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Bail as of right
IT is a fact that the grant of Bail to a citizen is considered as a right
not a privilege provided the grant of such a bail is in agreement with
bailable offences.
In a situation where people directly or indirectly happen to be involved in
a crime considered to be unbailable in the eyes of the law, and there is
pressure on the court to grant such bail(s) leads to contraventions of the
law.
It could be understood from the point of view of constitutional provisions
that the legal document upholds the freedom of movement of individuals. In
order not to encroach on this basic freedom the law provides that, if a
person is arrested without warrant of arrest he should be brought before a
court of justice within 24 hours.
Similarly, the law further enjoins the law enforcement agents to grant bail
only to arrested citizens in cases where it becomes impossible to bring them
before a court of law within the prescribed period.
It is critically clear that the law governing the grant of bail makes it
quite understood that, although the liberty of the arrested person should be
restored to him when it becomes impossible to take him before a court within
24 hours.
Part of the things to bear in mind in the grant of bails include the fact
that, the reason for the arrested person in crime must be spelt out and
should not be made to suffer no matter the situation.
Secondly, it behoves on a bailee to ensure the prompt attendance of the
arrested person in court so that the charges against him would be looked
into and action be effected appropriately.
Bail if critically observed is a sort of half-way house between complete
freedom and lawful custody. Once an arrested person is opportuned to enjoy
bail, it means his transfer from the custody of the law agents to the
custody of an approved individual who would ensure that the accused not to
fail to appear in court whenever and wherever he is required to appear.
The other position as it relates to bail has to do with the target of bail
which is aimed at securing by monetary penalty.
Here, the only assurance that a bailed person will appear before the court
is subject to monetary penalties. That is to say the only acceptable
assurance is that of surrendering money or property before the grant of such
bails.
In our present day society, if somebody goes to the police station to bail
his friend, the first thing the police ask is the amount of bail required.
Secondly, the financial sufficiency of the proposing surety and thirdly, the
reputation of the surety among others.
It is noteworthy for readers to understand that there are three
circumstances bail to be granted. These are:- As soon as a person is
arrested without warrant and taken to the police station.
The person arrested must be granted bail if it is unlikely that he will be
taken before a magistrate court within 24 hours. This is considered as
police bail.
The law does not give a citizen an absolute right to bail. If the offence
committed or alleged to have been committed is punishable by death, the
police has no power to grant bail.
I know that there have been series of complaints from some segment of the
public who are desperate to acquire bails for their relations bribe the
police to effect such bails but hit the rock at the end of it. The irony is
that the police sometimes knew the consequences of their actions but would
choose to capitalized on the intellectual weakness of their victims to enjoy
illegally from such inducements.
However, in the case of an arrest or detention in a place where there is no
court of competent jurisdiction, within a radius of 40 kilometres the police
are bound to bring the accused to a court of justice. “and in a reasonable
time”.
Therefore, a bail granted at this stage may require the accused person to
report directly at the magistrate’s court on a daily basis or the police
station as may be required by the police in the bail bond, or require him to
report at the police station from time to time as the police may indicate.
Another form of bail include a bail granted by order of court.
Here, a person charged before a court may apply to court for bail. The
court, in granting the bail will state the amount of fine and the number of
sureties to be presented before the court. The important thing to note here
is that a bail can be refused if there is certainty that the accused person
may not appear in court for his trial.
It was reported that in 1885 a prisoner charged with murder applied to a
court for bail on the grounds that his solicitor lived far away and that his
witnesses are all scattered and he wanted bail in order to be able to
arrange his own defence and assemble his witnesses.
The court held that since the major consideration in granting bail was the
probability of the prisoner appearing to take his trial and since the court
was not satisfied with this probability, bail could not be granted.
Following the same rule, therefore, the courts do not usually refuse to
grant bail unless it is otherwise impossible to ensure prisoner’s attendance
at the trial except of course in a very serious cases and where in addition
the prisoner stands very little chance of being acquitted.
The third circumstance when a bail can be granted is after the prisoner had
been tried and convicted and he has lodged an appeal to a Higher Court
against his conviction.
Courts normally slow in granting bail of this nature demand very strong
reasons to back an application for bail at this stage.
Additionally, bail granted to a person charged to court may be granted by
the court itself either before or after his conviction.
There are three provisions under which a court of law may grant bail to an
accused person.
First, a person charged with any offence punishable with death shall not be
granted bail except by a judge of the High Court.
Moreover, where a person charged with a big offence punishable with two or
more years imprisonment but not with death, the court has a discretion
whether to grant him bail or not.
On the other hand, persons who are charged to court with minor offences
punishable with less than two years imprisonment, are bound to be granted
bail by court unless there is a good reason why they should not be given to
bail.
When the court has the discretion to grant or not to grant bail as in
offences punishable with more than two years imprisonment but not with the
death penalty, this discretion must be exercised in accordance with well
known rules.
The court to whom such application for bail is made must consider the nature
of the charge the severity of the punishment decreed by the law for that
type of offence, and the character of the evidence available against the
accused.
If the accused person can be shown to be a habitual criminal and a person
who is likely to commit the offence again if released, the court can, refuse
grant to such bail.
In a situation where the court decided not to grant bail and the accused
person feels that the magistrate court has not exercised its discretion
properly with fairness and justice. The accused may apply to the High Court
for the grant of such bail.
A person may find himself in court not because he has committed any criminal
act but finds he has to be bailed in order to be free again.
Finally the idea behind bail taking is nothing more than complying with
constitutional provisions. And it could be strictly be granted as of right
and refuse to be granted based on some legal grounds.
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SATURDAY, NOVEMBER
25 2006