In last week’s article, we began the argument as to why trials within a reasonable time are essential.
We continue this week and focus on serious crimes.
Serious offences require urgency, not paralysis.
There is sometimes an understandable argument that murder cases are different.
They are, but a person’s liberty, reputation and sometimes life are at stake.
The prosecution must investigate thoroughly.
The defence must be given adequate time and facilities to prepare as stipulated in Article 19 of the Constitution.
Witnesses must be properly examined and cross-examined.
The court must scrutinise the evidence carefully, but the seriousness of an offence cannot become an excuse for institutional paralysis, as a client of mine is discovering in an ongoing prosecution for murder that has already taken three years even before the trial has commenced!
Indeed, the greater the seriousness of the allegation, the greater the need for a prompt and properly managed trial.
A murder accusation is not an ordinary civil dispute. It can destroy a person’s reputation, employment, family relationships and psychological well-being.
The accused may ultimately be acquitted, as happened to William Baah, the Assemblyman of Denkyira Obuasi, who spent seven years in custody whilst the trial of Major Mahama unfolded.
Seven years is a long time to live under the shadow of an accusation of murder and in prison as well.
The presumption of innocence, guaranteed in both international and domestic law, has a time dimension.
We lawyers often repeat the principle that an accused person is presumed innocent until proved guilty.
Quite rightly so, but the practical value of that presumption is weakened when the criminal process itself becomes prolonged punishment.
A person may be legally innocent but socially condemned.
For years, the accused may have to report to court.
He may have restrictions imposed on his/her liberty.
He may lose employment or business opportunities.
Legal expenses may consume his savings. His marriage may suffer.
His children may grow up seeing him/her repeatedly appearing before a court.
If he is denied bail and remains in custody, as happened to William Baah, the consequences can be catastrophic.
No monetary post-acquittal compensation can remedy this.
Court
The European Court of Human Rights has repeatedly stressed that the reasonableness of the length of criminal proceedings must be assessed in the light of the circumstances of the particular case, including its complexity and the conduct of the authorities and the accused.
In Neumeister vs Austria, the European Court stressed the importance of examining the particular circumstances of each case in determining whether the period of detention or proceedings had become excessive.
Similar sentiments were expressed in Letellier vs France.
The message from international jurisprudence is clear: states cannot simply point to the seriousness of the offence and assume that time has no human rights consequences.
Delay
Delay also destroys evidence.
The longer a case takes, the greater the danger that the trial will become less reliable.
Witnesses forget, memories fade, documents disappear, and physical evidence deteriorates.
Investigators leave the service and witnesses become unavailable.
The criminal trial is ultimately an exercise in reconstructing past events through evidence.
Time is, therefore, not neutral.
It can actively undermine the search for truth.
This is why international human rights jurisprudence treats delay as a serious issue.
The right to a trial within a reasonable time protects not only the accused but the integrity of the administration of justice itself.
Additionally, victims and their families have an equally legitimate interest in seeing criminal cases resolved.
Lengthy trials force them to relive the trauma repeatedly.
Each adjournment prolongs uncertainty, each delay postpones closure.
Justice delayed can, therefore, become a second burden imposed on those already devastated by crime.
The public also has an interest.
A criminal justice system must demonstrate that serious wrongdoing will be investigated and adjudicated efficiently and fairly.
When murder cases take years to conclude, society begins to wonder if the state is capable of delivering justice at all.
Perhaps the most dangerous consequence of excessive delay is the erosion of confidence in the justice system.
Courts do not operate in a vacuum.
They derive much of their legitimacy from public confidence.
Citizens must believe that if they are wronged, the courts can provide a remedy.
They must believe that if they are accused of a crime, they will receive a fair and timely hearing.
When confidence erodes as a result of prolonged trials, people may resort to intimidation or self-help.
In extreme cases, the loss of faith in the formal justice system contributes to vigilantism and violence.
The writer is a lawyer. E-mail:
