The Attorney General and Criminal Proceedings

Introduction:

This note will look at the powers of the attorney general to enter a nolle prosequi and to withdraw from prosecution. The note will also examine the effects of a nolle prosequi and withdrawal.

Who is the Attorney General:

The Attorney General’s office is established under Article 88 of the 1992 Constitution . The Attorney General is responsible for initiating and conducting criminal prosecutions. However, a person authorised by the Attorney General may initiate and conduct criminal proceedings in the name of the Republic. These are provided for in Article 88(3) and (4) of the 1992 Constitution, which reads:

3. The Attorney-General shall be responsible for the initiation and conduct of all prosecutions of criminal offences.

4. All offences prosecuted in the name of the Republic of Ghana shall be at the suit of the Attorney-General or any other person authorised by him in accordance with any law.

In the recent case of The Republic v. High Court (Commercial Division), Ex Parte: Yvonne Amponsah Brobbey and Gladys Nkrumah Civil Motion NO. J5/82/2022 , the Supreme Court, in commenting on this provision, advanced that:

Therefore, it is not open to anyone, other than the Attorney General or a person acting lawfully under the Attorney General's instructions, to initiate criminal prosecutions. In a judgment of this Court dated 3rd December, 2015 in Suit No. JL/4/2015 entitled:

Mensah vrs Attorney General and Another , the venerable Gbadegbe JSC noted that:

…the mode for the initiation of criminal proceedings is at the instance of the Attorney-General and not a private person as we have before us in the matter herein."

From the unambiguous text of Article 88(3), it is apparent that only the Attorney General may initiate prosecutions for the offence of intermeddling. The Rules of Court Committee could not have been legitimately added to the list of persons with prosecutorial powers to initiate and conduct criminal prosecutions.

In practice, the Attorney General authorises the police to prosecute case pursuant to Article 88(4).

1. Power of the Attorney General to Enter a Nolle Prosequi:

The power of the Attorney General to enter a nolle prosequi, when he may do so, and the effect of a nolle prosequi is provided for in Section 54 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) .

A. Meaning of Nolle Prosequi:

The phrase nolle prosequi is Latin for “not to wish to prosecute” and has been defined by the Black’s Law Dictionary, 9 ^th ed., was follows:

1. A legal notice that a lawsuit or prosecution has been abandoned.

2. A docket entry showing that the plaintiff or the prosecution has abandoned the action.

In the case Afoko v. Attorney-General [2019] GHASC 41 (19 June 2019) , Pwamang JSC defined nolle prosequi as follows:

Nolle prosequi is a Latin term which means that there would be no prosecution and it is filed to terminate pending criminal proceedings against an accused person.

Summarily, it is simply a notification to the court that the Republic does not intend to continue the proceedings against the accused.

B. When a Nolle Prosequi may be Entered:

Per Section 54 of Act 30, the Attorney General can enter a nolle prosequi:

i. In any criminal case. And

ii. At any stage before verdict or judgement.

C. Effect of a Nolle Prosequi:

A nolle prosequi has the following two effects:

i. It discharges the accused.

ii. It terminates the action in favour of the accused, and can be used by an accused in an action for malicious prosecution.

On the first effect, the discharge of the accused, Section 54 of Act 30 provides that upon the entry of a nolle prosequi,

…the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered, and if he has been committed to prison shall be released, or if on bail his recognizances shall be discharged; but the discharge of the accused shall not operate as a bar to any subsequent proceedings against him on account of the same facts.

This effect was reiterated by Court of Appeal in the case of The Republic v. Dr. Adu Tutu Gyamfi and Two Others [2010] DLCA3652 . In that case, the trial court had overruled a nolle prosequiand on appeal, the Court of Appeal held that:

The effect of a nolle prosequi is to immediately bring the criminal proceedings to an end. So, when the nolle prosequi was entered the trial tribunal ceased to have jurisdiction to try the case and it’s erroneous over-ruling the nolle prosequi did not thereby confer jurisdiction on it. As was stated by Cockburn C.J. in the case of, in R. v. Allen (1862) 1 B. & S. 850 at p. 854 and repeated verbatim in Adu Kwabena (supra):

It is an undoubted power of the Attorney-General ... to enter a nolle prosequi, and thereby to stay proceedings in any indictment or criminal proceeding. No instance has been cited, and therefore it may be presumed that none can be found, in which, after a nolle prosequi has been entered by the fiat of the Attorney-General, this Court has taken upon itself to award fresh process or has allowed any further proceedings to be taken on the indictment."

The effect was also reiterated by the Supreme Court in the case of The Republic v. High Court, Accra Ex-Parte Attorney General (Kennedy Ohene Agyapong Interested Party) Civil Motion. No. J5/16/2012 4TH JULY,2012 . In that case, the Supreme Court in refusing to grant the Attorney General’s application for certiorari to nullify criminal proceedings in the High Court, said:

it is clear that the Attorney-General can achieve the same nullification of the proceedings before the High Court which he seeks from this Court by exercising this statutory power of nolle prosequi conferred on him. The discharge of an accused consequent on the exercise of the power of nolle prosequi is equivalent to wiping the slate clean, as far as the discontinued proceedings are concerned. This is, of course, without prejudice to restarting fresh proceedings against the accused, on the same facts. In these circumstances, it would be inappropriate for this Court to exercise its discretion in the applicant’s favour to grant him an order of certiorari, when he himself is able help himself lawfully.

It is important to note the part about a nolle prosequi not barring the starting of fresh proceedings against the accused. This means upon the entry of a nolle prosequi, the accused cannot plead autrefois acquit or autrefois convict if subsequent proceedings are brought against him on the same facts.

On the second effect, thus the effect that the entry of a nolle prosequi amounts to the termination of the suit in favour of the accused in an action for malicious prosecution, the case of Yeboah & Ors v. Boateng VII [1963] 1 GLR 182 held as follows:

It is now fairly well settled that for the purposes of an action for malicious prosecution the entry by the Attorney-General of a nolle prosequi would be sufficient termination of the criminal proceedings in favour of the accused person. In Malek Khoury v. Kamel Tabbara Foster-Sutton P. examined the English case of Goddard v. Smith and a few other English cases in conflict [p.186] with the Australian case of Gilchrist v. Gardner and declared his preference for the Australian case. In stating the rationale of the principle which appealed to him the learned President said:

"I prefer the reasoning in Gilchrist v. Gardner to that in Goddard v. Smith and I am of the opinion that in a case where criminal proceedings have been terminated by the Attorney-General or other law officer entering a nolle prosequi justice requires that it be held to be an exception to the general rule that the plaintiff must prove, in an action for malicious prosecution, that the proceedings terminated in his favour, and that proof of the entry of a nolle prosequi in a criminal matter is such a termination of the proceedings in the plaintiff’s favour as to entitle him to bring an action for malicious prosecution. It seems to me that to hold otherwise would amount to a denial of justice. By so holding no injustice is done to the defendant in such a case because it is always open to him to prove reasonable and probable cause, and if he succeeds in so doing the plaintiff’s action will fail."

D. Mode of Entering a Nolle Prosequi:

Per Section 54, the Attorney General may enter a nolle prosequi:

i. By stating in open Court that the state no longer intends to continue with the proceedings.

ii. By informing the court in writing that the state no longer intends to continue with the proceedings. This is often done at the court registry.

Before doing any of the above, the person in respect of whom the nolle prosequi is entered must be before the court, a position recognised in the case of The Republic v. Dr. Adu Tutu Gyamfi and Two Others [2010] DLCA3652 when it noted that “indeed a nolle prosequi only becomes applicable or available after a person has been put before court.”

Further, in entering a nolle prosequi, the Attorney General may do so personally or authorise another person to enter the nolle prosequi on his behalf. This is provided in Section 55 of Act 30 which provides that the Attorney General may delegate his powers to enter a nolle prosequito another person.

E. The Discretionary Nature of Nolle Prosequi:

It has been severally held that the power of the Attorney General to enter a nolle prosequi is discretionary and is generally not questionable.

In the case of Republic V. Abrokwah [1989-90] 1 GLR 385-389 , the Court stated that:

It is common knowledge that the power of the Attorney-General to enter a nolle prosequi at any stage of a trial before judgment or verdict cannot be questioned upon any basis other than political...he point to appreciate is that whether the Attorney-General exercises this power after having had regard to the circumstances of a case or not or whether the Attorney-General exercises this power properly or improperly is not a matter for judicial inquiry or review. It is a matter for the political power that be, for the act of the Attorney-General in this respect is supposed to be the act of the State itself.

In the recent case of Afoko v. Attorney-General (supra) , in a concurring judgement, Pwamang JSC stated that the position established in Republic v Abrokwa (supra) is still good law.

In exercising this power, the case of Afoko v. Attorney-General (supra) also held that the Attorney General does not have to comply with Article 11(7) of the 1992 Constitution since the power to enter nolle prosequi is an executive and not a legislative power.

2. Power of the Attorney General to Withdraw from Prosecution:

The power of the Attorney General to withdraw from prosecution is provided in Section 59 (1) of Act 30 which reads:

(1) In any trial or preliminary proceedings before a District Court any prosecutor, with the consent of the Court or on the instructions of the Attorney-General at any time before judgment is pronounced or an order of committal is made, may withdraw from the prosecution of any person either generally or in respect of any one or more offences with which he is charged;

Differences between Nolle Prosequi and Withdrawal:

1. Persons to Exercise the Power: The power to withdraw may be exercised by any prosecutor with the consent of the Court or on the instructions of the Attorney General. The effect of this is that a prosecutor may simply ask the court to withdraw a case, and the case will be withdrawn if the court consents to the withdrawal. Further, the requirement of court consent will be dispensed with if the prosecutor is instructed by the Attorney General to withdraw the case.

2. Effect of a Withdrawal: Another area of difference is the effect of a withdrawal. Unlike a nolle prosequi, the effect of a withdraw is based on the stage it was made. In Section 59, it is provided that upon a withdrawal, the effect shall be as follows:

(a) if it is made in the course of any enquiry under Part IV the accused shall be discharged in respect of the offence or offences; or

(b) if it is made in the course of a trial—

(i) before the case for the prosecution has been closed, the accused shall be discharged in respect of the offence or offences;

(ii) after the case for the prosecution has been closed, the accused shall be acquitted in respect of the offence or offences.

Summarily, if a withdrawal is made in the course of preliminary proceedings or in the course of the trial but before the close of the prosecution’s case, the effect of the withdrawal is a discharge (similar to nolle prosequi). If the withdrawal is made in the course of trial but after the close of the prosecution case, the effect is an acquittal. These distinctions are important because in the case of a discharge, Section 59(3) of Act 30 provides that the discharge “shall not operate as a bar to subsequent proceedings against him on account of the same facts,” which means the accused cannot plead autrefois acquit or convict if subsequent proceedings are brought against him. However, if the accused is discharged, he can no longer be prosecuted on account of the same facts, as the defence of autrefois acquit would be available to him.