparing the guilty than to condemn the innocent’’.
The Criminal and Other Offences (Procedure) Act, 1960, Act 30, provides that an accused person may plead guilty or not guilty upon being called to plead to the charges by a court.[11] Professor Amissah defines a guilty plea to to be ‘’a judicial confession which disposes of the obligation on the prosecution to prove the case’’.[12]
Where the accused person refuses to plead, she is deemed to have exercised her constitutional right to remain silent[13], the court shall enter a plea of not guilty for her and then proceed to trial. An accused may also plead guilty with explanation to a charge. The importance of the presumption of innocence in a fair trial demands that, in the event an accused person pleads guilty, a great deal of judicial circumspection is exercised to ensure that the plea was made voluntarily by the accused, that the accused was fully aware of the consequences of the plea, and that the plea was not obtained through fraud, inducements or some other vitiating factor.
Accordingly, whether an accused person pleads guilty or not, there is a burden on the judge/magistrate to ensure that the principles of fair trial are strictly complied with. In instances where an accused person pleads guilty, it is of the utmost essence that the court takes particular steps to ensure that the accused person is of sound mind, understands the charge(s), understands his rights, understands the plea of guilt and its attendant consequences, and most importantly, that his plea of guilt is voluntarily made.
One of the grounds upon which a guilty plea may be set aside by a higher court upon appeal is where the appellant did not appreciate or understand the charge or procedure and thus pleaded guilty by mistake.[14] Therefore, where a judge takes adequate steps to ensure that a guilty plea, is properly obtained before convicting the accused person, not only would the convict, prosecution and the public be clear in their minds as to the guilt of the convict, but also, it is unlikely that such a conviction would be set aside upon appeal.
Complying with the legal burden of a fair trial upon a plea of guilt would also prevent or minimize situations of wrongful convictions based on defective or wrongful pleas of guilt and avert the attendant wastage of resources to correct this harm, which could have been averted if the convicting judge had meticulously ensured that the plea of guilt was voluntarily made.
Furthermore, it would also boost trust in the judiciary. Justice emanates from the people and is administered by judges and magistrates. Thus carrying the people along the judicial journey of fair trial would ensure that they understand the process and procedures by which judges and magistrates arrive at their decisions. Such accountability and transparency would go a long way in engendering trust for the judiciary among the citizenry.
- Publicity of Proceedings
Criminal matters should be heard and determined in an open and public place to which the public may have access to the proceedings[15]. It is only where an enactment provides otherwise or in circumstances of public safety, order or morality that a judge must hear and determine criminal matters in chambers and even in such circumstances, the judge or magistrate must record the reasons prior to the hearing and determination of the matter in chambers.
- Charge sheet and brief facts must be in harmony
Prior to the plea of the accused person being taken, it is prudent for the court to always ensure that the statement of offence, particulars of offence and brief facts are all in consonance; i.e. that the brief facts are in support of the charges. Where the brief facts and charge sheet are not in harmony, the court may advise prosecution to amend the charge sheet[16] or discharge the accused person.[17]
- Language of preference of the accused person
An accused person has a constitutional right to be heard in her language of preference. Clause (2) (d) and (h) of Article 19 of the Constitution, 1992 provides that ‘’ A person charged with a criminal offence shall’’
(d) be informed immediately in a language that he understands, and in detail, of the nature of the offence charged;
- be permitted to have, without payment by him, the assistance of an interpreter where he cannot understand the language used at the trial.
Where an accused person elects to speak a language for which there is no available interpreter, the court may make an order directed at the Judicial Secretary to provide the interpreter or find out from the gallery if anyone speaks and understands the said language as well as the English language. Where the court finds such a person from the gallery or community, it must satisfy itself that such a person is independent and indeed understands both the language of preference and the English language. The court would then swear her in (the oath of interpretation) after which she can proceed to interpret the proceedings to the accused person.
- Service of a copy of the charge sheet and brief facts
It is the right of an accused person to be served with a copy of the charge sheet and brief facts prior to her plea being taken[18]. The court must enquire from the accused whether or not she has been served and if the answer is ‘’yes’ continue with proceedings. If the answer is ‘’no’, the court must stand the case down for prosecution to serve the accused and recall the case thereafter.
- Right to self representation, by a lawyer of her choice or Legal Aid Commission.
An accused person has a constitutional right to either represent herself at a trial, be represented by a lawyer of her own choosing whose service and fees she would have to foot or be represented by Legal Aid Commission. Prior to taking the plea, the court must enquire from the accused if she has a lawyer; where the answer is yes, the court must then enquire as to the whereabouts of the lawyer if he is not in court and either stand the case down, proceed or adjourn depending on the answer. Where the court must adjourn, the charges must be read and explained to the accused person and her plea deferred to the next sitting date for the appearance of her counsel. The court must then consider bail.
Where the answer is no, the court must explain (a) the right of the accused to a lawyer of her choice, (b) her right to seek the assistance of Legal Aid Commission (the court must explain Legal Aid and where they are located, etc.), and (c) her right to conduct the case prose (i.e self representation). The court must then put the accused person to an election. Where the accused person elects option (a) or (b), the charges must be read and explained to her and then her plea deferred to enable her exercise that option. It lies within the discretion of the court to determine what would be a reasonable time for the accused to engage the services of a lawyer or seek the assistance of Legal Aid commission. The court then considers bail (after prosecution has read out the brief facts) and thereafter adjourns the case.
- The taking of the plea
Where the accused person elects to represent herself, is represented by a lawyer of her choice or one from Legal Aid Commission, the court may proceed to take the plea[19]. Where the court adjourns or stands the matter down for a lawyer to be present and he/she is absent upon the case being recalled or the next sitting date, the court may proceed to take the plea. Taking of the plea in the absence of a lawyer who is made aware of proceedings and yet does not appear in court does not constitute an infringement of fair trial principles.
- Charges must be stated and explained to the accused person in his language of preference
In line with the principles of fair trial, the charge has to be read and explained to the accused person in her language of choice. The court should have the interpreter explain briefly what it means to plead guilty and not guilty (particularly so where the accused is conducting the matter prose) Where the accused person pleads guilty, the court must record her guilty plea as nearly as possible in the words used by her[20]. However, for capital offences, the court shall not accept a plea of guilt[21].
An accused may also plead guilty with explanation. The court must listen to her explanation and decide whether or not the explanation raises any defence in her favour and/or negatives any of the relevant elements of the offence. The court at this stage does not determine credibility of the explanation given by the accused[22].
Where the explanation accords with a defence, or negatives any relevant element of the offence, the court must proceed to enter a plea of not guilty for the accused person. Where the explanation is neither of the two circumstances earlier stated and, for instance, is an apology by the accused for the offence she has been charged with, the court must enter a plea of guilty and then proceed to convict.
As an illustration, on a charge of stealing contrary to section 124(1) of the Criminal Offences Act, 1960, Act 29, AA, upon being called upon to plead says ‘’Guilty with explanation’’ and explains as follows:
- ‘’ It is true that I stole her bag. However, I thought she had misplaced it and wanted to find her and hand it over to her. (If this explanation is proved, it negatives the element of intention to deprive the owner of the value, benefit or proceeds of the item be it temporarily or permanently i.e the element of dishonest appropriation which is one of the relevant elements of the offence of stealing)
- It is true that I took the money, however, the money belongs to me. (Here, AA is setting up a defence of a claim of right to the money)
In both instances, the court must enter a plea of ‘not guilty’ for AA and proceed to trial.
On a charge of assault contrary to section 84 of Act 29, AA pleads guilty with explanation and says as follows:
- ‘’I am sorry for kicking her with my legs. I was angry because she refused to hand me the phone. Please forgive me’’.
Here, anger is not a defence in law. Even if it is provocation, it is only a defence one can rely on on a charge of murder and not assault.[23]
- Ascertain whether the plea of guilt is a ‘’proper one’’
After the accused person pleads guilty or the court enters a plea of guilty for her after carefully considering her plea of guilty with explanation, section 171 (3) of Act 30 provides that the court shall convict and pass sentence or make an order against the accused unless there appears sufficient cause to the contrary (emphasis mine). Without any ambiguity, the law is clear that even where an accused person has pleaded guilty, the court may have sufficient cause not to accept the plea, convict and sentence. Thus in order for the court to have sufficient cause to convict, it is imperative that the court take steps to ensure that the accused person is of sound mind, understands the plea of guilt and its consequences and her plea is voluntary.
In the words of Benin J. (as he then was) in the case of Darkurugu vrs. The Republic[24]
‘’ a trial magistrate or judge must observe the following rules before accepting, recording and convicting an accused on the basis of his guilty plea under the Criminal Procedure Code, 1960 (Act 30), ss. 171 (2) and 199. He must ensure that: (i) the guilty plea was voluntary; (ii) the plea was intelligent; in other words that the accused knew his rights, the nature of the charge to which he was pleading and the consequences of his plea; (iii) there was a factual basis for the plea, i.e. that the facts presented by the prosecution supported the charge and that the accused’s explanation did not negate the vital ingredients of the charge; and (iv) he must also personally address the accused in the language he understood and must record down all the processes’’.
The steps below may well prove useful in accomplishing these objectives.
Q: BY COURT: Mr…..(accused), how are you doing this morning?
A: Accused: I am not well[25]
A: Accused: Please, I am doing well by God’s Grace.
Q: BY COURT: Have you received any formal education, and if so, to what level?
A: Accused: Yes S.H.S 3.
Q: BY COURT: How old are you?[26]
A: Accused: 26 years
Q: BY COURT: Do you understand the proceedings so far?
A: Accused: Yes.
Q: BY COURT: Without prejudice, have you ever administered any narcotic substance to yourself and if so when was the last time you did so. [27]
A: Accused: No, My Lord.[28]
Q: BY COURT: Again without prejudice, have you ever suffered from any mental derangement. If so, how long ago was your last episode, are you on any medication, which hospital or herbal home is treating you etc.(sound mind principle, Depending on the answers, resort to section 133 (1-4) of Act 30))
A: Accused: No please.
Q: BY COURT: You have pleaded guilty to the charge of unlawful entry and stealing. Do you understand what it means to plead guilty?
A: Accused: Yes, please.
Q: BY COURT: In your own words, please explain it to the court.
A: Accused: It means I entered his house without his knowledge and with the intention to steal and I have stolen his money, laptop and phones (record as much as possible in his own words)[29]
Q: BY COURT: Sir/madam, is your plea of guilty voluntary?
A: Accused: Yes, My Lord.
Q: BY COURT: In the abundance of caution, has anyone including the arresting officer, the complainant, the investigator, any police man at the police station, the prosecution or your family induced you to plead guilty under duress or threat of duress, any undue influence or the promise of a reward?
A: Accused: Please no one induced me.[30]
Q: BY COURT: Has anyone including myself, the court staff, the prosecutors, your lawyer, any lawyer, or anyone for that matter demanded or obtained from you any property including money to be handed to me in exchange for a lighter sentence for your plea of guilty?
A: Accused: No Please.[31]
Where the answer is no, the court should proceed:
Q: BY COURT: Do you agree with the brief facts by the State as read and explained to you earlier?
A: Accused: Yes.
BY COURT: Being satisfied that the accused person is of sound mind, that he understands the nature of the charge, that his plea of guilty on the charge was made voluntarily and further that he understood the plea and its effects, I hereby convict him on his own plea of guilt to the charges of stealing and unlawful entry.
Where the accused person has a lawyer and he pleads guilty in the presence of the lawyer, for the avoidance of doubt, the court may ask these questions:
Q:BY COURT: Has your lawyer explained the charges to you and the meaning of your plea of guilt?
A: Accused: If yes, the court must proceed to convict and if no, stand the case down for the lawyer to do the needful.
- After conviction
After conviction, proceed to conduct pre-sentencing hearing[32] and sentencing[33]. Apply the sentencing guidelines[34].
CONCLUSION
In our country where literacy levels are generally low, it is necessary for the courts to assume the burden of ensuring that persons who are unrepresented by lawyers do not become marginalized and have their rights abused in the criminal justice system. The tripartite interests that the criminal justice system serves: the interest of the public, the interest of the accused as well as the victim of crime must always be upheld in order to deliver justice for all and not only the victim or the State. Criminal law holds the innocence of an accused to be sacrosanct and in rebutting it, steps must be taken to ensure that it is indeed the guilty who will be convicted and punished. Adherence to the steps laid out above in situations where the accused person has pleaded guilty will go a long way to reducing wrongful convictions based on pleas of guilt that were not voluntary, actuated by fraud, inducement or some other vitiating factor. Justice emanates from the people and must be exercised in accordance with law and fairness to all.
[1] [1935] UKHL 1
[2] Ibid.
[3] United Nations (General Assembly). (1966). International Covenant on Civil and Political Rights. Treaty Series, 999, 171.
[4] African Charter on Human and Peoples’ Rights. African Union, 1981
[5] Convention for the Protection of Human Rights and Fundamental Freedoms. Council of Europe Treaty Series 005, Council of Europe, 1950.
[6] Organization of American States. “American Convention on Human Rights. Treaty Series, No. 36, Organization of American States, 1969
[7] Article 19(2)(c) of the Constitution, 1992
[8] Ibid.
[9] Ibid. Clause (2) Article 19
[10] Woomington v DPP [1935] UKHL 1
[11] Act 30, Section 171
[12] Criminal Procedure in Ghana (1982) p.109
[13] Clause (10) of Article 19 of the Constitution, 1992.
[14] 12. See the decision of Taylor J. (as he then was) in the case of Alpha Zabrama v. The Republic [1976] 1 G.L.R. 291 at 302-303
[15] Act 30, Section 165
[16] Ibid Section 176
[17] Criminal Practice and Procedure in Ghana, 3rd edition, Dennis Dominic Adjei, p. 267
[18] Practice Directions by Sophia A. Akuffo, C.J. issued on 1st November, 2018,
page 8)
[19] Act 30, Section 171 (1)
[20] Ibid, Section 171
[21] Act 30, Section 199(5)
[22] Alpha Zabrama v. The Republic (supra)
[23] Criminal Offences Act, 1960, Act 29, Sections 47, 52 and 53
[24] [1989-90] 1 GLR 308, holding 1
[25] Enquire as to what the health issue is and if you consider it to be significant, order for him to be taken to a Government hospital for free medical attention under the Hospital Fees Act, 1971 Act 387, section 2(f). Remand him into custody to enable the police take him to the said hospital and adjourn proceedings.
[26] The court should ensure that the accused person is not a juvenile… although age is contained in the particulars of offence, this is information from the Republic and the court is at liberty to find out from the accused person himself. Where accused is a juvenile, the court would have no jurisdiction to determine the case and the case should be transferred through the Supervising High Court judge or the Honourable Chief Justice to a juvenile Court where a juvenile Court has been constituted for the place or district in question. Section 17 (1) (a) & (b) of the Juvenile Justice Act, 2003, Act 653. Where there is no juvenile court constituted for the area, the court’s jurisdicition is limited only to the consideration of bail where it is in the best interest of the juvenile to do so. Where accused is a juvenile but is being tried with an adult/adults, the court would be seized with jurisdiciton to try him. If the court find him guilty at the end of the trial, the coourt should convict him but remit him to a juvenile court for sentencing. Section 17(2) (3) and (18) (1) of Act 653.
[27] This question is without prejudice and meant to ascertain your state of mind.
[28] If yes, keeping in mind that narcotic substance ingestion has a probability of impairing the brain temporarily or permanently, proceed to find out the last time the accused has ingested such a substance, the length of time spent in police custody prior to his arraignment and his behaviour in custody. Where there is a likelihood that the narcotics may have impaired his brain, refer him to a psychiatrist for a medical assessment as to whether he is compos mentis. Act 30, section 133 (1)
[29] Where accused person says he does not understand, the court must carefully explain the offence in relation to the particulars, have it interpreted to him in his language of preference and then repeat the question. Where the accused in his own words, satisfactorily explains the meaning of guilt, the court may proceed. Where his explanation does not accord with guilt, the court must indicate that the accused person per his explanation did not understand what it meant to plead guilty and then proceed to change his plea of ‘guilty’ to ‘not guilty’ and proceed to trial.
30] Where the answer is yes, the court must ask for further particulars and if satisfied that his plea of guilt was not voluntarily made, change his plea to not guilty. Keeping in mind that, even a confession statement is inadmissible if proven to have been obtained involuntarily (Evidence Act, 1975, Act 323, section 120 (1) and the erudite decision of Akamba JSC speaking for the Apex Court in the case of G/L/Cpl Ekow Russell vrs. The Republic [2016] 102 GMJ 124), On that same reasoning, a court shall not allow a guilty plea obtained by inducement to stand.
[31] A: Where the answer is yes, ask further questions and if satisfied of the possibility of any such act of corruption, change the plea to ‘’not guilty’. Consider the question of bail or otherwise. Refer the matter to the Judicial Secretary if it involves you the judge or court staff and to the Attorney General or General Legal Council through the Judicial Secretary if it involves the police, a prosecutor or a lawyer. In order to maintain public trust, you may consider recusing yourself so the case can be transferred to another judge.
[32] Act 30, Section 177(2)
[33] Ibid Section 177 (1) (a)
[34] P. 269, Criminal Practice and Procedure in Ghana (supra)
