Samson’s take: Police lawful duty, your rights when arrested (II)

Samson Lardy Anyenini RTI 1234 Samson Lardy Anyenini , Legal Practitioner and host of Newsfile

Sat, 7 Apr 2018 Source: Samson Lardy Anyenini

Last Saturday, in Part (I) of My Take, I introduced you to and required of you to insist on your Miranda rights when arrested.

I gave the education that you are entitled to resist an arrest that does not comply with the rules set out in article 14 of Ghana’s Constitution, as such is an unlawful arrest.

You must have learnt also that it is misleading to claim that police always require a warrant to effect an arrest.

I promised to keep this instalment on the issue of bail pending trial. Let’s now correct the wrong impression and miseducation that police breach some law when they decline to grant bail before the expiration of 48 hours from the time of arrest, restriction or detention.

First, I was shocked when government issued a White Paper rejecting the 2010 Constitution Review Commission’s proposal to reduce the pretrial detention period from 48 to 24 hours.

Unprofessional police officers are known to maliciously arrest a powerless prey a day or two before the weekend or a public holiday so they can keep a suspect for about four days before granting bail or producing him before a court, and they would not have broken the law.

This is done deliberately and wickedly to “teach a suspect some sense”. It may be used to assist an officer or his friend to settle a personal score. It could also be an effective debt collection strategy that gets friends and family running to rescue one from police cell by contributing to pay off a debt – police stations are not debt collection centres. Debts arising from pure mutual commercial transactions are liable to civil suits to recover the debt; they generally do not constitute criminal offences for which the police must be brought in.

If you can, avoid attending to police invitation on Fridays or ahead of public holidays. Do well to reschedule them or just don’t make yourself available to have your rights abused in the mischievous 48-hour rule calculation.

Well, even though presently there is no criminal offence labelled as non-bailable (thanks to Martin Kpebu), bail is not automatic. It is a discretionary relief. If the police refuse to grant you bail, they must arraign an accused before a court within 48 hours of the arrest, restriction or detention. The accused has an opportunity to ask the court for bail but the court reserves the discretion to refuse or grant bail.

The law requires that police must produce you before a court within 48 hours. It does not say you should be produced to be granted bail. The point of law is that if the police decline to grant bail within this period, you cannot question same in any court. What you can question in a higher court is if a court refuses bail or where the police refuse you bail and do not produce you before a court even upon expiration of 48 hours.

Yes, a court’s decision to refuse bail can be questioned because the judge making the decision ought to be judicial and not capricious and unfairly deny bail. Section 96 of the Criminal Procedure Act (1960) took away a judge’s power to grant bail if one is charged with treason, subversion, murder, robbery, hijacking, piracy, rape, defilement, narcotics, terrorism, escape from lawful custody; or where a person is being held for extradition to a foreign country. But Martin Kpebu got the Supreme Court in 2016 to change that situation and now no offence is labelled as non-bailable.

What remains law is that a judge will not grant bail if she is convinced that you are not likely to appear to stand trial; that you may interfere with a witness or the evidence, or in any way hamper police investigations; or that you may commit a further offence when on bail. Otherwise, they are under strict instructions not to use bail as punishment and so are to set bail amounts (no actual money is to paid) and conditions with due regard to the circumstances of the case and avoid being excessive or harsh.

The need to grant an accused bail stems from the principle and constitutional right to presume an accused innocent until she admits or is proven guilty by a court. Accused persons are also to be afforded facilities and reasonable time to defend themselves.

Samson Lardy ANYENINI

April, 2018

Columnist: Samson Lardy Anyenini