Gorman v. The Republic [2003 – 2004] 2 SCGLR 784

Material Facts:

The appellants were arraigned before the Greater Accra Regional Tribunal on narcotics-related charges. They were granted bail by the tribunal. The Attorney General appealed against the grant of bail to the Court of Appeal, and the appeal was allowed.

The appellants appealed to the Supreme Court on the grounds that the decision of the Court of Appeal downplayed the constitutional provisions providing for the pretrial release of an accused person on bail in favour of principles governing bail in Section 96 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) .

Issues (Deduced from Arguments):

1. Whether or not the presumption of innocence until proven guilty in Article 19(2)(c) of the 1992 Constitution implies a presumption in favour of the grant of bail or an automatic right to bail.
2. Whether or not the right of an accused to be granted adequate facilities for his defence, provided in Article 19(2)(e) , gives an accused the right to bail for the purpose of consulting with his lawyers.
3. Whether or not the consideration of the nature of the accusation and the severity of the punishment as factors relevant to the decision to refuse bail under Section 96(6) of Act 30 is consistent with Article 14(4) of the 1992 Constitution .

Arguments of the Appellant:

1. That the refusal to grant bail is in some sense a violation of the fundamental human rights enshrined in the 1992 Constitution.
2. That the provision in Article 19(2)(c) on the presumption of innocence until proven guilty implies a further presumption in favour of the grant of bail; and that the denial of bail for their clients thus flies in the face of Article 19(2)(c).
3. Article 19(2)(e) provides that an accused be given adequate time and facilities to prepare his defence; that these facilities include the right to consult with his lawyers. That based on this, the accused is entitled to bail.
4. That Section 96(6) of Act 30 allows the court to consider factors such as the nature of the accusation in deciding whether to grant or refuse bail. That these factors are not mentioned in the 1992 Constitution and are therefore not compatible with it.

Holding:

1. The presumption of innocence in Article 19(2)(c) does not import an automatic right to bail.
2. The right of an accused to be granted facilities for his defence does not amount to a right to be granted bail to consult his lawyer.
3. The consideration of the nature of the accusation and the severity of the punishment as factors relevant to the decision to refuse bail is not inconsistent with Article 14(4).

Ratio Decidendi:

On the first issue, their lordships are of the opinion that the provision in Article 19(2)(c) applies to all persons accused of a crime, whether in pre-trial detention or on bail. Consequently, it cannot be said that the presumption imports a right to bail (since an accused who is already on bail does not need to be granted bail again). While the presumption of innocence is a necessary ground for the grant of bail, the fact that a person is presumed innocent does not automatically mean he is entitled to bail. In concluding on the issue, their lordships distinguished between the issue of bail and the presumption of innocence as follows:

The issue of bail primarily addresses the freedom, or lack thereof, of the accused "to walk the streets" after being charged with an offence; it is principally associated with the pre-trial phase, although it has obvious consequences for the liberty of the accused during the trial as well. By contrast, the presumption of innocence primarily addresses the due process issue of burden of proof or of persuasion once the trial commences. Thus, the strong derivation of a presumption of the grant of bail from a presumption of innocence appears too sanguine.

They added that if any article in the 1992 Constitution was to be said to contain a presumption of bail, it would be Article 14(4) , which embodies a duty to grant bail when the accused is not tried within a reasonable time. Even so, the presumption of grant of bail is rebuttable because “any other reading of the Constitution would lead to the untenable conclusion that every accused person has an automatic right to bail under our Constitution.” The presumption of grant of bail under Article 14(4) is “rebutted in cases where a statute specifically disallows bail based on the nature of the offence, such as the situations outlined in s.96 (7) of the Criminal Procedure Code.”

On the second issue, the arguments of counsel that the right of an accused to be provided with adequate time and facilities for his defence, in Article 19(2)(e), includes a right to be granted bail to consult are untenable because:

It would mean that whenever an alleged criminal is arrested, he/she must be granted bail upon informing the authorities that he or she needed or wanted to consult with lawyers. There is no reason why the accused person cannot consult with his counsel while in detention; indeed, consultation under such conditions is an established practice. Moreover, the denial of such consultation would be a clear infringement of the Constitution, for which the accused person may petition for a remedy.

While the court in the case of Kinney v. Lenon [425 F. 2d. 209 (9th Cir. 1970)] linked the right to be provided with facilities for one’s defence to the right to bail, the facts of the case were that the witnesses of the accused were Black and would not cooperate with the white attorneys representing the accused. He thus needed to be granted bail to procure witnesses.

On the third issue, under Article 14(4), the right to be granted bail only applies to instances where an accused in detention is not tried within a reasonable time. When that is the case, the accused is entitled to bail irrespective of the nature of the accusation and the severity of the punishment as contained in Article 96(6) of Act 30. Further, when an accused is not tried within a reasonable time, he is still entitled to bail even if his offence is mentioned in Section 96(7) of Act 30 as part of the offences for which bail should not be granted.

On the other hand, when a trial is commenced within a reasonable time, the court should still consider factors such as the nature of the accusation and the severity of the punishment in deciding to grant or refuse bail.

Principles in Case:

1. The constitutional presumption of innocence embedded in Article 19(2)(c) of the 1992 Constitution does not import an automatic right to bail.

2. The constitutional duty of the court under Article 14(4) of the Constitution, to grant bail to the accused if he is not tried within a reasonable time, is applicable irrespective of the nature of the accusation or the severity of the punishment upon conviction.

3. The constitutional presumption of grant of bail in Article 14 and 19(2)(c) is rebuttable, and is in fact rebutted by a statutory provision that expressly disallows bail, such as the circumstances outlined in Section 96(7) of Act 30.

4. The provisions in Act 30 are only valid if consistent with the 1992 Constitution. Per Modibo Ocran JSC, “counsel for the 1st Accused/Appellant is right in asserting that the Criminal Procedure Code of 1960, as amended, continues to be valid only in so far as it is consistent with the 1992 Constitution. The continued validity of all norms predating the Constitution, including the Criminal Procedure Code, can be established only if one can demonstrate that they were, in a legal-formalist sense, "re-created", "continued in effect", "adopted", or "saved" expressly or impliedly by the 1992 Constitution. In any event, they must all be consistent with that Constitution.”

5. The rights of the accused must be balanced with the legitimate interests of the community. Per Modibo Ocran JSC, “Undergirding our principles for decision on applications for bail is the effective enforcement of our criminal law guided by due process considerations, which constitute the procedural aspects of our commitment to protect the liberty of the individual. A true system of criminal justice must indeed reflect both aspects of criminal jurisprudence. If not, one of two consequences will follow: either the law enforcement agencies of the state ride roughshod over the rights of the accused; or criminals would have a field day in the system as they roam the streets in full liberty and with contempt for the efficacy of our criminal enactments…we must always guard against a sweeping invocation of fundamental human rights as a catch-all defence of the rights of defendants. People tend to overlook the fact that the Constitution adopts the view of human rights that seek to balance the rights of the individual as against the legitimate interests of the community. While the balance is decidedly tilted in favour of the individual, the public interest and the protection of the general public are very much part of the discourse on human rights in our Constitution. hus, article 14 (1) (d) makes it clear that the liberty of certain individuals, including drug addicts, may be curtailed not only for the purpose of their own care and treatment but also ‘for the protection of the community. Article 14 (1) (g) sanctions the deprivation of an individual’s liberty upon reasonable suspicion of the commission of an offence under the law of Ghana, ostensibly for the protection of the Community and the body politic. Article 21 (4) (c) further authorises the imposition of restrictions on the interest of public safety, and public health among other concerns.”