Bertha Aniagyei*
PART I
- INTRODUCTION
The Reality: Criminal Courts as Debt Collectors.
As legal practitioners and scholars, it is important to recognize a pervasive and troubling practice that has seemingly established itself within the framework of our criminal justice system.
This practice pertains to the tendency of courts, particularly lower courts that handle the majority of criminal cases, to adjourn proceedings multiple times to afford an accused individual the opportunity to make payment to a complainant under the pretext of resolving the case.
This phenomenon is notably prevalent in cases involving fraud, such as defrauding by false pretenses, fraudulent breach of trust, fraudulent transactions concerning land, as well as cases of theft, assault, or unlawful harm. Certain courts appear to process these cases as if they are simply matters of debt collection.
- The Case of Mr. A: An Illustration of the Practice
For instance, consider the case of Mr. A, charged with defrauding Mr. Q under Section 131(1) of the Criminal Offences Act, 1960 (Act 29). On August 8, 2022, in Sogakope, Mr. A falsely claimed he could sell eight Toyota Corolla vehicles at the Jubilee House for one hundred thousand Ghana cedis (GHS 100,000) and obtained that amount from Mr. Q, knowing his statement was false.
When arraigned, Mr. A pleads not guilty. Whether pro se or through counsel, he informs the court of his intention to reimburse Mr. Q. The prosecution has no objection, and the court adjourns to allow Mr. A to make the payment.
On the next adjourned date, Mr. A presents ten thousand Ghana cedis (GHS 10,000) to the court, notifying it of this action. The funds are given to the prosecutor or directly to Mr. Q, and the case is adjourned again. Mr. A is scheduled to remit a specified amount on the following adjourned date, after which the case is again adjourned.
- A Pattern of Adjournments
This sequence of events establishes a procedural pattern. At some point, Mr. A may inform the court that he is unable to provide funds, resulting in another adjournment. The case may experience up to four adjournments without any financial contribution from Mr. A.
Eventually, Mr. A may stop attending court altogether. In response, the court would issue a bench warrant for his arrest. Following his arrest, Mr. A would present some funds, leading to the rescinding of the bench warrant.
The cycle of payments would continue, potentially extending over three years. If he completes the payment or remits a substantial amount, the prosecution may inform the court that the matter has been resolved.
Consequently, the case is struck out as settled, and the accused is discharged. Alternatively, the prosecution may request to withdraw the case, resulting in the court striking the matter out as withdrawn by the State and subsequently discharging the accused. Essentially, the court operates more as a debt collection agency than as a competent tribunal adjudicating a criminal matter.
- A STATE OF SHOCK
Numerous practicing lawyers, court personnel, interns, and judges have either observed or participated in the practice described above. This phenomenon is, to say the least, perplexing when one encounters it for the first time. It is bewildering because it lacks sanction under any of the procedural regulations governing criminal matters in our courts. - The Legal Framework
The foundational principles of criminal law stipulate that for an act to constitute a crime, it must be explicitly prohibited by written law and accompanied by a corresponding punishment. The legislation prohibiting such an act must be in effect prior to or at the time the individual engaged in the act, rather than afterwards. The primary statute regulating procedures for criminal offenses is the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), hereinafter referred to as Act 30.
- Requirement of the Law: Act 30 and Proper Criminal Procedure
Any individual charged with a criminal offense must be arraigned before a court of competent jurisdiction, as delineated in a charge sheet or bill of indictment. In instances where the offense is subject to summary trial, the procedure outlined in Act 30 requires the court to take the plea of the accused individual.
Should the accused plead not guilty, or if a not guilty plea is entered on their behalf, the court will subsequently consider the matter of bail. Following this, the court is obligated to issue orders for the filing of disclosures by the prosecution.
Once the disclosures have been filed and served on the accused or their counsel, a case management conference will be conducted. During this conference, the court, the accused, and the prosecution will collaboratively agree on appropriate and convenient trial dates for the prosecution to open and close its case.
iii. Prima Facie Determination
Upon the conclusion of the prosecution’s case, the court will, as a matter of law, assess whether the prosecution has established a prima facie case against the accused concerning each of the charges. Both the counsel for the accused and the State Attorneys (if they are representing the prosecution) may submit written addresses to the court prior to the determination of this legal question.
Where the court concludes that the prosecution has not fulfilled its burden in establishing a prima facie case against the accused, it is mandated to acquit and discharge the accused, thereby concluding the case.
Conversely, if the court determines that the prosecution has successfully established a prima facie case, this indicates that the accused has a case to answer. The court will then call upon the accused person to open his defense, if he so desires.
Upon the conclusion of the accused’s defense or in the event that they do not present a defense, the court is required to evaluate the entirety of the evidence on record and ascertain whether the prosecution has proved the guilt of the accused beyond a reasonable doubt.
Where the prosecution’s case fails to establish the accused’s guilt beyond a reasonable doubt, the court must acquit and discharge the accused. However, if the prosecution’s evidence does establish the accused’s guilt beyond a reasonable doubt, the court is compelled to convict and proceed to conduct a pre-sentence hearing.
- Sentencing, Restitution and the Boundaries of Judicial Authority
Subsequently, the court deliberates and imposes the appropriate sanctions as prescribed by law. These sanctions may include custodial sentences, monetary fines, and their corresponding default custodial penalties.
In addition to these measures, the court may impose a bond requiring the offender to maintain good behavior and/or to keep the peace for a specified duration, accompanied by an associated default custodial sentence.
Beyond the prescribed sanctions, the court possesses the authority to issue orders regarding compensation (not more than 500 penalty units), restitution or reparation in favor of the complainant.
Should the court issue such orders, noncompliance does not result in default custodial penalties for the convicted individual. Instead, the complainant may enforce compliance through civil litigation.
The aforementioned outline represents the concise criminal procedure mandated by law for courts to follow in criminal matters. It is on this basis that many legal practitioners would concur that the procedure illustrated previously is perplexing.
- COURTS AND THE MISUSE OF RECONCILIATION
- The Courts Act and the Alternative Dispute Resolution Act
The rationale for the adoption of the aforementioned procedure by some courts lies in the obligation of the courts to promote reconciliation. This argument is substantiated by the Courts Act, 1993 (Act 459), which explicitly mandates the courts to facilitate reconciliation in criminal matters that are neither felonious nor aggravated.
Consequently, pursuant to Act 459, when an accused individual is charged with a crime categorized as a misdemeanor, and the particulars of which are not aggravated, the courts are compelled to encourage settlement between the accused and the complainant.
Additionally, some legal practitioners argue that the Alternative Dispute Resolution Act, 2010, (Act 795) permits the resolution of criminal matters that are not classified as first-degree felonies through mutual agreement of the parties involved.
- Reconciliation versus Informal Debt Collection
Even if this argument is valid, the implications of both provisions, i.e., Act 459 and Act 795, do not justify the acceptance of debt collection practices by the courts under the pretext of reconciliation.
Reconciliation necessitates that the parties involved engage in dialogue, (after the accused person has pleaded not guilty) either independently or with relevant stakeholders, to deliberate, acknowledge responsibility, and determine a path forward. Should the resolution involve financial compensation, clear payment terms must be established, and if feasible, documented and filed.
Subsequently, the court must adopt the terms and proceed to dismiss the case as settled. In the event of a party’s noncompliance, the other party may initiate a lawsuit solely to enforce the settlement and seek reimbursement for incurred costs.
iii. The A, B, C of Genuine Reconciliation
A.
In the context of criminal matters aimed at fostering reconciliation, the appropriate protocol (after establishing that the offence is one which the law makes amenable to reconciliation) involves inquiring from the accused, their legal counsel if at all, the prosecution, and the complainant regarding their willingness to engage in a settlement.
Should both parties express a willingness to reconcile, the court will seek to ascertain whether they prefer to resolve the matter independently or wish to utilize Court-Connected Alternative Dispute Resolution (CCADR), if available, or another respected individual to facilitate the settlement process.
Where CCADR is available, it is incumbent upon the court to thoroughly elucidate the process to the involved parties prior to seeking their consent in order to enable them make an informed decision.
B.
Regardless of the option selected by the parties, the court must subsequently refer the case for an attempted settlement and adjourn to a specified date and time for the announcement of the settlement outcome. This adjournment shall not exceed thirty clear days if the accused is on bail, or fourteen clear days if the accused is in custody.
In instances where the parties opt for CCADR, a report must be submitted and placed on the court’s docket by the next adjourned date, indicating whether the settlement was successful, unsuccessful, or if an extension of time is required.
Conversely, if the case is referred to an alternative settlement mechanism, the parties or the designated facilitator will communicate the outcome of the settlement to the court either in person or through a letter.
In this scenario, submissions to the court should be confined to whether a settlement was reached, the specific terms of the settlement if applicable, the unsuccessful nature of the settlement, or the necessity for an extension of time. The court is not required to know or consider any other matters that arose during the settlement attempts.
- In the event that a settlement is reached, the court will adopt the agreed terms as a consent judgment and dismiss the case as settled, resulting in the formal discharge of the accused.
Should an extension of time be necessary, the court will grant it and further adjourn the case to a specified date and time, again adhering to the aforementioned limits of thirty clear days for those on bail and fourteen clear days for those in custody.
Courts typically do not grant more than two extensions of time for settlement. If a case remains unresolved after two or at most three attempts, the court will proceed to trial on the basis that settlement has broken down.
Where settlement is unsuccessful, the court mandates the filing of disclosures and their service by a specified deadline, conducts a case management conference, and, with the cooperation of prosecutors and defense counsel, establishes clear and convenient trial dates.
The procedure outlined above is distinct and cannot be equated with the current practice in which an accused individual arbitrarily pays money to the prosecution or complainant on court dates with the intention of settling the case.
END.
In Part II of this paper, we will explore the rationale underlying the courts’ use of this debt collection procedure, as well as the disadvantages associated with this process for all parties involved.
Furthermore, we will examine the legally mandated forms of restitution, reparation, and compensation, along with proposed recommendations for future actions.
*The author is a judge and an alumna of Harvard Law School.
