|
Constitutional Law -
Interpretation - Enforcement of
Article 18(2) -
Evidence Act
Section 52 -
Whether plaintiff can
tender in evidence of audio
recording of a telephone
conversation in a trail court -
Whether objection to the
tendering of the recording on,
among other grounds was made
surreptitiously without the
consent of defendant - whether
the secret recording amounted to
a breach of Article 18(2) -
Whether or not the recording is
in violation of his rights to
privacy guaranteed under the
Constitution - Whether evidence
o was btained in breach of
constitutional rights
HEADNOTES
The background to the reference
is that in the course of
testifying in a land case before
the Magistrate, the plaintiff
sought to tender in evidence
audio recording of a telephone
conversation he had with one
John Felix Yeboah, a
Superintendent Minister who was
representing his church, the 3rd
defendant, in the case.
Plaintiff claimed the recorded
conversation covered matters
that were in contention in the
case before the court and he
wanted to use it to prove that
the Superintendent Minister in
that conversation admitted
plaintiff's side of the case.
The lawyer for the defendant
objected to the tendering of the
recording on, among other
grounds, that it was made
surreptitiously by the plaintiff
without the consent of the said
John Felix Yeboah and therefore
in violation of his rights to
privacy guaranteed by Article
18(2) of the Constitution. The
Constitution is not clear on
these issues and this area of
the law has not been
definitively pronounced upon by
the Supreme Court so the
restraint exercised in this case
by the Magistrate was in accord
with the judicial posturing
required by Article 130(2) of
the ConstitutionThe question
referred to us is; "Whether the
secret recording of the
conversation between the
plaintiff and the Superintendent
Minister and representative of
the third defendant was made in
violation of clause (2) of
Article 18 of the 1992
Constitution and therefore
unconstitutional and
inadmissible
HELD :-
In conclusion therefore, we
answer the question referred to
us as follows; the secret
recording of John Felix Yeboah,
the Superintendent Minister and
representative of the 3rd
defendant by the plaintiff
amounted to a violation of the
privacy rights of the said John
Felix Yeboah. In all the
circumstances of this case the
secret recording ought to be
excluded from the evidence in
the case.
However,
since the Magistrate of the
District Court “A” Sunyani has
already listened to the
recording we direct that the
case be transferred to the
nearest District Court for
determination.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution , Article
130(1) & (2)
National Communication
Regulations, 2003, LI 1719
Evidence Act, 1975 (NRCD 323)
1957 Constitutions of Ghana
1960 Constitutions of Ghana
CASES REFERRED TO IN JUDGMENT
Republic v High Court
(Commercial Division), Accra: Ex
Parte Attorney-General (Balkan
Energy Ghana Ltd & Ors
Interested Parties) [2011] 2
SCGLR 1183 at pp 1190-1191.
Madam Abena Pokua v Agricultural
Development Bank Suit No
CA/J4/31/2015 20th December,
2017
Mapp v Ohio 367 U.S. 643 (1961),
Miranda v Arizona 384 U.S. 439
(1966),
R v Herbert [1990] 2 S.C.R 151
INS v Lopez-Mendoza, 468 U.S.
1032 (1984).
Okorie @ Ozuzu v The Republic
[1974] 2 GLR 272 C.A.
United States v Leon 52 L.W.
5155 (1984)
INS v Lopez-Mendoza, 468 U.S.
1032 (1984)
Payton v. New York, 445 U.S.
573, 602 (1980)
Elkins v. United States 364 U.S.
206 (1960) 217
R v Harvey (1995) 101 C.C.C (3d)
193.
Mohammed v The State (Trinidad &
Tobago) [1998] UKPC 49
Jones v. University of Warwick
[2003] 1 WLR 954..
Schenk v Switzerland (1991) 13
E.H.R.R. 242.
Khan v United Kingdom [2000]
E.C.H.R 195,
Masccoushe (Ville) v Houle
(1999) CanLii 13256 (QC CA
BOOKS REFERRED TO IN JUDGMENT
Canadian Charter" and Article
69(7) of the Rome Statute of the
International Criminal Court,
1998
The Role of the Supreme Court in
Development of Constitutional
Law in Ghana”
DELIVERING THE LEADING
JUDGMENT
PWAMANG, JSC:-
COUNSEL.
RAPHAEL CUBAGEE APPEARS IN
PERSON FOR THE PLAINTIFF.
NO REPRESANTATION FOR THE
DEFENDANTS.
PWAMANG, JSC:-
This case is a reference to the
court of a question relating to
interpretation and enforcement
of Article 18(2) of the 1992
Constitution by the Magistrate
of the District Court "A"
Sunyani pursuant to Article
130(2) of the Constitution. It
is provided by Article 130(1) &
(2) of the Constitution as
follows;
(1) Subject to the jurisdiction
of the High Court in the
enforcement of the Fundamental
Human Rights and Freedoms as
provided in article 33 of this
Constitution, the Supreme Court
shall have exclusive original
jurisdiction in -
(a) all matters relating to the
enforcement or interpretation of
this Constitution; and
(b) all matters arising as to
whether an enactment was made in
excess of the powers conferred
on Parliament or any other
authority or person by law or
under this Constitution.
(2) Where an issue that relates
to a matter or question referred
to in clause
(1) of this article arises in
any proceedings in a court other
than the Supreme Court, that
court shall stay the proceedings
and refer the question of law
involved to the Supreme Court
for determination; and the court
in which the question arose
shall dispose of the case in
accordance with the decision of
the Supreme Court.
The background to the reference
is that in the course of
testifying in a land case before
the Magistrate, the plaintiff
sought to tender in evidence
audio recording of a telephone
conversation he had with one
John Felix Yeboah, a
Superintendent Minister who was
representing his church, the 3rd
defendant, in the case.
Plaintiff claimed the recorded
conversation covered matters
that were in contention in the
case before the court and he
wanted to use it to prove that
the Superintendent Minister in
that conversation admitted
plaintiff's side of the case.
The lawyer for the defendant
objected to the tendering of the
recording on, among other
grounds, that it was made
surreptitiously by the plaintiff
without the consent of the said
John Felix Yeboah and therefore
in violation of his rights to
privacy guaranteed by Article
18(2) of the Constitution.
Before ruling on the objection
the trial Magistrate had the
recording played in open court.
In his ruling he held that
though the recording was
authentic and contained material
related to the matters in
contention in the case, it was
made without the consent of John
Felix Yeboah. As to whether the
secret recording amounted to a
breach of Article 18(2) and if
so whether the recoding was to
be excluded from the evidence,
the Magistrate took the view,
and rightly in our opinion, that
he required guidance from this
court. We say the Magistrate was
right in seeking guidance of the
Supreme Court because the issues
that arise call for an
interpretation of Article 18(2)
of the Constitution to determine
its scope and whether secret
recording of telephone
conversation by a party to the
conversation amounts to a breach
of the Article and inadmissible
in evidence. The Constitution is
not clear on these issues and
this area of the law has not
been definitively pronounced
upon by the Supreme Court so the
restraint exercised in this case
by the Magistrate was in accord
with the judicial posturing
required by Article 130(2) of
the Constitution. The Supreme
Court has been given exclusive
jurisdiction to interpret the
Constitution and interpretation
involves determining the scope
of provisions and discovering
the intent of the framers of the
Constitution. See Republic v
High Court (Commercial
Division), Accra: Ex Parte
Attorney-General (Balkan Energy
Ghana Ltd & Ors Interested
Parties) [2011] 2 SCGLR 1183 at
pp 1190-1191.
The question referred to us is;
"Whether the secret recording of
the conversation between the
plaintiff and the Superintendent
Minister and representative of
the third defendant was made in
violation of clause (2) of
Article 18 of the 1992
Constitution and therefore
unconstitutional and
inadmissible? (sic)". We shall
begin with the first part of the
question which is whether it
amounts to a violation of the
rights of privacy guaranteed by
Article 18(2) of the
Constitution for an a person to
secretly record a telephone
conversation to which he is a
party. Article 18(2) of the
Constitution provides as
follows;
"(2) No person shall be
subjected to interference with
the privacy of his home,
property, correspondence or
communication except in
accordance with law and as may
be necessary in a free and
democratic society for public
safety or the economic
well-being of the country, for
the protection of health or
morals, for the prevention of
disorder or crime or for the
protection of the rights or
freedoms of others.”
Privacy is so broad a
constitutional right that it
defies a concise and simple
definition. It comprises a large
bundle of rights some of which
have been listed in the article
as privacy of the home,
property, and correspondence or
communication. This list is not
exhaustive and the full scope of
the right of privacy cannot
possibly be set out in the text
of the Constitution. However,
under the right to privacy is
covered an individual's right to
be left alone to live his life
free from unwanted intrusion,
scrutiny and publicity. It is
the right of a person to be
secluded, secretive and
anonymous in society and to have
control of intrusions into the
sphere of his private life. See
the Unreported Judgment of
Supreme Court dated 20th
December, 2017 in Suit No
CA/J4/31/2015; Madam Abena Pokua
v Agricultural Development
Bank.
Privacy is a very important
human right that inheres in the
individual and ensures that she
can be her own person, have self
identity and realise her self
worth. It guarantees personal
autonomy for the individual and
without it public authorities
would easily control and
manipulate the lives of citizens
and undermine their liberty. It
is one of the most widely
demanded human rights in today's
world for the simple reason that
advancements in information and
communication technology have
made it extremely easy to
interfere with privacy rights.
As a result almost all states
have passed laws and detailed
regulations to protect privacy
rights and prescribe
circumstances under which public
authorities, private
organisations and, in some
countries, individuals may be
permitted to interfere with
privacy rights. In respect of
interference with privacy of
communication, the latest
Ghanaian regulations are
contained in the National
Communication Regulations, 2003,
LI 1719. Section 10 of it
makes it an offence for a third
party to intercept communication
transmitted form one party to
another without the consent of
the parties to the
communication. The regulations
however have no provision
covering secret recording of
telephone conversation by a
party to the conversation, which
is the situation in the instant
case.
An overview of the laws in other
countries on the legality of an
individual secretly recording a
telephone conversation to which
he is a party shows differences
in the legal regimes. There are
countries such as Canada and
Italy where it is legal to
record a telephone conversation
without permission provided you
are a party to the conversation.
On the other hand we have
jurisdictions, notably Germany
and the State of Florida in the
United States, where even if you
are a party to a telephone
conversation it is prohibited
for you to record the
conversation without the consent
of all parties to it.
In construing Article 18(2) of
our Constitution to determine
its scope in relation to the
question referred to us, we wish
to underscore the elements of
the right of privacy we stated
above. The right protects the
individual against unwanted
intrusion, scrutiny and
publicity and guarantees his
control over intrusions into his
private sphere. This means that
it is up to the individual,
subject of course to statutory
laws made for the public good as
stated in Article 18(2) itself,
to decide if there should be any
intrusion into, scrutiny or
publicity of his private life
including his communication. It
is further up to the individual
to determine the extent and
manner of such permitted
intrusion, scrutiny or
publicity. When a person talks
on telephone to another the
conversation is meant to be oral
communication since if the
speaker wanted the speech in a
permanent form he could elect to
write it down or record and send
to the other person. It would be
wrong for the person at the
other end to assume that the
speaker has waived his rights of
privacy and consented to him
recording the conversation and
rendering it in a permanent
state. Therefore, to record
someone with whom you are having
a telephone conversation is to
interfere with his privacy
beyond what he has consented to.
In similar vein, it would amount
to breach of privacy to put your
phone on loudspeaker for the
listening of third parties when
you have a telephone
conversation with another person
because to so would be causing
an intrusion into the caller's
private sphere beyond what she
consented to. Before recording
someone or allowing third
parties to listen to what he
says on telephone, his consent
must be sought or he must be
informed such that he can decide
to end the call if he does not
want to be recorded or heard by
third parties. We are in an
environment where people take
the rights of their neighbours
very lightly. We are therefore
not persuaded to join those
jurisdictions that permit secret
telephone recording by a party
to the conversation.
Clearly therefore, on the facts
of this case the secret
recording of the Superintendent
Minister amounted to a violation
of his right to privacy which
has been guaranteed by Article
18(2) of the Constitution.
The second leg of the question
referred to us is whether the
recording which we have held to
have been obtained in violation
of the constitutional rights of
the Superintendent Minister
ought to be excluded from the
evidence being led in the case
despite the fact that its
contents are relevant to the
matters in contention. In the
ruling of the Magistrate in
which he made the reference he
offered his own opinion on the
approach to be adopted by
Ghanaian courts when confronted
with a challenge to the
admissibility of evidence
obtained in violation of human
rights and we wish to commend
him for the industry he
demonstrated therein. The
referring Magistrate, H/W Jojo
Amoah Hagan, reviewed, with
admirable clarity, statutory
provisions and jurisprudence of
Canada, the United Kingdom and
the United States of America
with regard to exclusion of
evidence obtained in breach of
constitutional rights. He cited
relevant decided cases such as
Mapp v Ohio 367 U.S. 643
(1961), Miranda v Arizona 384
U.S. 439 (1966), R v Herbert
[1990] 2 S.C.R 151 and INS v
Lopez-Mendoza, 468 U.S. 1032
(1984). He also considered
the general position of Ghana
law of evidence and the
provisions of the Evidence
Act, 1975 (NRCD 323) in
relation to the exclusion of
relevant evidence.
Unfortunately, lawyer for the
defendant who raised the
objection at the District Court
did not file a statement of case
when we granted leave to the
parties to do so. The plaintiff
acted in person and filed a
statement of case but, not being
a lawyer, he could not assist
the court on the matters of law
that arise for determination.
As the referring Magistrate
rightly pointed out, the general
law in Ghana on the exclusion of
relevant evidence by a trial
court is stated in Section 52 of
the Evidence Act (supra).
It is therein provided that
relevant evidence may be
excluded at the discretion of
the judge if the probative value
of the evidence is substantially
outweighed by the risk that it
will create substantial danger
of unfair prejudice. There is
also Section 51 (1) of the
Evidence Act which is
relevant in this case. It
provides; "All relevant evidence
is admissible except as
otherwise provided by any
enactment."
The question whether courts
ought to exclude evidence
obtained in violation of the
rights of the person against
whom the evidence is offered is
a fertile litigation field,
particularly in criminal cases.
In Ghana and many other
countries there are statutes
that disallow evidence obtained
in specific circumstances that
also amount to violation of
certain rights guaranteed by the
Constitution. An example is
confession statements procured
through the use of torture which
are not admissible on account of
Section 120 of the Evidence
Act but torture is equally
forbidden by Article 15(2)(a) of
the Constitution. There is also
privileged communications
between lawyer and client and
doctor and patient which are not
admissible in evidence by virtue
of Sections 100 and 103 of
the Evidence Act
respectively and which really
are intended to protect the
privacy rights of the party
claiming the privilege. However,
beside these specific instances
which are covered by Section
51(1) of the Evidence Act,
the wider question of should
evidence obtained in violation
of any human right guaranteed in
the Constitution be excluded
from evidence is different and
calls for close scrutiny.
Our Constitution, unlike some
foreign enactments, does not
contain a provision that
specifically provides for the
circumstances in which a court
is required to exclude evidence
obtained in violation of any of
the human rights provisions.
Article 35(5) of the South
African Constitution, 1996,
Section 24(2) of the Canadian
Charter of Rights and Freedoms,
1982 (which is a schedule of
the Canada Constitution Act,
1982), to be referred to as
"the Canadian Charter" and
Article 69(7) of the Rome
Statute of the International
Criminal Court, 1998 all
provide for the exclusion of
evidence obtained in violation
of human rights only upon stated
grounds. That implies that where
those grounds are not
established in a trial, evidence
obtained in violation of a
guaranteed human right is to be
admitted. That practice that
gives discretion to the court to
determine whether or not to
exclude evidence obtained in
breach of rights is referred to
as the discretionary
exclusionary rule.
There is the other practice
whereby any evidence obtained
involving any infraction of
human rights must be excluded by
the court. That is called the
automatic exclusionary rule. It
evolved from decisions of the
United States Supreme Court that
involved interpretation and
enforcement of the human rights
provisions of their Constitution
which, like the case of Ghana,
did not have a specific
provision on exclusion of
evidence obtained in violation
of the constitutional rights.
Therefore, in order to answer
the second part of the question
presented by this reference we
need to critically examine the
relevant provisions of our
Constitution and chart a path
consistent with the
Constitution. But it appears
that Azu Crabbe, C.J. blazed the
trail on the subject in the case
of Okorie @ Ozuzu v The
Republic [1974] 2 GLR 272 C.A.
Although that decision is not
binding on us it is of
considerable weight so we intend
to commence our analysis of the
subject with a review of that
case.
Okorie @ Ozuzu v The Republic
involved Article 15 (2) of the
Constitution, 1969 which
provided that:
"(2) Any person who is arrested,
restricted or detained shall be
informed immediately, in a
language that he understands, of
the reasons for his arrest,
restriction or detention and of
his right to consult Counsel of
his own choice."
In the course of police
investigations of a crime of
murder shortly after the
promulgation of the 1969
Constitution, the investigating
officer took two cautioned
confession statements from the
second appellant. The officer
did not inform him of his right
to consult counsel of his own
choice as required by article 15
(2) of the Constitution, and he
too did not ask for the presence
of counsel. After the
investigations he together with
the first appellant were charged
with the murder, tried,
convicted and sentenced to
death. During the trial when the
prosecution sought to tender the
confession statements in
evidence, defence counsel
objected on the ground that they
were not made voluntarily but
that objection was dismissed as
unsubstantiated. On appeal,
counsel for the first time
raised, inter alia, the issue
that the two confession
statements were made in breach
of article 15 (2) of the
Constitution, 1969, and
consequently that the statements
ought to have been excluded at
the trial. Azu Crabbe, C.J, who
delivered the opinion of the
Court of Appeal, said in the
judgment that there was on bill
of rights in the 1957 and 1960
Constitutions of Ghana and
Article 15(2) was novel so no
Ghanaian precedent was available
to be followed. He therefore had
recourse to foreign
jurisprudence and based the
decision of the court largely on
cases decided by the Supreme
Court of the United States of
America. At pages 282/283 of the
report he delivered himself as
follows;
" It seems to this court that
the guarantee of the right to
consult counsel is based on the
Sixth Amendment to the
Constitution of the United
States of America, and in our
opinion the interpretation of
the second limb of article 15
(2) should, therefore, be made
consistent with the decisions of
the Supreme Court of the United
States on the Sixth Amendment,
which, though not binding upon
this court, are no doubt of
persuasive authority in this
country. So interpreted, it will
mean that a departure from the
procedures required by article
15 (2) would render inadmissible
at the resulting trial any
confessional statement obtained
from a suspect."
The court relied heavily on the
U.S Supreme Court case of
Miranda v Arizona (supra)
which in any case was a split
decision. He concluded with this
rather general statement at page
283 of the report;
"In the opinion of this court,
it is irrelevant that an
infringement of a constitutional
right has not occasioned a
miscarriage of justice. Any
breach of the provisions of the
Constitution carries with it
"not only illegality, but also
impropriety, arbitrariness,
dictatorship, that is to say,
the breaking of the fundamental
law of the land": see The
Proposals of the Constitutional
Commission For a Constitution
For Ghana, 1968. p. 22, para.
88. The statement in exhibits A
and K, were obtained in
violation of the second
appellant's constitutional
rights, and consequently, we
hold that they were inadmissible
in evidence at the trial of the
second appellant. There is,
however, sufficient evidence
aliunde to support the
conviction of the second
appellant, and his appeal must,
therefore, fail."
Okorie @ Ozuzu v The Republic
was a criminal case and the
foreign cases relied upon by Azu
Crabbe, C.J. in his
interpretation of Article 15(2)
of the Constitution, 1969
involved the liberty of the
individual and violations of
rights committed by government
agents in the course of criminal
investigations. Yet the very
broad statement of the court
that evidence obtained in
violation of any human right,
whether a miscarriage of justice
was occasioned or not, ought
automatically to be excluded
appears to propose an absolute
and inflexible rule, admitting
no discretion in all cases both
criminal and civil. But the
reasoning of U.S Supreme Court
that influenced the court in
Okorie@Ozuzu v The Republic
has not been applied by that
court to extend the exclusionary
rule to cover civil proceedings.
See United States v Leon 52
L.W. 5155 (1984) and INS v
Lopez-Mendoza, 468 U.S. 1032
(1984). Nonetheless, it is
useful to take note of the
policy rationale that informed
the U.S Supreme Court's position
of almost automatic exclusion of
obtained evidence in violation
of constitutional rights. (In
the case of
Payton v. New York,
445 U.S. 573, 602 (1980)
the Supreme Court by a majority
decision talked of 'exigent
circumstances' that may be a
basis for relaxing the rule).
Mr Justice Potter Stewart said
in Elkins v. United States
364 U.S. 206 (1960) 217 that
the American Exclusionary Rule
was "calculated to prevent,
not to repair. Its purpose is to
deter - to compel respect for
the constitutional guaranty in
the only effectively available
way - by removing the incentive
to disregard it." See also
Mapp v Ohio (supra). So the
case for the almost automatic
exclusion is that it is in the
long term interest of
enforcement of human rights to
deny the use of evidence
obtained in violation of a
right.
However, enforcement of human
rights is not a one way street
since no human right is
absolute. There are other policy
considerations that have to be
taken into account when a court
in the course of proceedings is
called upon to enforce human
rights by excluding evidence and
that explains why more
jurisdictions have now adopted
the discretionary rule approach
so it would be important to
consider what pertains in those
jurisdictions for comparative
analysis. But as we seek to
benefit from comparative
learning, it bears noting that
in Canada the exclusionary rule
even in civil proceedings is
restricted to cases where the
violation of Charter rights is
by a state actor. See R v
Harvey (1995) 101 C.C.C (3d)
193. This position of the
Canadian courts is based on the
fact that Section 32(1) of the
Canadian Charter makes the
Charter applicable only to the
legislatures and governments of
Canada and its provinces. Our
Constitution on the other hand
in Article 12(1) enjoins all
natural and legal persons in
Ghana as well as state actors to
respect and uphold the
fundamental human rights and
freedoms enshrined in the
Constitution. It is therefore
competent for us to consider the
application of an exclusionary
rule in this case though the
breach of the right was by a
private person.
The English courts have adopted
the discretionary exclusionary
rule in respect of evidence
obtained in breach of
constitutional rights. The case
which authoritatively stated the
position of their Lordships is
Mohammed v The State
(Trinidad & Tobago) [1998] UKPC
49. In that case the
appellant unsuccessfully
challenged the admissibility of
a statement made to the police
on the ground that he had been
denied his constitutional right
to consult with a solicitor in
the police station. Upon a final
appeal to the Privy Council the
appellant argued that his
conviction should be quashed on
the ground that since his right
to consult a solicitor was
guaranteed in the Constitution
of Trinidad & Tobago any
evidence in violation of that
right ought to be excluded. His
counsel urged on their Lordships
the decision of the U.S Supreme
Court in Miranda v Arizona
(supra) which was based on
the automatic exclusionary rule.
In rejecting the policy of
automatic exclusion Lord Steyn,
who delivered the unanimous
opinion of Board, said as
follows at paragraph 25 of the
judgment;
“Fundamental
as the rights of a suspect to
communicate with his lawyer are
it does not follow that such
rights can only be given due
recognition by an absolute
exclusionary rule such as was
enunciated in Miranda. The
rigidity of the Miranda rule is
underlined by counsel’s
concession that, if applicable,
it would not permit the judge to
read the statement. Whatever
the statement contained it would
have to be excluded, and that
would be so even in the case of
a trivial breach. Such an
absolute rule does not easily
fit into a system based on
English criminal procedure. At
the time of the enactment of the
constitutional guarantees the
settled practice in England and
Trinidad and Tobago was that the
judge had a discretion to admit
or exclude a voluntary
confession obtained in breach of
the Judges’ Rules. In these
circumstances their Lordships
are satisfied that it would not
be right now to hold the judge’s
discretion to admit or exclude a
confession was entirely
abolished by the relevant
constitutional provision. Their
Lordships therefore reject the
argument based on
the Miranda decision."
He then stated what their
Lordships considered to be the
right approach to be adopted by
a judge when objection is taken
to the admission of
unconstitutional evidence. At
paragraph 29 of the judgment he
said;
“It
is a matter of fundamental
importance that a right has been
considered important enough by
the people of Trinidad and
Tobago, through their
representatives, to be enshrined
in their Constitution. The
stamp of constitutionality on a
citizen’s rights is not
meaningless: it is clear
testimony that an added value is
attached to the protection of
the right. The narrow view
expressed in King is no longer
good law. On the other hand, it
is important to bear in mind the
nature of a particular
constitutional guarantee and the
nature of a particular
breach. For example, a breach
of a defendant’s constitutional
right to a fair trial must
inevitably result in the
conviction being quashed. By
contrast the constitutional
provision requiring a suspect to
be informed of his right to
consult a lawyer, although of
great importance, is a somewhat
lesser right and potential
breaches can vary greatly in
gravity. In such a case not
every breach will result in a
confession being excluded. But
their Lordships make clear that
the fact that there has been a
breach of a constitutional right
is a cogent factor militating in
favour of the exclusion of the
confession. In this way the
constitutional character of the
infringed right is respected and
accorded a high
value. Nevertheless, the judge
must perform a balancing
exercise in the context of all
the circumstances of the
case. Except for one point
their Lordships do not propose
to speculate on the varying
circumstances which may come
before the courts. The
qualification is that it would
generally not be right to admit
a confession where the police
have deliberately frustrated a
suspect’s constitutional
rights."
Mohammed v The State
was a criminal case and there
the balancing exercise entailed
balancing the rights of the
accused against the public
interest but a similar approach
has been applied with regard to
civil cases involving competing
rights of privates persons
guaranteed in the European
Convention on Human Rights which
is applicable in the United
Kingdom. The leading case is
Jones v. University of Warwick
[2003] 1 WLR 954. In that
case, the claimant argued that
she had a continuing disability
in her right hand as a result of
an accident at work. The
defendant employed an inquiry
agent who secretly filmed the
claimant in her home. The videos
showed that the claimant had
entirely satisfactory function
in her hand. The claimant sought
to have the videos secretly
recorded excluded from evidence
in court arguing they were made
in violation of her human rights
guaranteed in Article 8 of the
European Convention (the right
to respect for one's private and
family life, home and
correspondence). The insurance
company insisted that the
evidence ought to be admitted in
the interest of justice. The
trial judge held that the
evidence was admissible in order
to do justice in the case. Lord
Woolf, C.J. who delivered the
unanimous judgment of the Court
of Appeal at paragraphs 22 and
23 of the judgment commented on
the approach of the trial judge
as follows;
"While this approach will help
to achieve justice in a
particular case, it will do
nothing to promote the
observance of the law by those
engaged or about to be engaged
in legal proceedings. This is
also a matter of real public
concern.
If the conduct of the insurers
in this case goes uncensured
there would be a significant
risk that practices of this type
would be encouraged."
Lord Woolf, C.J. then set out
the question that was faced by
the lower courts and answered it
in this manner at paragraph 28;
“That leaves
the issue as to how the court
should exercise its discretion
in the difficult situation
confronting the district judge
and Judge Harris. The court
must try to give effect to what
are here the two conflicting
public interests. The weight to
be attached to each will vary
according to the circumstances.
The significance of the evidence
will differ as will the gravity
of the breach of article 8,
according to the facts of the
particular case. The decision
will depend on all the
circumstances. Here, the court
cannot ignore the reality of the
situation. This is not a case
where the conduct of the
defendant's insurers is so
outrageous that the defence
should be struck out."
The European Convention on Human
Rights, like the Ghanaian
Constitution, 1992 does not
provide for circumstances in
which courts are required to
exclude evidence obtained in
violation of Convention rights.
However, the Convention provides
in Article 6 a right to fair
hearing, in both civil and
criminal proceedings and the
jurisprudence of the European
Court of Human Rights,
Strasbourg is to the effect that
the admission of evidence
obtained in violation of
Convention rights would not
automatically render a trial
unfair. All the circumstances of
the case would have to be taken
into account to determine
whether the failure of a
domestic court to exclude such
evidence resulted in an unfair
trial. See Schenk v
Switzerland (1991) 13 E.H.R.R.
242. In Khan v United
Kingdom [2000] E.C.H.R 195,
secretly recorded evidence was
relied upon in convicting the
applicant on a narcotic charge
in the United Kingdom. The court
after examining all the
circumstances in that case held
that no violation of the
applicant's right to a fair
trial had occurred. So
the European Court also applies
the discretionary exclusion
rule.
The exercise of discretion in
the determination of whether to
exclude evidence obtained in
breach of human rights appears
inevitable under our
Constitution because even
Article 18(2) which is the
subject of interpretation in
this case states several
exceptions to the individual's
right to privacy and a court
confronted with an objection to
evidence on the ground that it
was obtained in breach of
privacy would need to consider
if any of the exceptions are
applicable in the circumstances
of the case.
Furthermore, it is provided by
Article 12(2) of the
Constitution as follows;
"(2)
Every person in Ghana, whatever
his race, place of origin,
political
opinion, colour, religion, creed
or gender shall be entitled to
the
fundamental human rights and
freedoms of the individual
contained in this Chapter but
subject to respect for the
rights and freedoms of others
and for the public interest."
This provision in our opinion is
an explicit direction to the
court to undertake a balancing
exercise in the enforcement of
the human rights provisions of
the Constitution. See S.Y.
Bimpong-Buta; “The Role of
the Supreme Court in Development
of Constitutional Law in Ghana”
(2007) at page 471.
In our understanding, the
framework of our Constitution
does not admit of an inflexible
exclusionary rule in respect of
evidence obtained in violation
of human rights. With the
rudimentary facilities available
to our police to fight crime it
would be unrealistic to exclude
damning evidence of a serious
crime on the sole ground that it
was obtained in circumstances
involving a violation of the
human rights of the perpetrator
of the crime. The public
interest, to which all
constitutional rights are
subject by the provisions of
Article 12(2), in having persons
who commit crimes apprehended
and punished would require the
court to balance that against
the claim of rights of the
perpetrator of the crime.
Similarly, civil proceedings
always involve competing rights
of the parties such that
relevant evidence that was
obtained in violation of the
constitutional rights of one
party is usually offered in a
bid to protect the rights of the
other party or parties in the
action. It therefore seems to us
that the frame work of our
Constitution anticipates that
where evidence obtained in
violation of human rights is
sought to be tendered in
proceedings, whether criminal or
civil, and objection is taken,
the court has to exercise a
discretion as to whether on the
facts of the case the evidence
ought to be excluded or
admitted. We therefore adopt for
Ghana the discretionary rule for
the exclusion of evidence
obtained in violation of human
rights guaranteed under the 1992
Constitution.
As to the grounds upon which
evidence obtained in violation
of human rights guaranteed in
the 1992 constitution may be
excluded, our opinion is that
where on the facts of a case a
court comes to the conclusion
that the admission of such
evidence could bring the
administration of justice into
disrepute or affect the fairness
of the proceedings, then it
ought to exclude it. The reasons
are simple. The preservation of
the integrity and repute of the
administration of justice is a
matter of vital public interest
so courts in whatever they do
must strive to achieve that
ultimate objective. Then
Article 19 clauses (1) & (13)
of the 1992 Constitution,
guarantee a right to fair
hearing in criminal and civil
proceedings respectively so in
any proceedings the court has a
duty to ensure the achievement
of that constitutional
imperative.
In determining whether impugned
evidence could bring the
administration of justice into
disrepute or make proceedings
unfair, the court must consider
all the circumstances of the
case; paying attention to the
nature of the right that has
been violated and the manner and
degree of the violation, either
deliberate or innocuous; the
gravity of the crime being tried
and the manner the accused
committed the offence as well as
the severity of the sentence the
offence attracts. The impact
that exclusion of the evidence
may have on the outcome of the
case, particularly in civil
cases where establishment of the
actual facts is of high premium.
These factors to be considered
in determining whether to
exclude or admit evidence
obtained in breach of human
rights are not exhaustive but
are only to serve as guides to
courts.
For instance, where the offence
the evidence is offered to prove
is a grievous crime committed
in a gruesome manner and the
infraction of the accused
person's right by the police was
unavoidable, in the absence of
countervailing factors, public
interest would require that a
court leans towards allowing the
evidence since it would bring
the administration of justice
into disrepute in the thinking
of the public to exclude such
evidence. But where in a civil
case, while the case is pending
or at the time the dispute was
raging, one of the parties with
a view to procuring evidence in
support of his case in court
obtains evidence in violation of
the human rights of his
opponent, that is conduct that
could also bring the
administration of justice into
disrepute.
Applying the above principles to
the facts of the case at hand,
it appears from the record that
the plaintiff secretly recorded
the Superintendent Minister with
a view to using the evidence in
court against him. To allow such
deliberate violation of rights
would encourage litigants to
side step the rules of evidence
and thereby undermine the
integrity of court proceedings
and bring the administration of
justice into disrepute. The
plaintiff certainly would have
alternative means of adducing
evidence in proof of his case
and he should not be allowed to
benefit from this intentional
violation of the human rights of
his opponent in the case. Our
conclusion could have been
otherwise if there were
countervailing factors but on
the facts of this case the
secret recording ought not to be
allowed. In his statement of
case before us the plaintiff
offered no justification
whatsoever for his interference
with the privacy of the
Superintendent Minister.
The decision in the Canadian
case of Masccoushe (Ville) v
Houle (1999) CanLii 13256
(QC CA) lends persuasive
support to the conclusion we
have come to in this case. In
that case
a city council connived with a
neighbour to surreptitiously
record the telephone calls an
employee made at her home. The
recordings revealed that the
employee divulged certain
confidential information about
the city council to some real
estate developers. On the basis
of that information the
employee's appointment was
terminated. She sued the city
council and it sought to justify
the termination on the grounds
of insubordination and offered
to tender the secret recordings
into evidence in proof of her
insubordination. She argued that
those recordings were made in
violation of her privacy rights
guaranteed by the Canadian
Charter and ought, by Section
24(2) of the Charter to be
excluded from the evidence. The
court of first instance admitted
the recordings but upon an
appeal it was reversed. There
was a further appeal by the city
council to the Court of Appeal
of Quebec and the main issue for
determination was whether the
secret recordings ought to be
excluded.
Under Section 24(2) of the
Canadian Charter the court shall
exclude evidence obtained in a
manner that infringed or denied
rights guaranteed by the Charter
if it is established that having
regard to all the circumstances,
the admission of it would bring
the administration of justice
into disrepute. The Quebec Court
of Appeal took the view that
there was no question of good
faith or accidental violation of
the rights of the employee.
Rather, it was a situation where
evidence was gathered in an
unconstitutional manner for the
express purpose of terminating
her employment. Paul-Arthur
Gendreau, JCA, concurring in the
unanimous judgment of the court
said as follows:
"In short, the City appropriates
the justice system here because,
under the burden of proof, it
wants the court to accept
illegally acquired evidence, in
the most serious violation of
privacy and without
justification.
All the elements argue in favor
of excluding the evidence. The
balance is broken and I believe
that a reasonably informed
person such as the one described
by Lamer J. in Collins
would consider that this civil
justice system should not be
used for purposes such as those
that appear to preside over
business under study.
I therefore conclude, like my
colleague Justice Robert, that
it would be unacceptable for a
tribunal, whether administrative
or judicial, to lend itself to a
manoeuvre like this."
In conclusion therefore, we
answer the question referred to
us as follows; the secret
recording of John Felix Yeboah,
the Superintendent Minister and
representative of the 3rd
defendant by the plaintiff
amounted to a violation of the
privacy rights of the said John
Felix Yeboah. In all the
circumstances of this case the
secret recording ought to be
excluded from the evidence in
the case.
However, since the Magistrate of
the District Court “A” Sunyani
has already listened to the
recording we direct that the
case be transferred to the
nearest District Court for
determination.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
S. A. B. AKUFFO (MS)
(CHIEF JUSTICE)
W. A. ATUGUBA
(JUSTICE OF THE SUPREME COURT)
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
V. AKOTO-BAMFO (MRS)
(JUSTICE OF THE SUPREME COURT)
COUNSEL
RAPHAEL CUBAGEE APPEARS IN
PERSON FOR THE PLAINTIFF.
NO REPRESANTATION FOR THE
DEFENDANTS.
|
