Introduction
You can never bail someone out of trouble without putting someone else in trouble.
The law governing bail, particularly the areas of forfeiture and remission, has long presented significant complexity for lawyers and sureties alike. The complexity arises largely from the diversity of legal standards across jurisdictions and the absence of uniform rules governing when forfeited bail bonds may be excused or reduced. Instead, courts often rely on discretionary decision-making which may lead to varied and sometimes unpredictable outcomes.Bail itself serves a critical function in criminal justice as it allows an accused person to remain at liberty pending trial while ensuring their appearance in court. However, when an accused fails to meet the conditions of bail – mostly by not appearing for court proceedings – the bond is deemed forfeited. Forfeiture is generally triggered through a formal court declaration following the non-compliance. After forfeiture is declared, the legal process shifts toward determining whether the penalty should be enforced or reduced. At this stage, the accused or more particularly the surety(in the absence of the accused) may apply to have the forfeiture set aside or mitigated, either by offering a valid excuse or by demonstrating circumstances warranting relief. Indeed, the absent accused creates the angry court, and the surety often pays the price. This essay considers what a surety must do the moment an accused disappears; what triggers the forfeiture of the bail bond and what consequences flow therefrom.
The Statutory Framework and Judicial Discretion governing the forfeiture of bail bonds
The legislature has always recognised that rigid enforcement in bail forfeiture may undermine fairness, especially when mitigating factors exist. Also, the concept of sound judicial discretion plays a central role requiring judges to weigh equity, reason and the specifics of each case. In Ghana, the governing provision regulating the forfeiture or estreatment of a bail bond is section 104 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30). In substance, once it is proved to the satisfaction of the Court that a bail bond or recognizance has been forfeited, the Court must record the grounds of proof and has the discretion to call on the sureties to pay the penalty or show cause why it should not be paid. Where cause is not shown and the penalty is not paid, the Court may recover the bail bond by forfeiting any cash deposit (where a deposit was permitted) or by a warrant of attachment and sale of movable property. In the case of Kwakye and Others v Nana Ababio II [1982-83] GLR 247, it was held that the proper procedure to adopt where an accused on bail fails to attend court on the adjourned date was to have the sureties arraigned before the court. Thereafter, the sureties would be asked why the bail bond should not be estreated in the absence of the accused. The sureties are allowed to plead with the court to be given time to look for the accused. Where the court grants them time but the suretiesare still unable to produce the accused, and the reason given for their inability to produce the defendant was not acceptable to the court, the sureties would then be called upon to pay the amount for which they stood surety or a lesser sum or failing that they would be imprisoned. However, in the recent case of Martin Kpebu v Attorney-General Civil Appeal No. J1/7/2015, the Supreme Court emphasized that estreatment is a civil recovery process. Accordingly, the Supreme Court struck down section 104(4) of Act 30 (which permitted imprisonment where the penalty could not be recovered by attachment and sale) as unconstitutional because a recognizance is essentially a civil undertaking as opposed to a criminal one. The resulting position of the law is that the Court may declare forfeiture and proceed to civil enforcement measures but cannot apply criminal measures such as imprisonment for inability to pay the forfeited recognizance. This civil nature of a bail bond was clarified in the case of Daswani v Commissioner of Police (No. 2) [1964] GLR 54 by Sowah J (as he then was) when he stated that “a bail bond like a civil bond is a contract under seal, and for the bond to be enforceable against the obligees or the principal party, any conditions precedent must be shown to have been fulfilled…”
Legal Defences and Factors influencing Remission of bail bonds
Historically, common law imposed strict liability on sureties, allowing relief from forfeiture only in narrow circumstances such as acts of God, acts of law or acts of the obligee. These defences required proof that performance of the bail conditions was impossible, and the courts often denied relief where the surety acted in good faith. In modern times, this rigid framework has been somewhat softened. Courts now consider a broader range of defences and may accept reasonable impossibility rather than strict impossibility. Thus, reasons such as serious illness, death or detention in another jurisdiction may justify non-appearance of an accused if properly supported by evidence. Beyond formal defences, courts evaluate several mitigating factors when deciding whether to remit forfeiture. These include, the extent of prejudice to the State, the diligence of the surety in locating the accused, the timing of the accused’s return, and whether the overall purpose of bail has been achieved. Additional considerations include, the wilfulness of the default, the stage of proceedings, and the surety’s role in preventing or contributing to the default. All in all, remission is more likely where the State has not suffered significant harm and where the surety has made genuine efforts to rectify the breach. This means that the system incentivizes cooperation and reinforces the practical goal of ensuring that the accused person ultimately appears in court.
Conclusion
In conclusion, the evolution of bail forfeiture and remission law demonstrates a clear movement away from strict, punitive approaches toward a more balanced and pragmatic framework. While judicial discretion remains central, its exercise is increasingly guided by statutory standards and well-established factors aimed at achieving fairness. Modern courts are less concerned with penalizing sureties or enriching the State and more focused on ensuring that the fundamental purpose of bail, that is, securing the accused’s appearance is fulfilled. This shift is evident in the growing emphasis on factors such as the absence of prejudice to the State, the diligence of the surety, and the timeliness of the accused’s return. Estreatment is not cruelty, but is important because courts cannot function if the accused person treats bail like a revolving door. When the surety signs the bond, they do more than help a friend or family member. They pledge to the court that justice will not be delayed by absence. The moment the accused absconds, that pledge is broken, and the law responds. Bail preserves liberty, but liberty comes with responsibility. The absent accused may vanish, but the angry court remains. Until practitioners teach clients and sureties that “show up” is the only term of bail, estreatment will keep emptying the pockets and breaking trust.
