Bail can be defined as the process through which an accused person who is arrested on the allegation of committing an offence is released by a constituted authority upon the provision of adequate security guaranteeing that the accused person would report at the police station or in court for his trial whenever his presence is required.
In Caleb Ojo vs the Federal Republic of Nigeria (2006) 9 NWLR (Pt.984) 103, bail was defined as the freeing or setting at liberty one arrested or imprisoned, upon others becoming sureties by recognizance for his appearance at a day and place certainly assigned, he also entering into self-recognizance. The accused/convict is delivered into the hands of sureties and is accounted by law to be in their custody, though, they may, if they will surrender him to the court before the date assigned and free themselves from further obligations of such suretyship.
Where an accused person is arrested on the suspicion/allegation that he has committed a crime, the law provides that such an accused person must not be unduly detained in police custody as a form of punishment because the mere fact that a person has been alleged to have committed an offence does not necessarily mean that he is guilty of the offence. Section 35 (1) of the 1999 Constitution of Nigeria guarantees the right to personal liberty of all Nigerians and Section 35 (5) of the 1999 Constitution of Nigeria provides that an accused person who has been arrested on the allegation of having committed an offence must be charged to court within 24 hours where a court of competent jurisdiction is located within a radius of forty kilometers from the police station; and where a court is out of the reach of a forty kilometres radius from the police station, the accused person must be charged to court within 48 hours or such longer period as a court might consider reasonable. Bail is therefore a right of every accused person although several factors are usually taken into consideration before an accused person can be granted bail. This article will outline these factors in due course.
There are generally three types of bail namely:
(a) Police Bail
(b) Court Bail
(c) Government Agency Bail.
Police Bail: Section 17 (1) of the Administration of Criminal Justice Law of Lagos State 2011 provides that when a person has been taken into police custody without a warrant for an offence other than an offence punishable with death, an officer in charge of a police station shall release the person arrested on bail subject to subsection (2) of this section if it will not be practicable to bring the person before a court having jurisdiction with respect to the offence alleged within twenty-four (24) hours after his arrest. Thus, where an accused person has been arrested by the police for an offence other than a capital offence, such an accused person is expected to be granted bail by the police within 48 hours. Unfortunately, this is not usually the case as the police are very notorious for keeping suspects in custody for well over 48 hours on the ground that they are yet to conclude their investigation. It must be noted that this practice of the Police is unconstitutional because it goes contrary to the provision of Section 35 (4) of the Constitution which provides that suspects must be charged to court by the police within 24 or 48 hours.
Court Bail: A Magistrate Court and a High Court both have the powers to grant bail to an accused person and this power must be exercised judicially and judiciously. This simply means that the Court must consider the facts of every case and the materials which have been placed before it by the accused before deciding whether or not to grant the accused person bail.
At this junction, it is worthy to note that offences may be classified into three categories which include:
Capital Offences – and bails in this instance can only be granted by a High Court Judge based on strict rules.
Felonies other than felonies punishable with death and;
The third category of offences is misdemeanor and other simple offences.
Both the Magistrate Court and High Court also have the powers to grant bail to an accused person who has been charged for an offence in the second and third categories. Bail must always be granted to an accused person who is charged for an offence under the third category unless the court sees any good reason not to grant bail to the accused person High Court Judge have the powers to grant bail in cases involving this category of offences.
The granting or refusal of an application for bail is exercised based on the discretion of the Court; the court must consider the following factors before deciding whether or not to grant an application for bail.
- The nature of the offence which the accused person is being tried for.
- The strength of the prosecution’s evidence against the accused person
- Whether the proper investigation of the offence would be prejudiced if the accused person is granted bail
- The possibility of the accused person interfering with the prosecution of the case
- Whether there is a serious risk of the accused person jumping bail
In Ogbuawa v. F.R.N (2011) 12 NWLR (Pt. 1260) 100, the Court held that “When it comes to the issue of whether to grant or refuse bail pending trial of an accused person by the trial court, the law has set some criteria which the trial court shall consider in the exercise of its judicial discretion to arrive at a decision. The criteria have been stated in several decisions of this court and the apex court. Such criteria include, inter-alia, the following,:
- The nature of the charge
- The strength of the evidence which supports the charge
- The gravity of the punishment in the event of conviction,
- The previous criminal record of the accused, if any,
- The probability that the accused may not surrender himself for trial.
- The likelihood of the accused interfering with witnesses or may suppress any evidence that may incriminate him.
- The likelihood of further charge being brought against the accused.
- The probability of guilt
- Detention for the protection of the accused,
- The necessity to procure medical or social report pending final disposal of the case
It is to be noted that above criteria are not exhaustive. Other factors not mentioned may be relevant to the grant or refusal of bail to an accused person. They provide the required guidelines to trial courts in the exercise of their discretion in matters where the grant of bail pending trial is sought. It is important to note that all the factors mentioned above need not be present in a case before the court would grant an accused person bail. Thus, a court of competent jurisdiction can admit an accused person to bail based on the existence of one of the factors stated above.
Bail Pending Appeal-It is easier to obtain bail pending or during trial than it is to obtain bail after a conviction or pending appeal. This is because bail pending trial is a constitutional right and the burden lies on the prosecution who opposes an application for bail to prove that the facts which an applicant for bail relies upon do not justify the grant of bail. Whilst in the case of bail pending appeal, the burden lies squarely on the applicant for bail to show that he is entitled to bail because he is no longer presumed to be innocent under the constitution since he would have been convicted by the trial court. It should be noted that an accused person who has been convicted by the trial court must be able to show that he has a pending appeal before he can properly file an application for bail pending appeal; and if he was granted bail before or during trial at the lower court, he must also adduce evidence to show that he did not jump bail at the lower court. Failure to establish any of these facts will simply mean that the accused person cannot file an application for bail pending appeal.
Government Agency Bail: Although the most common forms of bail are Police Bail and Bail by the Court, it is important to note that a third category of bail exists, and this category comprises of bail by Government agencies such as Economic and Financial Crimes Commission (EFCC), Independent Corrupt Practices Commission (ICPC), National Drug Law Enforcement Agency (NDLEA) and so on. The EFCC has the powers to investigate and arrest perpetrators of economic and financial crimes under the EFCC Act and this same power presupposes that the EFCC can grant administrative bail to individuals who are under investigation pending the time such individuals would be charged to court for the commission of an offence.
It must be noted that an accused person who has been arrested by any of agencies mentioned above has the right to apply for administrative bail to the said agencies if he is not charged to court within the time prescribed by the Constitution of the Federal Republic of Nigeria and such an accused person can also apply to court for the enforcement of his fundamental human rights if his application for bail is refused by the agency of government which arrested him.
The purpose of bail is to make sure that a person accused of a crime (a defendant) will come to court for proceedings related to their case after they are released from jail or from being held at a police station. Bail is not a form of punishment; it is a means of ensuring that a defendant will appear in court at a later date. It is unfortunate that most Police officers use bail as a sort of punishment on the Defendant especially when the defendant is unable to pay their biddings and as such they detain the defendant longer than necessary even against the constitutional provisions. Moreso, when the court imposes bail conditions that are too stringent for the defendant to fulfil, such can amount to punishment on the defendant. In such cases, it is expedient and necessary for the defendant’s counsel to approach and urge the court to review the bail conditions to a more liberal term. If that is not done then the purpose of bail may be defeated and the Defendant will be under punishment by being in Prison custody longer than necessary which to some extend may affect his availability in court for regular trial of the charges against him.