Understanding the Concept of Bail

The right of an accused person to 0btain bail is a constitutional right, which makes it an essential aspect of Criminal Procedure. The certainty of this assertion is centred on the provisions of section 35 and 36(5) respectively of the Constitution of the Federal Republic of Nigeria 1999 (As amended). To understand the extent of this constitutional, we must first attempt to define the termed Bail, this is because it is the constitutional right of every accused person to apply bail in Criminal proceedings. Blacks Law Dictionary defines the grant of bail as the lawful process where an accused is set at liberty - when arrested, charged to court or imprisoned on security being taken for his appearance on a day and place certain.

Authorities who may Grant Bail Application

The Police and Courts of Justice with competent jurisdiction are two recognised and obvious authorities that may grant bail application.

Police Bail

The power of the Police to grant bail is inferred from sections 17 of the Criminal Procedure Act, Section 129 of the Criminal Procedure Code and section 27 of the Administration of Criminal Justice Law Lagos. Section 27(b) of the Police Act is not also left out. By the provisions, the Police have the authority to grant bail pending the investigation of the alleged offence(s) against the accused person(s). This application is made in writing by either the accused or his surety. We must under that police bail is purely administration, hence the accused person is advised to apply fresh application for bail when arraignment or risk being remanded in prison custody pending his trial – Police bail abates on arraignment of the accused before a Court of Justice.

Court Bail

Court bail is that application which may be sought by the accused person through his counsel upon arraignment or during the course of trial or after judgment but pending appeal. The power of Court to grant bail may be inferred from provisions of the law: section 30 of the Criminal Procedure Act, section 57 of the Criminal Procedure and section 29 of the Administration of Criminal Justice Law Lagos.

The notorious fact we must not take any less is the fact that the power of a Court to grant bail is also centred on its criminal jurisdiction over  the offence(s) charged as well as the offender(s). The power of the Court to grant bail is also discretionary. This is why an accused person who applies bail through his counsel may bring necessary to support his application for bail in order to enable the court exercise its discretion. He refusal of a Court to grant bail to an accused person cannot be appealed against even on grounds of malice. It is advisable that where a Court refuses to grant the accused person bail, he may file fresh application for bail in a similar court or a higher court which has the original jurisdiction to try the offence.

Bail Application in Capital Offences

In capital offences, the High Court of Justice has power to grant bail applicant. However, granting bail in capital offences is seldom (rarely) obtainable, ‘except where there exists cogent and compelling reasons.’ In the case of Oladele v The State (1993) 1 NWLR (pt. 269) 294 at p. 308, the Court observed that: “it is unusual for a person accused of murder to be on bail pending trial, murder being a very serious offence, it is not in the interest of the public that a person charged with murder should be released on bail bail.”

Furthermore, the process of bail application in the North part of Nigeria in the High Court is usually by a process referred to as Motion on Notice usually accompanied with an affidavit.

Conditions for Bail

The following are considered conditions for bail to enable the court exercise its discretion:

a.      The applicant should satisfy reasonable grounds to believe that the accused person did not commit the alleged offence.

b.      The applicant should satisfy that if granted bail, proper investigation of the offence will not be prejudiced.

c.       The applicant should satisfy that if granted bail, he will not jump bail and will always avail himself for trial.

The under listed are other determining factors that the Courts into in order to draw an inference on whether or not to grant bail:

   i.             The gravity of the offence and severity of the punishment.

   ii.           The likelihood of the accused person committing an offence if admitted on bail.

   iii.          The criminal antecedents of the accused person.

  iv.   The health condition of the accused person and whether the prison custody have enabling health facilities to treat him.

Terms of Bail

Terms of bail are not necessarily the same as conditions for bail. The terms of bail simply means requirements the accused person needs to satisfy in order to be admitted on bail. The terms of bail are peculiar to the circumstance of each case.

a.      Bail on Self-recognizance: An accused person, suspect or convict may be granted bail on self-recognizance on the occasion he is not required to provide bonds or sureties for bail. This term is accepted on grounds that the accused person will always avail himself for trial on a set date, time and place to answer the charge or charges made against him. The type of bail term is not usually available, except where the offence charged is a minor offence and where the accused person is a reputable personality in the society.

b.      Bail on bond for fixed amount: An accused person, suspect or convict upon executing a bond for a fixed amount of money without surety that he will appear in Court or Police Station, on a specified time and date to answer allegations made against him. The accused person will be asked to pay the bond where he fails to appear in Court or Police Station on a specified time and date where his appearance is necessary.

c.       Bail on Bond with Surety: This type of bail term is a three-party undertaking involving the State, accused person and his surety. The accused person is released on bail by the State where the surety guarantees the appearance of the accused person on a specified time and date where the accused person’s appearance is deemed necessary in Court or at the Police Station. Section 122 of the Criminal Procedure Act provides thus:

“An accused admitted to bail may be required to produce such surety or sureties as, in the opinion of the Court admitting him on bail, will be sufficient to ensure his appearance as and when required and shall with him or them enter into a recognizance accordingly.”

Click to Save or and to Print this Article for free