FIRSTLY, it arises after a person arrested with or without warrant is taken to the police station. The officer in charge of the police station may admit the suspect to bail pending further investigation into the matter. This is called police bail.
SECONDLY, it arises after the suspect has been charged to court accused of committing an offence. The accused may be admitted to bail by the court pending the final determination of the case against him. This is known as the court bail.
THIRDLY, it arises after an accused person convicted of an offence has filed an appeal against his conviction. The convicted person may apply for bail pending the final determination of his appeal. This is known as court bail pending appeal.
I shall now consider in detail the 3 TYPES OF BAIL.
1. POLICE BAIL:-
S. 19 (3) (b) of the 1997 Constitution of The Gambia provides that any person who is arrested or detained upon reasonable suspicion of his or her having committed a criminal offence under the laws of the Gambia and who is not released, shall be brought without undue delay before a court and, in any event, within 72 hours.
Section 19(5) further provides:
‘If any person arrested or detained as mentioned in subsection 3(b) is not tried within a reasonable time, then without prejudice to any further proceedings which may be brought against him or her, he or she shall be released either unconditionally, or upon reasonable conditions, including, in particular, such conditions as are reasonably necessary to ensure that he or she appears at a later date for trial, or proceedings preliminary to trial`.
Section 22(1) of the Criminal Procedure Code (CPC) also provides:
‘Where any person has been taken into custody without a warrant for an offence other than an offence punishable with death, the officer in charge of the police station or other place for the reception of arrested persons to which such person is brought shall at once inquire into the case, and if, when the inquiry is completed, there is no sufficient reason to believe that the person has committed any offence, he shall be released forthwith’
If upon such inquiry, there is reason to believe that the person arrested has committed an offence and if the offence does not appear to be of a serious nature, the said officer in charge of the police station may, and shall, if it does not appear practicable to bring such person before an appropriate subordinate court within 72 hours after he was taken into custody, release the person on his executing a recognizance with or without sureties for a reasonable amount, to appear before a subordinate court at the time and place named in the recognizance.
S. 22 (2) of the CPC. Thus once the police have reason to believe that the person arrested did not commit a serious offence they may release such a person on bail. The power to release such a person on bail is therefore discretionary. Where such a person cannot, however, be taken before a subordinate court within 72 hours, the police shall release him on balance. No discretion is therefore exercisable by the police where the offence is not a serious one and the accused cannot also be taken to court within 72 hours.
Note that by virtue of s. 3 (2) of the Economic Crimes (Specified Offences) Act (Cap 13:07), S. 22 (2) above does not apply to economic crimes.
S. 22(3) of the CPC further provides that where a person is taken into custody as stated above and it appears to the said officer that the inquiry into the case cannot be completed forthwith, such a police officer may release the said person on his entry into a recognizance with or without sureties for a reasonable amount, to appear at such a police station and at such time as are named in the recognizance. Unless such a person previously receives notice in writing from the officer in charge of that police station or unless his presence is not required, any such recognizance may be enforced as if it were a recognizance conditional for the appearance of the said person before a subordinate court for the place in which the police station named in the recognizance is located.
In other words such a bond or recognizance can be enforced as if it were a bond or recognizance before a magistrate. The bail granted by the police while investigations are continuing into the allegation against the accused is to enable him to secure his release on condition that he returns to the police station at the time specified in the bond or recognizance. By virtue of section 22(3) of the CPC therefore the suspect is expected to report back to the police station.
Section 22(4) of the CPC requires any person taken into custody as aforesaid to be brought before a subordinate court at the earliest time practicable whether or not the police inquiries are completed. It appears that section 22 (4), which provides that where a person is arrested for a serious offence he shall be brought before a court as soon as practicable, in my opinion, is inconsistent with section 19(3)(b) of the Constitution which requires such a person to be brought before a court within 72 hours. By virtue of s. 4 of the 1997 constitution, the constitution is the supreme law of The Gambia and any other law found to be inconsistent with any provisions of the constitution is, to the extent of the inconsistency, void. Thus since s.22 (4) of the CPC is inconsistent with this constitutional provision, it is null, void and of no effect.
Therefore, for non-capital offences, irrespective of the seriousness of their nature, whether felonies, misdemeanour or simple offences, a suspect must be arraigned before a court within 72 hours.
APPLICATION FOR POLICE BAIL:-
Where a suspect is in police custody, the police officer in charge of the police station may grant the suspect bail. After bail has been granted, a suspect may be required to appear at a court or police station depending on whether investigations have been concluded. Where the suspect is not offered bail by the police officer in charge of the station, the suspect or his counsel or relations may apply for his bail. The application is either written or made orally. In The Gambia, such applications are usually made orally. The suspect has to satisfy the conditions of the bail before he is released by the police. Where the police require the suspect to provide surety or sureties before giving bail, the application for bail and the bond entered into by the surety usually, by convention, includes the surety’s ID card or phone number.
2. COURT BAIL:
Court bail arises in two instances:
1. On execution of warrant of arrest. Any court issuing a warrant for the arrest of an offender in respect of any offence other than murder or treason, may if it deems fit direct by endorsement on the warrant that the offender so named on the warrant, upon arrest, be released on his entering into a bond in a specified amount to appear before a court at such time stated in the endorsement. The bond may or may not require a surety. See sec. 82(1) of the CPC.
By virtue of section 82(2) of the CPC, the endorsement on the warrant must state the following:
a. The number of sureties, if any;
b. The amount in which the sureties and the person named in the warrant are respectively to be bound;
c. The court before which the person arrested is to attend or to appear and
d. The time at which he is to attend including an undertaking to appear at such subsequent time as he may be directed by the court.
There is no precedent form of such a warrant in the CPC. In practice, however, the said endorsement is done by the magistrate issuing the warrant writing the condition of bail on the reverse side of the warrant of arrest. Such endorsement is therefore usually written at the back of a bench warrant. The magistrate’s signature is then appended after the endorsement. Where such an endorsement is made, the police officer in charge of the police station to which the person arrested is taken must release him upon his fulfilling the conditions of bail endorsed on the warrant or arrest. See section 82(3) of the CPC. Please note that a police officer has no power to give an accused bail if there is no such endorsement or to vary the conditions in the endorsement. Whenever security is taken under this section (s.82), the police officer who takes the recognizance must transmit it to the court where the suspect is directed to appear. See sec 82 (4) of the CPC.
2. In the course of proceedings before a court. As noted above, s. 19(3) (b) of the Constitution requires that an arrested person or a detainee is to be taken before a court within 72 hours. Where a suspect is taken to court, such a court may admit him to bail. The need for bail arises because of the interval of time between arraignment of the accused, taking of evidence, conclusion of trial, return of verdict and sentence.
Section 99(1) of the CPC provides for court bail. It provides that when any person other than a person accused of an offence punishable with death, appears or is brought before a court on any process or after being arrested without a warrant, and is prepared at any stage of the proceedings to give bail, such person may in the discretion of the court be released on bail. The bail can be with or without a surety or sureties and is conditioned for the accused appearance before the court at the time and place named in the recognizance.
Note that section 99(1) was amended by Act no. 2 of 2002 called the Criminal Procedure Code (Amendment Act) to include offences punishable with life imprisonment. The bail may be with or without a surety or sureties and is for the accused person’s appearance before such court at the time or place mentioned in the bond or recognizance.
APPLICATION FOR COURT BAIL:-
Application for court bail, after an accused person has been arraigned, is usually made orally by counsel if the accused is represented. Application for bail need not be in writing. Once the accused has been charged and he pleads not guilty, the case may be adjourned until some future date. Counsel applies orally for bail pending the final determination of the case. The police may or may not approve the grant of bail by the court. If an attorney represents the state, he seeks the view of the police on the matter before determining his position. Note that the fact that the prosecution does not oppose bail does not mean that bail will automatically be granted.
‘The fact that the Republic does not oppose the application means no more that they are in no position to offer arguments to assist the court against the grant, but there may well be argument against the grant which an independent examination by the court may reveal.’
PRINCIPLES GOVERNING DECISIONS TO GRANT BAIL
The police ought to offer bail to an accused person alleged to have committed an offence not punishable with death or life imprisonment if they cannot arraign him in court within the stipulated time limit. Since it is a duty imposed on them, they have no discretion in the matter. However, the arrested person must comply with the condition of the bail before he can be released on bail.
Unlike the police, the court has discretion on the matter and can decide to admit an accused to bail or withhold bail. Please note that if an accused is charged with other than an offence punishable with death or life imprisonment, the factors that must be taken into consideration by the court in granting bail are not expressly stated in s. 99 of the CPC and amendment thereto which deal with the granting of bail to an accused. Nonetheless the courts take some factors into consideration in deciding whether to grant or withhold bail. These factors include:
1. Nature of the offence. The first thing the courts consider before giving bail is the nature of the offence with which an accused is charged and the punishment prescribed for the offence. Where the offence is a serious one, carrying a heavy penalty, the court may not exercise its discretion in favour of granting to the accused. Please note however that under section 24(3) of the Constitution, an accused is presumed innocent until proven guilty. Therefore, an accused should not be punished by being denied bail in the absence of cogent or compelling reasons, but simply because of the nature of the offence alleged against him/her.
2. The accused person’s criminal record. The accused person’s criminal record is also taken into consideration before bail is given. If an accused can show that he is a person of good character and he has never been convicted of an offence, the court ought to exercise this discretion in favour of the accused and admit him to bail. A person of good character who has no prior conviction is therefore more likely to be given bail than a habitual offender.
3. The possibility of the accused committing another offence. The court also gives consideration to the possibility of the accused committing further offences while on bail. If an accused is unlikely to commit another offence while on bail, the court should exercise its discretion and admit the accused to bail.
4. Possibility of inferring with the investigation of the offence. A fourth consideration is the possibility of interfering with the investigation of the offence. If the accused is likely to interfere with the investigation of the offence, bail shall be refused. Interfering with the investigation of the offence might involve trying to destroy evidence or absconding, trying to tamper with evidence or the witnesses, or trying to bribe the witnesses in the case. On the other hand, if there is no evidence that the accused will interfere with the investigation of the case, bail ought to be granted.
It follows from the above that the grant of court bail is the discretion of the court. The principle test to apply when a court gives consideration to the question whether or not to admit an accused to bail is whether he will be able to appear to stand his trial. The most serious offence with which he is charged and the heavier the penalty, the more likely it is that the accused will not when granted bail appear to stand his trial.
PROVISIONS AS TO RECOGNIZANCES GENERALLY
Both the police and the court may admit to bail a person alleged to have committed an offence on such terms and conditions, as they deem fit. The terms of bail are fixed with due regard to circumstances of the case. As noted above, they should not be onerous or excessive. If bail is granted on onerous terms, de jure, the accused has been granted bail, but in fact because the terms are difficult to fulfill the bail amounts to no bail and, de facto, bail has been denied.
Bail may be granted without sureties. See s. 99 of the CPC. This means that a person may be granted bail on his own recognizance, i.e. on his undertaking that he will appear to stand trial. No surety is required from the accused person and in most cases no bond is prepared. However, bail is rarely granted on personal recognizance except where the offence with which the accused is charged is a minor offence or where the person admitted to bail is of high social standing in the community, and the court is satisfied that he will appear to stand his trial.
A person may also be admitted to bail on condition that he executes a bond for a fixed sum. A bond is a written undertaken executed by the person to be admitted to bail, that he will, while on bail, appear in a designated place when his attendance is required as stated in section 100(3) of the CPC. In default of appearance, the person admitted to bail may be required to pay the amount of money specified in the bond.
A person may be admitted to bail on condition that he produces one or more persons to enter into a bond for a stated sum. Such a person is known as a surety. The surety undertakes to pay the money by which he is bound if the person admitted to bail fails to appear at the designated place. Bail granted on the condition that the person admitted to bail enters into recognizance or provides sureties or both is known as bail on recognizance.
3. BAIL PENDING APPEAL:-
As we noted above, bail pending appeal arises where a convicted person applies for bail pending the final determination of his appeal by a higher court.
BAIL PENDING APPEAL TO THE SUPREME COURT
Rule 42 of the Supreme Court Rules (Cap 6:05) provides:
“(1) The Court may, at any time during the pending of a criminal appeal, on its own motion or on an application made by any person, grant bail to the appellant,revoke or vary any order previously made.
(2) Where the Court grants bail to an appellant pending the determination of his or her appeal, the Court specify the amount in which the appellant and his surety if any, shall be bound by recognizance and unless otherwise directed by the Court the recognizance of the appellant or his or her surety shall be taken before the Registrar.”
The recognizances stated above shall be in Forms 20 and 21 set out in Part II of the Schedule to the Supreme Court Rules.4
4 See rule 42 (3) of the Supreme Court Rules
5 See rule 42 (4) of the Supreme Court Rules
6 See rule 42 (5) of the Supreme Court Rules
7 See rule 42 (6) of the Supreme Court Rules
An appellant who has been granted bail shall be personally present at each and every hearing of his or her appeal and at the final determination of the appeal unless the Court otherwise directs. Where the appellant is not present at the hearing of his or her appeal after having been granted bail under the said Rules, the Supreme Court may either consider the appeal in his or her absence or make an order as it thinks fit, or it may summarily dismiss the appeal and issue a warrant for the arrest of the appellant Form 22 set out in Part II of the Schedule to the Rules. It should be noted that rule 42 (5) shall apply with such modification as the Supreme Court may direct in any case where the appellant indicates that he or she desires to be present at the hearing of his or her appeal but does not in fact attend.
BAIL PENDING APPEAL TO THE COURT OF APPEAL
A Judge8 may, if he or she thinks fit, admit an appellant to bail pending the determination of his or her appeal.9 An appellant who is not admitted to bail shall, pending the determination of his or her appeal, be treated in such a manner as may be directed by the rules made under the Prisons Act. 10
8 Would this include a Judge of the High Court who convicted and sentenced the appellant?
9 See section 12 (1) of the Court of Appeal Act of The Gambia Act (Cap 6:02)
10 See section 12 (2) of the Court of Appeal of The Gambia Act
11 Section 12 (3) of the Court of Appeal of The Gambia Act
12 Section 12 (4) of the Court of Appeal of The Gambia Act
The time during which an appellant, pending the determination of the appeal, is admitted to bail, and subject to any directions which the Court of Appeal may give to the contrary on any appeal, the time during which the appellant, if in custody, is specially treated as an appellant under this section, shall not count as part of any term of imprisonment under his or her sentence.11
In the case of an appeal under the Act, any imprisonment under the sentence of the appellant, whether it is the sentence passed by the High Court or the sentence passed by the Court of Appeal, shall, subject to any direction which may be given by the Court of Appeal, be deemed to be resumed or to begin to run, as the case requires, if the appellant is in custody, as from the day on which the appeal is determined, and if he or she is not in custody, as from the day on which he or she is received into prison under the sentence.12
BAIL PENDING APPEAL TO THE HIGH COURT:-
S. 281 (1) of the CPC provided:
“After the filing of a petition of appeal by any person entitled to appeal, and pending the hearing of the same, the High Court may, for reasons to be recorded by it in writing, order that the execution of a sentence or order appealed against be suspended and also, if he be in confinement, that he be released on bail or on his own recognizance.”
S.281 (2) further provided:
”When the appellant is ultimately sentenced to imprisonment, the time during which he is so released shall be excluded in computing the term for which he is sentenced.”
The said section was, however, repealed by Act No. 2 of 2002. Thus before Act No. 2 of 2002 was passed into law, a person convicted and sentenced by a Magistrate Court or any other subordinate court exercising its criminal jurisdiction could be granted bail by the High Court pending the time his or her appeal was determined by the High Court. Consequently, where a magistrate or the presiding officer of a subordinate court erroneously applied the law and in the process convicted and sentenced an offender to jail, the High Court could give such a GAYE SOWE - LECTURER – THE GAMBIA LAW SCHOOL Page 17. Person bail pending the time such a mistake was corrected. Act No. 2 of 2002 deleted the provisions of s. 281 from the CPC. Thus under our current law, once an accused is sentenced to imprisonment by a subordinate court, bail pending appeal does not arise. Thus no matter the circumstances, an accused person who is convicted and sentenced to imprisonment by a subordinate court cannot apply for bail. This is contrary to practice in most common law jurisdictions.
Thomas Fuad Touray (LLB) is the Executive Director of The West African Institute for Legal Aid (WAILA)