BAIL

Bail is the temporary release of a suspect (if in Police custody) or accused (if already charged to court) from prison or custody pending the determination of the case against him on the condition that he would be available for the investigation of the case against him and also attend the court during his trial. Bail is of great importance because it affords accused persons/suspects the opportunity to prepare their defence and helps innocent people escape punishment before being tried. Bail is a right enshrined in our Constitution; read generally the provisions of Part IV of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 as amended especially sections 35 and 36. Section 35(4) CFRN 1999 as amended provides thus:

any person who is arrested or detained in accordance with the provisions of 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

(a) two months from the date of his arrest or detention in the case of a person who is in custody or is not entitled to bail

(b) three months from the date of his arrest or detention in the case of a 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 necessary to ensure that he appears for trial at a later date

(see section 35(5) for the meaning of “reasonable time”)

TYPES OF BAIL: The three main types of bail include:

·   Police bail: section 35(1) CFRN makes provision for this. Police bail cannot be granted for capital offences; see see section 35(7)(b) CFRN, s. 17 Criminal Procedure Law (CPL), s. 341 Criminal Procedure Code Law (CPCL), s. 17(1) Administration of Criminal Justice Law of Lagos (ACJL). Bail given by the police is a temporary one and only subsists during the investigation of the charges against the suspect as it elapses upon arraignment in court. Once a suspect is arrested, the first step to be taken by him, his legal practitioner or any other person acting on his behalf is to apply for police bail where the charge against him is not a capital offence. There are no laid down procedures for applying for this type of bail; an application for this bail may be done orally or in writing. It is however not automatically granted as there will be some terms given to the suspect to settle before it may be granted. Some of these terms may include entering into a bond, provision of surety/sureties, self-recognizance (social status of the suspect), etc. Bail pending investigation/police bail is revocable, especially where the bail terms/conditions have not been fulfilled. Where the bail has been revoked, only the court can re-grant the bail.

Note: a legal practitioner, by rule 37 (1) Rules of Professional Conduct for Legal Practitioners (RPC), should not stand or offer to stand bail for a person.

·         Bail pending trial: this subsists till the end of the trial.

·         Bail pending appeal: this subsists till the end of an appeal against a conviction.

A person charged with a capital offence must show special circumstances before he may be granted bail. Some of these special circumstances include severe ill-health (SULEIMAN v STATE), lack of nexus or a connecting factor between proof of evidence and crime he has been charged with, where the defence of alibi is being investigated, etc. See ABACHA v STATE

FACTORS FOR THE GRANT/REFUSAL OF BAIL: some factors which may be taken into consideration before bail is granted or refused include:

·         Gravity/nature of the crime charged

·         Severity of possible punishment for the crime charged

·         Danger of the suspect/accused jumping bail

·  Nature of evidence against the accused (whether a strong indication of the commission of the crime is present). See ABACHA v STATE (SUPRA)

·         Likelihood of suspect/accused committing another crime once released

·         Criminal history of suspect/accused (good character, first time offender)

·         Prevalence of crime

·         Likelihood of suspect/accused interfering with the investigation once released

·         Detention of suspect/accused for his protection

·         Ill health

OPTIONS OPEN TO A COURT WHEN AN ACCUSED JUMPS BAIL: in instances where a person who has been granted bail by the Police or the Court jumps bail or refuses to appear before the Court or Police Station on the date fixed on the bail bond, the court may take any of the following steps:

·         Revoke the bail

·         Order the forfeiture of the bond

·         Issue a bench warrant for his arrest

·     Order the surety to pay the stipulated sum; where the surety is unable to pay the stipulated sum, he will be thrown into prison until he is able to pay the sum

REVOCATION OF BAIL: bail may be revoked on the following grounds:

·     Where the accused who was granted bail by a Magistrate is indicted for an offence at the High Court (section 132 CPL; section 127 ACJL)

·         Where the surety applies to be discharged

·         Where the accused fails to appear at his trial with for no just cause

·         Where the grant was based on fraud

·       Where the accused is about to leave Nigeria and such information reaches the Court

NOTE: any person of a known address, known source of income, good character and who is acceptable to the court is qualified to be a surety.