Lessons From Francis Arthur

Ask for an adjournment today. Another tomorrow. Counsel is unavailable. Counsel is in Parliament. Counsel has another engagement. Counsel needs more time.

One adjournment becomes two. Two become several. Months become years.

But we sometimes overlook an important point: Lawyers can ask for delays. Only courts can grant them.

The Supreme Court made that point forcefully in Republic v High Court (Criminal Division), Accra; Ex parte Francis Arthur (2016).

ADVERTISEMENT

What happened?

On 18 July 2013, Francis Arthur was arraigned before the High Court on charges of stealing and forgery.

He was not granted bail and remained in prison for more than four months.

He regained his liberty on 23 November 2013, after satisfying the bail conditions subsequently imposed by the trial judge.

He appeared before the court on all subsequent dates.

The same could not, however, be said of his lawyer. Counsel, the Court observed, “almost regularly absented himself from court on account of his parliamentary engagements.”

The accused was showing up. His lawyer frequently was not. And the court kept granting adjournments.

The prosecution eventually completed its evidence on 15 February 2016, after “several adjournments at the instance of counsel for the applicant.”

Then came the submission of no case. On 15 February, defence counsel sought an adjournment.

The case returned on 29 February. Another adjournment was sought.

It returned again on 9 March. Lead counsel was again absent because of parliamentary duties. His junior sought yet another adjournment, this time to 22 March.

The prosecution objected, describing the request as a “ruse to delay the proceedings and thus defeat the ends of justice.”

The trial judge had finally had enough. But he directed his frustration at the wrong person.

He, the trial judge, revoked Arthur’s bail and sent him back into custody.

Arthur filed a writ at the Supreme Court seeking to quash the revocation of his bail.

What did the Supreme Court say?

The SC restored Arthur’s bail.

The accused and his lawyer were not one and the same. Arthur had complied with his bail conditions. Counsel’s conduct did not justify depriving Arthur of his liberty.

The SC was equally unhappy with the delays. And it placed responsibility not only on counsel, but also on the trial judge.

It said the judge had “unduly indulged Counsel for the applicant” by repeatedly accommodating his parliamentary engagements. The Court said “the learned trial judge, we think has himself to blame for conducting the business of the court as though it is secondary to that of counsel for the applicant.”

The Court was saying that chronic delay cannot always be blamed entirely on lawyers. Counsel asks for the adjournment but only the court can grant it.

When a court repeatedly accommodates unjustified requests, it eventually becomes part of the delay problem.

The Court connected this directly to Article 19, which requires a criminal trial within a reasonable time. Repeatedly granting adjournments merely because of counsel’s other engagements could amount, the Court said, to “a shirking of the responsibility imposed on judges.”

The Court was also plainly concerned that a criminal prosecution commenced in 2013 was still unresolved in 2016.The Court highlighted the importance of sound judicial case management. Criminal proceedings affect liberty. Adjournments should therefore be minimized and trials expedited. “A presiding judge has to have control over his court.”

What does Francis Arthur teach our trial courts?

An adjournment is a request, not an entitlement. Counsel may ask. The court decides.

Counsel’s diary does not control the court’s diary. Parliamentary duties, other cases and other professional engagements do not automatically determine when a criminal trial proceeds.

Delay strategy requires judicial indulgence. A lawyer may repeatedly ask for adjournments. But repeated requests do not become repeated delays unless the court grants them.

At some point, therefore, chronic delay ceases to be merely a lawyer problem. It becomes a judicial case-management problem.

Courts must manage cases so they do not become old cases. The Court was concerned that a criminal case commenced in 2013 was still unresolved in 2016.

The lesson is not merely that a three-year-old case should receive greater urgency. The more fundamental lesson is that sound judicial case management should prevent a criminal case from becoming three years old in the first place.

Courts must manage cases actively from the beginning by controlling adjournments, insisting on preparedness, setting and enforcing realistic timelines, and keeping trials moving.

The best way to deal with an old case is not to allow a new case to become one.

Article 19 imposes obligations on judges too. Trial within a reasonable time is not achieved by waiting for counsel to move cases along.

Judges have an affirmative responsibility to control proceedings and ensure that criminal cases are determined expeditiously.

Control the lawyer; don’t punish the client. This may be the most elegant part of Francis Arthur.

The Court simultaneously condemned excessive indulgence toward counsel and protected the accused from being punished for counsel’s conduct.

Arthur had spent months in custody. After obtaining bail, he religiously appeared in court.

The solution to counsel’s delays was therefore not to send Arthur back to prison. It was better judicial case management.

To sum up, Protect the accused. Control counsel. Control the calendar. Watch the age of the case. Move the trial.

Counsel may choose delay as a strategy. But delay succeeds only with the court’s indulgence.