Sureties cannot be prosecuted for non fulfilment of bail bonds, penalties: Fair to victims? – Lawyer expatiates
Sureties cannot be prosecuted for non fulfillment of bail bonds, penalties: Fair to victims? – Lawyer expatiates
Hitherto, whenever an accused person failed to turn up in court, the court either could issue a bench warrant for his or her arrest or proceed against the person who entered into the recognizance (the surety) for an undertaking that he would produce the accused on-demand in court or pay a cash penalty.
Additionally, when the penalty was not paid and could not be recovered by attachment and sale, the surety was liable to imprisonment without hard labour for a term not exceeding six months.
However, in 2015, the Supreme Court in a majority decision per Dotse JSC in the case Martin Kpebu v. Attorney-General DLSC3031 held inter alia that section 104 (4) of the Criminal and other Offences (Procedure) Act, 1960 (Act 30) which prescribes the punishment supra is inconsistent with the provisions of Article 14 (1) and 19 (11) of the Constitution 1992 and accordingly struck down the same.
The difficulty now is whether it is fair and motivating for victims or complainants to let sureties off the hook in the event that an accused person fails to turn up in court or at best escapes trial by leaving the jurisdiction per the decision supra?
A criminal Law Lecturer at GIMPA and a Private Legal Practitioner, Dr. Isidore Tuffuor had this to say when contacted by Dennislaw news.
“We are in a country where we've not done much in terms of identification of people. We are now by the National Identification System, deploying a database that when in full implementation, will facilitate the identification of people but until we get to a point where irrespective of where you are, we can trace you, it becomes a difficulty.”
“A surety is a surety. He is the one vouching for an accused person so when the accused person runs away, as the law in Martin Kpebu said, he is not the one to be prosecuted because he has not committed a crime. At best, he can be made to pay the bail sum
He noted that whether the payment of the bail sum by the sureties in such events will render justice to the crime that the person is alleged to have committed is another question.
Dr. Tuffuor admitted that it is a problem however indicated that it goes beyond the country’s Criminal Justice system and more of a social scheme needed to be set up by the Nation.
“I agree with you as to whether there is a gap but it all has to do with the fact that as a country, we are yet to get to the level of development where we are in the position to guarantee that we will be able to produce people as and when they are supposed to stand trial in the courtroom. We have not developed a better Identification system that will help us to easily locate people in the country.”