Bail is an agreement between court and the accused person for his/her temporary release from custody pending trial. The accused person is required to make a deposit of either cash or assets as security to attend trial. If the accused person fails to attend court, the bail can be forfeited and the accused person returned to custody. When the accused person deposits an asset as security, it is known as a bond. The court can also issue a personal bond whereby the accused person does not have to make a financial deposit. Instead, the accused person guarantees that he will attend trial, failure to which the amount stated in the bond will be forfeited.
Release on bail is based on the principle that an accused person is presumed to be innocent until proven guilty. The accused is therefore entitled to freedom and every opportunity to defend himself while out of custody.
Anticipatory bail is usually granted before arrest. It is a court order directing the release of the applicant in the event that he is arrested. A person may seek anticipatory bail where there is fear that he might be arrested and taken into custody. In seeking anticipatory bail, the applicant should demonstrate reasonable fear that he is about to be arrested. When the court grants anticipatory bail, the police cannot keep the applicant in custody if he is arrested.
In considering the granting or denial of anticipatory bail, the court will look at the seriousness of the alleged offence. However, the fact that the offence is serious is not a ground for refusal of anticipatory bail. The court usually exercises discretion having regard to the circumstances of each case. The court will also not refuse anticipatory bail because investigations are incomplete. The presumption of innocence until proven guilty still holds true in the case of anticipatory bail. The court should however exercise due care when considering the grant or denial of anticipatory bail.
Anticipatory bail is limited in duration. However, the applicant is able to extend the duration by making an application to court for extension. Once the accused is arrested and charged, the money or property deposited as security for anticipatory bail can be admitted for regular bail or returned to the accused person where more lenient bail terms are given.
The court’s function in considering bail is to determine whether or not the accused should be granted bail. It is also the function of the court to set a reasonable amount of bail. In determining whether or not to grant bail, the court usually considers the following factors:
1. The seriousness of the offence
The court usually considers the type of crime committed. Courts are more likely to deny bail to persons who have committed felonies. The more serious the offence the higher the bail amount.
2. The evidence against the accused
The court also considers whether or not the evidence against the accused is overwhelming. Where the evidence is overwhelming the chances of absconding are high. The greater the strength of the case the higher the amount given.
3. Criminal history of the accused
Individuals with numerous previous convictions have a high likelihood to abscond because if found guilty, the penalty issued may be stiffer. The court therefore has to consider the risk of granting bail to such individuals.
4. Bail history of the accused
The court also considers whether or not the accused person has previously absconded after release on bail. If he has absconded before, the likelihood of absconding again is very high.
5. The accused’s connections to the community
If the accused person is well known in his community, has a permanent job, is a full-time student or runs a local business, he is considered to be less likely to abscond and the amount given is usually lower.
6. Danger posed to the community
Violent criminals and those who pose a danger to the community may not be granted bail or be granted bail with very stringent conditions. Such persons may threaten witnesses or seek vengeance against the victim or those who reported him and let to his arrest.
7. Danger posed to the accused
In some instances, the community may be very hostile due to the crime committed by the accused and may seek to injure him or revenge against him in one way or another and therefore for his safety, the court may decline to grant bail.
8. Likelihood of absconding
The court may not grant bail or may grant a high amount if there is a high likelihood of absconding by the accused person. An accused person is deemed to have a high likelihood of absconding or be a flight risk if he is a foreigner, if he has no permanent address or known place of abode or if he has no known family or community ties.
9. Obstructing justice
The court may not grant bail where there is a danger that the accused may obstruct justice if released. Obstruction of justice can be caused by interfering with witnesses, interfering with exhibits or generally interfering with the case.