Lesson 9: Criminal Procedure

PROCEDURE

Objective

The objective of this coarse is to facilitate to stakeholders how to improve quality of work on distant learning mode online.

Objective

The objective of this coarse is to facilitate to stakeholders how to improve quality of work on distant learning mode online.

ARREST

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{{ Introduction

To ensure successful investigations the right legal procedure must be followed. Every law enforcer must be aware of and observe the provisions of the criminal procedure. The purpose is not only to ensure the admissibility of the evidence that will be presented but also to justify his actions. Anybody who professes to be an effective police officer must thus have good knowledge of the Criminal Procedure Code (Act 30/60) or at least familiarize himself/herself with its content. Criminal procedure refers the legal system for determining the guilt or innocence of a person accused of a crime.

seroius crime wave

Some of the issues in criminal procedure so crucial in learning to become a criminal investigator include Arrest and bail (See section 3 – 15 of Act 30/60), taking of fingerprints and photographs of people in connection with an offence (Section 108 of Act 30/60) proof of previous conviction (See section 117 of Act 30/60) serving a summons and executing a warrant. In Ghana as in many other Democracies, the heart of the system is the presumption of innocence. This means that a defendant is presumed innocent until proven guilty. In all criminal cases it is up to the prosecution to prove the elements of the offence, which make by information to a justice on oath

1. COMPLAINT: (See section 414 OF ACT 30/60): Complaint is an allegation that any named person has or is about to commit an offense of moving him to issue a process (Warrant or summons).
2. INFORMATION: Is any complaint on Oath or any charge made before a justice to the effect that someone has or in suspect of having committed an offence or an Act, for which he is liable to be punished.

DIFFERENCE BETWEEN COMPLAINT AND INFORMATION; The difference between Complaint and Information is that the former is the foundation leading to an order by the Court whilst the latter is the foundation for a conviction by the Court}}

1. Define arrest
2. Mention at least five sections of the criminal procedure code relating to arrest
3. Explain the difference between power of arrest by ordinary citizens and police officers
4. Differentiate between arrest warrant and bench warrant
5. Mention four conditions that makes an arrest lawful
6. Mention four justifications of arrest
7. Explain what considerations or decisions must be made after arresting a person (1) with warrant and without warrant?
8. Outline the procedure for a lawful arrest
9. State why there is the need to comply with principles and procedures regarding arrest}}

==WHAT IS ==
Arrest, literally refers to the act of physically restraining a person in order that that person may be forthcoming to answer an alleged offence. 

However it is not all arrest that are lawful. A lawful arrest must satisfy four conditions (seen ACT 30/60 Sections 3,4,5,6,7,8,9,10,11,12,14,15.).

1. It must be within the powers and authority conferred on the person carrying out the arrest.
2. It must be justified
3. It must be within the limitation enshrine in the constitution for the treatment of arrested persons
4. It must follow the legally enshrined procedure

POWERS OF ARREST

Strictly, every arrest must be made with a warrant, (this is an authorization issued by a court to bring a person to justice). However the criminal procedure code {Act 30/60 Section (10) and (11)}, allow police officers to arrest suspects of most serious crimes without a warrant. In recent times warrants are confined essentially to cases where an accused has failed to appear in court, or where it is desired to apprehend a person who is in breach of an injunction.

1. Police powers of arrest without warrant under section 10 of Act 30/60 (The Criminal Procedure Code of Ghana) are broad (extensive or wide).

Alarge number of offences are arrestable by the police, without a warrant. These include all offences for which a long prison sentence is available.

1. Certain offences of a lesser character may attract police arrest if committed in his /her presence. {See Act.30/60 Sect.10. Subsect (1)(a)-(e)}.
2. Indeed if an offence fall outside these categories, the police can still arrest a person without a warrant if certain conditions such as the person refusing to give or giving a wrong name and address exist. See Sect. (11)
3. Typically these conditions have been widely understood, and an arrest without a warrant by a police officer hardly becomes unlawful provided the officer can reasonably justify his or her action within the legal code.
4. Police officers can arrest a person when they suspect that an arrestable offence has been committed, and have reasonable grounds for suspecting that the arrested person did it {See Section 10 Subsection. (2) (a)-(b)}. They may also arrest someone about to commit an arrestable offence, or whom they have reasonable grounds to suspect to be about to commit it.
5. Ordinary Citizens can arrest. However the Circumstances under which Ordinary Citizens have power to arrest a person are relatively limited. {See Act.30/60 Sect.12}.

b)If an offence is in progress, the arrest may be made on reasonable suspicion that the arrested person is the perpetrator. c)If the offence is however thought to have already taken place, then the private person can only arrest if there was in reality a criminal offence.

1. In conclusion the main difference between the powers of arrest by a police officer and that of a private person lies in the fact that

3A police officer’s power to arrest without a warrant can be based on the reasonableness of the suspicion.

1. However in the case of the private person a reasonable suspicion must further be supported by the actual existence of such an offence having taken place.

JUSTIFICATION FOR ARREST WITHOUT WARRANT

The police service instructions number 166 outlines four reasons that may justify the arrest of a person who has committed an offence or is reasonably suspected to have committed an offence without warrant.

1. To prevent escape of a person believed to have committed an offence.
2. To stop or prevent the continuation of the criminal act.
3. To forestall peace or prevent the likely breach of the peace.
4. To facilitate immediate investigation in to the case.

The above can be determined by taking in to consideration the following conditions or factors

1. Gravity of the offence
2. Weight of the evidence
3. Status of the suspect

This is to say that the possibility of; any intention or desire by the suspect or accused to escape, likely disturbance of the peace either by the suspect or interested parties, and likely continuation of the offence or likely interference with the investigations can be determined or predicted by looking at the gravity of the charge, the weight of evidence and the status of the alleged offender. For example, the likelihood of a minister of state or a bank manager absconding as a result of a charge of common assault is presumably lesser than a “kayayoo” connected with the same offence. Comparatively, irrespective of the status of a person connected with the charge of robbery, rape, murder or treason, the possibility of desire to escape justice if the person gets the opportunity could be very high than in a less severe charge.

Thus in all cases it is important to consider the relationship between the possibility of escape from justice and any of the other likely problems, if an arrest is delayed and the possibility of embarrassment if the arrest is carried out in a hasty manner.

1. LIMITATIONS ON THE POWERS OF ARREST AS ENSHRINED IN

The observance of the rights and dignity of the person being arrested {See Article 14 and 15 of the 1992 Constitution of Ghana} must be adhered to.

SOME CONSTITUTIONAL RIGHTS OF PRISONERS

As a constitutional requirement all manner of person arrested by the police must be treated with respect and dignity both psychologically and physically. , For example once a person is arrested he /she must be informed of the reason for his/her arrest and right to silence as soon as possible: Otherwise what the arrested person says may not be admitted as evidence in court. The suspect is then conveyed to a police station, where a formal charge will be preferred against him or her if an offence is established. Thus, so Long as words spoken or written by a person is intended to be used as evidence against him or her, the investigator or the person keeping custody of the arrestee must always remind the arrestee of his or her constitutional rights before taking down what he or she may say. These include:

1. Right to know the specific offence committed
2. Right of silence.
3. Right to be told that whatever they will say will be tended in evidence
4. Right to take counsels of their own choice

Additionally an arrested person cannot be medically examined without his or her consent unless the said prisoner is not sober. Notably a Prisoner who consents to a medical examination has the right to nominate a medical officer of his or her own choice. However the examination must be conducted in the presence of a government medical officer and the prisoner must pay the fee for such examination if he or she chooses a medical officer other than a government medical officer. ARREST PROCEDURE

1. Touch the arrestee, Sect. 3 of Act 30/60
2. When in plain clothes Show appointment card, S. I. 166
3. Explain reasons for arrest; unless it is obvious, and shows warrant Sect. 7 Act 30/60.
4. Administer short caution and write down replies, if any e.g. “You are not obliged to say anything but what ever you say may be given in evidence.”
5. Search on the spot – sect – 8 of Act 30/60.
6. A person arrested should be taken immediately to Police Station and ensure that the prisoner and all things of evidential value are safe.

ESSENCE OF WARRANT TO ARREST (See SECTION 73 ACT 30/60)

1. It remains valid until executed or withdrawn. (See Section 73 (3) of Act).
2. It may be issued and executed on any day including Sunday (See Section 82)

An arrest warrant must be endorsed after

\execution as follows: SAMPLE “I (No32241 G/CPL. Stephen. D. Gabada) hereby certify that I have this 24th day of December 2004 executed this warrant on the within named person by arresting him at Nangalitinia cautioned (reply if any).

When a person is arrested outside the jurisdiction of the issuing justice, the District Magistrate in whose jurisdiction the arrest is made should first be contacted to endorse the warrant and cause the removal of the arrested parson to where he committed the offence.

It would however not be necessary to put the arrestee before such Magistrate in whose jurisdiction the arrest is effected under the following circumstances. (Refer to Section 80 & 81 of Act 30/60).

1. When the circumstances will not permit such endorsement
2. When the arrest is effected at a place within 20 miles from the issuing magistrate,
3. Where an endorsement on the warrant orders the release of the arrested person on his executing a bond either with or without sureties,

NOTE Neither should the prisoner be molested, be allowed to escape nor the items collected get lost or be destroyed enroute (on the way) to Police Station – sects. 9 of Act 30/60.

REVIEW QUESTIONS

1. Identify and discuss the legal basis to justify an arrest without warrant
2. List and discuss the legal principles guiding arrest without warrant.
3. Compare and contrast the legal principles guiding the powers of a private person and that of a police officer on arrest without warrant.
4. Outline the legal procedure for arrest.
5. Why must a police officer understand the legal principles regarding arrest?
6. Should civilians be educated on the principles guiding arrest? Give reasons for your answer.
7. What makes an arrest unlawful
8. With examples explain what is arbitrary arrest

Bail

INTRODUCTION

Whenever a person is arrested for an offence, the officer in charge of the Police Station is expected by law to investigate into the case. The preliminary (initial) investigation is bound to arrive at one of two likely outcomes. A criminal case may be established against the suspect. There may be no criminal case to implicating the suspect. In any of the above instances the officer in charge the station or unit is by law faced with two options. If no criminal case is established against the suspect he or she must be released without delay. If however, after preliminary inquiry, it is found that there is a case against the suspect, the officer is expected to

Without delay put him before a Magistrate for a remand. Or

Grant him or her bail. On the bail bond the suspect may be instructed to either report the police station at a date and time stated for further investigation or to report at the Court for trial

Objective

The objective of this coarse is to facilitate to stakeholders how to improve quality of work on distant learning mode online.

WHAT IS BAIL

Bail is a guarantee backed by a promise to pay a sum of money stated on a document called bail bond, for a person originally arrested to be released to reappear at a given time, date and place either to answer an alleged offence or for investigations into an alleged offence and to forfeit (pay) the amount promised if it is disobeyed (fail to appear).

Principles guiding money or any form of guarantee stated on the bail bond include the following;

1. No sums of money is supposed to be paid to or accepted by the Police before or during the execution of a bail-bond.
2. The amount stated, as security is only payable upon a court order when the person bailed fails to appear.
3. The amount stated as security for bail shall not be less than the maximum fine, which may be inflicted by the court as punishment for the offence for which the accused is charged.

TYPES OF BAIL

A person arrested may either be granted Police enquiry bail or Court bail.

Police enquiry bail is granted either for the person to appear in court or report back to the Police station for further investigation in to the case. Police enquiry bail is either granted with a surety or by self-recognizance.

Court bail: Section 96 of ACT 30/60 The Court has power to grant bail to any person brought before it whose case is not punishable by death. Police may however with justifiable reasons raise an objection to the granting of bail by the court under some circumstances and if approved by the court a remand warrant should be obtained from the court as an authorization to detain the arrestee until the date stated on the warrant as the next court date.

FIVE (5) JUSTIFICATIONS FOR REFUSAL TO GRANT BAIL

Any person arrested is entitled to bail within 48 hours as enshrined in the 1992 Constitution of Ghana. Bail can however be refused if granting of bail is likely to cause any of the following five situations. 1.A further breach of the peace 2.The escape of the arrestee (suspect or accused) 3.Destruction to life and property 4.Interfere with or undermine the judicial process or prosecution 5.Endanger the life of the arrestee himself/herself, and witnesses

WHAT ARE THE FACTORS TO CONSIDER BEFORE GRANTING BAIL?

Before grating bail consider the following

1. That the offence or suspected offence is not murder or treason or an offence punishable by death.
2. That the possibility of the offender’s appearance in Court or the Police Station is guaranteed.
3. That the offender will not interfere with prosecution witness on his release or will not commit more offences.
4. The arrest must have been made without warrant and if it is made with warrant, then an authority as to bail must have been stated on it. (Section 74 of Act 30/60)
5. There must be sufficient surety or sureties.

SEE:

       Section 15, 961, 101 & 102 OF ACT 30/60

RECOGNIZANCE BAIL

In the case of self-recognizance bail, the offender alone signs the bail bond.

SURETY

1. A third party called surety (a person not the offender) signs the bail bond for the offender’s appearance or otherwise as directed in the bond. If the conditions in the bail bond are disobeyed the surety must help the police or court to locate the suspect or pay the sum in the bail bond.

SCENARIO

1. On 21st February 2006, a case of Hanging was reported at the charge office by George Abeka, a prison officer, of House number B15 Kokomlemle at 8:15am. The incident took place at 5:00am in the room of the deceased. He was found hanged on the ceiling fan with a rope Name of the deceased is Bernard Bampoe alias BB. Aged 29.
2. Based on the above compliant, the case was referred to you for investigation. You visited the scene and interviewed the following people;

'Konkonsa 'Okro mouth 'Talk true 'Abena Msemwura (sister of the deceased) Statements taken from them and measurements as well as photographs of the scene were taken. Prints and blood drops were lifted from the room. The body was removed to the mortuary for preservation and autopsy. The district coroner was informed. The preliminary investigations revealed the following;

I.The deceased who was a carpenter, failed to provide one Kofi Lormenu with a set of room furniture for which a sum of ¢4.5m was paid by the later to the deceased. II.That after several attempts and negotiations by the said Kofi Lormenu to get the furniture or retrieve his money had proved futile, he issued a threat of death to the deceased in the presence of the above mentioned sister of the deceased and other witnesses. III.The death of the decease was thus suspected to have been caused by the said Kofi Lormenu and not a suicide as portrayed by the situation.

     3.   You traced and arrested, interrogated and took statements from the suspect and put him before court.  You objected to bail requested by his counsel and he was remanded in prison custody for two weeks.    

1. The autopsy conducted and a verbal cause of death was given as broken neck through strangulation.

QUESTIONS

Part A

1. With reference to the scenario above, prepare a diary of action and build a complete docket covering all the events.
2. The arrest was without warrant and you have been asked to justify why you did not obtain a warrant.
3. Justify your objection the bail.

Part B

During the arrest, the suspect resisted the arrest and was supported by his friends and some family members and gave the police a tough time through verbal non-compliance to the use of lethal force. However you and your team were very tactical and succeeded in the arrest. Some casualties were recorded including a broken arm of a brother of the suspect who was wielding a cutlass

Outline the different levels of resistance that you encountered and how you counteracted to control the situation.