Concept Of Bail

Project and Seminar Material for Law

Concept Of Bail


Most suspects who might not have committed any offence or whose relation had been suspected of committing an offence have found themselves incarcerated in police detention sometimes on the premise of a holding charge over the years. Hence, this study empirically and critically explore and expatiate the concept of bail. Specifically the study focused on the need to respect the constitutional right to bail of every suspected criminal save in compelling right other than bail, the need to respect court’s order as it relates to enforcement of fundamental rights other than bail, it is sought to create awareness on the citizens on their constitutionally guaranteed rights, and his study is also aimed at exposing the unconstitutional practice of holding charge with a view of detaining a suspect. The study made use of secondary data. The study is however comprises of five chapters. The first chapter deals with the background information, statement of the problem, objectives of the study, significance of the study, the scope and limitation of the study, and the research methodology. The chapter two focuses on the review of literatures and conceptual framework. The chapter three specialize on the fundamental rights under the 1999 constitution, while the chapter for explore bail and fundamental rights. Lastly the chapter five contains the conclusion and recommendation of the study.

Chapter One

General Introduction

1.0 Introduction

The concept of bail vis-à-vis enforcement of fundamental rights in Nigeria has recently taken a centre stage of discussion amongst jurists and students alike. In a nutshell, bail is a security for attendance in court from commencement of proceedings to judgment. In determining whether to grant or refuse bail, the determinant factors appear to depend upon the peculiar facts of every case, vis-à-vis the fundamental right of the suspect. Hence, bail is not granted as a matter of course.

Again, Learned authors and jurists have opined that fundamental rights pre-exist existence itself, hence, should not be derogated upon except in exceptional circumstances. The foregoing dilemma will be resolved upon completion of this piece and recommendation professed. However, this research which takes a deeper look at the concept of bail and its enforcement in Nigeria will be discussed according to its chapterization as it has been subdivided to arrive at a particular goal as demanded by a particular chapter.

In chapter one, we intend to discuss the historical evolution of the concept of bail, the effect of bail and the instances where bail could be granted in the Magistrate Court and High Court. Also, to be examined are the factors to be considered in granting or refusing bail. In chapter two, we intend to discuss the ideas of different authors concerning this topic under the heading, literature review. In chapter three, we will be focusing on bail and the enforcement of fundamental rights as well as its effect in Nigeria with reference to Arrest, Detention as well as Bail under the different laws. Chapter four is the concluding part of this work and also where all the necessary recommendations will be made.

1.1 Statement of the Problem

Over the years, most suspects who might not have committed any offence or whose relation had been suspected of committing an offence have found themselves incarcerated in police detention sometimes on the premise of a holding charge. This incarceration could take many years before the actual trial (if any) would be instituted. This ugly scenario necessitated the present researcher to have an indept analysis on the concept of bail vis-à-vis the enforcement of fundamental human right with particular reference to Nigeria with a view of enlightening the Nigerian citizenry.

1.2 Objective of the Study

This study is targeted to achieve the following objectives:

  1. The need to respect the constitutional right to bail of every suspected criminal save in compelling right other than bail.
  2. The need to respect court’s order as it relates to enforcement of fundamental rights other than bail.
  3. It is sought to create awareness on the citizens on their constitutionally guaranteed rights.
  4. This study is also aimed at exposing the unconstitutional practice of holding charge with a view of detaining a suspect.

1.3 Significance Of The Study

It is envisaged that at the completion of this study, other researchers who may be interested in further research on the concept of bail and the enforcement of fundamental human rights would use this work as a reference material. Also, it will help inform the individual of their right to bail as guaranteed in the Nigerian Constitution. This study will educate some disgruntled officers of the Nigeria Police who insist always on collection of money as “bail fee” before granting bail to a suspected criminal. It will further enlighten the general public on their other rights as enshrined in the Nigerian Constitution.

1.4 Scope and Limitations of the Study

The study covers the concept of bail and the enforcement of fundamental human rights in Nigeria. The researchers uses judicial authorities, statutory provisions and opinions of text writers (jurists) with the view of highlighting how the concept of bail and enforcement of fundamental rights could be improved upon.

The study is limited to Nigeria though reference is made to other countries in a comparative basis.

1.5 Research Methodology:

In this study, the researcher uses descriptive and argumentative research method. Also, the secondary sources of materials such as textbooks, articles, journals, internet sources of material etc are used.

Chapter Five

Recommendation and Conclusion

5.1 Conclusion

The practice of admission to bail as it has evolved in common law, is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial. On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty.2

While this statement adequately sums up the correct approach to the administration of bail, our survey of both the law and practice of bail in Nigeria has demonstrated that this does not appear to be the prevailing position in Nigeria. Bail would often seem to be administered in such a way as to serve a device for keeping persons in jail upon the mere accusation of a crime, sometimes even before investigation has been concluded, rather than as a means of enabling persons to stay out of jail until a trial has found them guilty. Obsolete, incoherent and inconsistent legislation help to perpetuate the practice.

Granted that the purpose of pre-trial incarceration is not supposed to be punishment, its effects are nevertheless virtually indistinguishable from the consequences of imprisonment. Not only does the pre-trial detainee endure even harsher conditions of incarceration than convicted prisoners, his family and social relationship are disrupted and he may well loose the job and means of livelihood. His incarceration adversely affects his ability to prepare his defence and it stigmatizes his good name, honour and integrity before he has been found guilty of any offence. In the absence of carefully regulated substantive and procedural due process in the bail hearing, pre-trial incarceration effectively violates the constitutionally guaranteed presumption of innocence and indeed may in itself adversely affect the ultimate verdict of the court. For the thousands of Nigerians detained in custody pending trial and enduring all these adverse social, economic and legal consequences together with the deprivation of their basic liberties, while still legally considered to be innocent, bail reform is long overdue.

The challenge of effective bail reform is primarily to ensure that the maximum number of defendant receives the quickest and least restrictive form of release that is compatible with the smooth administration of criminal justice and with the safety of the public.3 In order to achieve this, a comprehensive code of bail reform legislation needs to be enacted to replace the existing piece meal laws on the subject and to guide the almost unlimited discretion which the courts currently enjoy, such legislation must provide;

  1. A clear definition of the objectives of bail,
  2. A clear outline of the criteria for release or denial of bail,
  3. Clearly specified and wide ranging conditions of release which do not discriminate against indigent defendants; and
  4. Definite procedural safeguards in the bail process.

The only objectives of bail should be to secure the appearance of the defendant at his trial, to prevent the commission of further serious offences, to protect witnesses from threat, intimidation or injury and possibly to prevent tampering with evidence. Irrelevant considerations such as allowing the conclusion of investigations or vague allegations of “interfering” with investigations should therefore be clearly excluded.

Bail should be granted as of right in the large majority of cases. A bail hearing should be held merely to determine whether the dependant will be released on his own recognizance or subject to other conditions. The precise conditions of release imposed will then depend upon an assessment of the flight risk or danger to persons or to the community posed by the defendant.

Where the discretion to deny bail exists, it should be narrowly defined. Generally speaking, the more severe the offence charged, more the society fears the risk of repetition and the more anxious it is that the offender should not evade justice. However, the issue should not simply be the severity of the punishment attached to the offence but should be made to include a variety of factors including the type of offence (which may not necessarily attract a severe penalty) and the prior record of the accused, as well as the punishment attached to the offence. The specific categories of offences for which the court may exercise its discretion to deny bail should include:

  1. Where the defendant is charged with a crime of violence,
  2. Where the defendant is charged with an offence punishable with life imprisonment or death,
  3. Where the defendant is charged with any specific serious offences that are considered to be of peculiar relevance in the Nigeria context,4
  4. Where the defendant is charged with any felony and he has a record of previous convictions in any one of the first three categories of offences.

The court may, of course, also exercise its discretion to deny bail in any case where there is a risk of flight. Bail should only be denied on this ground, however, where the risk is serious and it can be demonstrated by a preponderance of the evidence that no condition or combination of conditions will reasonably assure appearance. It should also only be a consideration that can culminate in the denial of bail where the offence is punishable by more than one year imprisonment. Bail may also be denied in any case where there is a serious risk of threat, intimidation or injury to prospective witnesses or of tampering with the evidence.5

In all cases, both where the defendant has a right to bail and where the court has the discretion to deny bail, the court must proceed to a determination of what condition or combination of conditions will reasonably assure the appearance of the defendant as required and the safety of any other persons or the community. However, it is only where the defendant falls within the specified categories of offenders that the court may deny bail if it comes to the conclusion that no conditions or combination of conditions can provide such assurance. In this respect, existing Nigerian legislation has failed to sufficiently define the range of factors that the courts should be required to take into account in coming to their determination so that their decisions can best accord both with the interest of justice and the liberty of the individual subject.

Each defendant should stand before the bar of justice as an individual. Thus, in assessing the possibility of the accused appearance to stand trial for instance, the court should be required to consider each individual’s particular situation including his background and community ties as indicated by the history and details of his residence, employment, family situation, and prior criminal record in addition to the other factors that the courts traditionally consider. The courts should also be required to consider the interests of the accused having regard to the period he may spend in custody if bail is denied, the conditions under which he would be held in custody and the need of the defendant to be free to facilitate the preparation of his defence. Thirdly, the protection and welfare of the community should be an issue for the consideration of the court. In this respect the court should take into account the prior history of the defendant in fulfilling conditions of pre-trial release and the likelihood of his interfering with evidence or witnesses or of committing further offences. In the latter instance, the court should be required not only to satisfy itself by clear and convincing evidence that the defendant is likely to commit an offence if released, it must also be satisfied that the offence is likely to involve violence or have serious consequence to the community and that the likelihood of the accused committing an offence outworths his general right to be at liberty.

The next bold step required in bail reform is to demonetize the bail system and introduce a wide range of specific non-financial conditions of release which do not discriminate against the indigent defendant. A presumption in favour of release on recognizance should be introduced by legislation. If, after a consideration of the range of factors mentioned above, the court feels that the defendant is not a good candidate for release on recognizance, the least restrictive of other non-financial conditions or a combination of conditions thereof, that will ensure appearance or protect the community should be imposed. Financial conditions should be resorted to only in the last instance. Where financial conditions are imposed, the defendant should always be given the option of entering into a ten percent cash deposit bond in lieu of a surety bond for the full amount. As far as possible, in such cases, the court should fix the amount of bail relative to the means of the defendant. On no account should a judicial officer impose a financial condition that results in the pre-trial detention of the defendant. Incarceration as a result of poverty should find no place in a fair and rational pre-trial criminal system. Some more restrictive form of non-financial conditions of release should be granted to defendants who qualify as release risks but cannot meet the financial conditions imposed.

In order to ensure the observance of these conditions of release, violations may be sanctioned in appropriate instances by a revocation of release. In the case of flagrant and repeated violations the defendant may be prosecuted for contempt of court. Default of appearance and the commission of further offences while on pre-trial release amounts to a violation of the very objectives of release and it is somewhat surprising that the existing law makes no provision for punishment beyond the arrest and revocation of release of the offender. So as to provide additional incentives to defendants to comply with the objectives of release, default of appearance should be made an offence punishable with imprisonment and pre-trial crime should incur enhanced penalties. Such measures might also induce the courts to resign themselves more happily to the progressive elimination of surety bonds which hitherto have been almost exclusively relied upon to provide a deterrent to the violation of the objectives of release.

With respect to police bail, any suspect charged with an offence punishable with six months imprisonment or less must be released on his own recognizance except in certain limited specified circumstances. In most other cases, a presumption in favour of release on recognizance should be established subject to a consideration of the same range of factors that the courts take into account in determining whether that presumption should be rebutted. Where the suspect does not qualify for release on recognizance and in all cases where the suspect falls within the defined categories of offenders in respect of whom the courts have the discretion to deny bail, the determination of release should be left to the courts. The police should have no power to impose financial or non-financial conditions of release apart from release on recognizance and all offenders not released by the police must appear before a court within 24 – 48 hours.

In other words, these different options for release operate in somewhat the same fashion as a set of filters.6 At each level of consideration the defendants are screened. Those who qualify for release at that point achieve their freedom, while those who present a higher risk are passed through to the next level where they can be examined more closely. At the end point of the process, a small minority of defendants are kept in detention because it is considered that there is no condition or combination of conditions that will adequately provide an assurance against flight or danger to the community.

However, certain procedural safeguards also need to be introduced into the bail process, especially in those case where the courts intend to exercise their discretion to deprive the accused of his liberty before a trial is held to determine the question of his guilt. Some of these safeguards should include time limits on request for adjournment of bail hearing; a right to court appointed counsel for indigent defendants, the opportunity for the defendant to rebut the prosecution’s contention that he is a bad release risk; the establishment of specific burdens of proof that the prosecution must meet; and the requirement that judicial officers must make written findings of facts and provide a written statement of the reasons for detention.

All defendants should have a right to appeal, both against the conditions of release imposed and against an order of detention. Such appeal should be heard within a specified time and, in this respect, the courts might want to consider the introduction of a system whereby judicial officers visit the prisons in rotation, in order to hear all the bail appeals from pre-trial detainees, in that prison, for each day. Speedy trial laws should also be enacted so as to limit the amount of time that defendants who have been denied bail can be kept in custody.

Senator Edward Kennedy once observed in United States, in words that are equally applicable today in Nigeria:

Current bail practices constitute a major flaw in our existing criminal justice system because they fail to protect the interests of both the community and the accused. Effective bail reform presents an enormous challenge to those responsible for creating an equitable criminal justice system (and)… we must replace alternatives found wanting with workable approaches.7

Furthermore, looking at the totality of the subsection of Section 35 of the 1999 Constitution and having regards to local and foreign judicial and statutory authorities, a summary of the provisions of S.35 as they apply to bail can be attempted as follows. A person can be arrested on reasonable suspicion of having committed a criminal offence or for the purpose of preventing him from committing a criminal offence or for other reasons stipulated in section 35 of the constitution. The suspect arrested pursuant to S.35 (1)(c) must be brought to court within a reasonable limit S(S.35(4). Reasonable time in this context means a radius of 40 kilometers from the place of arrest as provided in S.35 (5) (a). Where there is no such court, reasonable time means two days as stated in S.35 (5)(b). Thus under no circumstance should the police detain a suspect for more than two days without taking him to court except in respect of persons reasonably suspected of having committed a capital offence. One being taken to court, the court should consider bail for the suspect, but can on reasonable grounds remand the suspect in custody pending trial.
However, where the trial cannot be completed within a period of two (2) months, from the date of arrest, the suspect, if on remand, must be granted bail by the trial court as in S.35 (4) (a). In any case, where the offence carries a maximum term of imprisonment of less than two months, the suspect cannot be detained on the order of the court for a period longer than the maximum period of imprisonment prescribed by law for the offence (proviso to S.35(1)(f)). S. 35 (4) (b), which talks about the releasing of a person already released on bail, appears to be superfluous. A person arrested on reasonable suspicion of having committed a capital offence is exempted from the above propositions. But such a person is entitled to trial within a reasonable time as in (S.36(4). If he is not tried within a reasonable time, he ought to, and should be released on bail. Reasonable time for the purpose of S.36 (4) is not defined. But in considering what is a reasonable time the presumption of innocence in S.36 (5) of the constitution must be averted to.

5.2 Recommendations

In order to further encourage the use of the various alternatives to pre-trial detention offered in the proposed reforms legislation, it is proposed that compensation should be paid to accused persons who, though lawfully detained, are eventually found innocent of the charges against them.

By and large, S.36 (5) of the 1999 Constitution is inelegantly drafted. At an appropriate occasion the section should be re-drafted in order that the constitutional provisions on the important issue of bail is not a subject of conjecture. In re-drafting the section the interest of both the accused and the society should be taken into consideration.
It is recognized that effective bail reform cannot be achieved through the formulation of new legislation on this issue alone. To be successful, bail reform must go hand in hand with certain constitutional and other reforms throughout the entire criminal justice system. In addition to speedy trial laws, for instance there is an overwhelming need for the introduction of compulsory legal aid for indigent defendants. In any situation where an individual is faced with the possible deprivation of his liberty, whether at the pre-trial or post-trial stage of proceedings, legal representation is an absolute imperative. As the Indian courts have said, “Legal aid is really nothing else but equal justice in action (and)… is intended to (extend) justice to the common man”1. Unfortunately, the Nigerian courts have not translated the constitutional right to defend oneself through the legal practitioner into a mandatory requirement for legal aid where the defendant cannot afford the services of a lawyer, therefore, legislation, coupled with initiatives from the private bar, are both urgently required.

In other to further achieve a recommendation here in before highlighted, it is further recommended that a continuing education be embarked upon for officers of the enforcement agencies such as the Police, Economic Finance Crime Commission (EFCC), Federal Road Safety Commission (FRSC) etc as it relates to bail and human rights of a suspect.

Also, a monitoring committee made up of personalities vested with law but not necessarily lawyers and persons of unquestionable character drawn from every facet of government agencies involved in the enforcement of laws.
Furthermore, when a court grants bail, it should not be on onerous terms in order to enable the suspects to meet up with the conditions for his freedom. However this will be dependent upon the circumstances of each case.
Again the issue of holding charge, which has been over flogged, by the court as unconstitutional should be stoutly brought to the knowledge and awareness of the enforcement agencies.

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