By

Her Honour Judge Sedinam Awo Kwadam (Mrs.),

Circuit Court 7 Accra, Ghana.

28^th March, 2025.

ABSTRACT
Confession statements hold significant evidentiary weight in Ghanaian criminal trials, often influencing case outcomes. However, the reliance on independent witnesses to attest to the voluntariness of confessions, as mandated by the Criminal Procedure Act, has proven inadequate. As a trial judge with over a decade of experience, I have observed frequent disputes over the authenticity and voluntariness of confession statements, with accused persons alleging coercion or misconduct during interrogations. These challenges highlight critical shortcomings in the current framework, particularly the absence of corroborative evidence beyond the testimony and certification of the independent witness.

This paper argues that the prevailing approach fails to meet evidentiary standards necessary to ensure the reliability of confessions and prevent wrongful convictions. Drawing on practices in jurisdictions such as the United Kingdom and Australia, where video-recorded interrogations have significantly enhanced transparency and accountability, the paper advocates for similar reforms in Ghana. Video recordings provide an objective record of the interrogation process, reducing disputes over voluntariness and ensuring adherence to ethical and legal standards.

Key recommendations include:

1. Mandating video-recorded interrogations to replace reliance on independent witnesses’ attestations.
2. Equipping law enforcement with the resources and training needed to implement these practices.
3. Raising public awareness to foster acceptance of the reforms.

The paper further calls on the Attorney General and Parliament to prioritize amendments to the Criminal Procedure Act to institutionalize video-recording as a standard practice. In the interim, investigative bodies are urged to voluntarily adopt video-recording, and the judiciary is encouraged to scrutinize confessions rigorously, rejecting those lacking credible evidence. By implementing these measures, Ghana can safeguard the integrity of its criminal justice system and uphold the principles of fairness and accountability.

Contents

INTRODUCTION.. 3

THE ROLE OF CONFESSION STATEMENTS IN GHANA’S CRIMINAL JUSTICE SYSTEM.. 6

GHANA’S LEGAL FRAMEWORK GOVERNING CONFESSION STATEMENTS. 7

Statutory Provisions. 7

Case Law.. 8

Burden of Proof on Voluntariness. 9

Conviction Based Solely on Confession. 9

Confessions Against Co-Accused Persons. 9

The Role of an Independent Witness. 10

Practical Application. 10

Threshold Requirements for Admissibility. 10

The Mini-Trial/Voir Dire (Trial-within-a-Trial) Procedure. 11

Procedure in a Mini-Trial: 11

Legal Consequences of an Involuntary Confession. 11

CHALLENGES IN THE CURRENT LEGAL FRAMEWORK. 12

1. The inefficacy of independent witness testimonies. 12
2. Inadequacy of substantive assessments for voluntariness: Subjectivity vs. Objectivity and the Role of Video Evidence in Ensuring Fairness. 12
3. The paradoxical lack of independence in so-called “independent” witnesses. 13

COMPARATIVE ANALYSIS. 14

United Kingdom.. 14

Australia. 14

KEY LESSONS FOR GHANA. 15

PROPOSED REFORMS. 15

1. Adoption of Video-Recorded Interrogations. 15
2. Strengthening the Role of Independent Witnesses. 15
3. Judicial Training. 15

POTENTIAL CHALLENGES IN IMPLEMENTING VIDEO-RECORDED INTERROGATIONS IN GHANA. 16

PROPOSED SOLUTIONS FOR CHALLENGES IN IMPLEMENTING VIDEO-RECORDED INTERROGATIONS IN GHANA. 17

CONCLUSION.. 18

 

INTRODUCTION

Imagine a scenario that starkly illustrates the frailties of relying on confession statements in criminal trials:

The courtroom thrums with tension, a palpable weight pressing down on every person present. The accused, a young man with a face hardened by life’s trials, stands in the dock, his hands gripping the wooden rail as though it might steady him against the tide of his fate. Charged with armed robbery, a case splashed across newspaper headlines, he is acutely aware that his life hinges on a single piece of evidence: a signed confession.

The defence counsel, sharp-eyed and resolute, rises to address the court. “Respectfully, My Lord,” he begins, his voice ringing with conviction, “this so-called confession was beaten out of my client.” He gestures toward the accused. “The police themselves drafted this statement after subjecting him to hours of merciless beating, then forced him to sign it under threat of further violence.”

The prosecutor barely flinches, his rebuttal polished and practised. “My Lord, the defence’s allegations are baseless. This confession bears not only the accused’s signature but also that of an independent witness, who has attested to its voluntary nature.”

The judge massages his temples, exhaustion etched into his features. He’s been here before, too many times. Another confession. Another accusation of coercion. Another tightrope walk between justice and error.

The Voir Dire: A Clash of Truths

In the voir dire hearing, the independent witness is presented by the prosecution and takes the stand first, sworn in by the court clerk. His posture is stiff as he prepares to defend his role in the contentious alleged confession process.

“You were present during the entire confession process?” the prosecution begins, his tone pointed but controlled.

“Yes, My Lord,” the witness responds, his voice steady.

“You observed no signs of coercion or intimidation?”

“No, My Lord. The accused gave the statement voluntarily,” the witness asserts.

Next, the accused is called to the stand. Sweat glistens on his forehead as he speaks, his voice cracking with emotion. “They beat me,” he says, gripping the stand for support. “The witness wasn’t even there when they did it. He came in only at the end, just to see me sign.”

The defence counsel leans in. “What exactly happened during the interrogation?”

“They kept hitting me,” the accused repeats. “I couldn’t take it anymore. They said they’d keep going unless I signed. So, I did.”

 

The Judge’s Dilemma

The confession document lies on the judge’s desk, its edges crisp and signatures precise; a stark contrast to the murky and conflicting accounts surrounding it. He grapples with the core dilemma: On one side, the accused asserts he was coerced, beaten until he signed a statement, which he neither authored nor understood. On the other hand, the independent witness, whose role is to ensure fairness, claims the statement was given voluntarily.

It’s word against word, with no physical evidence to tip the scales.

The judge’s mind races. The Evidence Act (NRCD 323) prescribes the inclusion of an independent witness’s signature to vouch for the confession’s voluntariness. But is that signature truly evidence? Or just another layer of ambiguity?

Complicating matters, time has dulled the case’s immediacy. Any physical injuries the accused might have suffered have long healed. At the time of the alleged coercion, he had no lawyer to protect his rights. And now, his defence is handled pro bono, a noble effort, but one that underscores the uneven playing field.

In the absence of a recording of the interrogation or any concrete evidence, the judge is faced with conflicting accounts: the accused’s claim of coercion versus the independent witness’s dubious testimony. Admitting the confession risks wrongfully imprisoning an innocent person, while rejecting it could allow a potentially dangerous criminal to go free, all due to procedural deficiencies.

 

The Gavel Hovers

The courtroom sits in silent anticipation. The prosecutors tap their pens. The defence counsel glares, unyielding. The accused breathes shallowly, fully aware that his liberty depends on this moment. The gavel hovers in the air, heavy with implications.

This case exposes the systemic flaws in Ghana’s reliance on confession statements. As the gavel falls, the courtroom’s collective breath is held. But the deeper question lingers: In a system riddled with gaps and reliant on fragile evidence, can there ever be true justice? Or is each decision merely another roll of the dice in an unchanging cycle?

 

The above scenario underscores the inherent weaknesses in the current confession statement framework. It highlights the critical tensions between procedural formalities and substantive justice, raising pertinent questions about the fairness and reliability of evidence obtained in custodial settings. These issues not only challenge the credibility of such statements but also expose systemic vulnerabilities that jeopardise the pursuit of true justice.[1]

Confession statements have long occupied a central role in Ghanaian criminal trials, frequently serving as the linchpin of prosecutorial success. Their evidentiary weight stems from the legal presumption that an individual’s voluntary admission of guilt is inherently reliable. However, the admissibility and credibility of such statements remain contentious, with frequent legal challenges centered on allegations of coercion, duress, or psychological manipulation during interrogations. These disputes expose systemic vulnerabilities in the criminal justice process, raising fundamental questions about the fairness, reliability, and constitutional propriety of relying on confessions as determinative evidence.

In my experience as a trial judge, I have observed that the legal framework governing confession statements, particularly the role of independent witnesses, is inadequate in addressing these challenges. The Criminal Procedure Act mandates the presence of an independent witness during the recording of confession statements, requiring the witness to certify that the statement was made voluntarily. Despite this safeguard, accused persons frequently allege coercion or fabrication, and voir dire hearings often rely heavily on the independent witness’s testimony and certification.[2] This practice fails to address systemic issues such as power imbalances during custodial interrogations and the absence of corroborative evidence to substantiate the voluntariness of confessions.[3]

Given these shortcomings, this paper critically examines the legal and procedural dimensions of confession statements in Ghana, interrogating whether the current evidentiary standards meet constitutional and human rights benchmarks. Section 2 provides a doctrinal analysis of confession admissibility under Ghanaian law, exploring statutory provisions, judicial precedents, and the role of independent witnesses in authenticating confessions. It highlights the legal requirement of voluntariness and the practical challenges in establishing it, particularly where accused persons lack legal representation during interrogations.[4]

Chapter 3 investigates the systemic flaws in the existing criminal procedure under the following headings:

• The inefficacy of independent witness testimonies;
• Inadequacy of substantive assessments for voluntariness;
• Judicial over-reliance on procedural compliance;
• The paradoxical lack of independence in so-called “independent” witnesses.

To contextualize potential reforms, Chapter 4 engages in a comparative legal analysis, drawing on jurisdictions such as the United Kingdom and Australia, where mandatory electronic recording of interrogations has significantly enhanced transparency and reduced disputes over confession admissibility.[5] These case studies demonstrate how technological and procedural safeguards can mitigate coercive interrogation practices while bolstering judicial confidence in confession evidence.

Building on these insights, Chapter 5 proposes a structured reform agenda for Ghana, advocating for:

• The legislative introduction of mandatory video-recorded interrogations;[6]
• Enhanced training for law enforcement on interrogation ethics;[7]
• Judicial reforms to shift the burden of proving voluntariness more robustly onto the prosecution.[8]

Chapter 6 consolidates these recommendations into a coherent policy roadmap, emphasizing phased implementation through pilot programs, stakeholder engagement, and public awareness campaigns.[9]

Finally, Chapter 7 reaffirms the transformative potential of these reforms in aligning Ghana’s criminal justice system with international best practices, ensuring that confession evidence is both credible and constitutionally sound.[10] By addressing these gaps, Ghana can reinforce the integrity of its criminal justice process, safeguarding against wrongful convictions while enhancing public trust in legal institutions. This paper ultimately argues that procedural fairness must not be sacrificed for expediency, and that the adoption of verifiable, transparent interrogation methods is not merely a reform but a necessary evolution toward a more just legal system.

 

THE ROLE OF CONFESSION STATEMENTS IN GHANA’S CRIMINAL JUSTICE SYSTEM

Confession Statements are defined as written or recorded (including oral) admissions of guilt made by an accused person. These statements may be tendered as evidence in criminal proceedings to establish the culpability of the accused. However, the admissibility of confession statements is not automatic and must meet specific legal thresholds. Two primary objections can challenge the admissibility of such statements: the accused may deny having made the statement, or contend that it was obtained involuntarily. In Ghana, the admissibility and probative value of confession statements are governed by statutory provisions, judicial precedents, and established legal practices.

In the context of any trial, the primary objective of all stakeholders is to ascertain the truth concerning the act or omission that has resulted in the matter being brought before the adjudicating body. Evidential rules are designed to assist decision-makers in reconstructing events that occurred beyond their direct observation. Central to this framework is the principle that no one is better positioned to understand or reveal their intentions or actions than the individual themselves. Consequently, when an accused person voluntarily confesses to an act, it becomes legally prudent to consider the confession as evidence. Nonetheless, such a confession must satisfy legal standards of authenticity, voluntariness, and reliability to be deemed admissible and accorded evidential weight.

 

GHANA’S LEGAL FRAMEWORK GOVERNING CONFESSION STATEMENTS

Statutory Provisions

In Ghana, the use of confession statements is governed by constitutional provisions and Statute, including the Evidence Act and the Criminal and Other Offences (Procedure) Act. These laws emphasize the voluntariness of confessions as a prerequisite for admissibility.

Confession statements are regarded as evidence that may be used against their author in criminal proceedings. The first legal framework to consider is the 1992 Constitution of Ghana. Under Article 19(2)(c), it is explicitly established that an accused person is presumed innocent until proven guilty or until they plead guilty.

The Constitution further provides safeguards against the involuntary extraction of confession statements. Article 15(2) prohibits the use of “torture or other cruel, inhuman, or degrading treatment or punishment” on any individual, including accused persons. Consequently, if a confession statement is obtained through coercion, such as physical force, intimidation, or undue pressure, it is deemed inadmissible and unreliable by the courts. This constitutional provision underscores the fundamental principle that only voluntary confessions can be validly used as evidence.

Another significant legal framework governing confession statements is the Evidence Act, 1975 (NRCD 323). Section 120(1) of the Act explicitly states:

“In a criminal action, evidence of a hearsay statement made by an accused admitting matter which:
(a) constitutes; or
(b) forms an essential part of; or
(c) taken together with other information already disclosed by him is a basis for an inference of,
the commission of a crime for which he is being tried in the action is not admissible against him unless the statement was made voluntarily.”

This provision reinforces the requirement that a confession statement must be made voluntarily to be admissible in court. The stipulation aligns with Article 15(2) of the 1992 Constitution, which unequivocally prohibits any form of torture or inhumane treatment to secure a statement.

Additionally, Section 120(2) introduces the requirement of an independent witness being present at the time the accused makes the statement. Section 120(3) specifies that this independent witness must:

1. Understand the language spoken by the accused;
2. Be able to read and comprehend the language in which the statement is recorded; and
3. Certify that the accused voluntarily made the statement, understood its contents, and did so in the presence of the witness.

These statutory safeguards collectively ensure that confession statements are obtained in a manner that respects the rights of the accused and guarantees their evidentiary integrity.

 

Case Law

A plethora of Ghanaian judicial decisions have addressed critical issues surrounding the admissibility of confession statements. One such pivotal case is Ekow Russell v. The Republic [2017-2020] SCGLR 469, where Akamba JSC defined a confession as:

“A confession is an express acknowledgement by an accused person in a criminal charge of the truth of the main fact charged or some essential part thereof. By its nature, a voluntarily given confession constitutes the most reliable evidence upon which a conviction may be based. Consequently, legal safeguards exist to ensure that such statements are made freely, without coercion, intimidation, inducement, or undue influence.”

Similarly, in Francis-Arthur v. The Republic [2021] J3/02/2020, the Supreme Court emphasized that for a confession to be admissible, it must be both voluntary and made in the presence of an independent witness. The Court, in assessing voluntariness, relied on the precedent set in Republic v. Kokomba [1979] GLR 270-280, where Taylor J articulated:

“A voluntary statement is one made freely, willingly, intentionally, and knowingly, without external interference. If influenced by insanity, threats, violence, or promises, it ceases to be voluntary. Similarly, statements extracted under duress or undue pressure are inadmissible.”

 

Burden of Proof on Voluntariness

Where an accused challenges the voluntariness of a confession, the burden shifts to the prosecution to prove, beyond a reasonable doubt, that the statement was given voluntarily. This principle was affirmed in State v. Otchere & Others [1963] 2 GLR 463, where Korsah CJ held:

“A confession is admissible only if the prosecution demonstrates that it was made voluntarily, free from inducement, threats, or undue pressure.”

 

Conviction Based Solely on Confession

The Ghanaian courts have also examined whether a conviction can rest solely on an accused’s confession. In State v. Aholo [1961] GLR 626, the Court endorsed the English precedent in R. v. Walter Sykes (1913) 8 Cr. App. R. 233, ruling that a confession alone may suffice for conviction if the trial judge is satisfied of its authenticity and the circumstances under which it was obtained.

However, exceptions exist. As observed in Francis-Arthur v. The Republic, where a confession in homicide cases fails to establish the corpus delicti (the substantive proof that a crime occurred), corroborative evidence becomes necessary. This aligns with the holding in State v. Otchere & Others (supra).

 

Confessions Against Co-Accused Persons

The Supreme Court in Francis Yirenkyi v. The Republic (CRA J3/7/2015) clarified that a confession is only admissible against its maker unless:

1. The co-accused was present when the confession was made, and
2. They expressly acknowledged the incriminating portions, thereby adopting it as their own.

 

The Role of an Independent Witness

Pursuant to the Evidence Act (NRCD 323), a confession must be made in the presence of an independent witness. The definition of an independent witness was elaborated in G/L/Cpl. Ekow Russell v. The Republic [2016] GHASC 41 (13 January 2016), where the court, citing J. Ofori Boateng’s The Ghana Law of Evidence (p. 115) stated thus:

“An independent witness includes any competent person without a direct interest in the case. Thus, police or military personnel may qualify as independent witnesses, provided they are disinterested. An accused person in custody has no prerogative to reject a competent witness presented by investigators.”

From the foregoing jurisprudence, it is evident that Ghanaian courts prioritize two key elements in admitting confession statements:

1. Voluntariness; The statement must be free from coercion, intimidation, or inducement.
2. Presence of an Independent Witness; The confession must be made before a disinterested and competent witness.

These safeguards ensure the integrity of confessions while balancing the rights of the accused against the interests of justice.

 

Practical Application

In practice, confession statements are heavily relied upon by law enforcement and prosecutors to secure convictions. The process often involves the accused making a statement in the presence of an independent witness, who certifies its voluntariness. Ghanaian courts exercise strict scrutiny in assessing the admissibility of confession statements. Such statements must satisfy both statutory requirements and judicial precedents before being admitted as evidence in proof of the accused person’s guilt. Additionally, courts ensure that the procedural safeguards under Article 15(2) of the 1992 Constitution, which prohibits torture and other cruel, inhuman, or degrading treatment, are upheld during the taking of confessions.

 

Threshold Requirements for Admissibility

Before admitting a confession, the court must determine:

1. Authenticity; Whether the statement was indeed made by the accused, and
2. Voluntariness; Whether it was given freely, without coercion, threats, or undue influence.

Only where these conditions are met will the confession be deemed admissible. If an objection is made to the admissibility of an alleged confession statement, the court must conduct a mini-trial or voir dire to determine that issue. However, if no objection is raised, the mini-trial is unnecessary, and the statement may be admitted without further inquiry.

 

The Mini-Trial/Voir Dire (Trial-within-a-Trial) Procedure

If the accused challenges the voluntariness of the confession, the court conducts a voir dire (mini-trial) to resolve the issue of voluntariness or lack thereof. The burden of proof rests on the prosecution to demonstrate, beyond a reasonable doubt, that the statement was made by the accused voluntary.

 

Procedure in a Mini-Trial:

• Prosecution’s Case:
  1. The prosecution calls witnesses (e.g., investigators or independent witnesses) to testify that the confession was obtained voluntarily and in their presence.
  2. These witnesses are subject to cross-examination by the defence.
• Defence’s Opportunity:
  1. After the prosecution closes its case, the accused may present evidence contesting voluntariness (e.g., alleging torture or inducement).
• Judicial Determination:
  1. If the court finds the confession involuntary, it will be excluded as evidence.
  2. If the court finds the confession voluntary, it will admit the statement as evidence in proof of the accused’s guilt.

 

Legal Consequences of an Involuntary Confession

A confession obtained through torture, oppression, inducement, or constitutional violations (e.g., under Article 15(2)) is inadmissible, regardless of its potential truthfulness. This aligns with the exclusionary rule under Section 120 of NRCD 323, which prioritizes procedural fairness over evidentiary value. Ghanaian jurisprudence maintains a rigorous standard for confession admissibility, ensuring that only voluntary and authentic statements are admitted. The mini-trial mechanism serves as a critical safeguard against coerced confessions, reinforcing the constitutional right to a fair trial.

 

CHALLENGES IN THE CURRENT LEGAL FRAMEWORK

1.     The inefficacy of independent witness testimonies

The legal procedure of a voire dire/mini-trial serves a critical function in criminal trials: to determine the voluntariness of a confession whose admissibility is in dispute. When an accused person challenges a confession because it was not made voluntarily, the court must hold a voire dire to resolve this issue before the confession can be admitted into evidence. The ultimate aim is to ensure that no statement obtained through torture, coercion, inducement, or any improper means is used to prejudice the accused at trial, per the fundamental right against self-incrimination and the constitutional guarantee of a fair trial.

In Ghanaian practice, it is common for confessions to be recorded in the presence of an “independent witness” as a safeguard against coercion. However, such testimonies often fall short of providing the reliability required for the high stakes of a criminal trial. These witnesses, despite their title, are frequently individuals who lack meaningful detachment from law enforcement authorities. Their attestations may be influenced by implicit biases or a desire to align with the prosecution’s (police’s) narrative. Thus, the reliance on independent witnesses undermines the evidentiary reliability of the voire dire process. In my experience as a criminal trial judge, I have never encountered a case where the independent witness, called to attest to the voluntariness of an alleged confession, had any prior connection to the accused. On the contrary, these so-called independent witnesses are typically individuals affiliated with the police, either as station staff, individuals from the surrounding area, or, in some instances, police officers themselves. This raises serious concerns about the true independence of such witnesses and highlights a potential inadequacy in ensuring impartiality during the confession process.

 

2.     Inadequacy of substantive assessments for voluntariness: Subjectivity vs. Objectivity and the Role of Video Evidence in Ensuring Fairness

The assessment of voluntariness without video evidence poses a significant challenge because it leaves courts reliant on oral testimonies and written statements, both of which are inherently subjective. These forms of evidence often lack the nuanced details necessary for a fair evaluation. For example, consider a scenario where an accused individual claims they were coerced into confessing by threats or intimidation during interrogation. In the absence of video evidence, the court must evaluate this claim solely based on their testimony and the counter-narratives provided by prosecution witnesses, typically police officers or other individuals present during the interrogation. Both sides may have vested interests, potentially leading to biased or exaggerated accounts.

Furthermore, critical factors such as the tone of voice, body language, and physical surroundings during the confession are completely lost when only oral testimony or written records are available. For instance, an interrogator’s raised voice, threatening gestures, or an intimidating environment (such as a dimly lit or an extremely cold room) might contribute to coercion. These elements would be apparent in a video recording but are often omitted or downplayed in written or oral descriptions. Without video documentation, subjective interpretations take precedence. A police officer might assert that the confession was made “freely and voluntarily,” while the accused may describe feeling pressured or fearful. The court is then tasked with interpreting conflicting accounts without objective evidence to corroborate either side. This evidentiary gap can result in a flawed determination, where a coerced confession is mistakenly deemed voluntary, potentially leading to unjust convictions.

To address these challenges, many jurisdictions have mandated the recording of interrogations to ensure transparency. For example, video evidence could clearly show whether the accused was given appropriate legal warnings, treated respectfully, or subjected to undue pressure, enabling the court to make a more informed and impartial determination of voluntariness.

In the absence of robust evidence, such as video recordings, courts often default to evaluating procedural compliance as a proxy for voluntariness. While procedural safeguards such as the presence of an independent witness are important, they do not inherently confirm that a confession was made voluntarily. For example, a confession recorded in compliance with legal formalities may still have been obtained under subtle forms of duress or inducement. Judicial over-reliance on procedural markers risks creating a veneer of fairness without addressing the substantive question of whether a confession was truly voluntary.

 

3.     The paradoxical lack of independence in so-called “independent” witnesses

The role of independent witnesses in the Ghanaian criminal justice system is meant to safeguard against coercion, particularly during the confession process. However, in practice, these witnesses are often selected or approved by law enforcement, raising questions about their true independence. For instance, individuals chosen as independent witnesses frequently include police officers, station staff, or others with ties to law enforcement, creating implicit biases. These witnesses may feel pressured to corroborate police accounts, either out of loyalty or fear of reprisal, and are often ill-equipped to critically assess the fairness of the proceedings. This lack of genuine autonomy undermines their effectiveness, as their testimonies can inadvertently reinforce the prosecution’s narrative, even when credible allegations of coercion are raised by the accused. To address this structural flaw, more objective safeguards, such as mandatory video recordings of interrogations and confessions, should replace reliance on potentially compromised human witnesses. Video evidence provides an impartial and comprehensive record of the interactions, capturing critical details like tone, demeanour, and environmental context that written statements or oral testimony often omit. Alternatively, independent witnesses could be drawn from external, neutral organizations, ensuring a higher degree of impartiality. These measures would enhance transparency and fairness in the criminal justice system, reducing the risk of wrongful convictions based on coerced or unreliable confessions.

 

COMPARATIVE ANALYSIS

United Kingdom

Recording of interviews has been required in Great Britain since 1984. (Police and Criminal Evidence Act of 1984).[11]  The UK has adopted video-recorded interrogations as a standard practice, providing an objective record of the interrogation process. This approach enhances transparency and ensures that allegations of coercion can be independently verified. The courts may exclude prosecution evidence if its admission would compromise the fairness of the trial. Considering all relevant circumstances, including how the evidence was obtained, the court can refuse to admit evidence that would adversely affect the integrity of the proceedings.[12] This principle safeguards the accused’s right to a fair trial and ensures public confidence in the justice system by excluding evidence obtained through coercion, inducement, or unlawful means. Crucially, the Police and Criminal Evidence Act of 1984 provides a safeguard for confession admissibility in criminal cases. When challenged on grounds of (a) oppression or (b) any circumstances making it unreliable, the court must exclude the confession unless prosecutors prove beyond reasonable doubt it was properly obtained.[13] Significantly, this applies regardless of the confession’s truthfulness, emphasizing due process over factual accuracy. The rule places a strict burden on prosecutors to validate a confession’s voluntariness before admission.

 

Australia

Australian federal prosecutions, the Federal Crimes Act requires that where a contemporaneous recording cannot be made, there must be an electronic recording of the written statement being read back to the suspect, with the suspect given an opportunity to refute anything in the written record. In Tasmania, Evidence Act 2001 s.85(a) provides that in a prosecution of a serious offence, evidence of an admission is not admissible unless a videotape of the interview is available.[14] Legislative and procedural safeguards emphasize the importance of voluntariness in confession statements. Video-recorded interviews are widely used to reduce disputes over the conditions under which confessions are obtained.

 

KEY LESSONS FOR GHANA

Ghana can learn from these jurisdictions by implementing similar reforms. Video-recorded interrogations provide a verifiable account of the circumstances surrounding confessions, thereby addressing concerns about coercion and reliability.

 

PROPOSED REFORMS

1.     Adoption of Video-Recorded Interrogations

Video recording interrogations would provide an objective and transparent record of the interrogation process. This reform would:

• Reduce disputes over voluntariness.
• Enhance accountability of law enforcement officers.
• Improve the credibility of confession statements in court.

 

2.     Strengthening the Role of Independent Witnesses

The role of independent witnesses must be enhanced through:

• Clear guidelines for their responsibilities.
• Training programs to ensure they understand their role in safeguarding the rights of accused persons.

 

3.     Judicial Training

Judges must be equipped with the skills to critically assess the reliability of confession statements. This includes:

• Training on the evaluation of evidence obtained under contentious circumstances.
• Awareness of the limitations of relying solely on witness certifications.

 

POTENTIAL CHALLENGES IN IMPLEMENTING VIDEO-RECORDED INTERROGATIONS IN GHANA

1. Resource Limitations and Infrastructure
   Implementing video recording systems requires significant investment in equipment, storage facilities, and maintenance. Many police stations in Ghana operate with limited resources, often struggling to meet basic operational needs. The installation and upkeep of high-quality recording equipment, along with the provision of secure digital storage, could strain already constrained budgets. Additionally, consistent electricity supply and internet connectivity, which are essential for running and archiving video systems, may not be reliably available in remote areas.
2. Training and Capacity Building
   Effective implementation requires comprehensive training for law enforcement officers on the technical use of recording equipment and the legal standards for recording interrogations. Many officers may lack the necessary technical skills or familiarity with the procedural requirements for video recording, leading to inconsistent or incorrect usage. Furthermore, ongoing capacity-building programs would be necessary to ensure that both officers and prosecutors understand how to handle, interpret, and present video evidence in court.
3. Legal and Policy Framework Gaps
   The introduction of video recordings would necessitate the development or revision of existing legal frameworks to address issues such as admissibility, chain of custody, and data protection. Ghana’s current legal system may lack explicit provisions regulating the use of audiovisual evidence, potentially leading to procedural disputes. Policymakers would also need to consider safeguards against tampering and misuse of recorded evidence, as well as provisions to ensure the rights of the accused during recorded interrogations.
4. Potential Resistance from Law Enforcement
   Some law enforcement officers may resist the adoption of video recordings, perceiving it as an additional layer of scrutiny that could expose misconduct or inefficiencies. This resistance might manifest as deliberate non-compliance, such as failing to activate recording devices during interrogations. Overcoming this challenge would require strong institutional leadership, accountability mechanisms, and incentives for officers to adopt the new system.
5. Data Security and Privacy Concerns
   Video recordings contain sensitive information, and their storage and handling must comply with strict privacy and security standards to prevent unauthorized access or leaks. Ensuring data security in a resource-constrained environment can be difficult, particularly when managing large volumes of digital evidence. Additionally, concerns about how recorded footage might be used or shared, especially if it involves minors or vulnerable individuals, could create legal and ethical dilemmas that the current system is ill-equipped to address.

 

PROPOSED SOLUTIONS FOR CHALLENGES IN IMPLEMENTING VIDEO-RECORDED INTERROGATIONS IN GHANA

1. Resource Limitations and Infrastructure

1. • Government and International Support: Allocate funds from national budgets, supplemented by grants or loans from international organizations, to procure and install recording equipment. Development partners and donor agencies could provide technical and financial assistance to offset initial costs.
   • Phased Implementation: Start with pilot projects in urban police stations, gradually expanding to rural areas as resources and infrastructure improve.
   • Affordable Technology: Use cost-effective and durable recording devices suited to local conditions, including portable options for areas lacking permanent interrogation facilities.

1. Training and Capacity Building

• Comprehensive Training Programs: Develop and deliver mandatory training modules on the use of recording equipment, emphasizing legal and ethical standards. Training should also cover best practices for maintaining the chain of custody and handling digital evidence.
• Continuous Professional Development: Establish refresher courses and workshops to ensure police officers and other stakeholders remain updated on technological advancements and legal requirements.
• Partnerships with Academic Institutions: Collaborate with universities and training institutes to include audiovisual evidence handling as part of legal and law enforcement education.

1. Legal and Policy Framework Gaps

• Legislative Reforms: Enact laws that explicitly regulate the use of video recordings in interrogations, addressing issues such as admissibility, chain of custody, and data protection.
• Judicial Guidelines: Develop clear judicial guidelines on the use of video evidence to minimize disputes in court. These should include standards for authentication, data integrity, and procedures for handling objections.
• Oversight Mechanisms: Establish independent bodies to monitor compliance with recording protocols and investigate breaches, ensuring accountability across law enforcement.

1. Potential Resistance from Law Enforcement

• Engagement and Sensitization: Conduct awareness campaigns to highlight the benefits of video-recorded interrogations, such as reduced allegations of misconduct and enhanced credibility in court.
• Incentives and Accountability: Offer incentives like career advancement opportunities or recognition for officers who comply with recording protocols. At the same time, introduce penalties for deliberate non-compliance.
• Strong Leadership: Ensure that high-ranking law enforcement officials champion the reform, setting a tone of accountability and transparency within the force.

1. Data Security and Privacy Concerns

• Secure Storage Solutions: Invest in secure digital storage systems with robust encryption and access controls to prevent unauthorized access. Cloud-based solutions could be considered for centralized storage and backup.
• Strict Data Protection Policies: Develop and enforce policies governing who can access, view, or share recorded footage, ensuring compliance with national data protection laws.
• Special Safeguards for Vulnerable Populations: Introduce measures to protect the privacy of minors, victims, and other vulnerable groups, such as anonymizing sensitive portions of the footage during court presentations.

 

CONCLUSION

Confession statements remain a critical component of Ghana’s criminal justice system. However, the current framework is fraught with challenges that undermine the reliability and fairness of these statements. By adopting reforms such as video-recorded interrogations, strengthening the role of independent witnesses, and providing judicial training, Ghana can address these challenges and align its criminal justice practices with international best practices. These measures will not only enhance transparency and accountability but also ensure the protection of fundamental rights and the delivery of justice. The absence of video recordings in Ghanaian criminal procedure severely hampers the efficacy of the voire dire process in determining the voluntariness of confessions. Independent witness testimonies and procedural compliance, while valuable, are insufficient substitutes for objective evidence. Courts should place greater emphasis on the use of video recordings as the most reliable method of demonstrating voluntariness. Where such recordings are unavailable, heightened scrutiny must be applied to testimonial evidence, ensuring that the prosecution’s burden of proof is met through persuasive and verifiable means. This approach not only safeguards the rights of the accused but also reinforces the integrity of the judicial process.

[1] Criminal and Other Offences (Procedure) Act 1960 (Act 30), s 120; Odoi v The Republic [1984–86] 1 GLR 224.

[2] Republic v Baffoe [1993–94] 1 GLR 135.

[3] Alexander Gyamfi, Due Process in Ghanaian Criminal Law (Justice Press 2019).

[4] Constitution of the Republic of Ghana 1992, art 19(2)(d); P A Twumasi, Criminal Law in Ghana (2nd edn, Black Mask 2003).

[5] Police and Criminal Evidence Act 1984 (UK), Code C; Crimes Act 1958 (Vic) (Australia); Paul Roberts and Adrian Zuckerman, Criminal Evidence (2nd edn, OUP 2010).

[6] Amnesty International, Fair Trial Manual (2nd edn, 2017) 98–105.

[7] UNODC, Handbook on Police Accountability, Oversight and Integrity (United Nations 2021).

[8] Miranda v Arizona 384 US 436 (1966).

[9] Ghana Law Reform Commission, Annual Report (2020).

[10] African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003).

 

[11] Section 60(A) legislation.gov.uk, ‘Police and Criminal Evidence Act 1984’ (Legislation.gov.uk2021) <https://www.legislation.gov.uk/ukpga/1984/60/section/60A> accessed 13 April 2025.

[12] Section 78 Legislation.Gov, ‘Police and Criminal Evidence Act 1984’ (Legislation.gov.uk2012) <https://www.legislation.gov.uk/ukpga/1984/60/section/78> accessed 13 April 2025.

[13] Section 76(2) Legislation.gov, ‘Police and Criminal Evidence Act 1984’ (Legislation.gov.uk2012) <https://www.legislation.gov.uk/ukpga/1984/60/section/76> accessed 13 April 2025.

[14] New York County Lawyers Association, ‘Report on the Electronic Recording of Police Interrogations’ (New York County Lawyers Association16 January 2023) <https://www.nycla.org/resource/board-report/report-on-the-electronic-recording-of-police-interrogations/> accessed 13 April 2025.