What is Bail in Criminal And Civil Law
INTRODUCTION TO BAIL
Bail, a procedure by which a judge or magistrate sets at liberty of one who has been arrested or imprisoned, upon receipt of security to ensure the released prisoner’s later appears in court for further proceedings. Release from custody is ordinarily effected by posting a sum of money, or a bond, although originally bail included the delivery of other forms of property, such as title to real estate.
The principal use of bail in modern legal systems is to secure the freedom, pending trial, of one arrested and charged with a criminal offense, although it may also be used in some cases to secure release pending an appeal of a conviction. Subject to jurisdictional variations, its use in civil cases has diminished along with the decline of imprisonment for debt.
Failure to consider financial ability generated much controversy in the mid-20th century, for bail requirements may discriminate against poor people and certain minority groups who are thus deprived of an equal opportunity to secure their freedom pending trial. Some courts now give special consideration to indigent accused persons who, because of their community standing and past history, are considered likely to appear in court.
The purposes of bail pending trial in criminal cases are to avoid inflicting punishment upon an innocent person (who may be acquitted at trial) and to encourage the unhampered preparation of his defense. The amount of bail is generally set in relation to the gravity of the offense charged and the likelihood of flight, although some magistrates take into account other factors, such as the strength of the evidence, the character of the accused, and the ability of the accused to secure bail. The court may release the accused on an unsecured promise i.e., on their own recognizance.
Some jurisdictions also permit the accused to post a fraction of the bail, usually 10 percent, in cash with the clerk of the court. A few jurisdictions make it a separate criminal offense to forfeit bail instead of appearing as required. In all jurisdictions an arrest warrant may issue for the accused who has failed to appear in addition to forfeiture of bail.
In legal systems that have a bail procedure, its operation is highly discretionary. If an accused is charged with an offense committed while free on bail, if the arrested person requires police protection, or if evidence reasonably establishes that he committed murder or treason, bail may be denied.
Alternatively, bail may be set unusually high. The U.S. Supreme Court held in United States v. Salerno (1987) that bail may also be denied in some limited cases where no conditions of release can reasonably assure the safety of the community or of particular individuals.
DEFINITION OF BAIL
Bail means short-term release of an accused person awaiting trial. Bail is the judicial release of an accused charged with a certain offence by imposing some restrictions on him and compelling him to remain within the jurisdiction of court.
Regulation 1, which is the interpretation section of the Bail Regulations Constitutional Instrument 2017, of Sierra Leone defined bail as: ‘’an agreement between a defendant, his surety, and the Court or a defendant and the Court, that the defendant will attend Court as and when required and if he fails to attend Court, in addition to the Court issuing a bench warrant, a sum of money deposited into the court or property put up as security shall be forfeited to the court.
Bail is a rule and Jail is an exception. If any person is arrested on the allegations of commission of a cognizable offence and he is produced before the Competent Court by the police he has the right to apply for bail.
The person is then released by the court on the undertaking that as and when the court calls or directs for his presence he will appear before the Court. In short, it can be said that bail is the conditional release of an accused with the promise to appear in court when required.
One can be given bail at the police station after you've been charged. This means you'll be released from custody until your first court hearing. If you're given bail, you might have to agree to conditions like: living at a particular address. not contacting certain people.
LAWS GOVERNING BAIL/ SPECIFIC PROVISIONS FOR BAIL IN THE POLICE
STATION AND IN COURT IN SIERRA LEONE.
In practice, Sierra Leone’s justice system rarely requires an accused or surety to pay money into court as a guarantee, unlike a few criminal justice systems, such as the USA. Even in systems where a cash deposit is required, this is to be returned if the accused attends all the court hearings and/ or meets their bail conditions.
The concept of bail is provided in the Criminal Procedure Act, 1965, Act No. 32 of 1965, Section 79 (4) ‘A person may be admitted to Bail at any time and thereupon shall be discharged from custody or prison if he is not detained’ Clearly the above provision merely entitles one to be admitted to Bail at any time including being admitted to such pending an appeal. It confirms the fact that it is not only at the time after one has taken a plea after being arraigned and either awaits Trial of the offences charged or when he awaits sentence after being convicted of some offences charged.
The principle of presumption of innocence of an accused person until proven guilty is provided for in section 23 (4) of the Constitution of Sierra Leone stipulates: Section 23 (4) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved, or has pleaded guilty.
RELEVANT PROCEDURES OF BAIL AT THE POLICE STATION AND IN COURT
Sierra Leone has a two-tired bail system where bail can be granted at the police station and in court. When suspects who were released on police bail appear at court, the police bail is automatically revoked, but court bail is not automatically granted. This becomes a problem when a court does not sit or does not get to the cases of such detainees in the course of the day and contributes to the problem of pre-trial detention.
AT THE POLICE STATION
At the police station, police officers can grant police bail - this is where a suspect is allowed to be free from detention but some conditions are applied, for example report to the police station on a regular basis, do not interfere with witnesses etc.
IN COURT
Where someone is accused of having committed murder or treason which are felonious offences, section 79 (1) of the Criminal Procedure Act, 1965 instructed that only a Judge shall admit such a person to bail. However, there are felonious offences other than murder and treason such as Burglary, rape, arson, and robbery for which an accused may be granted bail by the Court he is standing trial, if the Court thinks fit to do so. It must be noted that an accused standing trial for any of the offences listed above or any other offence, shall be presumed innocent until the prosecution proves his guilt beyond reasonable doubt.
The presumption of innocence is a fundamental human right that is guaranteed under subsection
(4) of section 23 of the Constitution of Sierra Leone Act No. 6 of 1991.
In Sierra Leone for instance, even many educated people are not clear about the bail process.
Bail is a complex process, a large number of people who encounter the justice system are poor and illiterate and the police or court officials often prey on this lack of understanding to exhort bribes for bail under the guise that there is a “fee” for bail or bail process.
If a defendant is grant bail it means they are allowed back into the public while they awaits trial or further police investigations instead of being remanded in custody (i.e. locked up.). A person can be released on bail at any point from the moment they have been arrested. This may be granted in the police station after interview or the court after preliminary hearing.
However, discretion for granting bail in the police station and in court lies with the authorities in charge.
For research purposes read:
1. The Constitution of Sierra Leone, 1991, Act No. 6 of 1991
2. The Criminal Procedure Act, 1965, Act No. 32 of 1965.
3. The Bail Regulation Act 2018
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