Human rights and criminal justice system

The trial of the former Deputy Finance Minister and current leader of the minority National Democratic Congress (NDC) caucus in Parliament is generating a lot of interest and has positioned the judiciary at the heart of current affairs.

This interest was heightened by the accusation of the third accused person in the matter, Mr Richard Jakpa, when under cross-examination made some serious allegations against the conduct of the Attorney General.

The resultant public interest in the matter, which has been reflected in the copious commentaries, opinions etc occasioned by the allegation, is understandable as the matter is an issue at the heart of the justice system of this country.

Apart from the sensitive issues at the core in the adjudication of the matter, it has also brought to the fore, some legal procedural features hitherto uncommon to our judicial system: Plea Bargaining and Mistrial.

We explored the ambit and parameters of plea bargaining in last week’s article, so it is in order to deal with what is a mistrial.

Mistrial

It is worthy of note that the third accused person in making these allegations against the Attorney General, filed at court an audio tape recording of an alleged telephone conversation between Jakpa himself and the Attorney General in which the subject of his allegations are allegedly captured.

On the back of this, the lawyers for the first accused person, Dr Cassiel Ato Forson, filed a motion at the court demanding, among other reliefs, a declaration of mistrial of the matter.

This begs the question of what a mistrial is in a criminal procedure. A mistrial in law is the truncation of proceedings before the case is completed/finished and a decision or a verdict is given. In effect, a mistrial is a trial that is not successfully completed.

There are reasons why a trial can result in a mistrial. The most popular one is occasioned by a hung jury but other factors such as the sudden death of a juror or in some cases, the death of a judge can precipitate the declaration of a mistrial.

Fair Trial Principles

Mistrials are closely tied up with the notion of Fair Trial Principles, thus, any act, occurrence or situation that can potentially prevent a defendant from receiving a fair trial may trigger it.

For example, if a juror is caught discussing the case with anyone who is not a member of the jury or is seen talking to defence or prosecution counsel, this can potentially lead to a mistrial.

A fundamental error that occurs during proceedings and which cannot be safely cured by an appropriate direction by the judge in a jury trial is also a candidate for a declaration of a mistrial.

Mistrials are traditionally limited to jury trials and another important factor that can bring about a mistrial is prosecutorial misconduct. What exactly constitutes misconduct is not exactly defined and is determined on a case-by-case basis but issues such as evidence manipulation, jury nobbling etc can qualify.

Concept

In Ghana, the concept of mistrials, as pertains in the Western world (USA, England etc) is very alien and the Ato Forson case is the first in which the defence is calling for a mistrial on the grounds of prosecutorial misconduct.

The closest Ghana’s criminal code (Criminal and Other Offences Act) comes to the accepted notion of mistrials are the provisions in sections 285(4) and 286, which deal with only jury trials.

Section 285(4) calls for the discharge of the accused person in the event of a hung jury and Section 286 orders the retrial of the matter in the event of a hung jury, with or without bail.

This means that contrary to what a lot of people were saying concerning the application by the defence in the Ato Forson trial, the matter would not have been permanently discontinued if the motion for Mistrial had succeeded.

A prosecutor or a defence lawyer can bring an application motion for a Mistrial. In the Ato Forson case, the judge refused the application and the defence had indicated their intention to appeal.

Mistrials in Ghana, as indicated by the judge, have no statutory footing. The issues for determination at appeal are therefore going to be novel. It is hoped that Parliament legislate to include prosecutorial misconduct as part of a mistrial as, at the moment, there seems to be a lacuna in the law. We are all waiting for the determination as part of the development of the jurisprudence of the criminal justice system.

The writer is a lawyer.
E-mail: georgebshaw1@gmail.com