Samson’s Take: Strictly legal - nolle prosequi 101

Today, let’s get some education about this frequently used legal terminology. It’s been used a lot this week though it didn’t show up in court in the Delta Force 8 case.

The Supreme Court has always (and in May 2010) agreed with a leading text writer on the Ghanaian law of evidence, the late Justice Ofori Boateng, who in his The Ghana Law of Evidence rightly noted that “[n]olle prosequi [when] granted will not constitute a decision on merits.”

The court again in July 2012 told the Attorney-General that it “has in [its] own hands and control a “remedy” that [it] can deploy…” when it wants to truncate a criminal case it has brought to court. This will be “by exercising this statutory power of nolle prosequi” which results in “[t]he discharge of an accused …[and is] equivalent to wiping the slate clean, as far as the discontinued proceedings are concerned.

This is, of course, without prejudice to restarting fresh proceedings against the accused, on the same facts.” So, that’s it! Entering nolle prosequi primarily is an official announcement in or to the court by the AG that it is no longer interested in continuing a case.

It is a sort of special judicial power that leaves a judge with no discretion than to also simply announce that the charges brought against an accused person have been dropped and that he or she, consequently, has been discharged – is free to go! But this freedom, according to the law and as explained by the Supreme Court, may only be brief because it is only an acquittal that secures permanent freedom.

The court often would pronounce an accused acquitted and discharged after a trial in which a case has been determined on its merits and the accused found not guilty of the charges against him/her.

The state has often resorted to nolle prosequi to, among other purposes, end a case it finds it would be embarrassed if it goes the full length or that justice demands it terminates the case.

It may also give prosecution the opportunity to sort of get a break time so it can remedy initial defects or errors it has discovered it made and then fortify its case.

This explains why you often find that where the accused is rearrested, the fresh charges may have been upgraded from say petty offences to serious offences and increased in number and/or more accused persons have also been brought in, and/or some earlier accused persons left out.

It may sound unfair to an accused, but the AG can enter nolle prosequi at any stage before a verdict or judgment is given, and is under no obligation to assign reasons for that action.

In 1971, a Sunyani High Court held that a State Attorney could not exercise this power without proof of written authorisation of the AG. But this is no longer law, (see Law Officers Act, 1974 N.R.C.D. 279) and written authorisation is not required as confirmed by the Court of Appeal as recent as 2010.

A bit more can be said about nolle prosequi, but I certainly can’t end it here without mentioning its twin known as withdrawal which is often entered much earlier in a case.

It operates in similar fashion, but when it is announced after the prosecution has closed its case (i.e. before the accuse will give his/her testimony and call witnesses if any), then the accused will be acquitted in respect of the charges that have been dropped, and if it is all the charges that have been withdrawn then accused goes free as acquitted and discharged.

Remember that once acquitted, you cannot be brought to court to answer same charges on same facts ever again and/or be convicted on same charges on same facts ever again.

This is the legal protection known as autrefois acquit and autrefois convict - French terms literally translated “previously acquitted” and “previously convicted” respectively.

Ghana police, please avoid the wrong traditional approach of arresting and remanding suspects before gathering evidence/investigating.

The reverse is best practice – first investigate, find the evidence before arresting and seeking to have suspects locked up/remanded.

Samson Lardy Anyenini

20th May, 2017