ArticlesExamining an Accused’s Right to Bail in Criminal Proceedings

Examining an Accused’s Right to Bail in Criminal Proceedings

The right of an accused to bail in criminal proceedings is worth examination of recent times. In March 2007, the Sierra Leone Court Monitoring Programme (SLCMP) carried out a study of 20 cases before different Magistrates in various Magistrates Courts in Freetown dealing with criminal matters. We acknowledge the fact that it is of limited scope. However, it provides an insight into the practice of bail applications on a day to day level. The ensuing discuss is an assessment of what we saw, and a more general discussion of the strengths and weaknesses of the current system, and suggestions on how improvements could be made. In Sierra Leone , the right to bail in criminal proceedings is guaranteed under Admission to Bail in the Criminal Procedure Act of 1965. Bail is the process by which a court releases a person pending appearance at a future court hearing. It also refers to any security which the court may demand such as cash or a bond required by the court for the release of a prisoner in order to ensure that they appear at a future time. Under the 1991 Constitution, an accused person must be brought before a court within 72 hours of his arrest or detention in the case of misdemeanours and 10 days in felonious offences.

At the first occasion when he is brought to court the accused person listens to the charges against him and is asked to enter a plea of guilty or not guilty. If the accused enters a plea of guilty, he is convicted, sentenced, and the issue of bail would never arise. On the hand, if the accused enters a plea of not guilty, and if the offence is one for which bail may by law be granted, at this stage the issue of bail usually arises. The defense counsel or the accused person himself, if he has no representation, makes an application for bail. The prosecution has the opportunity to give counter arguments, and bail is granted or denied by the judge or magistrate as the case may be.

Bail is not usually a complicated matter of law, but almost always depends on the particular circumstances of the case. However, in certain cases, the court has discretion. When a person is charged with any felony other than murder or treason, such as rape, malicious damage, fraudulent conversion etc., the Court may, if it thinks fit, admit him to bail. Subsection 3 of section 79 of the Criminal Procedure Act of 1965 states that when a person is charged with any offence other than those referred to in subsections (1) and (2), (murder or treason), the Court shall admit him to bail, unless it sees good reason to the contrary.

International conventions and protocols make parallel provisions for the granting and refusal of bail in criminal proceedings. Article 9 (3) of the International Covenant on Civil and Political Rights (ICCPR) provides that “it shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantee to appear for trial.” In line with the principle of fair trial, international instruments require the granting of bail where bail conditions are fulfilled. In fact while bail is a right in other national jurisdictions, in Sierra Leone bail is not a constitutional right of the accused. For example, bail is a right according to the European Court of Human Rights, and as such all the countries in Europe contain a provision in their national law that there is a right to bail, and Judges must explain why that right needs to be breached in the particular circumstances of the case.

Grounds for Bail

The Defendant need not be granted bail if the court is satisfied that there are substantial grounds for believing that the Defendant, if released on bail, would: (a) Fail to surrender to custody (eg. run away);or (b) Commit an offence while on bail; or (c) Interfere with witnesses or otherwise obstruct the course of justice. When considering these, the court should consider: (a) The nature and seriousness of the offence and probable method of dealing with the offender for it (eg. if the defendant was convicted, what would the punishment be? If a long sentence is likely, the defendant may be more likely to run away); (b) The character, community ties, employment, previous convictions of the accused; (c) Whether he has returned to court when given bail previously (or whether he’s run away) (d) The strength of the evidence against him ( if it is strong the accused may be more likely to run away).

Other reasons for refusal of bail: (a) Defendant’s own protection (eg. where community anger might mean the defendant is at risk of revenge/ mob action). (b) Already in custody (for another offence). (c) Absconded previously in the same   proceedings (eg. defendants who have already escaped from prison and are caught).

If the defendant is charged with an offence for which he would not receive a prison sentence even if he were convicted, the defendant should always be granted bail unless: (1) for his own protection (as in (a) above). (2) he is serving a sentence for another offence (3) he failed to appear after being granted bail on a previous occasion.

Conditions for Bail

The Court may decide that they will grant bail but only with certain conditions: (a)

The Defendant provides a ‘surety’. Where there is a risk of the defendant running away, the court may require that the Defendant provides a ‘surety’. This is when another person comes to court to promise the court that if the Defendant runs away, that other person will pay the court a certain sum of money. (b) The defendant must stay, live and sleep at a certain address. (c) The defendant must report to a local police station several times a week. (d) The defendant must not go out at certain time, usually at night (curfew). (e) The defendant must not enter a particular area/ address. (f) The defendant must not contact any victim or witness. (g) The defendant must give his passport to the court or police.

In local criminal proceedings the arguments for and against bail have often resulted in legal battle between the prosecution and the defense. In their arguments they make claims and counter claims for the granting and refusal of bail using citizenship, family and property ownership as their lead arguments for bail.

The grounds for which bail can be granted are not always addressed appropriately by defense counsel. For example, some defense counsel use trivial arguments such as “he is a Sierra Leonean citizen” as a reason for granting bail. This type of argument shows that the lawyer has not spoken properly to his client about the case, and has not dedicated the necessary time and research into the case, and overall lack of respect for the client. Alternatively it suggests s/he does not understand the grounds for granting bail, which is a worrying indictment on lawyers who often charge large fees for their services. This argument was used in six cases out of those studied where there was representation.   Other arguments used which were inadequate were “the accused is married and has children.” This argument was used in four cases. Exaggeration of offence was used in four other arguments and one for the accused being a foreigner. However, in seven cases good arguments such as the accused being a worker with a fixed resident and weakness of evidence were used.

Discussion of Legal Representation and how it relates to Granting of Bail

Overall, of defendants who were represented by counsel, 55% were granted bail.

Of defendants who were not represented by counsel, 55% were granted bail. This underscores the fact that defendants who are not legally represented are not adequately able to represent themselves in bail applications, whether that is because they do not know on what grounds they can be granted bail or what conditions they could seek bail on, do not understand the language properly or what is going on. Consequently, out of nine accused persons who were not represented in our case study, two were granted bail and seven refused. It was also recorded that among the unrepresented accused persons one application was listened to and another not listened. It may also be that those persons who are so poor as to not be able to afford counsel may not be able to assure the court that they have adequate reasons not to flee but to remain in their place of abode. For example, if an accused don’t have a property/employment. In this case the Judge may be justified in refusing bail.

In all the cases the level of surety demanded was reasonable. The bench in some cases requested property ownership in the city and reasonable amount for the granting of bail in bailable offences. To this extent the judiciary has done a great job as it reflects in the cases we observed.

On the side of the bench, bail is denied if there are substantial grounds for believing that the accused if released on bail would: fail to surrender to custody, commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice. All of these are grounds for the refusal of bail and should be discussed earlier as mentioned. These conditions (grounds) apply to both capital and minor offences in which case bail can only be determined by the bench base on due consideration of the prevailing circumstance. (In all cases bail depends on the particular circumstances of the case). Additionally, the bench has denied bail to defendants in cases where they lack representation to make possible bail requests. This situation has in recent times delayed the process of speedy trial in our judicial system as recommended by international standards of the principle of fair trial and it is difficult to lay blame on the bench because if the accused cannot afford the cost of legal representation what are the possibilities of getting a qualified surety and his appearance in court when demanded? It is however, worth mentioning that there is a difference between refusing to listen to applications for bail and not having satisfied bail conditions because there is no surety. Be that as it may, the lack of representation has presented a much more volatile situation in the granting and refusal of bail in criminal proceedings.

In compendium, therefore, bail granted and bail refused should be determined by the grounds for bail and conditions of bail. The granting and refusal of bail is solely the duty of the bench to look into the grounds and conditions for bail. As stated earlier, the bench can only grant bail where bail conditions have been fulfilled and the accused has no intention of running away, committing an offence while on bail or interfering with witnesses thereby obstructing the course of justice. The protection of the accused has also been counted among the reasons for withholding the accused person’s right to bail. Beyond the law, bailing an accused person in a criminal proceeding presents a complexity of circumstance rather than law. We should, however, note with interest that by international standards the law provides for the right of the accused to bail in criminal proceedings which only requires the good judgment of the bench to look into the situation under which bail should be granted or not.

In Sierra Leone , there is no such right (right to bail) in our law books. The Criminal Procedure Act of 1965 only provides for ‘Admission to Bail’ and the Constitution 1991, makes no mention of bail as a right. It is therefore worth recommending that the right to bail be entrenched in our reviewed Constitution.

The SLCMP will be producing a Guide to Bail for persons seeking to bring applications themselves, which will be distributed at the magistrate courts and in the courts in Bo and Makeni.

Last Updated on Friday, 09 October 2009 16:57