A couple of weeks ago, I got an email from an ‘ardent reader’ of this column and he wanted more information on the issue of bail. The case of Evans the kidnapper heavy on his mind, he asked, ‘what is the essence of bail in court, who is entitled to it and what type of misdemeanour the accused will commit, particularly, why grant bail when the case looks straight forward? Why can’t the judge deliver judgement when the accused has publicly confessed to committing the offence he is accused of?
Essentially, the questions centre around the issue of bail, as well as confessions. However, I will only be dealing with the issue of bail this time.
What is bail? Bail is the tool that the courts use to ensure that an accused person will present himself in court on every day that his case is heard by the court. It is basically an assurance to the court that the accused will not try to run away from justice or frustrate the course of justice by not participating in his trial.
Bail is based on the constitutional rights to liberty and freedom of movement. It also vindicates the rights to the presumption of innocence and a fair trial. Imagine if there were no bail. It would mean, potentially, that innocent men will spend time behind bars for no reason; a violation of their constitutional right to liberty. Imagine also that a person is accused of an offence that carries a penalty of only a few months in prison or a small fine, it would be a waste of resources to lock up such a person for weeks or months or however long it takes for the accused to be arraigned and trial to commence. Even if you have never had a direct encounter with the criminal justice system in Nigeria, we all know that a speedy trial is not one of the highlights of the system.
There are three types of bail: police bail, court bail, and bail pending appeal. Police bail is the bail that is granted by the police to a person who is arrested without a warrant. The police bail may be to guarantee appearance in court for arraignment, or it may be to guarantee appearance at the police station for further questioning and investigation. Note that the police cannot grant bail for serious offences or offences that carry capital punishment.
If the accused is charged to court, it is unlikely that it will be resolved on the same day of the arraignment of the accused person, therefore, depending on the severity of the offence, the accused may be allowed his freedom on bail, with assurance that he will be present in court on every date that the matter is heard until the final determination of the case at the trial court. If the accused was arrested on a warrant that had no endorsement for bail, then the accused person (or his counsel) must apply to the court for bail. Police bail lapses upon arraignment of an accused in court, so it is very important to make an attempt to secure the accused’s bail upon arraignment.
Arraignment signifies the beginning of trial for the offence charged. During arraignment, the charge against the accused is read to him, and he makes a plea (guilty, not guilty, guilty with reason, etc.). Just like the high courts, magistrate courts can grant bail except for very serious offences, and definitely not for capital offences. The high court has the power to grant bail in all circumstances. However, for capital offence, the accused must show special or exceptional circumstances why they should be granted bail. Because of the severity of the punishment in capital offences, it is more likely that a suspect granted bail will jump bail and not show up for trial.
This is probably the rationale behind the general rule that persons accused of capital offences are not granted bail. The court decides what these exceptional circumstances are and it could be anything from ill-health to long delays in prosecuting the case. Court bail pending trial is granted at the discretion of the judge. When an application for bail is made, the court looks at several factors including the likelihood that the accused will show up for his trial, the nature and severity of the offence, the strength of the evidence presented against the accused, the safety of the accused, the health status of the accused, the length of the sentence for the offence in question, and the criminal record of the accused.
The third type of bail is the court bail pending appeal. This is where an accused person has been convicted and wishes to appeal the decision to a higher court. Here, the presumption of innocence no longer applies as the accused has been found guilty of the offence and convicted by a court of law. The convict must show special circumstances to convince the court to admit him to bail after conviction. The courts will consider the physical and mental health of the convict, likelihood of success on appeal, the criminal record of the convict, and prior behaviour of the convict regarding bail.
If bail is granted, there will be terms (or conditions), some kind of security that secures that attendance of the accused at his trial. Where the conditions of the bail are not met by the accused, bail can be revoked. Any person, man or woman, can stand as a surety for bail, provided that they have a known address, they are a person of good character and they are acceptable to the court.
A word of warning for any person standing surety for an accused person. Be sure that you know the person and have some control over the person, because as surety you will be held responsible if the accused person jumps bail. This could mean some time in prison or any other penalty the court wishes to impose on the surety.
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