A Handbook for Public Prosecutors

5. Bail Pending Trial

Chapter 5 BAIL PENDING TRIAL General observations In the majority of cases accused persons do not plead guilty to the charges and very often such cases do not proceed to trial and final disposal immediately , either because investigations have not been completed, or witnesses were not summoned or because of pressure of work on the part of the magistrate , or for other reasons. In such cases the court will adjourn the case to some other date and then remand the accused in custody or release him on bail. The purpose of granting bail or remanding an accused person in custody The purpose of remanding an accused person in custody is to ensure that he will appear to take his trial and not seek to evade justice by leaving the jurisdiction o the court (see Jaffer v. Republic, (1972) HCD n. 92). Remanding an accused person in custody means the curtailment of his/her personal liberty even before he/she is found guilty. In a majority of cases, such a course is considered to be undesirable, and so the courts are empowered to give temporary release from custody while ensuring that he/she will appear to take his/her trial on the date to be fixed by the court, that is, by granting accused persons bail. This is desirable not only as a practical expression of the saying that a man is presumed innocent until proved guilty and that no innocent man be punished, but also as a matter of practical convenience, for if every person charged with a criminal offence were to be remanded in custody, our already crowded jails could not cope with the situation and the financial burden on jails would be intolerable. How to grant bail Where it has been decided by the court to grant bail to an accused person, the accused is usually required to execute a bond, that is, he is required to sign a document which states that should he/she fail to appear before the court on the date fixed, he will forfeit a certain sum set by the court. In addition to his own bond, the accused may, and usually is, required to furnish sureties, that is, people who execute bonds which state that they will forfeit the sum stated in their bonds if the accused fails to turn up on the day fixed (see s. 148(1) CPA). In addition to provisions for furnishing security by way of entering into recognizances, the court has power to attach other conditions to the grant of bail. Such conditions may be confining the accused person to certain areas or within the immediate environs of a certain town (see Abdallah Nassor v. Republic, 1 TLR (R) 289); or require the accused to surrender his travel documents, or require the accused to report to police at regular intervals. In other cases, the court may require the accused to deposit cash. But such sum is refundable when the case is finally disposed of. However, the amount of bail must be fixed with due regard to circumstances of each case and must not be excessive. In this regard, the High Court has power to order that the bail required by a subordinate court be reduced (see s. 148(2) and (3) CPA). Granting or refusing to grant bail To some public prosecutors magistrates grant or refuse to grant bail mechanically , indiscriminately, or with resigned indifference or at the magistrate ’s whim. That may be the case where you have an incompetent magistrate ; but it ought not to be so. The decision whether or not to remand an accused person in custody is a very weighty matter because it involves the personal liberty of a person who, for all that the court knows, may be quite innocent. Therefore, the decision to grant bail or refuse it must not be made mechanically or capriciously. Since an accused person is deemed innocent until proved guilty, any decision to curtail an accused person’s personal liberty either before or during his trial must only be taken after due and careful consideration of all the circumstances of the case and those attendant to the accused. The sceptical attitude of some prosecutors in this matter is, perhaps, understandable . They happen to know something about their cases and, sometimes , about the accused persons. The magistrate, on the other hand, knows little or nothing more than what is contained in the charge and what the accused person looks like. Sometimes, however, these attitudes are as...