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Why you should consult a lawyer when invited, arrested, restricted or detained by security agents

Crime Jail You have the right to remain silent and refuse to answer questions until you access your lawyer

Tue, 6 Oct 2020 Source: Limann A. Mohammed

INTRODUCTION

The 1992 Constitution of Ghana guarantees any Suspect or Accused person the right to a Lawyer of the person’s choice.

According to Article 14 (2) of the 1992 Constitution guarantees that:

”A person who is arrested, restricted or detained shall be informed immediately, in a language he understands of the reasons for his arrest, restriction or detention and of his right to a LAWYER OF HIS CHOICE”

His Lordship Gbadegbe JSC speaking in Gabriel Joanne V. The Republic [2012] 47 G.M.J. 1- 60 stated: “…..The fundamental right to Counsel provided for in Article 14 (2) of the Constitution in my view is substantive in its nature and not merely procedural due process only.

As it seems, the right to Counsel if not knowingly waived should be available to an accused in order that the trial should not only be fair but for the purpose of upholding the integrity and accuracy of the fact finding process by which a conviction might be reached with the resultant deprivation of the right to personal liberty, which is also one of the fundamental human rights provisions contained in the 1992 Constitution….”

This constitutional right may be called the right to remain silence or the right to avoid self-incrimination.

These various terms are connoted in latin as “nemo tenetur seipsum accusare” which means that “no man is bound to accuse himself”.

This means that when you are invited, arrested, restricted or detained by the Police or any Security Agent, you have the right to remain silent and refuse to answer any question until you have access to your Lawyer.

Generally, no statement should be taken from a suspect or accused or no question should be put to a suspect or an accused person by the Police or any Security Agent unless the person has been informed of the right to a Lawyer of his or her choice. It is same even if the Suspect or Accused willingly provides information to the Police or any Security Agent upon arrest, restriction or detention.

WHY SHOULD YOU CONSULT A LAWYER WHEN YOU ARE INVITED, ARRESTED, RESTRICTED OR DETAINED?

Generally, the burden is on the Prosecution to prove the guilt of the Suspect or an Accused except under certain circumstances. Therefore, if you are invited, arrested, restricted or detained by the police or any Security Agent you must consult a Lawyer so you do not make confessions, admissions and inconsistencies which may be used to incriminate or implicate you in the prosecution.

It is based on this foundation that the Republic of Ghana created the Legal Aid Scheme now a Commission to support socially and financially disadvantaged citizens to access legal services where necessary. Therefore, citizens who cannot afford legal services may contact the Legal Aid Commission which is expected to have presence in all Metropolitan, Municipal and District Assemblies throughout the Country.

HOW TO INVOKE THE RIGHT TO CONSULT A LAWYER?

The best way to invoke this right is at the point of interrogation when you are invited, arrested, detained or restricted by telling the officer that you are exercising your right to remain silent until your Lawyer is present or you want to speak to your Lawyer first or you would only speak when your Lawyer is present.

WHAT HAPPENS WHEN YOU INVOKE YOUR RIGHT TO CONSULT A LAYWER?

Once you invoke your right to consult a Lawyer, it means that you want to remain silent without saying a word which means that the interrogation will be paused momentarily until you consult or a Lawyer is present. Any interrogation or questioning in defiance of the invocation of this right is unconstitutional and the Court may not admit such statements made in violation of this fundamental right.

CONCLUSION

In United States V. Cronic 466 U.S. 648 [1984], the Court stated that Lawyers in criminal trials are necessities and not luxuries.

Therefore, it is highly recommended to consult a Lawyer when you are invited, arrested, restricted or detained for whatever reason, if you do not have the requisite background on criminal trials to avoid self-incrimination which may jeopardize your case.

Columnist: Limann A. Mohammed
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