Friday, 17 August 2018

RIGHT TO BAIL

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In our article titled “Police Bail”, we stated that ‘Bail is the process by which an accused person is temporarily released from state custody to sureties on conditions given to ensure his attendance in Court whenever he is required until the determination of the case against him’.[1]
We also identified two types of bail; police bail and bail pending trial. There is a third type; which is bail pending Appeal. Focus would be on bail pending trial.

Once a person is charged with an offence in court and arraigned, only the court can grant bail to such a person.
Every person charged with the commission of an offence generally has a right to bail; this is because the law presumes such a person to be innocent until proven guilty; it would therefore be best not to deprive him of his liberty, until his guilt is established. However, the grant of bail by the court remains discretionary. This is because bail is not granted as a matter of course; the nature of the offence and the peculiar circumstances of each case would be considered before bail is granted or refused; the nature of the offence however remains a crucial factor in determining if bail would be granted.

Offences are classified into three major categories: felonies, Misdemeanours and simple offences.
A felony is any offence which the law declares to be a felony, or is punishable without proof of previous conviction, with death or with imprisonment for three years or more.

A misdemeanour is any offence which is declared by law to be a misdemeanour, or is punishable by imprisonment for not less than six months, but less than three years.

All offences, other than felonies and misdemeanours, are simple offences.
Where a person is charged with a felony, which is not punishable by death, the court may admit such a person to bail, if it thinks it fit to do so.[2] Where the offence with which a person is charged is a simple offence or a misdemeanour, the court may admit the person to bail, unless it sees good reasons not to do so. Bail is usually not granted to persons who are charged with murder, and other offences punishable with death[3], except there exists special circumstances which may persuade the court to grant bail. The other factors which the court may take into consideration in granting bail include:
  1. The severity of the punishment if the accused person is convicted of the offence.
  2. The character/nature of the evidence against the accused: the court will consider if the evidence against the accused points to the possibility of the accused having committed the offence.
  3. Availability of the accused to stand trial: the essence of granting bail to an accused person is to secure his attendance in court when required, thus the court will not grant bail if it appears to it that the accused may jump bail.
  4. The court will also consider if there is a likelihood of the accused committing another offence while on bail.
  5. The likelihood of the accused interfering with the course of justice and investigation while out on bail.
  6.  The criminal antecedent of the accused person.
Every case has its own peculiarities, so the court in granting or refusing bail would consider the circumstances of each case on its own merits.
Bail is usually granted on some terms. It could be granted on any of the following terms;
  1. Bail on Self-Recognizance:  when bail is granted on self-recognizance, it means that the accused person is not required to provide sureties or execute a bond. The court grants bail to the accused on the basis of his status or reputation, because the court believes that he would appear in court or the police station when he is required to do so. For example, the Senate President Dr. Bukola Saraki was granted bail by the Code of Conduct Tribunal on the basis of Self-recognizance.
  2. Bail on a Bond with Surety: an accused person admitted to bail may be required to provide a surety. The surety personally guarantees that the accused will be present at his trial or wherever he is required to be present. The surety executes a bail bond, undertaking to pay the amount stated in the bail bond if the accused person fails to appear when he is required to, or if he jumps bail.
  3. Bail could also be on a bond for a fixed amount executed by the accused person without a surety, guaranteeing his presence in court or at a specified place when required to do so. If he fails to appear in court or the stipulated place when required, he will be required to pay the amount stated in the bond.
  4. Deposit of Money in Lieu of executing a bond: When a person is granted bail on the terms that he executes a bond, either with or without sureties, he may opt to deposit money with the court rather than executing a bond as security for his attendance in court or wherever he may be required.[4]The court may impose some other conditions in addition to any of the above conditions. The terms of bail stated above may be imposed by the police as well as the court.
A woman can stand as a surety for a person granted bail.
Bail is free, whether it is police bail or bail pending trial.

[1] Onyebuchi V FRN & Ors. (2007) LPELR-4134(CA)
[2] Section 115(2) Administration of Criminal Justice(Repeal and Re-enactment)Law 2011
[3] Section 341 of the Criminal Procedure Code.
[4] Section 347 of the Criminal Procedure Code. 

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