Amend laws for expeditious disposal of galamsey, corruption, economic financial crime cases 2

TO address these challenges in our criminal justice system, I propose the following: 

(I) If one judge does not conclude the determination of a criminal case and another judge takes over, the proceedings should be adopted for the case to continue in both summary trial and trial on indictment. This should be mandatory for the judge and not optional.

(II) The trial of an accused person should proceed from day-to-day until the conclusion of the trial.

(III) Where the day-to-day hearing or trial is not practicable for any reason, no party, that is, either the prosecution or the defence, should be entitled to more than six adjournments from the day the accused is arraigned before the court to the date of final judgment. Therefore, not more than twelve adjournments for both prosecution and the defence.

(IV) The interval between each adjournment should not exceed ten days, inclusive of weekends and public holidays, whether the accused is on bail or on remand.

(V) Where it is not practicable to conclude the trial after the parties have exhausted their six adjournments each, the judge should adjourn the case to another date for continuation. However, one adjournment to another adjournment should not exceed seven days, inclusive of weekends and public holidays.

(VI) The trial court should have the power to award costs against counsel for either the accused or the Republic or the accused or the complainant to discourage frivolous adjournments.

(VII) The hearing of criminal cases pending before High Courts should proceed during legal vacation either by the same judge or any judge who would sit in that court as a vacation judge.

(VIII) If the vacation judge concludes the hearing, the substantive judge must adopt the proceedings taken during the vacation, in addition to the other proceedings, to deliver the judgment in the case. The vacation judge can also be given a warrant by the Chief Justice to deliver the judgment after the vacation if the case is concluded during the vacation.

The Criminal and Other Offences Procedure Act, 1960 (Act 30), which regulates the procedure in respect of the hearing of criminal cases, does not mention legal vacation. The Constitution does not mention legal vacation.

The Courts Act, 1993 (Act 459), as amended, also does not mention legal vacation. It is the High Court (Civil Procedure) Rules, 2004 (C. I. 47), which provides for legal vacation under Order 79 Rule 4.

However, the Orders and the Rules under C. I 47, apply to civil cases or proceedings only and do not apply to criminal cases as stated under Order 1 Rule 1(1) of CI 47.

Therefore, the continuation of hearing of criminal cases before the High Courts during legal vacation would not offend Act 30, Act 459 or the Constitution.

The implementation of recommendations 13 (I-VIII), as listed above, shall lead to the amendment of section 169 (2) of Act 30, which gives the time limit between one adjournment and the other. It does not indicate the number of times a case can be adjourned from commencement to its conclusion.

After the plea of an accused person has been taken, he can object to the validity of the charge against him at any time before judgment. However, such an objection should only be considered along with the substantive matter at the conclusion of the case.

An application for a stay of proceedings should not be entertained in any criminal matter.

Any party that intends to appeal against an interlocutory ruling must embody the same in the substantive appeal at the conclusion of the case. 

Section 169 of Act 30 should be amended to include points 16, 17 and 18 as stated above.

 Articles 131 (1) and (2),137 and 140(1) of the Constitution and sections 4(1) and (2), 11 (1) and (2) of Act 459 should be amended to exclude interlocutory criminal appeals. Sections 15 and 21 of Act 459, as amended by sections 2 and 3 of the Courts (Amendment) Act, 2002 (Act 620), should be amended again to exclude interlocutory appeals in criminal cases.

Meaning

There should be an amendment to the meaning of the word “judgment” under Article 295(1) of the Constitution and section 117 of Act 459 to exclude interlocutory criminal appeals.

Where a question as to the interpretation of a provision in the Constitution arises during a trial in a criminal case, the judge before whom the question arose may, in his discretion, do any of the following:

(a) Conclude the trial and postpone the judgment until the question has been decided by the Supreme Court, or

(b) Conclude the trial, give his judgment, but where the accused is convicted, suspend the passing of the sentence until the question has been determined, or

(c) Conclude the trial, give his judgment and where the accused is convicted, pass his sentence but suspend the execution of the sentence until the question has been determined.  In any of the situations as stated under a, b or c, the court, in its discretion, shall remand the convict or grant him bail, depending on the circumstances of the case.

(d) Where the decision of the Supreme Court, per the interpretation of the constitutional question, is to the effect that the accused should be acquitted, the trial court should proceed to reverse its conviction and sentence and acquit the convict where he has been convicted and or sentenced.

(e) Where the decision of the Supreme Court as to the interpretation of the constitutional question is a confirmation of the conviction of the accused, then the sentence of the convict shall begin in a situation where he is on remand. While he is on bail, the bail should be rescinded for the sentence to begin after his arrest.

The implementation of point 22 (supra) shall lead to the amendment of section 3(2) of Act 459 and Article 130(2) of the Constitution, which said article is not entrenched and, therefore, not difficult to amend.

The writer is a Justice of the Court of Appeal.