The law of privacy protects individuals from intrusions and invasions upon their personal, correspondences, communications, homes and properties.
The right to privacy is a fundamental human right.
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Article 18, Clause 2 of the 1992 constitution provides that;
“No person shall be subject to interference with the privacy of his home property, correspondence or communication except the 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 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.
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Unless the court permits for the invasion of the privacy of an accused person, the right to privacy of a person under the criminal proceedings subsists.
In this article, we will be shifting our focus on the right to privacy in crìmìnal matters, specifically the court’s admissibility of evidences in breach of the privacy of a person charged with a crìmìnal offence.
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Interpretation Of Right To Privacy
Under the 1992 constitution, there is no exact provision excluding evidence obtained in breach of a constitutional right to privacy.
That notwithstanding, in the case of Raphael Cubagee Vs Micheal Asare, the Supreme Court, in interpreting and enforcing Article 18(2), answered the question of whether courts ought to exclude evidence obtained in violation of the rights of a person.
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Accordingly, the court rejected the policy of automatic exclusion of evidence for breach of constitutional right and adopted the discretionary exclusionary rule.
According to Pwamang JSC;
“Enforcement of human rights is not a one way street since no human right is absolute. There are other policy considerations that have to be taken into account when a court in the course of proceedings is called upon to enforce human rights by excluding evidence and that explains why more jurisdictions have now adopted the discretionary rule approach”.
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Here the court considered the need to balance public interest and human rights in adopting the discretionary exclusionary rule.