Is plea bargain relevant in the Ghanaian criminal justice system?

“A plea of guilty, when recorded, constitutes a conviction.” – Section 239(1) of Act 30

1.0 Introduction
In a criminal case, a defence counsel makes his way to Court in order to negotiate a plea with the prosecutor on behalf of his client. While the prosecutor claims that he has substantial evidence, his client maintains that he is innocent of all charges and demands acquittal.

As an experienced defence counsel, he knows that there are insufficient evidence to convict his client, however, he is aware that chances of his client’s acquittal are limited. The best solution in his view is to reach a plea bargain. This will enable his client to admit to minor offence(s) to face lenient punishment(s). In consideration of this, his client will be acquitted of major offences, thus leaving both the prosecution and his client satisfied.
This is the aim of plea bargain in a criminal trial. In this instance, the defense counsel functions as a mediator seeking to reconcile the position of his client and the prosecutor.

On that note, the purpose of this article is to examine the relevance of plea bargain in view of the practice direction by the Chief Justice, Her Ladyship Justice Gertrude Araba Esaaba Sackey Torkornoo.

2.0 Historical Development of Plea Bargain
On the matter of plea bargain, one of the most controversial trials in history is the case of Republic v Director of Prisons; Ex Parte Ohene-Djan . The case primarily dealt with the trial of Dr I.L Ohene-Djan, a lawyer, and his co-accused Adu Yeboa, on the application for plea bargain under section 239(2) .

2.1 Summary of the case
In this case, after the trial had proceeded against the accused upon their plea of not guilty and when the prosecution had closed its case, an application was made by counsel for the defence to change their pleas of not guilty of murder to guilty of manslaughter in accordance with section 239(2). Section 239(2) provides as follows: –
Where an accused is arraigned on an indictment for any offence and can lawfully be convicted on the indictment of some other offence not charged in the indictment, he may plead not guilty of the offence charged in the indictment but guilty of the other offence, and upon the plea of guilty the Court may, with the consent of the prosecution, acquit the accused of the offence with which he is charged and record the plea of guilty to the other offence.

The Director of Public Prosecution (DPP), who conducted the prosecution, sought an adjournment to consult the Attorney-General. In the next hearing, he informed the court that the course the accused proposed to take was acceptable to the prosecution. At this stage only Ohene-Dian took this course.

The plea of guilty of manslaughter but not guilty of murder was recorded against him and he (Ohene-Djan) was convicted accordingly of the lesser charge of manslaughter and discharged of murder. Later, Adu Yeboa gave evidence but upon completion decided to follow the course taken by Ohene-Djan. The Director of Public Prosecution said his instructions covered Adu Yeboa as well and therefore his plea of guilty to manslaughter was acceptable to the prosecution. His plea was also recorded and he was convicted. But, this brought turmoil. The defense counsel did not appeal, but rather applied to the court for habeas corpus on the basis that section 239(2) was not properly invoked.

The argument by the defense counsel against the court’s conduct of the case was that accused ought to be acquitted and arraigned before the court for the charge to be read before the accused takes his plea.
The issues before the court were whether section 239 (2) can be resorted to at any time after the arraignment of the accused before the court, and whether the judge should have abstained from going on with the case in spite of the prosecution’s acceptance of the accused person’s plea under section 239(2).

The Court dismissed the application and further upheld the conviction. In coming to the decision, the court held as follows: –
On a strict interpretation section 239 (2) an accused ought to have been acquitted of the charge of murder before being convicted of the offence of manslaughter. However, deviations from forms prescribed in an enactment which did not materially affect the substance did not vitiate the form used. The instant deviation was not material and did not vitiate the conviction.

In other words, where the provision does not say that it may be invoked only upon arraignment, it was not improper for the court to have convicted them on their plea of guilty.

2.2 The import of the case on plea bargain
In light of the above case of Republic v Director of Prisons; Ex Parte Ohene-Djan, it systematically dealt with plea bargain on the application of section 239(2) when the accused took the course to negotiate with the DPP to change the plea of not guilty for murder but guilty for the lesser offence of manslaughter. Moreso, the defense counsel played a critical role as a mediator between the accused and the prosecutor to change their plea of not guilty of murder to guilty of manslaughter.

2.3 Plea bargain under the Courts Act
Considering the history of plea bargain in Ghana, the Courts Act, 1993 (Act 459) also allows for limited plea bargain in criminal offences resulting in fiscal loss to the State. Section 35(1) of Act 459 provides as follows: –
Where a person is charged with an offence before the High Court or a Regional Tribunal, the commission of which has caused economic loss, harm or damage to the State or any State agency, the accused may inform the prosecutor whether the accused admits the offence and is willing to offer compensation or make restitution and reparation for the loss, harm or damage caused.

As can be deduced from the above, the Courts Act enumerate some circumstances of entering into a negotiated plea, however, it is limited to offences of financial loss to the state subject to the agreement of the prosecutor.

3.0 Plea bargain under Act 1079

In July, 2022, the President assented a bill to fully integrate plea bargaining to the administration of criminal justice in the country. It bears the title, The Criminal and Other Offences (Procedure) (Amendment) Act, 2022 (Act 1079). Pursuant to this, the Chief Justice by a practice direction, has provided guidelines to fast track the implementation of Act 1079.

Prior to the passage of Act 1079, the Ghanaian criminal jurisprudence on plea bargain agreement remained unchanged since the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) which was passed more than half a century ago. In effect, section 162A of the amendment provides that: –

(1) Subject to section 162B, a person charged with a criminal offence may at any time before judgment, negotiate with the Attorney-General for a plea agreement
(a) to reduce an offence charged to a lesser offence;
(b) to withdraw a charge against an accused person; or
(c) to reduce the punishment for an offence charged within the law that prescribed the punishment.
Furthermore, subsection 2 provides that subsection 1 may provide for
(a) a sentence or a range of sentences to be recommended to the Court;
(b) the payment by the accused person of compensation to a victim of the offence; or
(c) the making of restitution by the accused person with the prior consent of the accused.
Section 162R of Act 1079 states that:
(1) Unless otherwise provided by any enactment, the provisions of section 162A to 162Q apply to the trial of a person charged with a criminal offence under any enactment except a person charged with
(a) treason or high treason;
(b) high crime;
(c) rape;
(d) defilement;
(e) kidnapping;
(f) murder;
(g) attempted murder;
(h) abduction;
(i) piracy;
(j) hijacking; and
(k) an offence relating to public election.
In a criminal trial, the stakes are higher than in a civil trial. This is because a criminal trial can end in the ultimate punishment, which is the deprivation of personal liberty. It is for this reason that a prosecution is shouldered with the evidential burden of proof beyond reasonable doubt. Thus, the least doubt cast on his evidence against the accused positions the accused to be discharged. Nonetheless, the aim of criminal justice is strictly to ensure justice and not to guarantee the freedom of the accused or to secure conviction of the accused. In so doing, one may ask: what relevant contributions do plea bargain under Act 1079 bring to our criminal justice system?

3.1 Relevance of plea bargain
In view of the practice direction, the primary benefit of plea bargaining for both the prosecution and the accused is that there is no risk of complete loss at trial. In cases in which evidence for or against an accused is questionable, bargains may represent a feasible way for the counsel on both sides to minimize their potential losses by settling on a mutually acceptable outcome. Plea bargaining can also be a way for the courts to preserve scarce state resources for the cases that need them most.

More so, prosecutors benefit from plea bargains because the deals allow them to improve their conviction rates. In some jurisdictions, prosecutors use plea bargains as a way to encourage defendants to testify against co-accused or other accused criminals.

Further, plea bargains allow prosecutors to avoid trials, which are avoided because they are time-consuming, labour-intensive, and costly but carry no guarantee of success. Through the rational use of plea bargaining, prosecutors can ensure some penalty for offenders who might be acquitted on technicalities.
Although prosecutors cannot negotiate every case (because that would incur public rage), they can bargain away routine cases or those characterized by weak evidence or other difficulties, saving their time and resources for cases that demand more attention.

3.2 Shortcomings of plea bargain

The purpose for negotiating a plea is to truncate an otherwise full and elongated and costly trial by tabling a plea bargain before the prosecutor or accepting one from the prosecutor. However, the danger is that the prevalent use of plea bargain may encourage the widespread of offences which plea can be negotiated hoping that a prosecutor would accept a plea bargain for the prosecutor and the investigator to shortcut the investigation, resulting in no or poor trial of the offenders or lesser or no penalty.

In addition, defence counsel may be ill-prepared, in any case, knowing that an accused person is seen likely to take a plea bargain although the accused person may be innocent.

Further, plea bargain may engender lack of investigation and lack of attention to the fine details, either as a prosecutor or a defence counsel, signifying danger for our criminal justice system, least of which is the whittling down of our criminal justice system.

4.0 Conclusion: Plea Bargain is Relevant in Criminal Trial

In Ghana’s adversarial legal system, a dispute resolution with a plea bargain is a legal tug-of-war between the prosecutor and the accused with the defence counsel serving as a mediator. This system cannot be said to be novel. Plea bargain is an approach to restore justice in response to crime by organizing face-to-face discussions between the prosecutor and the offender in a structured setting with the help of a mediator to hold the offender accountable for his offence.

In view of the substantial relevance of plea bargain, it is suggested that it is relevant and wealth of knowledge should be accumulated from practice to implement the framework of the plea bargain for effective delivery of criminal justice.