This article is Part 1 of a three-part series examining the judicial processes that follow when an accused person dies in the course of a trial, and the principles that underpin them.

What happens when an accused person dies in the middle of a trial?

When an accused person dies while a criminal case is still ongoing, the law is straightforward: the trial process comes to an end. The first step is purely procedural. The fact of the death must be formally brought to the attention of the court. This is usually done by the prosecution or counsel for the accused, and it must be supported by a death certificate or other credible evidence. Where an accused person is not represented by a lawyer, the family usually notifies the prosecutor in court and provides the evidence which is then presented to the judge by the prosecutor. The court does not act on mere statements and must be satisfied that the accused is in fact deceased. Typically, the case investigator will verify the death of the accused. This can result in an adjournment, if the death is brought up for the first time in court.

Once the court is satisfied that the accused has died, the criminal proceedings are terminated by the court. What the court usually does is brief: the death is recorded, the evidence (proof of death) is filed in the case docket and the case is struck out and removed from the cause list. There is rarely a detailed ruling. This is not a matter of discretion. It flows from a basic principle of criminal law which states that criminal responsibility is personal and does not survive the accused.

What this means is that the court does not make any finding on the merits of the case. There is no determination of guilt or innocence. Legally, and perhaps unfortunately, the case remains unresolved. The termination of proceedings does not mean the allegations were false or that the accused was exonerated. It only means that the criminal process cannot continue without a living person to answer the charge.

What happens when there are multiple accused persons?

When criminal proceedings involve multiple accused persons, the death of one accused does not bring the entire case to an end. Rather, the proceedings abate only in relation to the deceased accused. The prosecution continues against the remaining accused persons, and the court may proceed to determine their guilt or innocence based on the evidence against each of them.

Certain complications may, however, arise. For example, the deceased may have been the principal perpetrator, with the case against the remaining accused persons depending heavily on evidence relating to the deceased’s actions. Another issue arises where the deceased made a confession before death. In such cases, questions may arise as to whether, and to what extent, that statement is admissible against the remaining accused persons. In addition, the court may need to consider procedural issues, such as amending the charge sheet to reflect the abatement of proceedings against the deceased while allowing the trial to continue against the others.

What if the accused person has already been convicted?

Any pending punishment or sentence falls away because if death occurs before sentencing, no sentence can be imposed. The conviction will forever remain in the records.

What about death in the course of an appeal?

If it occurs during an appeal, the appeal generally comes to an end. Criminal liability does not pass to family members or attach to the estate of the accused.

Ghana’s procedural approach reflects the nature of criminal trials themselves. Based on our constitution, criminal proceedings are built around the accused’s right to be present, to hear the charges against them and to defend themselves if they want to. Once the accused dies, those rights can no longer be exercised.

Additional thoughts

One consequence of this rule that we do not talk about enough is that cases in which the accused dies before conviction often leave a sense of incompleteness for three groups of people: victims (and their families), the family of the accused, and the general public.

While some victims may feel that justice has naturally taken its course, others, especially those without certainty about the perpetrator who hurt them, may never achieve closure. For the family of the accused, the absence of a formal resolution may leave a lingering stigma. In some circumstances, a different concern may also arise: what does this outcome mean for us? Where the deceased accused was, for example, a public officer under interdiction, questions may arise regarding employment status, benefits, and entitlements. Yet, without a completed trial, there is no formal resolution to help resolve these questions.

In public interest cases, especially those with political implications, the broader perception may be that the matter was never conclusively resolved. Despite the continuing presumption of innocence, the individuals involved may remain the subject of public suspicion and ongoing discourse around the alleged criminality. Only time and forgetfulness can erase this effect, but history hardly excludes the politically exposed.

In part 2, we will examine some of the consequential matters that the court must deal with after the case comes to an end. These include how property caught up in the case are dealt with.

And in part 3, we will look at the underlying doctrine more closely, including its implications and the questions it raises about finality, reputation, and unresolved criminal proceedings. We will also look at what other jurisdictions do differently. Let’s move on to consequential matters.

If you found this informative, please subscribe and follow Criminal Law Blog Ghana to stay updated on the rest of this series and more practical insights into Ghana’s criminal justice system. Part 2 and Part 3 will take this discussion further, and you won’t want to miss them.