What Constitutes “Reasonable Time Or Unreasonable Delay” In Criminal Trials? The Case of Article 14(4) of the 1992 Constitution

Author: Ernest Kyere 

Introduction

The skinny, malnourished-looking Kofi Boakye walked into the courtroom. His face grimaced as he felt all the stares on him. With dilated eyes, he scanned the courtroom, hoping to see a familiar face. However, he soon realized that the years he had spent in pre-trial detention had turned him into a forgotten person. Bowing his head, he walked into the accused box, waiting to be prosecuted. It was evident that he had lost faith in the justice system. Could you blame him? After all, he had just spent the last three years of his life in prison, waiting for the prosecution to ‘complete their investigation and commence trial.’ Kofi Boakye sought to protect his rights by filing an application to be released pending the prosecution’s investigation. Do you know what the court told him?

The court informed him that spending three years in custody, away from his family and unable to witness the world’s changes, while awaiting the commencement of a trial for a crime he may or may not have committed, was not an unreasonable delay.

This raises the ultimate question: what constitutes an unreasonable amount of time for bringing a suspect before the court to commence a trial? Should a suspect be kept on remand for an extended period solely because the prosecution and investigators are unable to perform their duties expeditiously and in a timely manner?

Is it genuinely in the interest of justice for the determination of what constitutes reasonable and unreasonable delay to be made by the trial judge, whose years in court have not only made them a better judge but also potentially less empathetic towards accused persons?

At this point, it is worth noting that, under our laws, an individual placed on remand pending the commencement of their trial is presumed innocent unless they have pleaded guilty. This is known as the presumption of innocence.

It is a constitutional right guaranteed in Article 19 of the 1992 Constitution of Ghana. In the case of R v. Oakes [1], this presumption of innocence was beautifully described by the Canadian Supreme Court as “a hallowed principle lying at the very heart of criminal law [that] confirms our faith in humankind.“

This article aims at providing several frameworks on the basis of which what constitutes “reasonable time” or “an unreasonable delay” may be defined for purposes of either

1. Commencing prosecution against an accused or suspect on remand
2. Concluding a criminal trial against an accused

 

Background

The nature of criminal proceedings in Ghana is such that when a complaint is lodged at the police station against an individual for having committed an offense, that individual is taken into custody by the police. Within 48 hours of the arrest of the suspect, the police are bound by law to present the suspect before the court for his or her plea to be taken, and if this is not done, the police are bound by law to release the suspect on bail. In the event that the police choose not to grant bail but decide to bring the suspect before the court, the presiding judge can do two things. The first is to grant the suspect bail, and the second is to place the suspect on remand. It is only when the suspect is placed on remand that Article 14(4) of the 1992 Constitution kicks in, providing that the suspect on remand must be brought before the court within a reasonable time for his trial to commence. The challenge, however, has always been what constitutes reasonable time. In the case of Owusu v. the Republic [2], the court held that three years without trial for attempted murder was deemed an unreasonable time, but in another case, Brefoh v. the Republic [3], three years for murder without trial was held not to be an unreasonable time.

It doesn’t stop there; even if prosecution manages to commence prosecution timely, it is almost a practice that criminal cases can drag on for years, during which time, in most cases, the accused, who is presumed innocent, may still be on remand. Article 19 of the 1992 Constitution provides that an accused must be tried fairly. The Ghanaian court took a bold step and held in consonance with Article 19(1) of the 1992 constitution that a fair trial includes being tried within a reasonable time. Though commendable, the court, however, did not tell us what constitutes a reasonable time.

It can thus, be understood that the requirement by law that an accused must be given a fair trial within a reasonable time is of two implications. First is that the commencement of the trial against an accused while on remand must be done within a reasonable time. The second implication is that the trial itself must be done within a reasonable time.

The concept of “reasonable time”

It seems for so long the Ghanaian court has evaded, and quite successfully, I must add, the heavy task of defining what constitutes a “reasonable time” or its sister word, “unreasonable delay,” whether it be by the Constitution, statute, or case law. Nonetheless, there have been judicial decisions from other jurisdictions that provide a glimpse into the understanding of the phrase “fair trial within a reasonable time.”

The concept of “reasonable time” in bringing an accused person to trial can vary depending on the jurisdiction, but generally, it refers to the length of time between the laying of criminal charges and the commencement of the trial.

Generally, most courts, including the Ghanaian court, the Canadian court as stated in R v. Morin [4], and the USA court in Barker v. Wingo [5], determine it by considering several factors. These factors generally include:

1. Length of delay: The absolute length of time between the laying of charges and the start of the trial is a critical factor. A delay that exceeds what is considered typical or necessary for the proper preparation and conduct of the case may be deemed unreasonable. The question arises again: what kind of delay is to be considered “typical?”
2. Reasons for the delay: The court will examine the reasons for the delay. Delays caused by factors beyond the control of the prosecution, such as witness unavailability or unforeseen circumstances, may be considered reasonable. On the other hand, delays resulting from negligence, incompetence, or deliberate tactics may be viewed as unreasonable.
3. Prejudice to the accused’s interest: Courts will assess whether the delay has caused prejudice to the accused’s ability to mount a proper defence. For instance, if witnesses’ memories fade over time, evidence becomes less reliable, or the accused’s ability to gather evidence in their defence is significantly hindered, the delay may be deemed unreasonable.
4. Complexity of the case: More complex cases often require additional time for preparation and may have more extensive pre-trial procedures. The court will consider the complexity of the case when assessing the reasonableness of the delay.

In the Zimbabwean case of In Re Mlambo [6], the court stated that the inquiry into whether there has been a violation of the accused’s right to a fair trial within a reasonable time must begin prior to the commencement of the trial.

In R v. Upton [7], the Australian Supreme Court, before adopting a definite time frame for what constitutes a reasonable time, stated that the test to be adopted when considering the factors of Baker v. Wingo and R v. Mills [8] was that of proportionality.

Furthermore, in the Kenyan case of George Njoroge Chege v. Director of Public Prosecution [9], the court stated that the relevant factors in the determination of whether there has been an unreasonable delay in an accused’s trial must be considered within the context of each case.

In all these cases, two facts are evident. Firstly, it is evident that the factors of Baker v. Wingo have been the general standard to determine whether there has been an unreasonable delay in all these jurisdictions. Secondly, it is evident that in all these jurisdictions, the courts’ approach has been to describe the factors used to determine a reasonable time and not to define it.

Reason the Ghanaian court, and for that matter, all courts, must depart from determining “unreasonable delay” based on the factors enunciated in Barker v. Wingo.

It is my humble submission that the current factors used by most courts, including the Ghanaian Court, to determine an unreasonable delay in a criminal trial are self-serving and inherently reactive rather than proactive. To achieve true efficacy, the approach adopted towards preventing an unreasonable delay in criminal trials must be proactive and preventive.

The problem with the existing factors is that they only come into play after the unreasonable delay has more or less already taken place and the right to a fair trial within a reasonable time has been violated. In other words, by the time the court begins to consider the length of the delay, the reason for the delay, and all the other factors, that delay will most likely have already occurred. This reactive approach falls short of preventing delays from occurring in the first place.

However, by adopting a framework that establishes a presumptive ceiling, the court can prevent the delay from ever materializing in the first place. The adoption of any of the proposed frameworks enables the court to take the necessary measures to expedite the trial as it approaches the presumptive ceiling. Consequently, the accused’s right to a fair trial within a reasonable time is protected. It also alleviates the burden on the complainant by avoiding undue delays in the criminal proceeding.

In essence, the new framework acts as a proactive safeguard, ensuring that delays are addressed before they become problematic. It allows the court to be more vigilant in expediting the trial process and upholding the fundamental right to a fair and timely trial. This approach not only enhances the efficiency of the justice system but also reinforces public confidence in the courts’ ability to dispense justice promptly and fairly.

A framework for developing a definite time period to define what constitutes “reasonable time”

In all humility to all the learned, I would like to quote myself by saying, “The strength of the law and the attainment of justice in all matters, especially criminal matters, lie in the certainty with which criminal matters are to be determined.” Thus, it is not enough to say that justice has been done to the complainant where it has not been done to the accused. This means that on justice’s scale of balance, the manner in which justice is meted out to an accused is as important as the justice done on behalf of the complainant, as justice in its true nature is fairness to both the complainant and the accused.

There are numerous frameworks that could be adopted by our lawmakers to guide them in giving a clear definition to what constitutes a reasonable or unreasonable delay.

Framework 1

The determination of what constitutes an unreasonable delay or the provision of a specific time frame may be defined based on the mode of trial, whether summary or indictable.

In Australia, particularly New South Wales, there was a commendable yet incomplete task by the Australian lawmakers to provide a specific time frame for which trials must be commenced for the purpose of defining what constitutes a reasonable or unreasonable delay. The Australian and New South Wales Criminal Procedure Act 1986 provides that indictable offenses must be commenced within 12 months of the accused’s first appearance in court. The legal implication is that, when it comes to indictable offenses, the accused cannot be on remand for more than a year.

Whereas Australia’s criminal statute makes provision for indictable offenses such as murder, use of an offensive weapon, treason, etc., there is no such provision for summary offenses. Should our lawmakers adopt a similar framework based on the nature of the offense, it would be calming and applauding for them to provide a time frame for summary offenses as well.

The argument in support of the omission of summary offenses has been that indictable offenses are generally more serious criminal offenses. Thus, they require a more extensive legal process, including pre-trial procedures, investigations, disclosure of evidence, and preparation for trial. The complexity involved in handling indictable offenses may lead to a longer and more involved process, which can result in delays. To ensure that the accused’s right to a timely trial is upheld, specific time frames are established for commencing the trial in these cases.

Framework 2

The determination of what constitutes an unreasonable delay in bringing an accused before the court for trial may be defined based on the type of court, whether a superior court or a lower court. This is certainly not a fool’s task.

In Canada, the Supreme Court has long departed from the determining factors stated in R v. Morin. The court has adopted definite time periods within which the trial of an accused person must be conducted. This has popularly become known as the Jordan framework, established in the case of R v. Jordan [10]. Under the Jordan framework, the court sets a presumptive ceiling beyond which any delay—from the time the suspect is arrested and arraigned before the court to the time of conviction or acquittal—is considered an unreasonable delay unless exceptional circumstances justify it. Consequently, a violation of the right of an accused to a fair trial

This Jordanian framework operates on the basis of the type of court. According to the framework, when it comes to a provincial court, there is a presumptive ceiling of 18 months for cases being tried. Do not be carried away by the term “provincial court.” Within Ghanaian jurisprudence, a provincial court merely represents a lower court, strictly speaking, the district court. In the instance of cases being tried by a superior court, the presumptive ceiling is 30 months.

In a nutshell, the effect of the Jordan framework is that where a criminal case is brought before a lower court to be tried, the case from the time of bringing the accused before the court to take his plea to the time of conviction or acquittal must be completed within a year and six months. Where it is a superior court like the High Court, it must be done within 2 years and 6 months.

Framework 3

The determination of what constitutes an unreasonable delay in bringing an accused before the court for trial may be based on the stages of criminal procedure.

For years, civil cases could drag on. It would be interesting to note that in Ghana, there have been cases that spent twelve years [11], twenty-six years [12], and even forty years [13] in court before they were resolved. In order to control these delays, the lawmakers crafted the Civil Procedure Rules, 2004, CI 47 which, among other things, spelled out timelinesand deadlines within which each process and procedure must be complied with.

As a practical illustration, under CI 47, parties are required to make discoveries to each other within 14 days after the last pleading is served, allowing them to understand the case at hand. These discoveries are akin to disclosures in criminal trials. However, the lack of a specific timeline for disclosures often leads to delays in court proceedings. I have witnessed criminal cases where there have been more than three adjournments solely for the purpose of carrying out these disclosures. Since the judge cannot proceed without the required disclosures, they are bound to accept the multiple adjournments requested by the accused’s counsel and the prosecutor, either because one of them may not be present or, if present, may not be ready. However, in civil cases where parties fail to make their discoveries even after being ordered by the court to do so, there are legal consequences for the defaulting party. The result is that both counsels are in haste to carry out their discoveries on time.

My question is, if this can be done in civil cases, which often tend to be more complex than criminal cases, then why hasn’t the same been done for criminal trials? Is it because it is impossible? Not at all. In Japan, the Code of Criminal Procedure sets time limits for different stages of the criminal process. For example, the indictment must be filed within three weeks of the arrest, and the trial should begin within 10 days from the date of the first hearing.

The Obvious benefits

1. If lawyers know there is a timeframe within which they must conduct their criminal case, they will be more motivated to hasten their job or risk losing their case. This will ensure that they put the necessary pressure on the prosecution to do their part promptly. If you ever have the opportunity to sit in a District court or Circuit court, your first observation will be that lawyers who come to this court are too familiar with the word “adjournment,” but never does it go unnoticed: the dissatisfaction on the faces of both the complainant and accused when their lawyer is requesting for the case to be adjourned.

1. It will help fulfil the constitutional requirement that an accused must be tried within a reasonable time.

1. It helps in the realization of the two most important fundamental human rights of accused persons in criminal proceedings. First is the right to be presumed innocent until proven guilty. The second is the accused’s right to a fair trial within a reasonable time.
2. Interestingly, the need to define reasonable and unreasonable delay is not only important to protect the rights of an accused but also the interests of the complainant or victim. The delay of a court trial tends to aggravate the hurt and pain of the complainant, not to mention the stress and anxiety that follow from going to court. This point is not better summarized than in the words of the Canadian court itself when it said, “Delay in criminal trials places the complainant in limbo.”

Possible critiques against adopting a framework for defining unreasonable delay

1. I do recognize that there is some sort of gap when providing specific time frames for defining what constitutes a reasonable or unreasonable period. The issue that arises is this: if an unreasonable delay in the conduct of a criminal trial is found, such that it violates an accused’s right to a fair trial within a reasonable time, should the accused be discharged to protect their rights? Obviously not, as that would not only undermine the interests of the complainant but also indicate flawed legislation.

Primarily, criminal trials are often conducted by the prosecution, state attorneys, and defense lawyers. In my humble opinion, in such cases, the court’s duty is to determine which of these participants in the criminal proceeding is responsible for the delay. Once the determination is made, the individual responsible, whether it’s the defense lawyer or the prosecution, should be required to pay a fine to the court, which would contribute to the consolidated funds. Imposing fines would provide the best motivation and serve as a check to ensure that lawyers, prosecutors, and state attorneys make every effort to ensure that criminal trials are conducted within a reasonable time.

In the event that the delay is found not to be the fault of anyone but one that arose out of the nature and complexity of the case, the court shall proceed with the case and take steps to ensure that the remaining work is done expeditiously, including setting short dates for adjournment when necessary.

1. Another practical issue that may arise from adopting any of these frameworks is the effect of delays that are unforeseeable, unavoidable, and through no fault of anyone. In the case of R v. Jordan, the court provided for threetypes of delays that may arise in a criminal trial through no fault of anyone.

• First are delays from discrete events. They include medical or family emergencies on the part of the accused, counsel, the judge, or an important witness.
• The second is delay due to the complexity of cases. Some cases tend to be very complex, either by the nature of the offense itself or the evidence, and as such, there is a need for adequate time for a proper defence to be mounted.
• Third is defence delay. This may arise from difficulty in procuring a particular witness to testify, change of defence counsel, discovery of new circumstances that have an impact on the defence of the accused such as insanity.

In such instances, the Jordan framework proposes that the delay arising from the two exceptions be subtracted from the total delay. This will result in the net delay. To determine whether there has been an unreasonable delay or not, the net delay must be compared with the defined time frame or the presumptive ceiling to ascertain whether it exceeds the time frame within which the trial should have concluded.

For example, if a statute provides that a particular criminal case must be concluded within 12 months based on a specified time framework for defining a reasonable time, but unforeseen circumstances, such as the sudden illness of a crucial witness, cause a delay of two months, the net delay would be reduced to 10 months.

In such cases, it cannot be said that there was an unreasonable delay, as the net delay was two months, even though the trial itself may have lasted for 14 months. Consequently, it may be reasonable for the court to grant an extension to accommodate the challenges posed by the unforeseeable event.

A mathematical expression for calculating reasonable time

A mathematical representation of this would be:

1. Net delay = Total delay – (reasonably unforeseeable and unavoidable delay)

Where unforeseeable and unavoidable delay is: delay from discrete events + delay from particularity of case + defence delay

1. Then compare the net delay with the specified time frame provided by law or presumptive ceiling.
2. Where it is lesser, there has not been an unreasonable delay. Where it is more, there has been an unreasonable delay.

Conclusion

In the legal fraternity, there is a popular quote that reads, “He who wears it, bears it.” As participants in the legal sector, we may sometimes fail to truly appreciate what it means to be bound and incarcerated for years until it happens to us. Even just four days in prison could significantly alter a person’s countenance; can you imagine spending years in prison awaiting trial for a crime you may not have committed? Consider also the complainant or victim, who must repeatedly appear in court over the course of many years, waiting to receive the justice they so earnestly sought.

As a nation, when we discuss an effective justice system, I believe it has only one meaning: justice must be delivered promptly. This entails bringing the accused before the court within a specified time frame for a prompt commencement of the trial. It also means that once a trial begins, it should be concluded within the shortest possible time. Consequently, there is a need to establish clear time frames for the commencement and conclusion of trials.

An unreasonable delay in the administration of justice not only infringes upon the fundamental rights of the accused but also undermines public confidence in the legal system. It places a heavy burden on those seeking vindication and resolution. The uncertainty and anxiety that accompany prolonged legal battles exact a profound toll on individuals, families, and the community at large.

 

CITATIONS

CONSTITUTION

The Constitution of the Republic of Ghana, 1992

CASES

[1] [1986] 1 S.C.R. 103, at pp. 119–20.

[2] [1980] GLR 460

[3] [1980] GLR 679–703

[4] (1992) 1 SCR 771

[5] 407 U.S. 514 (1972)

[6] 1992 (4) SA 144 (ZS)

[7] [2005] ACTSC 52

[8] [2021] QCA 59

[9] [2012] EKLR Criminal case 28 of 2011

[10] [2016] 1 SCR 631

[11] Aba v. Mframa

[12] Adu v. Kyeremeh [1984 -86] 1 GLR 1 -6

[13] Agyemang v. Anane

ARTICLES

• Ansong, S. (2021). The Enforcement Of The Accused’s Right To Fair Trial: The Case Of Remand Prisoners Under The Criminal Justice System Of Ghana. Retrieved from https://www.academia.edu/37222814
• Toth, A. J. W. (2019). R v Jordan: Getting serious about delay. Criminal Law Quarterly, 66(1), 1-28