MONDAY ESSAY: Balancing Rights: Examining The Prosecutor’s Right To Appeal Criminal Conviction And Sentences

Introduction

The State, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty. It may be seen as a value which underpins and affects much of the criminal law. Justice Black in Green v United States 355 US 184(1957).

Ghana’s criminal justice system gives the prosecutor the right to appeal convictions as a way of ensuring that justice is served. In practice, just as an accused has the right to appeal an adverse decision, the prosecution also has a role in seeking redress when it feels that a conviction or sentence is manifestly inadequate. The Attorney-General, as the principal legal advisor to the government typically exercises this right. This right reveals a tension between the need for legal accuracy and the protection of individual rights against double jeopardy. The issue is framed in terms of requiring an election of a lesser evil: should the State be allowed to appeal at the risk of possible harassment of the accused; or should an acquitted person or a convicted person with a relatively lenient sentence, be protected from further proceedings, at the possible expense of requiring society to re-absorb a criminal whose freedom was gained through an appeal or an alleged lapse in the proper functioning of the judicial machinery at lower levels? This essay examines the competing views regarding the prosecutor’s right to appeal convictions or sentences with a view to making suggestions towards balancing the competing rights.

The right of the State to appeal criminal convictions and sentences

Under traditional common law, the state generally does not have the right to appeal a verdict of acquittal or a conviction they believe is too lenient. This principle is rooted in the doctrine against double jeopardy. Under the common law rule of antiquity, a person who has been acquitted on a criminal charge was not to be tried again on the same charge. Thus, it was believed that an acquittal made by a court or a lenient sentence given by a court of competent jurisdiction and made within its jurisdiction, even if erroneous in some respect, could not be questioned and brought before any court. The purpose for this rule was to ensure fairness to the accused. It was believed that it would obviously be oppressive and unfair if a prosecutor, disappointed with an acquittal or sentence could easily secure a retrial of the accused person on the same evidence. The rule was designed to prevent the State with its considerable resources from repeatedly attempting to convict an individual. This was aimed at according finality to defendants, witnesses and others involved in the original criminal proceedings as well as safeguarding the integrity of the justice system. In modern statutory based common law systems like Ghana, the State has specific and limited rights to appeal criminal convictions and sentences in accordance with the 1992 Constitution, the Courts Act, 1993 (Act 459) as amended and Criminal and Other Offences (Procedure) Act, 1960 (Act 30). The arguments for allowing the prosecutor’s right to appeal criminal convictions and sentences include the need to correct legal errors such as a judge’s misdirection to a jury or an incorrect exclusion of evidence, amongst others. Furthermore, a prosecution appeal may be necessary in some instances to ensure that justice is done, especially if the initial trial was tainted by procedural irregularities or legal misinterpretations. Above all, it is argued that the Attorney-General has the right to appeal to uphold the public interest. The Attorney-General is expected to interpret the public interest independently of any considerations having his conscience as a guide. This is largely due to the fact that the Attorney-General acts as a guardian of the public interest. As the custodian of the public interest, he is obliged to act within the forum of his own conscience acting independently of any form of pressure but purely to uphold the public interest.

Limitations and safeguards in the exercise of the prosecutor’s right to appeal

The arguments against the State’s appeal include the fact that the reputation of an acquitted person or a convicted person with a lenient sentence would be materially injured by subjecting the person to an appeal by the State. Some counter-arguments are that, if indeed the accused is innocent, then the appeal may rather create an opportunity to repose confidence in the accused whose innocence would now be affirmed by the highest appellate court than in the person whose acquittal has been only at the trial stage. This counter-argument notwithstanding, the general view is that the appeal brings hardship to a person who may have been acquitted or handed a lenient sentence and since mostly these persons are rarely wealthy, being saddled with such cost would lead to undue harassment on their person. Also, there is also the factor of time consumed in the process of the appeal which may further damage the accused’s reputation. The State using its vast resources to appeal may amount to oppressive conduct and harassment which constitutes a violation of basic fundamental human rights of the accused. Finally, the argument in favour of limitations and safeguards in the exercise of the prosecutor’s right to appeal is hinged on the idea that acquittals are generally designed to be final under the principles of traditional common law. Thus, allowing appeals may diminish the certainty of legal decisions for the accused and further encourage misuse of the state’s power, especially in appeals that are politically motivated. 

Conclusion

In Ghana, the prosecutor’s right to appeal convictions or lenient sentences may seem to create a tension thus the need to balance the scales of justice in order to ensure fairness and accountability. While safeguarding the accused’s rights, this power also corrects judicial errors, promotes consistency in sentencing and serves the public interest. Ghana’s legal system should strive to achieve equilibrium between the prosecution and the defence in a bid to uphold the rule of law and justice. Where the public interest would not be served in seeking the conviction or an increased sentence of an accused on appeal, the state’s right should not be exercised. Pressure from quarters in the minority, as compared to the general public interest, should not be countenanced. Afterall, the Attorney-General is expected to interpret the public interest independently of any considerations of party advantage or loyalty to ministerial colleagues having his conscience as a guide. An accused should not be saddled with hardship or unnecessary uncertainty because of an appeal especially where the accused has served some part or all of the sentence which in itself is a form of deterrence to the accused or other potential offenders. Where appealing becomes necessary, statutory inroads may be considered to ensure that the expenses incurred by the accused on appeal are borne by the state. Furthermore, preference should be given to state appeals where it has become necessary to file one such that an early determination is achieved in order to protect the rights of the accused.

God bless!