Stay of Execution in Criminal Proceedings: Can the State Stay the Release of an Acquitted Person?

Published 31st July 2026

Many Ghanaians who followed the prosecution of Sedina Christine Tamakloe were surprised by the decision of the Court of Appeal. At the time, many had neither seen nor read the judgment. For those familiar with the allegations and the conviction at first instance, the news that her conviction had been set aside in Sedina v The Republic (Suit No. H2/17/2026, 30 July 2026) was not the outcome they expected.

The Attorney-General issued a public statement on the very day the judgment was delivered. The statement suggested considerable concern that a person who had previously been convicted would be released notwithstanding the State’s belief that the charges were well founded. Whether the Court of Appeal reached the correct decision is a separate question. I may comment on the merits of the judgment later, but that can only properly be done after considering the Attorney-General’s submissions before the Court. It is only then that one can fairly assess whether the State presented sufficient legal arguments to sustain the conviction.

For present purposes, however, what has attracted my attention is not the judgment itself but the Attorney-General’s immediate post-judgment strategy. The Attorney-General has directed the Director of Public Prosecutions to appeal against the decision and, at the same time, to apply for a stay of execution of the judgment pending the determination of the appeal.

I readily understand, and indeed welcome, the decision to appeal if the Attorney-General believes that the Court of Appeal erred in law. What causes me considerable concern is the proposed application for a stay of execution. In my respectful view, such a procedure is unknown to our criminal law in the circumstances of an acquittal. More importantly, if accepted, it would establish a dangerous precedent whereby prosecutors could routinely seek to prevent the release of persons whom the courts have acquitted and discharged, thereby undermining one of the most fundamental constitutional rights, the right to personal liberty. It is for that reason that I write this short article.

The Common Law Origin of a Stay of Execution

A stay of execution, historically referred to in Law Latin as cesset execution (‘let execution cease’), originated in the English common law courts of King’s Bench, Common Pleas and Chancery. It developed as a discretionary and inherent judicial power to suspend temporarily the enforcement of a judgment, decree or sentence.

Its modern use is most familiar in civil litigation. A judgment debtor who intends to appeal may apply for a stay of execution to prevent enforcement of the judgment pending the appeal or where some post-judgment event makes immediate enforcement unjust.

The more difficult question is whether the doctrine has any place in criminal proceedings and, if so, to what extent.

Reprieve: The Criminal Law Equivalent

At common law, ‘execution’ in criminal proceedings referred directly to the carrying out of a judicial sentence, whether imprisonment, corporal punishment or death. The common law recognised a limited power to suspend the execution of a criminal sentence through what became known as a reprieve. The doctrine is discussed by Sir Edward Coke in the Institutes of the Laws of England (1628) and later by Sir William Blackstone in the Commentaries on the Laws of England (1765–1769).

A reprieve is simply a temporary suspension of the execution of a criminal sentence. It does not set aside the sentence. It merely postpones its enforcement either before or after judgment.

Historically, the common law recognised two forms of reprieve:

Discretionary reprieve (ex arbitrio judicis); and
Mandatory reprieve (ex necessitate legis).

Discretionary Reprieve

A discretionary reprieve was granted where the court considered that justice required a temporary postponement of the sentence, often to permit the offender to seek the King’s pardon.

The recognised grounds included:

I. doubt as to the correctness of the verdict;
II suspicious or insufficient evidence;
III. a defective indictment;
IV. uncertainty as to the applicable law; and
V. mitigating circumstances or the offender’s previous good character.

Mandatory Reprieve

A mandatory reprieve arose by operation of law rather than judicial discretion. The principal instances were pregnancy and insanity.

Pregnancy

Under the old common law plea of ventre inspiciendo, a woman sentenced to death who was “quick with child” was entitled to have execution postponed until after delivery.

In Ghana, the principle survives in statutory form. Section 313A(2) of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) provides that where a convicted woman is found to be pregnant, the court shall impose a non-custodial sentence or suspend the sentence for such period as it considers appropriate.

Insanity

Similarly, if a prisoner became insane after conviction but before execution of the sentence, the execution had to be suspended. The common law recognised that an insane person might be incapable of raising legal arguments that could prevent execution. Accordingly, before execution was carried out, the prisoner was asked whether there was any reason why the sentence should not proceed. Apparent insanity justified a reprieve.

Historically, a prisoner might also seek to delay execution by relying upon:

I. a royal pardon;
II. an act of grace;
III. pregnancy; or
IV. mistaken identity.

These were exceptional and narrowly confined circumstances.

The Limits of the Doctrine

The important point is that these principles all concern the temporary suspension of the execution of an existing criminal sentence. They do not apply where the conviction itself has been quashed and the accused has been acquitted and discharged.

Once the conviction has been set aside, there is no sentence remaining to be executed. The accused is set free. The legal foundation upon which a reprieve or stay could operate has disappeared. So stay what? Nothing?

The Position in Ghana

There are instances in Ghana where a stay of execution has arisen in proceedings connected with a criminal prosecution. Those cases, however, concern orders that are civil in character although they arise from criminal proceedings.

The leading authority is Republic v High Court (Financial Division); Ex parte Anamo (J5/68/2017) [2018] GHASC 73.

In June 2016, the Economic and Organised Crime Office (EOCO) obtained a freezing order over US$200,000 standing to the credit of Nicholas Anamo at Guaranty Trust Bank. EOCO suspected the funds to be the proceeds of fraud, money laundering and related offences. During the investigation, Mr Anamo unsuccessfully applied to discharge the freezing order.

Following the investigations, Mr Anamo and another person were charged with several offences. The second accused remained at large and Mr Anamo alone stood trial. At the close of the prosecution’s case, the trial judge upheld a submission of no case to answer and acquitted and discharged him.

EOCO appealed against the acquittal. Immediately after his acquittal, Mr Anamo applied to discharge the freezing order over his bank account. The High Court granted the application, and the EOCO again appealed.

In considering an application for certiorari, Baffoe-Bonnie JSC explained that where, following a criminal trial, a convicted person is ordered to make restitution or compensation, enforcement of that order proceeds through the civil process of execution rather than by further criminal punishment. Accordingly, the application for stay of execution did not, and could not, result in either a conviction or an acquittal. The proceedings were therefore civil in nature, notwithstanding that they arose from a criminal case.

That reasoning is, in my respectful view, significant.

It demonstrates that a stay of execution may properly arise only where the order sought to be enforced is itself executable through the civil process, for example, a freezing order, forfeiture order, confiscation order, restitution order or similar ancillary order.

Can the State Stay the Release of an Acquitted Person?

In my respectful opinion, the answer must be no.

By parity of reasoning, there can be no stay of execution of a judgment which has set aside a conviction and sentence, save in relation to ancillary executable orders such as freezing, forfeiture or confiscation orders.

A judgment allowing an appeal against conviction does not merely suspend the sentence. It removes the conviction itself. The legal consequence is that the sentence no longer exists. If no sentence exists, there is nothing upon which a stay of execution can operate.

The person’s release from custody is not itself an executable order capable of being stayed. It is simply the legal consequence of the conviction having been quashed.

To permit the State to obtain a stay of a person’s release would, in substance, allow continued imprisonment without any subsisting conviction or sentence. That result would be foreign to the common law and inconsistent with the constitutional protection of personal liberty.

The Attorney-General is perfectly entitled to appeal against the decision of the Court of Appeal if it is believed that the court erred in law.

What is difficult to support, however, is an application to stay the release of a person whose conviction has already been set aside. The common law doctrine of reprieve has always been concerned with suspending the execution of an existing sentence. It has never been used to continue the detention of a person after the conviction giving rise to that detention has ceased to exist.

Where ancillary orders such as freezing, forfeiture or confiscation orders are involved, a stay of execution may be appropriate because those orders are enforced through the civil process. But a person’s liberty stands on a different footing.

Once a conviction has been quashed and the accused has been acquitted and discharged, there is, in my respectful opinion, no legal basis upon which the State may obtain a stay of that person’s release. The proper course is to pursue the appeal. It is not to continue the detention of a person who, in the eyes of the law, is no longer under a valid conviction or sentence.