Introduction
In every institution, there are disciplinary measures that are put in place to check the conduct of the members of the institution. There are some institutions and bodies that have committees or boards set up to consider disciplinary issues as and when they come up. For instance, the Legal Profession Act, 1960 (Act 32) by section 17 provides for a disciplinary committee to look into the conduct of lawyers especially where there has been a complaint against them. The Police Service is no exception to institutions that have disciplinary measures in place. One of the methods usually adopted by the Police Service is the Service Enquiry procedure.
A service enquiry refers to a formal investigation into the conduct of police officers to ascertain whether or not there has been a breach of any rule on misconduct.
In the Police Service Act, 1970 (Act 350), certain activities have been categorized as misconduct behaviors. These behaviors have been outlined in section 17 of the Act. These may include absence from duty without leave or reasonable excuse, divulging confidential information to a person not authorized to receive it, engaging in a gainful occupation outside the Service without the consent of the Inspector-General as well as being insubordinate.
Apart from these misconducts that police officers are forbidden from engaging in, Section 23 of Act 350 also gives an opportunity to members of the public to be able to bring complaints against police officers in writing to the Inspector-General of Police, where there have been instances of a neglect or non-performance of duty by a police officer, an instance of bribery, corruption, oppression or intimidation by a police officer or any other misconduct by a police officer. The Act further provides that the Inspector-General or superior police officer, on receiving such written complaint shall cause a full and impartial investigation to be made, and shall send a report of the conclusion to the complainant, and take an action on the report as the circumstances may require.
In consonance with the above and in order to ensure that sanity is maintained in the Police Service, section 19 makes provision for a disciplinary authority as follows:
- The president acting in accordance with the advice of the Police Council shall have disciplinary powers over police officers
- The President may delegate disciplinary powers in respect of all or any police officers to the Inspector-General, and may authorize the Inspector-General of Police to exercise all or any of those powers through a disciplinary board or superior police officer in accordance with the Regulations made under section 20
- A person or body in whom disciplinary powers under this Act are vested is a disciplinary authority for the purposes of this Act.
Even though the disciplinary board may cause investigations to be made into the conduct of a police officer, they must do so in accordance with the Police Force (Disciplinary Proceedings) Regulations, 1974 (LI 993).
Disciplinary proceedings in the police service may either be summary or formal but where the proceedings are summary, the disciplinary board shall NOT impose a major penalty on an officer especially where the proceedings do not arise out of a conviction.
At the commencement of the hearing the charge shall be read over and, if necessary, interpreted and explained to the defendant; the defendant shall then be called upon to plead guilty or not guilty and any written statement in explanation which the defendant may have made in accordance with the regulations shall be put in evidence when the time comes for the defendant to make his defence, and shall be read over by the disciplinary authority to the defendant, who shall then be permitted, if he so wishes, to make a further verbal statement in explanation.
Regulation 10(2) stipulates that a plea other than “guilty” or “not guilty” shall not be accepted, and where a defendant persists in making a plea other than “guilty” or “not guilty” or refuses to plead, a plea of “not guilty” shall be entered on his behalf by the disciplinary authority.
The above is the general nature of how disciplinary proceedings are conducted. The Police Service Instruction 51 details how a service enquiry, which is part of the formal proceedings are conducted.
One issue which is quite mind-boggling is whether or not a service enquiry proceeding is to be considered as a criminal proceeding. In the next few paragraphs, we are going to journey through how a service enquiry is conducted pursuant to the Police Service Instruction 51 and determine whether indeed it is criminal proceeding or not.
Is a service enquiry a criminal proceeding?
The Criminal and other Offences (Procedure) Act, 1960 (Act 30) provides that a criminal offence under the Criminal Offences Act, 1960 (Act 29) shall be enquired into, tried and otherwise dealt with in accordance with the Act and an offence under any other enactment shall, subject to that enactment, be enquired into, tried and dealt with in accordance with this Act. This implies that apart from the Criminal offences Act, Act 29, there may be other offences defined in other enactments.
Usually, the mode of trial of an offence is dependent on the type of offence it is. Act 29 defines certain offences as misdemeanors, first or second felonies and these categories determine the kind of punishment that comes with it.
Section 2 of Act 30 makes reference to two types of trials namely summary trial and trial on indictment. The section stipulates that an offence shall be tried summarily if the enactment creating the offence provides that it is punishable on summary conviction, and does not provide for any other mode of trial or the enactment creating the offence makes no provision for the mode of trial and the maximum penalty for the offence on first conviction is a term of imprisonment not exceeding six months, whether with or without fine.
Furthermore, an offence shall be tried on indictment if it is punishable by death or it is an offence declared by an enactment to be a first degree felony or the enactment creating the offence provides that the mode of trial is on indictment. So, in the case of Amadu Fulani v The Republic [1968] GLR 66, the appellant had been convicted on charges of conspiracy to steal, unlawful entry and stealing property of a certain value. He was sentenced to seven years’ imprisonment after being tried summarily at the circuit court. He appealed against the sentence to the High Court. The issue was whether or not with the enactment of Act 29 and 30 there was no longer any correlation between the gravity of an offence and its mode of trial and punishment. The court held that there was a correlation between the gravity of offence and its mode of trial and punishment since section 2 of Act 30 provided for the mode of trial of offences such that grave offences were to be tried on indictment and trivial cases to be tried summarily.
The Police Service Act 1970 (Act 350) as well as the Police Force (Disciplinary Proceedings) Regulations, 1974 (LI 993) makes reference to formal proceedings and summary proceedings of the Disciplinary Board. As may have been observed above, the main difference between these modes of enquiry is the nature of the punishment to be imposed among other things such that in formal proceedings the case may require the imposition of a major penalty.
The Police Service Instructions pursuant to the LI 993 and Act 350 outlines the procedure involved in a service enquiry. Usually, when a member of the Service is charged with a disciplinary offence of such nature that it is reported to the IGP pursuant to the provisions in Act 350 and LI 993, and the IGP has directed that the case shall be dealt with by the Police Disciplinary Board, the disciplinary board shall issue directions in accordance with the regulations.
If the disciplinary Board directs that a service enquiry shall be held, evidence shall be taken on oath or affirmation and the proceedings and the evidence shall be recorded in writing in accordance with the powers conferred on Senior Officers and in accordance with the provisions of this service instruction. For the purposes of a service enquiry police form 7 shall be used.
On receiving the direction of the IGP, the disciplinary Board, having caused such preliminary investigations as may be considered necessary to be made and having found that there is a prima facie case, shall frame charges against the member of the Service concerned, issue the necessary directions and nominate the senior officer who is to hold the enquiry.
When a senior officer receives the instructions of the disciplinary board to hold a service enquiry, he shall communicate the charge to the defaulter verbally if the defaulter is stationed in the Senior Officer’s Headquarters. However, if he is stationed at a distance from the Headquarters, it shall be done in writing. At the same time the defaulter shall be informed that he may, within three days if he so wishes, submit a written statement in exculpation of his offence.
Should the defaulter’s statement produce evidence, which appears to exculpate him, the senior officer shall report to the senior officer in charge of the region, by forwarding the statement. If the senior officer in charge of the region having read the statement, is of the opinion that the enquiry should proceed, he shall instruct accordingly and shall inform the disciplinary board of the action he has taken. If he is of the opinion that the defaulter has exculpated himself, he shall forward the statement to the Disciplinary board.
If the defaulter has submitted a statement in an attempt to exculpate himself and an enquiry follows, this statement shall be produced in evidence at the enquiry when the time comes for him to make his oral statement, if any in his defence. The statement shall be read over to the defaulter by the senior officer holding the enquiry who shall then ask the defaulter if he wishes to say anything in addition. If the defaulter does so, his verbal statement shall be taken down in writing.
In the case of enquiry into a disciplinary offence by a member of the service of the rank of inspector, the defaulter shall not be charged unless and until the directions of the IGP or the Disciplinary Board are received (Police Service Instruction 50 (a) and (10)).
At a service enquiry the procedure shall be as follows:
- The defaulter shall be charged and if necessary, the charges shall be interpreted and explained to him.
- The defaulter shall be called upon to plead
- The evidence shall then be led on oath or affirmation
- Opportunity shall be given to the defaulter to cross-examine any witness who may be called to give evidence against him
- The defaulter shall then be permitted to give evidence and to call witness on his own behalf
- When a defaulter, having heard the charges, wishes to make a statement, he shall be informed that any statement he may make may be made on oath at his option, and that any statement he may have made in accordance this service instruction will be put in evidence together with his oral statement.
From the above, one may argue that a service enquiry is a criminal procedure. The possible reasons to be proffered may be the fact that just like in a criminal proceeding, the defaulter is asked to plead after the charge is read to him and a punishment is meted out to the guilty party.
However, on a critical look at the procedure involved in a service enquiry, it is apparent that the procedure is more or less an administrative procedure. However, the body involved in the enquiry must conduct the proceedings in accordance with the regulations or instructions as provided internally and in accordance with law. Therefore, an aggrieved party may apply to court to have the decision quashed. So, in the case of Republic v Inspector-General of Police; ex parte Wood [1973]2 GLR 113-117, the applicant averred that the service enquiry that was held leading to his dismissal was flawed because the Regional Police Disciplinary Board which was bereft of the power to appoint a senior officer to carry out the enquiry actually appointed that officer, instead of the Inspector General of Police who was clothed with that power. He therefore applied for a Certiorari to have the dismissal quashed. The court speaking through Edusei J, held that having regard to the provision of Act 350 as well as the LI, the only person competent to appoint in writing a superior police officer to hold a service enquiry was the IGP and as such in the circumstance the enquiry carried out by the Senior Police Officer was a nullity.
Furthermore, a service enquiry is not a criminal proceeding because in the Police Service Disciplinary Proceedings Regulations, 1974 (LI 993), criminal proceedings against service members are provided for under Regulations 21. Regulation 22 also stipulates that where a member of the Force is convicted of a criminal charge in any court, the facts shall be reported to the Inspector-General who, if satisfied that the conviction has brought such a degree of disrepute on the Force as to warrant the dismissal or removal of the person so convicted, shall refer the matter to the appropriate disciplinary authority for the imposition of such penalty as the disciplinary authority may think fit. The fact that criminal proceedings have been provided for differently from formal and summary proceedings of the disciplinary board which is usually the service enquiry is also demonstrative of the fact that service enquiry is not a criminal proceeding and in Ghana, it is only the court that can convict a person of a crime.
Besides, apart from the activities that have been listed as misconducts under section 17 of Act 350, the Act does not make provision for any other offences. This implies that should a police officer engage in an offence defined in the Criminal Offences Act, that officer would be prosecuted in accordance with the Criminal and other Offences (Procedure) Act, 1960 (Act 30). So, in the case of Gligah & Atiso v Republic [2010] SCGLR, Dotse JSC emphasized that “in the present case, the accused persons who are policemen and mandated to maintain law and order but have rather become the perpetrators of crimes against innocent law-abiding citizens who they are to protect must receive harsh and deterrent sentences. Even though the parties involved in the crime were police service personnel, the crime was prosecuted in a trial court.
It must be noted however, that by section 22 of Act 350,where a member of the Force is convicted of a criminal charge in any court, the facts shall be reported to the Inspector-General who, if satisfied that the conviction has brought such a degree of disrepute on the Force as to warrant the dismissal or removal of the person so convicted, shall refer the matter to the appropriate disciplinary authority for the imposition of such penalty as the disciplinary authority may think fit.
This implies that a service enquiry is a formal procedure adopted to enquire into the conduct of a service personnel. It is not criminal procedure. However, where the offence being enquired into is a criminal offence the proceedings would be held in accordance with Service Instruction 56 pursuant to Regulation 21 of LI 993 or it will take the normal course of a criminal trial under the Criminal Offences Act, 1960 (Act 29). Where the proceedings are carried out in accordance with Regulation 21 of LI 993, then the evidence of a witness at the enquiry must be subject to the same standard as in a criminal trial. Since this is usually conducted by the disciplinary board which is an administrative body. Case in point is the case of Akainyah v The Republic [1986] GLLR 33. In that case it was held that in an inquiry held under Act 230 where the findings of fact constitute a prima facie case against an accused person in a subsequent criminal trial, the commissioner should approach the evidence of the witness whom he considered accomplices with the same caution as he would approach it if they were witnesses for the prosecution in an ordinary criminal trial. The trial judge had erred in holding that the rule which required corroboration of an accomplice’s evidence was inapplicable to a commission held under Act 230.
It has been emphasized by law that a member of the security services is not exempted from prosecution merely because the act constituting the offence is also punishable by a disciplinary code. The court held in the case of State v Obeng and Others [1967] GLR 91 that it was an untenable proposition that any class of persons should be exempted from the application of the criminal code by virtue of their association or employment. On the contrary where an enactment provided for the discipline of a class of persons, those persons were liable to be charged by the state under the criminal code and by whoever was so empowered under their special code of discipline for conduct which was in breach of both codes.
From the above, it is safe to conclude that a service enquiry is not a criminal procedure. However, in the course of proceedings, if crime is imputed, then the Criminal and Other Offences (Procedure) Act as well as Section 13 of the Evidence Act, 1975 (NRCD 323) would apply in proving the alleged crime.
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