Bail: An Overview of Bail Practices in the Legal Field

 Bail: An Overview of bail practices in the Legal Field

Mohammed Aishat Joy

University of Jos

    In the intricate dance between justice and liberty, the concept of bail emerges as a pivotal player, offering individuals a temporary escape from the clutches of custody while their legal fate unfolds. Steeped in centuries of legal tradition, bail serves as a bridge connecting the presumption of innocence with the need to secure a defendant’s appearance in court.

 Embarking on an exploration of this fundamental aspect of the legal system, it becomes apparent that bail is not merely a financial transaction but a delicate balance that seeks to uphold both the principle of justice and individual rights. 

This article delves into the multifaceted world of bail, unravelling its historical roots, its present-day applications, and the intricate tapestry of consideration that underpin its role in our legal landscape.

   Bail is to procure the release of a person from legal custody, by undertaking that he shall appear at the time and place designated and submit himself to the jurisdiction and judgment of the court.

Bail according to the American Bar Association is the amount of money defendants must post to be released from custody until their trial. Bail is not a fine. It is not supposed to be used as punishment. The purpose of bail is simply to ensure that defendants will appear for trial and all pre-trial hearings for which they must be present. 

Bail is a legal concept that allows a person who has been arrested and charged with a crime to be released from custody pending trial or other legal proceedings. When a person is granted bail, they are essentially allowed to leave jail or police custody temporarily with the understanding that they will return for their court appearances and comply with any conditions set by the court.

   The purpose of bail is to ensure that the defendant appears in court for their trial and does not flee the jurisdiction. Bail can be in the form of cash, property, or a bond posted to the court by the defendant or someone acting on their behalf. If the defendant fails to appear in court as required, the bail may be forfeited, and a warrant for their arrest may be issued.

Bail amounts are typically set by a judge based on various factors, including the severity of the alleged crime, the defendant's criminal history, and the likelihood that they will flee. In some cases, defendants may be denied bail altogether, particularly if they are considered a flight risk or a danger to the community.

Under the Nigerian law, any person that has been arrested and detained on allegations of committing a crime is entitled to bail. The right to bail is a constitutional right under section 35(4) and it states: “any person who is arrested or detained in accordance with subsection (1)(c) of this section shall be brought before a court of law within a reasonable time, and if he is not tried within a period of-

• two months from the date of his arrest or detention in the case of a person who is in custody or not entitled to bail; or
• three months from the date of arrest or detention in the case of person who has been released on bail, he shall (without prejudice to any further proceedings that may be brought against him) be released either unconditionally or upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.

The core reason for granting bail is that since the law presumes that an accused person is innocent until proven guilty, they should not be deprived of their constitutionally guaranteed liberty except where absolutely necessary. In essence, bail is a general rule and it is given to avoid wrongful detention pending the completion of investigations.

However, the granting of bail to an accused person does not mean unfettered liberty as they still have to face trial at any time, place, date required of them to appear in court.

Some crimes are so serious that the right to bail is sometimes restricted depending on the nature of that crime.

It helps to know the following categories of offences defined by the Criminal Procedure Act:

• A simple offence is one that is punishable with less than six months’ imprisonment.
• A misdemeanour is any offence punishable with imprisonment of more than six months but less than three years.
• A felony is any offence punishable with a term of imprisonment of three years and above.
• A capital offence in Nigeria is any offence punishable by a sentence of death penalty.

If a person is arrested and detained on the allegation of committing a capital offence, bail may not be granted due to the severity of the offence.

 For other offences, there is usually a presumption in favour of bail. In exceptional circumstances however, a suspect charged with an offence punishable with death may be granted bail by a judge of a High Court in Southern Nigeria. (This however does not apply to Northern Nigeria). The decision and power to grant bail in capital offences is the exclusive decision of the High Court.

Lastly, in an application for bail in respect of a capital offence such as murder, where the state opposes bail, the onus is on the accused/applicant to show by credible affidavit evidence that very peculiar and coercive circumstances exist to justify the court in granting the applicant bail. This position was further reinstated in the case Bolakale v. The State (2006) 1 NWLR (PT. 962) at 507 that an accused person is not usually denied bail, except where the offence is a capital offence where special circumstances genuinely exist.

The right of bail, a constitutional right, is contractual in nature. The effect of bail is not to set the accused free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place. The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in court can be compelled by a financial sanction in the form of money bail. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused; it also stops on acquittal of the accused.

The most important consideration in the bail decision is the determination of what criteria the court should use or invoke in granting or refusing bail. The bail ability of the accused depends largely upon the weight the court attaches to one or several of the criteria open to it in any given case. The determination of the criteria is quite important because the liberty of the individual stands or falls by the decision of the court. In performing the judicial function, the court wields a very extensive discretionary power, which must be exercised judicially and judiciously.

In the case of Adamu Suleman & Anr v Commissioner of Police Plateau State, the following were stated as the general criteria for granting bail;

• the availability of the accused to stand trial,
• the nature and gravity of the offence,
• the likelihood of the accused committing offence while on bail,
• the criminal antecedents of the accused, 
• the likelihood of the accused interfering with the course of justice.

The above general criteria apart, the criteria for granting pre-trial bail or bail by trial court include;

likelihood of further charge being brought,

the probability of guilt, detention for the protection of accused,

the necessity to procure medical or social report pending a final disposal of the case.

Procedures for bail application

For police bail:

A person seeking police bail can do so by writing an application requesting for bail. This can be done by the person or his counsel (his lawyer). The application letter should state those who will stand as sureties, or if he wishes to be released on self-recognizance.

The police will review his application and may grant him bail.

For court bail:

To apply for bail, the accused person’s counsel can make an oral or written application upon arraignment before the court. Section 32(3) of the Administration of Criminal Justice Act 2015 states that an application for bail may be made orally or in writing.

The court will stipulate certain conditions or terms of bail before the suspect’s release can be successful.

The application for bail can either be granted or denied. What then happens when the application for bail is denied? When an application for bail is denied by a court, the accused person can appeal against such decision in a higher court.

In the instance that the bail was denied in the Federal High Court, an appeal can be made to the Court of Appeal. If the appeal is successful, the appellate court will set aside the decision of the lower court and the bail will be granted.

If the bail is denied on appeal, the accused will have to stay in detention, which must still be lawful and must follow the requirement.

In the event that a bail granted to an accused person is withdrawn or cancelled, the bail is said to have been revoked.

Bail may be revoked if an accused person jumps bail or violates one or more conditions of the bail term.

An accused is said to have jumped bail where he fails to attend court on any date fixed in the bail agreement. Once bail is revoked, the accused will be re-arrested.

    In conclusion, the concept of bail stands as a cornerstone of our legal system, embodying the delicate balance between liberty and accountability. Throughout history, bail has evolved to uphold the principle of justice ensuring that individuals are afforded their rights while awaiting trial. However, its application is not without challenges. From disparities in access to financial resources to concerns about bias and inequalities in its administration, the bail system reflects broader societal issues that warrant careful examination.

As we navigate the complexities of bail, it is essential to consider reforms that promote fairness, transparency, and equality. Alternative approaches such as risk assessment tools, pre-trial services, and community-based supervision offers promising avenues for reforming bail practices reducing reliance on wealth-based detention. Moreover, addressing the underlying factors that contribute to pre-trail incarceration, such as poverty, mental health, and substance abuse, require a comprehensive and holistic approach.

Ultimately, the pursuit of justice demands a commitment to upholding the rights of all individuals, regardless of their socioeconomic status. By reimagining bail practices through a lens of equity and compassion, we can move closer to a legal system that reflects our values of fairness, dignity, and respect for all. As we strive for progress, let us remain steadfast in our efforts to build a more just and equitable society for generations to come.