Right to Privacy: Admissible in criminal matters or can be violated?

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In criminal matters, the fundamental human right, as some say, is curtailed immediately someone is charged by the police.

It is plausible to indicate that, the principle of the criminal justice in Ghana makes provision for fair trial, fair hearing (audi alteram partem), right to privacy and even, exercise of fundamental human rights enshrined in Chapter five (5) of the 1992 Constitution.

Notably, the right to privacy is a fundamental human right hence, admissible in criminal matters even with the accused.

Privacy is the right of individual to be protected against the intrusion into his/her personal life; or affairs; or his/her family by direct physical means or by publication of information.

However, in most criminal charges and criminal prosecutions, some State Authorities have opposed to these suggestions because they believe that laws intended to protect accused persons of their privacy could be used to prevent the State prosecutors from revealing pieces of evidence, to aid prosecution.

On the right to privacy, Article 18(2) of the 1992 Constitution stipulates that No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except with law and as may be necessary in a free and democratic society for public safety or for economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights of freedom of others.

Although this right is entrenched, nevertheless, it is not absolute in the sense that it can be derogated from for the purposes of preventing crime and protecting the rights or freedom of others.

However, it must be noted that unless a court permits for the invasion of the privacy of an accused person, the right to privacy of a person under criminal proceedings subsists.

The privacy provisions in the Constitution are not cast in stone, but grants exceptions under which the rights of persons can be interfered to obtain evidence, based on; public safety, economic well-being grounds, protection of health and morals, court order, prevention of disorder and protection of the freedom of other persons.

Public policy is a major ground to admit or accept evidence even if it is obtained illegally, improperly or in contravention of the Constitution. His Lordship Burrough, in case of Richardson V. Mellish (1824) 2 Bing 252 stated that public policy is a very unruly horse, and when once you get astride, you never know where it will carry you. This is because public policy is largely unwritten and ambulatory which lends itself to grave exercise of discretion.

Ghanas apex court, Supreme Court, in recent times, have made concise pronouncement on this matter in two cases. The first was in Mrs. Abena Pokuaa Ackah V. Agricultural Development Bank [Ref.No.J4/31/2014] (19th December, 2017) where, Mrs. Abena Pokuaa, an Appellant and employee of the Agricultural Development Bank, got the contract of employment terminated on the grounds of divulging sensitive business affairs of the bank through a telephone conversation to a freelance journalist.

After rehearing the appeal, His Lordship Dotse (JSC) stated that, we hold that the delivery of the secret recorded conversation between the Appellant and Respondent amounted to a breach of the Appellants right to privacy as provided in Article 18(2).

Justice Pwamang, in concurrence stated that; in my considered opinion the secret recording of the Appellant was a violation of her right to privacy of her private life. It is an intrusion into her private life beyond the extent that she had consented to because the individual should be free to determine the manner and extent of his relations with whoever she chooses to relate to.

In the case of Raphael Cubagee v. Michael Yeboah Asare and 2 others, [Ref.No.J6/04/2017] (28th February 2018) at the Supreme Court, further consolidated the position on the breach of privacy.

In this matter, the Plaintiff sought to tender in evidence in the form of a telephone conversation which was secretly recorded with a representative of the third Defendant. His Lordship Pwamang (JSC) further declared that secret recording of a telephone conversation was a breach of the privacy provisions of the 1992 Constitution under Article 18 (2).

Justice Pwamang (JSC) emphasised that the object of the constitutional rules on privacy was to protect the individual against unwarranted intrusion, scrutiny and publicity and guarantees his control over intrusions into his private sphere.

However, the Court, in concluding, added that it was not every pieces of evidence obtained in breach of the Constitution shall be rendered inadmissible.

In the Courts view, a judge should have the discretion to consider the relevant circumstances of the case, such as nature of the rights that had been violated, the manner and degree of the violation, the gravity of the crime being tried, the manner in which the offense was committed, as well as the severity of the sentence the offense attracts and determine whether the evidence should be admissible or not.

Similarly, in the case of Edmund Addo v. Inspector General of Police (IGP) and Attorney-General (AG) at the Accra High Court, the police arrested the applicant, Edmund Addo, on May 27, 2016 and seized his cellular phone, laptop, internet modem and hard drive without a court warrant.

The police forced the applicant to provide his passwords but he refused. They later engaged the service of some IT experts to access the phone and the laptop with the purpose of using the evidence gathered to prosecute the applicant.

The applicant therefore, filed a suit on June 13, 2016 and prayed the court, to among other things, declare that his rights to privacy, property, fair trial or education had been, were being or were likely to be violated by the respondents (the IGP and the A-G).

The Court, presided over by Justice Anthony Yeboah, upheld that the argument of the applicant, saying the conduct of the police amounted to a violation of the rights of privacy and fair trial.

The Court, accordingly, ordered the IGP to submit the said gadgets to the registrar of the trial court within 14 days.

In continuation form the above, the case of the Republic v. Okorie was another important ruling in relation to privacy.

In that case, the police procured the statement of the appellant and charged him with murder without informing him of right to counsel. The court held that the statement was obtained in violation of the appellants constitutional rights, and therefore, it was inadmissible in evidence at the trial.

The Ghanaian criminal jurisprudence maintains under Article 19(2) of the 1992 Constitution that, a person charged with a criminal offence shall be presumed to be innocent until he is proved to be guilty or has pleaded guilty. Article 18(2) provides that except with law the right to privacy can be derogated from for the purpose of public safety and prevention of crime.

Central to this discourse, it must be admitted that for the right of an individual to be violated in criminal matter, the right procedure ought to be followed.

In this context, the right to privacy of an accused person can only be violated provided the court grants the permission, in the quest to retrieve evidence in the interest of the public.

Therefore, any act contrary to the determination of the court on privacy may constitute a breach of the law.

Saint-Ayisi Samuel

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