Delays in the criminal justice system: Re Denkyira Obuasi
As I sat down to write my concluding address for the jury in a trial which has taken six years so far, I decided to write this article on delays in the criminal justice system.
Advertisement
Delays in concluding criminal trials affect the public, who have an interest in seeing the perpetrators of crime punished. Delays also undermine the credibility of the system.
This is because delays in prosecuting crimes affect the reliability of the accuracy of the evidence, largely due to the loss of memory of witnesses over time.
This can have a devastating effect on the Prosecution’s case if the witnesses they intend to call at trial suffer significant memory loss with respect to key areas of their potential testimony.
Victims and witnesses are also unduly affected by the duration of long trials as they are forced to attend repeated hearings which, in some cases, make them lose interest.
This can lead to a refusal to cooperate with the Prosecution if court attendances start to have a negative impact on their daily lives.
Prosecutions
In respect of accused persons, delays in commencing prosecution inhibit their ability to mount a robust defence, as they are equally affected by memory issues, and this malaise applies equally to any potential witnesses they intend to call to testify on their behalf.
In the case of accused persons who are remanded in custody, the negative effect of delays is more pronounced, as they can be kept in prison for long periods.
There are instances where accused persons are held on remand for a considerable number of years.
Not only is this a grave infraction on their constitutional right to presumption of innocence but, if they are acquitted at the end of the trial, they have a remedy to compensate them for the time lost while they have been unfairly kept behind bars.
The Attorney General has recently indicated that a Bill to expedite criminal trials and reduce delays in the criminal justice system is being prepared. He particularly singled out jury trials as a significant contributor to delayed criminal trials.
This initiative is laudable and this column will offer contributions towards this end.
For present purposes, we shall deal with other factors that lead to delays in the prosecution of crime.
The starting point has to do with police investigations.
Whether due to lack of resources – both human and material – there is a tendency for criminal investigations by the Police to delay.
Many a time, after accused persons are put on trial, the Prosecution requests an adjournment from the judge to conduct further investigations.
These requests are normally granted but, in some cases, the Prosecution then informs the court (especially in serious crimes) that they have forwarded the results of their investigations to the Attorney General’s Department for advice as to the prosecution.
In some cases, it takes more than a year for such advice to arrive, and the court is forced to adjourn on countless occasions for this to happen.
What does the law say about delays?
The constitution, in article 19 (1), says a person charged with a criminal offence shall be given a fair hearing within a reasonable time by a court.
The question then is what is a reasonable time?
This is calculated to begin with the time of charging the accused and ends when a sentence is pronounced.
In assessing whether the time is reasonable, many jurisdictions assess it according to the complexity of the case, the conduct of the accused persons and that of the prosecuting agency.
Determine
The Ghanaian courts have yet to clearly determine this, and we suggest it is done with reference to what obtains in other jurisdictions, with a clear timetable for the duration of criminal prosecutions.
For example, in the United States Bill of Rights and other state constitutions, the courts have established standards and impose penalties for their violation.
A useful guide can be taken from the practice of Canadian courts where there is a time limit of 18 months for lower courts and 30 months for superior courts.
If these thresholds are exceeded, the prosecution is required to prove why the delay is reasonable.
This originated from the case of R v Jordan and has since been designated the Jordon principles on delay – lack of resources on the part of the authorities is not countenanced.
We suggest that Ghana adopts a similar regime in regulating the duration of criminal prosecutions, thereby effectively protecting the citizenry from crime whilst safeguarding the rights of accused persons.
The writer is a lawyer.
E-mail: [email protected]
