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JUDGMENT
PROF. MODIBO OCRAN, JSC:
This Court gave its ruling on
this case on 11th
June, 2004 and reserved its
Reasons for the Ruling for
today, 7th July,
2004. We now proceed to give the
reasons for our earlier ruling.
This is an appeal against the
refusal of the Court of Appeal
to grant an application for bail
to the appellants. The six
accused persons were arraigned
before the Greater Accra
Regional Tribunal on 28 January
2004 on narcotics-related
charges based on sections 56
(c), 1(1) and 2 of the Narcotic
Drugs (Control, Enforcement and
Sanctions Law), 1990 (PNDC 236).
The Tribunal as trial court
granted bail on 3rd February
2004 to all the accused on
specified conditions. The
Attorney-General’s Office
appealed against the grant of
bail to the Court of Appeal,
which delivered a ruling on 3rd
March 2004 upholding the appeal
and thereby rescinding the grant
of bail in respect of all the
accused. This matter came before
us on further appeal by all
but one of the accused
persons, namely, the 2nd
accused.
The grounds of appeal were set
out in their respective Notices
of Appeal as follows:
For the Ist Accused, that:
“ i. The decision by the Court
of Appeal to allow the appeal
against the grant of bail to 1st
Accused/Appellant was
unreasonable having regard to
all the circumstances of the
case.
ii. The decision by the Court
of Appeal to allow the appeal
against the grant of bail to 1st
Accused/Appellant resulted in a
gross miscarriage of justice to
1st
Accused/Appellant, the reason
being that the basis of the
appeal before the Court of
Appeal and the reasons given by
the said Court for the
revocation of the bail granted
to 1st
Accused/Appellant warranted, at
the very least, a review of the
conditions upon which 1st
Accused/Appellant was granted
bail and not an outright refusal
of same.
iii. The Court of Appeal erred
in its interpretation of the
applicable provisions of the
Criminal Code 1960((Act 30) as
against the relevant provisions
of the Constitution 1992 of the
Republic of Ghana on the grant
of bail to accused persons, the
reason being that it downplayed
the constitutional provisions
providing for the pretrial
release of an accused person on
bail in favour of the guiding
(not mandatory) principles
governing the grant of bail as
contained in section 96 of Act
30.”
For the 3rd, 4th,
and 5th Accused,
that:
“ 3.1.The judgment of the Court
of Appeal rescinding the order
for the grant of bail to the 3rd,
4th, and 5th
Accused/Applicants/Respondents/Appellants
by the Greater Accra Regional
Tribunal is unreasonable and
cannot be supported having
regard to the evidence placed
before the Court.
3.2. The Court of Appeal
erred when it failed to
adequately consider the evidence
before it that the 3rd,
4th and 5th
Accused/Applicants/Respondents/Appellants
are international businessmen
who at the material time had
fixed places of abode within the
jurisdiction and rather found,
contrary to the evidence before
the Court, that they had no
fixed places of abode,
particularly when the
Republic/Respondent/Appellant/Respondent
did not challenge the
assertions of the 3rd,
4th. And 5th
Accused/Applicants/Respondents/Appellants
at the trial court and also the
evidence presented at the
appellate court that they had
fixed places of abode and
thereby occasioned a substantial
miscarriage of justice.
3.3. The Court of Appeal erred
in law in rescinding the Order
for the grant of bail by the
Greater Accra Regional Tribunal
when it made a finding, based on
speculation and contrary to the
evidence before it, that the 3rd,
4th, and 5th
Accused/Applicants/Respondents/Appellants
as international businessmen and
all gainfully employed, will not
appear to stand trial when there
was no such real evidence to
this effect before the Court.
3.4. The Court of Appeal erred
in law in rescinding the bail
granted to the
Accused/Applicants/Respondents/Appellants
when it failed to consider
adequately the import of the
provisions of Article 19(2)(c)
of the 1992 Constitution in
relation to s. 96 (1)(2)(3)(4)
and (5) and section 96(6) of the
Criminal Procedure Code 1960 Act
30, as amended, with respect to
the grant of bail and thereby
occasioned a substantial
miscarriage of justice.
3.5. The Court of Appeal
erred in rescinding the Order
for the grant of bail by the
Greater Accra Regional Tribunal
to the 3rd, 4th,
and 5th
Accused/Applicants/Respondents/Appellants
and misdirected itself when it
sought to rely on Article 14(4)
of the 1992 Constitution even
though there was no evidence
before it that the trial court
had relied on Article 14(4) of
the 1992 Constitution in
granting bail to the 3rd,
4th, and 5th
Accused/Applicants/Respondents/Appellants.
3.6. The Court of Appeal erred
in law in rescinding the bail
granted the 3rd, 4th,
and 5th
Accused/Applicants/Respondents/Appellants
when it failed to follow the
mandatory constitutional
provisions as enshrined in
Article 129(3) and Article
136(5) of the 1992 Constitution
in relation to its judgments and
more specifically in relation to
the judgment appealed against
herein inasmuch as they were
bound, per the aforesaid
provisions, to have followed the
Supreme Court decision and its
own decision in the case of the
Republic vrs. Court of Appeal:
Ex parte Attorney General (Frank
Benneh Case) 1998-1999 SC GLR
559, which was cited to them and
thereby occasioned a substantial
miscarriage of justice…..”
For the 6th Accused,
that:
“ 1.The judgment of the Court
of Appeal rescinding the bail
granted to the 6th
Accused/Respondent/Appellant by
the Greater Accra Regional
Tribunal occasioned substantial
miscarriage of justice.
2. The judgment of the Court of
Appeal rescinding the bail
granted by the Greater Accra
Regional Tribunal to the 6th
Accused/Respondent/Appellant was
unreasonable in view of the
evidence on record before the
Court of Appeal.
3. The learned judges of the
Court of Appeal…erred in law
when they resorted to Article
14(4) of the 1992 Constitution
to rescind the bail granted to
the 6th
Accused/Respondent/Appellant,
instead of relying on Article
19(2)(c) and (e) of the 1992
Constitution vis-a- vis Section
96(7) of the Criminal Procedure
Code, 1960, as amended, to
affirm the bail granted the 6th
Accused person and, if need be,
on the Appeal Court’s own terms
and conditions.
4. The learned judges of the
Court of Appeal…erred in law as
they rescinded the bail granted
to the 6th
Accused/Respondent/Appellant in
contravention of Articles 129(3)
and 136(5) of the 1992
Constitution, in view of the
Supreme Court decision in the
Republic vrs. Court of Appeal:
Ex Parte Attorney General (
Frank Benneh case) (1998-1999)
SC GLR 559
5.The learned judges of the
Court of Appeal…erred in law in
rescinding the bail granted to
the 6th
Accused/Respondent/ Appellant,
in view of the finding by the
learned judges of the Court of
Appeal that the 6th
Accused/Respondent/Appellant has
his fixed place of abode within
the jurisdiction, coupled with
the failure of the Court of
Appeal judges to consider the
willingness of the 6th
Accused/Respondent/Appellant to
provide persons with good
character to serve as his
sureties and to provide
substantial securities to ensure
his attendance in court for his
trial, in addition to ignoring
the fact that the 6th
Accused/Respondent/Appellant is
married to a Ghanaian with 2
very young children—as borne out
by the evidence on record before
the Court of Appeal…”
We dismissed these appeals and
thereby upheld the revocation by
the Court of Appeal of the bail
granted to the accused by the
Regional Tribunal. Meanwhile,
the trial of the accused on the
substantive charges has
commenced.
I: APPLICABLE LAW AND POLICY:
The written submissions of the
Appellants and the Respondent
raise certain fundamental issues
in respect of criminal procedure
and constitutional law. The
Court will therefore deal with
these matters in general terms,
before assigning more specific
reasons for refusal of bail in
respect of each of the
appellants. In this manner, we
expect to clarify and enunciate
the general policy, principles
and rules of law governing the
grant or refusal of bail in our
legal system, spelling out the
interface between and among the
relevant rules of criminal
procedure, case law, and the
Constitution of 1992.
Undergirding our principles for
decision on applications for
bail is the effective
enforcement of our criminal law
guided by due process
considerations, which constitute
the procedural aspects of our
commitment to protect the
liberty of the individual. A
true system of criminal justice
must indeed reflect both aspects
of criminal jurisprudence. If
not, one of two consequences
will follow: either the law
enforcement agencies of the
state ride roughshod over the
rights of the accused; or
criminals would have a field day
in the system as they roam the
streets in full liberty and with
contempt for the efficacy of our
criminal enactments. A good
starting point of analysis is
the Ghana Constitution of 1992;
for, in the final analysis, all
our laws and procedures, whether
predating or postdating this
document, and whether embodied
in statutes or case law, must be
consistent with the
Constitution. Counsel for the 1st
Accused/Appellant is right in
asserting that the Criminal
Procedure Code of 1960, as
amended, continues to be valid
only in so far as it is
consistent with the 1992
Constitution. The continued
validity of all norms predating
the Constitution, including the
Criminal Procedure Code, can be
established only if one can
demonstrate that they were, in a
legal-formalist sense,
“re-created”, “continued in
effect”, “adopted”, or “saved”
expressly or impliedly by the
1992 Constitution. In any event,
they must all be consistent with
that Constitution. Indeed,
Chapter Four, Article 11(6)
expressly provides that “the
existing law shall be construed
with any modifications,
adaptations, qualifications and
exceptions necessary to bring it
into conformity with the
provisions of this Constitution,
or otherwise to give effect to,
or enable effect to be given to,
any changes effected by this
Constitution.”
The 1992 Constitution contains
unequivocal protection for
accused persons in the pre-trial
and trial stages of the criminal
process. Article 19(2)(c)
enunciates the age-old common
law presumption of the innocence
of the accused. It has been
argued by Counsel for some of
the Appellants in this case that
this provision implies a further
presumption in favour of the
grant of bail; and that the
denial of bail for their clients
thus flies in the face of
Article 19(2)(c). In this
connection, Counsel referred to
The Republic v. Court of
Appeal: Ex Parte The
Attorney General [1998-99],
SC GLR 559---better known as the
Benneh Case---- which
will be discussed at greater
length infra. For the
moment, it is enough to point
out that Article 19(2)(c) of the
Constitution is meant to be
enjoyed equally by the accused
held in pre-trial detention as
well as the accused granted
bail. For, as Coleridge said in
R. v. Scaife [1841] 5. J. P.
406, at p.406: “I conceive that
the principle on which parties
are committed to prison by
magistrates previous to trial is
for the purpose of ensuring the
certainty of their appearing to
take the trial….it is not a
question as to the guilt or
innocence of the person….” .
Since the presumption holds for
both the accused in custody and
his counterpart on bail, there
is no self-contained criteria
for sifting between the two
categories of accused persons.
In that sense, the presumption
of innocence is necessary but
not a sufficient ground for the
grant of bail. This is not
surprising. The issue of bail
primarily addresses the freedom,
or lack thereof, of the accused
“to walk the streets” after
being charged with an offence;
it is principally associated
with the pre-trial phase,
although it has obvious
consequences for the liberty of
the accused during the trial as
well. By contrast, the
presumption of innocence
primarily addresses the due
process issue of burden of proof
or of persuasion once the trial
commences. Thus the strong
derivation of a presumption of
the grant of bail from a
presumption of innocence appears
too sanguine.
While one might attempt
to derive a presumption of grant
of bail from the constitutional
presumption of innocence, as
Wiredu J.S.C.(as he then was)
sought to do in the Benneh case
(supra), a stronger basis for a
presumption of grant of bail
under our Constitution might be
found in Article 14. Indeed, Art
14(4) embodies a direct duty to
grant bail in a specific
situation, i.e. when a person is
not tried within a reasonable
time. But this provision does
not exhaust the grounds upon
which bail is granted. We must
also consider the cumulative
effect of Art. 14(1) and 14(3),
which work on the premise that
every person is generally
entitled to his liberty except
in specified cases, and that
even where his liberty is so
restricted under one or more of
those cases, he must be produced
before a court within
forty-eight hours, or regain his
liberty.
Basing ourselves on Art. 14(1),
14(3), and to some extent on
Art. 19(2)(c), of the 1992
Constitution, we hold that there
is a derivative constitutional
presumption of grant of bail in
the areas falling outside the
courts’ direct duty to grant
bail under Art.14(4). However,
this by itself is not
dispositive of the legal problem
of bails, for it seems clear
that this presumption is
rebuttable. Any other reading of
the Constitution would lead to
the untenable conclusion that
every accused person has an
automatic right to bail under
our Constitution. This
presumption is, for example,
rebutted in cases where a
statute specifically disallows
bail based on the nature of the
offence, such as the situations
outlined in s.96 (7) of the
Criminal Procedure Code.
Outside Article 14(4) of the
Constitution and s. 96(7) of the
Criminal Procedure Code(Act 30),
the presumption of the grant of
bail retains judicial discretion
in the matter of bails. However,
the exercise of this discretion
remains fettered by other
relevant provisions of our law.
This is where the other
provisions of s. 96(1) of the
Code fall into place. They
serve the purpose of clarifying
the manner in which this
discretion may be exercised,
including the factors that
should be taken into account in
granting or rejecting a plea for
bail. Because of our rejection
of the notion that the
constitutional presumption of
innocence calls for an automatic
enjoyment of bail, we hold
further that there is no prima
facie inconsistency between the
general provisions of S.96 of
the Criminal Procedure Code and
the Constitution of 1992.
Thus Section 96 of the Code
provides for judicial discretion
in the matter of bail, but
should always be read in light
of the constitutional
presumption of grant of bail as
well as the direct
constitutional duty to grant
bail. This section embodies both
a positive right and a negative
duty for the courts. In the
exercise of their judicial
discretion as constitutionally
circumscribed, courts are
accorded under s. 96(1) the
general right to grant bail
as long as the accused person is
prepared to give bail or enter
into a bond. The section
impliedly grants the right to
refuse bail as well. It should
also noted that this provision
does not list any specific
grounds for the grant of bail;
and one would surmise that any
reasonable ground, such as the
deterioration of the health of
the accused while in detention,
would suffice as a proper ground
for the grant of bail. But it is
made subject to other provisions
of the section. The second
aspect, embodied in s. 96(5),
states a general duty to
refuse bail in certain
situations, including the
likelihood that the defendant
may not appear to stand trial.
This is followed by S. 96(6),
which lists the factors the
courts should take into account
in assessing the likelihood of
the defendant’s non-appearance
for trial. These Code provisions
dovetail neatly into Articles 14
and 19 of the 1992 Constitution.
In a trilogy of cases decided
in the 1970s and 1980, Taylor
J.(as he then was) made a
serious and concerted effort to
analyze and synthesize the law
of bails in Ghana, and, in
particular, to clarify section
96 of the Criminal Procedure
Code in relation to the
Constitutions of Ghana predating
the 1992 Constitution. This
Court picks up the case law of
bails where Justice Taylor left
off.
In the first of these cases,
Okoe v Republic [1976]
1 GLR 80, Taylor J.(as he then
was), seized the opportunity to
trace the history of the power
of our courts to grant bail,
beginning from the English roots
of our legal history, through
the establishment in 1876 of the
Gold Coast Supreme Court, and
culminating in the consolidation
of the rules on bail in the
Criminal Procedure Code (as
amended) and Article 15(3) & (4)
of the 1969 Constitution.
Section 96(7) had been
introduced into the Code in 1975
by the Criminal Procedure Code
(Amendment) Decree, 1975 (NRCD
309).
Okoe
involved a charge of forcible
entry unto land with violence by
the acting head of an Accra
traditional family. Having been
denied bail by the circuit
court, he applied to the High
Court for bail on the grounds
that he was prepared to provide
substantial sureties, and that
his imprisonment would affect
his health, given his age and
physical condition.
In arriving at his decision to
grant bail, Taylor J. cited with
approval Lord Russell of
Killowen CJ in the case of R. v.
Spilsbury [1898 2 Q. B.
615 @620] where Lord Russell, as
summarized by Taylor J,
intimated that “….a court of
record has power to grant bail
to any person committed or
remanded in custody by an
inferior court except of course
in cases where the power is
expressly taken away by
statute…”. Relating this opinion
to our own Criminal Procedure
Code, Taylor J. points out that
section 96(1) merely restated
the power of the courts to grant
bail; and that 96(2) simply
consolidated the common law
discretionary power which the
High Court, as a court of
record, had. “This provision has
nothing to do with delay in the
trial, which is covered by
Article 15(4) of the [1969]
constitutional provisions.”
On the specific issue of the
relationship between s. 96 of
the Code and Article 15(4) of
the Constitution of 1969. Taylor
stated at pp 95-96 that:
“ .…. Once there is an
unreasonable delay in
prosecuting the case, then
section 96 of Act 30 [as
amended] is in my view
inapplicable, and article
15(3)(b) and (4) of the
Constitution, 1969, becomes
applicable and in such a
situation, bail in all cases
must be given subject only to
the conditions prescribed in the
articles.”
In other words, the Code
provisions did not override the
1969 constitutional rule that
bail was to be granted if the
trial was not held within a
reasonable time. In other
respects, the grant of bail
remained within the discretion
of the court, as he had
previously argued.
Okoe, however, did not involve
murder or any of the other
offences stipulated in s. 19(7)
of the Code. Thus in Dogbe
v. The Republic [1976] 2GLR 82,
Justice Taylor had occasion
to pick up another aspect of s.
96, namely, the relationship
between s. 96(7) of the
Criminal Procedure Code and
Article 15(4) of the 1969
Constitution. Dogbe and sixteen
others had been committed to the
High Court on charges of murder
and abetment of murder on 31
January 1974. The High Court
twice denied the plea for bail
in spite of the averment of
their Counsel that “four of the
accused persons were aged 65 and
were very ill and needed
immediate medical attention…and
they had even had to be carried
to court.” In denying bail,
Taylor J. drew attention to s.
96 (7) of the Criminal Procedure
Code, which mandated the refusal
of bail in murder, treason, etc.
But he was at pains to point out
that even this section is
trumped by Article 15(4) of the
1969 Constitution. He wrote on
p.96:
“A careful reading of article
15(4) shows clearly that in
all cases [emphasis
supplied], murder cases
included, if an accused person
in custody is not tried ‘within
a reasonable time’, then he is
entitled to be released. The
most important matter for
consideration is whether he is
‘not tried within a reasonable
time’, and the meaning of the
expression ‘within a reasonable
time’ becomes necessary for a
decision.”
In the third case, Brefor v.
The Republic [1980] GLR 679,
the applicant for bail had been
charged with murder for
allegedly firing an arrow into
one of two persons who had
apparently stolen his goat. The
victim of the shooting later
died from his wounds, and in
April 1976 the applicant was
taken into police custody, where
he was held for over three years
pending his trial. It should be
remembered that by the time of
this application, Ghana had
witnessed the overthrow, not
only of the 1969 Constitution,
but the 1979 Constitution as
well. Taylor disposed of the
legal implications of these
events by ruling that both the
National Redemption Council
(Establishment) Proclamation,
1972, and the Armed Forces
Revolutionary Council
(Establishment) Proclamation
1979 made a saving respectively
for Articles 15(4) of the 1969
Constitution and 21(4) of the
1979 Constitution.
Having disposed of this
important but preliminary
matter, Taylor then tackled the
main issue in that case, namely,
whether the Code provision in s.
96 (7) stipulating mandatory
refusal of bail in murder and
certain other offences survived
the 1969 Constitutional
entitlement to bail in trials
which had experienced
unreasonable delays. The learned
Judge stated: “Upon
consideration of all the
principles of interpretation I
have canvassed in this ruling,
it is my firm view that article
15 (3)(b) and (4) of the
Constitution, 1969, are
subsisting provisions in no way
repealed by section 96(7) of Act
30”. Taylor continued: “…the law
immediately before the
Constitution, 1979, and after
it, is that a court is to refuse
bail in murder cases, etc.,
except in the cases of
unreasonable delay in trial as
provided in Article 21(4)(a) of
the Constitution, 1979.” Taylor
in this specific case denied
bail because he did not think
the delay was unreasonable, but
his basic holding remained
intact. His position is
consistent with our own holding
that the analogous provision in
the 1992 Constitution, Article
14(4), mandates the grant of
bail when the accused is not
tried within a reasonable time.
However, S. 96 of the Criminal
Procedure Code has been attacked
from yet another angle. Counsel
for some of the
Accused/Appellants argue, in
effect, that while that section
in general terms may not be
inconsistent with, and has
indeed survived, the 1992
Constitution, some of the
factors listed in s.96(6) of the
Code are no longer compatible
with that Constitution. In
particular, it is asserted that
the “nature of the accusation”
and the “severity of the
punishment” as factors relevant
to the decision to refuse bail
are not mentioned anywhere in
the relevant provisions of the
Constitution. To buttress this
argument, counsel cites
Brefor v. the Republic [1980]
GLR 679, in which Taylor
J.(as he then was), might be
fairly interpreted as holding
that the 1969 and 1979
Constitutions, unlike s. 96(6)
of the Criminal Procedure Code
(1960), did not make
distinctions in the nature of
offence as regards the
availability of bail. Indeed,
that statement would also be
true of Art. 14(4) of the 1992
Constitution, which is similar
in language to the analogous
provision of the two earlier
Constitutions, referred to
above.
But it is important not to
misrepresent Justice Taylor’s
statement here. Article 15(4) of
the 1969 Constitution, like Art
14(4) of the 1992 Constitution,
dealt with the question of bail
in the specific situation where
the person arrested or detained
is not tried within a reasonable
time. The duty to grant bail
arising in such a situation
remains applicable irrespective
of the nature of the offence.
Thus, even in the case of
offences mentioned in s. 96(7)
of the Criminal Procedure Code,
bail must be granted if there is
no trial within a reasonable
time. Justice Brobbey, in his
Practice & Procedure In The
Trial Courts & Tribunals of
Ghana (Vol I, 2000, p.
468), writes: “Since the
Constitution is the fundamental
law of the land, to the extent
that article 14(3) and (4)
mandate bail for ‘all’ offences
while Act 30 s. 96(7) excepts
the grant of bail in murder
cases, etc., the latter is
deemed to have been repealed by
the former by reason of the
inconsistency. This was the view
taken in Dogbe v. The
Republic [1976 2GLR 82] and
Brefor v. The Republic
[1980 GLR 679]. There is no
doubt that the latter view
backed by the two cases is more
accurate”. This Court is in
entire agreement with Justice
Brobbey’s opinion. However, this
viewpoint leaves untouched the
problem of bail in those other
situations where a trial is
commenced within a reasonable
time.
Herein lies the continued
relevance of s. 96(5) & (6) of
the Criminal Procedure Code.
In those situations falling
outside Art. 14(4), distinctions
as to the “nature of the
accusation” and “the severity of
the punishment” remain not only
valid but most useful. The Court
of Appeal, in its judgment in
the case presently before us,
stated that “the tribunal in
granting bail should have
considered adequately that the
offences were serious and
grave”. Counsel for the 1st
Accused/Appellant makes much of
the unfortunate use of the
epithet “grave” and insists that
the gravity of an offence cannot
be a factor in the decision to
refuse bail because it is not
mentioned in the Criminal
Procedure Code. However, he does
not deny that the nature of the
accusation retains its place
among the statutory factors
listed for consideration. While
the epithet “grave” and its
corresponding noun, “gravity”,
are not found in the relevant
provisions of the Code, the
formulation of the legal
position as articulated by the
Court of Appeal has occasioned
no miscarriage of justice nor
introduced a fundamentally
erroneous proposition of law.
As a matter of logic and
linguistic analysis, the gravity
of an offence may legitimately
inform our assessment of the
nature of that offence. In other
words, the gravity of an offence
may serve as a possible index of
the nature of an accusation.
Coleridge J., commenting on the
English Criminal Procedure Act,
1848, in R. v. Robinson
[1854] 23 L.J.Q.B.286,
suggested that such a
consideration in the study of
the nature of an accusation was
not out of place. He wrote:
“…When you want to know whether
a party is likely to take his
trial, you…must be governed by
the answers to three general
questions. The first is, what
is the nature of the crime? Is
it grave or trifling? [Emphasis
supplied.]....The second
question is, what is the
probability of conviction? .....
The third question is, is the
man liable to a severe
punishment?”
Counsel for the 1st
Accused/Appellant decries the
mention of the gravity of an
offence in the discussion of
bail as a “moralistic
proposition” which has no place
in our criminal jurisprudence. A
derogatory reference to a
moralistic proposition may
simply amount to a rejection of
a valid relationship between
criminal law and morality. More
likely, it is an articulation of
the view that, while there is an
established relationship between
criminal law and morality, a
particular moral norm or set of
norms has not yet been
transformed into a legal norm
under the “rules of recognition”
of our legal system, in the
sense in which Professor H.L.A
Hart of Oxford used that term in
his seminal book, The Concept
of Law.
However, morality as a
historical or material source of
criminal law has been with us
since the Laws of Draco and the
Codes of Justinian, the last of
the Roman Emperors. On the other
hand, if Counsel’s discomfiture
with the term “ gravity of the
offence” relates to an assumed
failure of the rules of
recognition in our legal system,
we have already noted that
gravity is simply one index of
“the nature of the accusation”,
a phrase which is expressly
provided for in the Criminal
Procedure Code,1960 (Act 30).
The continued relevance of the
severity of the punishment as a
factor in the decision not to
grant bail has also been
attacked in some of the
Statements of Cases submitted by
Counsel. Unlike the gravity of
the offence, the severity of the
punishment is specifically
provided for in s. 96(6) of the
Criminal Procedure Code. Justice
Amissah, in his Criminal
Procedure in Ghana(1982)
p.183, has stated that “the more
serious the offence with which
he is charged and the heavier
the penalty, the more likely it
is that the accused will not
when granted bail appear to
stand the trial.” However, it
was submitted by Counsel that
since the grant of bail is not
ruled out in offences such as
defrauding by false pretences,
which could potentially attract
punishment as high as 25 years
imprisonment, the relevance of
this subsection appears to be
seriously undermined.
This submission is without
merit. It overlooks the fact
that the severity of the
punishment is but one of many
factors utilized in arriving at
a more basic decision expressed
in s. 96(5); namely, the
likelihood of the defendant not
appearing to stand trial. Thus
bail may be granted even in the
face of the severity of an
offence if there are other
considerations in the mix of
stipulated factors that satisfy
the court that the defendant is
likely to appear to stand trial.
Nonetheless, Counsel for the
appellants invoke this Court’s
decision in The Republic v.
Court of Appeal: Ex parte The
Attorney General [(1998-99) SC
GLR 559] -----the Benneh
Case----to press their
submission that bail must be
granted. This case also involved
narcotics-related offences under
the Narcotic Drugs (Control,
Enforcement And Sanction)
Law,1990. PNDCL 236. The
penalties provided under the
statute were severe, and
included imprisonment for not
less than ten years as well as
forfeiture of drug-related
property. The Greater Accra
Regional tribunal as the trial
court refused the application of
the accused for bail pending
trial. However, the Court of
Appeal allowed an appeal for
bail, which was later upheld by
the Supreme Court. Counsel for
appellants in the case currently
before us cite our decision in
Benneh to demonstrate
that bails are available even in
the case of offences involving
severity of punishment,
including dealings in narcotics.
It is clear from our analysis in
the immediately preceding
paragraph that we are in
agreement with Counsel on this
point. But this admission does
not take us very far in our
analysis.
In the first place, the gravamen
of the complaint by the Attorney
General in the Benneh case
clearly centered on the claimed
lack of jurisdiction of the
Court of Appeal in entertaining
an appeal from the Regional
Tribunal in the face of alleged
procedural irregularities in the
record and service of
proceedings. The Attorney
General complained, inter alia,
that the Court of Appeal heard a
purported petition of appeal for
bail filed in the registry of
the regional tribunal which had
not been properly forwarded to
the Court or listed for hearing
by the registry of the Court of
Appeal, and consequently asked
that the proceedings, rulings
and orders, including the grant
of bail, be quashed. Wiredu JSC
(as he then was) wrote that “the
main issue raised for
consideration in the present
application is whether the Court
of Appeal was competently seised
with the appeal brought on
behalf of the accused to justify
the court dealing with it.”
[1998-99] SC GLR . 566.
While the Supreme Court did
uphold the proceedings and
ruling of the Court of Appeal,
including the grant of bail, the
case did not dwell on the legal
question of the proper grant or
denial of bail. Wiredu JSC,
delivering the judgment for the
majority, devoted only a portion
of a paragraph to this question.
In that respect he sought to
draw a relationship between the
constitutional presumption of
innocence and the right to bail,
but was also quick to mention
the relevance of the particular
circumstances of each case. He
wrote: “…..the accused is
presumed to be innocent until it
is otherwise established. It
would therefore be unjust to
deprive him of his right to
enjoy his freedom in the absence
of any law prohibiting the grant
of bail to him under the
circumstances as established by
the facts of this case.” By
this statement, the learned
justice could not be taken to
mean that, outside the areas of
prohibited bail, the courts are
under an obligation to grant
bail on account of the
constitutional presumption of
innocence. Thus, the Benneh Case
does not, and cannot, stand for
the proposition that bail must
be granted in all narcotics
cases because they are not among
the offences in which bails are
statutorily unavailable.
We are back to the continuing
relevance of judicial discretion
in the matter of bails, and the
proper exercise of such
discretion. There will be
narcotics cases in which bail
will be granted; and other
narcotics cases in which bail
will be denied. There will be
non-narcotics cases involving
severity of punishment in which
bail will be granted; and cases
of the same genre in which bail
will be denied. There is no
logical incoherence or
inconsistency in such a judicial
phenomenon; for the mix of
factors embedded in s. 96(5) &
(6) of the Criminal Procedure
Code will hardly be the same in
all such cases. What we ought to
guard against in this respect is
the arbitrary exercise of
judicial discretion when called
into play, rather than the
denial of judicial discretion as
such.
In the Benneh case, it would
appear from the record that
there were circumstances that
might have weighed upon the
Court of Appeal and the Supreme
Court to grant bail. One such
circumstance was the health of
the accused. Among the Court of
Appeal records was an affidavit
dated 14th July,
1998, filed by Benneh and
supported by reports from a
doctor and the police, in which
the accused swore that “I have
been in and out of the Hospital
since I was brought down from
Geneva”. [See Motion On Notice
For An Order To Be Admitted To
Pending Bail, In the Superior
Court of Judicature, In the
Court of Appeal, Accra A.D.
1998, Filed 29-7-98 Exhibits
KQ-1&2]. Serious medical
conditions while the accused is
in detention may indeed be taken
into account in the exercise of
the Court’s permissive
discretion under s. 96(1) of Act
30.
The constitutional validity of
the continued application of the
rules on bail embodied in s. 96
of the Code has been challenged
on more general human rights
grounds. It has been suggested
by some of the Counsel in this
case that the refusal to grant
bail is in some sense a
violation of the fundamental
human rights enshrined in the
1992 Constitution. We have
already dealt with the
constitutional guarantee of bail
in Art.14(4), which arises from
the fact that arrest and
detention constitute a form of
deprivation of personal liberty
which needs to be
constitutionally justified. We
have also constructed a
presumption in favour of grant
of bail premised on the general
tenor of Articles 14 and 19(2).
All these provisions fall under
Chapter Five of the Constitution
entitled “Fundamental Human
Rights and Freedoms.”
However, we must always guard
against a sweeping invocation of
fundamental human rights as a
catch-all defence of the
rights of defendants. People
tend to overlook the fact that
the Constitution adopts the view
of human rights that seek to
balance the rights of the
individual as against the
legitimate interests of the
community. While the balance is
decidedly tilted in favour of
the individual, the public
interest and the protection of
the general public are very much
part of the discourse on human
rights in our Constitution. Thus
Art 14(1)(d) makes it clear that
the liberty of certain
individuals, including drug
addicts, may be curtailed not
only for the purpose of their
own care and treatment, but also
“for the protection of the
community”. Art 14(1)(g)
sanctions the deprivation of an
individual’s liberty upon
reasonable suspicion of the
commission of an offence under
the laws of Ghana, ostensibly
for the protection of the
community and the body politic.
Art.21(4)(c) further authorizes
the imposition of restrictions
in the interest of public safety
and public health, among other
concerns.
Moreover, it is important to
read the Constitution as a
holistic document, that is, one
in which all the various parts
fall into place and have meaning
assigned to them. The Directive
Principles of State Policy
(Chapter Six) constitute an
important statement of the
vision of the Framers of the
Constitution. In the specific
subject-matter before us—the
problem of narcotics importation
and their possible transshipment
---- Article 40(c) is
instructive. Under this Article,
the promotion of respect for
treaty obligations and for
international law in general is
viewed as a principle of state
policy. Thus Ghana, as a party
to the United Nations Convention
on Narcotic Drugs and
Psychotropic Substances,
shoulders a constitutional
exultation to enforce this
Convention, while at the same
time protecting the
constitutional presumption of
innocence of all accused
persons.
Reference has been made by
Counsel for the 1st
Accused/Appellant to Article
19(2)(e) of the Constitution,
which provides that an accused
person be given adequate time
and facilities for his/her
defence. Counsel points out,
quite rightly, that these
facilities include the right to
consult with his lawyers. But
then Counsel proceeds to make
the submission that the accused
is entitled to bail by virtue of
this provision and the
consequential right of
consultation. This argument is
completely untenable as a matter
of logic and criminal justice
policy; for it would mean that
whenever an alleged criminal is
arrested, he/she must be granted
bail upon informing the
authorities that he or she
needed or wanted to consult with
lawyers. There is no reason why
the accused person cannot
consult with his counsel while
in detention; indeed,
consultation under such
conditions is an established
practice. Moreover, the denial
of such consultation would be a
clear infringement of the
Constitution, for which the
accused person may petition for
a remedy.
Counsel for the 1st
accused cites the American case
of Kinney v. Lenon [425 F. 2d.
209 (9th Cir. 1970)]
in support of his submission on
the right to bail based on the
need to consult with lawyers.
But Counsel loses sight of “the
peculiar circumstances” of this
case so soon after amply setting
them out in his Statement of
Case. This involved a situation
in which it appeared reasonable
to release the accused so that
he could get back into the
community to physically identify
potential witnesses. The accused
was a black man residing in a
black community; the potential
witnesses were black; and it was
felt that the physical
identification of such witnesses
in such a community possibly by
his white attorneys would be
fraught with great practical
difficulty. Under the
circumstances, the Court ruled
that “failure to permit the
appellant’s release for the
purpose of aiding the
preparation of his defence
unconstitutionally interfered
with his due process right to a
fair trial.” In the case before
us, there are no such peculiar
circumstances. Thus there is no
obvious violation of due process
rights of the accused by their
continued detention, provided
always that they are assured of
reasonable facilities to consult
with their lawyers in the course
of their trial.
A submission based on the status
of judicial precedent in our
Constitution has been raised in
the Statements of Cases by
Counsel for the 1st and 6th
accused. Article 136(5) provides
that the Court of Appeal shall
be bound by its own previous
decisions. This is made subject
to Article 129(3), which enjoins
the Court of Appeal to follow
the decisions of the Supreme
Court. This same section states
that the Supreme Court should
ordinarily treat its own
previous decisions as binding,
but is entitled to depart from
them “when it appears right to
do so”. Thus the Constitution
imposes the stare decisis
version of judicial precedent on
the Court of Appeals, but adopts
only a deferential view of
precedent for the Supreme Court
as regards its own rulings.
Incidentally, while this
deferential view may be
described as a “weak form” of
precedent, there is a strong
policy justification for
maintaining it in respect of
courts of last instance; or else
the development and adaptation
of the law to evolving cultural
and historic phases of the
society might very well fall
into atrophy.
Nonetheless, from the provisions
of Articles 129(3) and 136(5),
Counsel seek to make the
submission that the “refusal” of
the Court of Appeal to follow
not only its own earlier
decision but also the decision
of the Supreme Court in the
Benneh case is
unconstitutional. However, the
duty to follow a “decision” in
this constitutional context
refers to the ratio decidendi
of the case, that is, the reason
for the decision, or the holding
or proposition of law emerging
from the case, not to the
specific result of the case,
that is, the actual decision to
acquit or convict, or to find
for one party rather than the
other. Thus the holding of an
earlier case as applied to a
subsequent case might actually
lead to a different result or
judgment because the facts or
circumstances of the two cases
are different in some
significant sense.
To follow the decision in the
Benneh case in which bail was
granted in narcotics-related
charges is not to say that the
later decision must also lead to
a grant of bail, without regard
for the potentially different
circumstances of the later case.
Moreover, it cannot be said that
a lower court has refused to
follow the “decision” of a
higher court without reference
to a clear and correct statement
of the holding of the case as
disposed of in the higher court.
As explained in earlier
paragraphs, the Benneh case did
not hold that bail must be
granted in every case of
narcotics-related charges; it
merely demonstrates that bail is
not ruled out even in narcotics
cases. Thus we hold that the
Court of Appeal decision of 3rd
March 2004 in the present case
of Gorman and Others did not
violate the Constitution; and we
further hold that in making its
ruling in this case on 7th
June, 2004, the Supreme Court
did not depart from the holding
in the Benneh case as properly
understood. There are
appreciable factual differences
between this case and that of
the Benneh case to warrant a
departure from the specific
result reached in the latter
case.
Drawing on our general analysis
of the law above, we summarize
our holdings as follows:
-
The constitutional
presumption of innocence
embedded in Art. 19(2)(c) of
the 1992 Constitution does
not import an automatic
right to bail.
-
The constitutional duty of
the court under Art 14(4) of
the Constitution, to grant
bail to the accused if he is
not tried within a
reasonable time, is
applicable irrespective of
the nature of the accusation
or the severity of the
punishment upon conviction.
-
In the cases falling outside
the direct duty to grant
bail under 14(4), there is a
constitutional presumption
of grant of bail drawn from
the spirit of the language
of Art 14(1) &(3), and
19(2)(c), in further
protection of persons
charged with offences in
situations which do not
mandate the grant of bail.
-
The said constitutional
presumption of grant of bail
is rebuttable; and it is in
fact rebutted by a statutory
provision that expressly
disallows bail, such as the
circumstances outlined in s.
96(7) of the Criminal
Procedure Code.
-
Outside the strictures of s.
96(7) of the Code and
Article 14(4) of the
Constitution, the
presumption of the grant of
bail is still extant, and is
exercised under judicial
discretion which is itself
fettered by other provisions
of s.96.
-
There is no prima facie
inconsistency between the
relevant provisions of the
Code and the 1992
Constitution.
-
Considerations of the nature
of an accusation and the
severity of punishment upon
conviction, as part of the
decision not to grant bail
under s.96(5) &(6), are
constitutional; and that the
gravity of an offence may be
viewed as an aid in
understanding and
categorizing the nature of
an accusation.
-
The Court of Appeal, in
arriving at its judgment of
3rd March, 2004
to rescind bail in this
matter, at variance with the
judgment in the Benneh case
to grant bail, did not
violate the constitutional
provision on stare decisis;
and
-
The Supreme Court is not
bound by the specific result
of the Benneh case since the
factual contexts are
distinguishable.
II: APPLICATION OF ANALYSIS TO
THE ACCUSED/APPELLANTS
We now apply the result of these
holdings to the circumstances of
each of the appellants. The
second accused, a Ghanaian
national, did not appeal the
quashing of his bail. We
therefore made no ruling on him,
and give no further
consideration to his case.
In respect of the 1st
Accused/Appellant, an American
and British dual national, we
are persuaded that he has a
fixed place of abode in Ghana:
he owns a house in Tema, is
married to a Ghanaian woman, and
has five children in all with
Ghanaian women. Among the
accused, he probably has the
strongest ties to Ghana.
However, the presence of a fixed
place of abode is not
dispositive of the matter. The
nature of the accusation and the
severity of the punishment upon
conviction is such that even a
native-born Ghanaian resident in
Ghana, owning multiple homes in
Ghana, and capable of claiming
an unbroken family lineage in
Ghana stretching over the past
500 years, might well be
persuaded to flee the
jurisdiction and avoid the
trial. What makes the case
against bail even stronger in
respect of the Ist Accused is
that the narcotics in question
were allegedly found in his
home. Thus the fear that he
would flee from the jurisdiction
is not unreasonable.
The 3rd
Accused/Appellant, a British
national, does not appear to
have strong ties to Ghana, even
though he is said to have lived
here for around 10 years as an
employee of business interests
or as an independent
businessman. His partial
equitable ownership of an oil
tanker berthed in Nigeria has no
relevance to the determination
of a fixed place of abode in
Ghana. There is a legitimate
question whether he had a fixed
place of abode in Ghana at the
time of his arrest. The Court of
Appeal was of the opinion that
he did not have such an abode;
and we have no reason to
contradict that finding. It is
important to emphasize that the
notion of a fixed place of abode
connotes more than having a roof
over one’s head. The fear that
he would probably flee from the
jurisdiction is not
unreasonable.
The 4th
Accused/Appellant, a British
national, had never really lived
in Ghana, but paid regular
visits here. He is described as
an international businessman,
with an equitable interest in an
oil tanker which was once
refurbished at the Tema shipyard
and drydock. None of these facts
seriously suggest the presence
of a fixed place of abode for
him. We agree with the Court of
Appeal that he has no place of
abode in Ghana. The likelihood
of flight from the jurisdiction
is very real.
The 5th
Accused/Appellant, a British
national, stays with the 1st
Accused while on visits to
Ghana. It is evident, as the
Court of Appeal correctly
pointed out, that he has no
fixed place of abode in Ghana.
The likelihood of flight from
the jurisdiction is very real.
The 6th
Accused/Appellant, a German
national, has a legally rented
dwelling place in Tema. Even
though the premises are rented,
unlike the case of the 1st
accused, there appears to be
such relative stability in
residence as to qualify it as a
fixed place of abode. He is
married to a Ghanaian woman,
with whom he has two children.
However, like the case of the 1st
accused, the mere establishment
of a fixed place of abode does
not dispose of the problem. The
likelihood of flight from
jurisdiction is real.
Moreover, in respect of each of
the accused/appellants, public
interest considerations focused
on the societal problems of drug
addiction, and the need to abide
by the treaty obligations of
Ghana in the enforcement of
anti-narcotics laws, weigh
heavily against the grant of
bail. In short, this case is
deeply affected with the public
interest; and the courts below
are entitled to take such
factors into consideration in
the exercise of their
discretionary power under
section 19(1) of the Criminal
Procedure Code, Act 30.
DECISION
The quashing of the grant of
bail by the Court of Appeal in
respect of all the accused
persons has occasioned no
miscarriage of justice. There
was no abuse of judicial
discretion in its decision to
quash the bail outright rather
than simply to review or set
fresh conditions for the grant
of bail. There has been no
unreasonable delay in bringing
the case to trial; indeed the
trial is currently going on. We
conclude that there is no need
to interfere with the Judgment
of the Court of Appeal in this
case; and we hereby uphold the
decision to refuse bail.
PROF. T. M. OCRAN
JUSTICE OF THE SUPREME COURT
S.A.B. AKUFFO, (MS)
G. T. WOOD (MRS)
JUSTICE OF THE SUPREME COURT
DR. S. TWUM
JUSTICE OF THE SUPREME COURT
DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
COUNSEL:
Mr. Anthony Gyambiby, C.S.A. for
the Respondent.
Mr. Thadeus Sorry for 1st
Appellant.
Mr. Addo Atuah for 3rd,
4th and 5th
Appellants.
Mr. Kwabla Senau for 6th
Appellant.
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