Draft Bail Guidelines For High Courts And Magistrate Courts

May 16, 2014

TABLE OF CONTENTS

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PART ONE    -    FUNDAMENTAL PRINCIPLES

  1. The object of bail
  2. Constitutional safeguards – Presumption of innocence/Right to liberty.

PART TWO    -   PRINCIPLES AND CONSIDERATIONS IN GRANTING BAIL

  1. General principles
  2. Nature of Bail
  3. Propriety of bail

PART THREE – TERMS OF BAIL

  1. Quantum of Bail: general considerations
  2. Bail Amount and security
  3. Imposition of Additional Conditions

PART FOUR – SPECIAL CONSIDERATIONS

  1. Application by an Accused to leave jurisdiction

10. Bail Pending Appeal

PART ONE    -    FUNDAMENTAL PRINCIPLES

  1. The      Object of Bail

(1)  The object of bail is to secure by a pecuniary penalty, the appearance of the accused at his trial.

(2)  Once an accused person is produced in court, whether under a warrant of arrest or a summons, he is thereafter under the jurisdiction of the court which is empowered to ensure his future attendance.

(3)  The provision by the accused of security in the form of bail is the most expeditious way of ensuring his attendance at trial in lieu of a subsisting order of remand.

  1. Constitutional      Safeguards

(1)  In accordance with the Constitution, an accused person is presumed innocent until his guilt is proved and depending on the nature of the offence is entitled to pre-trial liberty.

(2)  Nonetheless, the court must balance the interests of the state in having to protect the public with the rights of the accused person

(3)  The exercise of judicial discretion in determining whether to grant bail and the secondary issue of bail quantum should always involve a careful and analytical process. This process must be based on consideration of all available information produced before the court. The principles and conditions set out in these guidelines are intended to provide guidance in the exercise of this discretion and in setting the amount of bail in relation to offences which are frequently prosecuted in the courts.

 

PART TWO    -   PRINCIPLES AND CONSIDERATIONS IN GRANTING BAIL

  1. General      principles

In considering an application for bail the court should address two related but distinct questions i.e. :

a)     Whether bail should be granted ; and if so,

b)     The appropriate bail quantum.

  1. Nature      of Bail

(1)  Bail should not be punitive but set at a sum that is sufficient in the circumstances of the case to procure the attendance of the accused at his trial.

(2)  Under the criminal procedure Code offences are classified into “bailable” and “non-bailable” offences to indicate whether the offence is bailable as of right or not. An accused person charged for a bailable offence is entitled to bail. Where an accused person is arrested or detained for a non-bailable offence, his release is at the discretion of the police or the courts.

(3)  No person may be released on bail if there are reasonable grounds for believing that he is guilty of committing an offence punishable with death or life imprisonment.

  1. 5.      The propriety of bail

In determining whether to grant or refuse bail to an accused, the court should consider the following factors:

(a)  Probability of appearance at trial. The court should in particular consider:

i.          whether the accused has a fixed place of abode within the jurisdiction of the Court;

ii.          whether the accused is domiciled or is a permanent resident in the country;

iii.          the nature and seriousness of the offence, the punishment prescribed and the likely sentence to be imposed upon conviction i.e. whether there is a provision for a fine or mandatory custodial sentence;

iv.          the nature and the strength of the evidence in support of the charge e.g. where the evidence comprises confessions, admissions, material eye-witness account, or is supported by medical or scientific evidence such as DNA reports;

v.          whether the accused, if released on bail, is likely to abscond;

vi.          whether the accused has made an attempt to leave the jurisdiction of the Court, without leave of the court or the investigation officers; and

vii.          the extent of the accused ties and roots in Nigeria.

 

(b)   Likelihood of interference with the judicial process. A court should in particular consider:

(i)           whether there is a likelihood that the accused will tamper with prosecution evidence or witness;

(ii)         whether the accused is likely to procure false evidence either in support of his defence or to exonerate other accused persons involved in the commission of the offence;

(iii)         whether the accused is likely to convey information acquired during the investigation to other accused persons not yet arrested or charged for the offence.

 

(c)   Public safety considerations. This includes:

(i)     where the offence is against the human person, whether the attack was deliberate, provoked, triggered by frustration or motivated by vengeance.

(ii)   the nature of violence inflicted on the victim and the extent of injuries suffered;

(iii) the type of weapon or corrosive substance used;

(iv)  whether the accused is likely to repeat the offence while on bail;

(v)   Whether the accused has displayed a propensity towards violence and should be regarded subject to psychiatric assessment from a recognised Institution, as one who has no respect for life and property;

(vi)  the number of charges preferred against the accused; or

(vii)                    whether the accused is a persistent offender with previous criminal convictions for serious or violent offences. In such cases, the previous conviction or record of the accused shall not be referred to in a manner that will prejudice his or her right to a fair trial.

 

(d)  Preparation of the defence. The court should in particular consider:

(i)             Whether in the circumstances of the case, and the nature of the alleged offence, a refusal of bail would deprive the accused of the opportunity to adequately prepare his defence as guaranteed by the constitution; or

(ii)           Whether there is a likelihood of the prosecution withdrawing or reducing the charges.

 

(e)  Likelihood of obtaining further evidence by remand. Under this head the court should consider:

(i)     whether sufficient evidence has been obtained to raise a reasonable suspicion that the  accused may have committed the alleged offence and it appears likely that further evidence may be obtained by investigation during a short period in remand; and

(ii)   whether the period of remand requested by the police is reasonable in the circumstances of the case.

(f)   Humanitarian grounds. Factors relevant under this head are:

(i)                   the long period of detention of the accused and probability of further period of delay in the trial of the accused;

(ii)                 the likelihood of the trial being protracted resulting in a long period in remand;

(iii)         the age, sex and state of health of the accused in remand.

 

(g)    Other factors.

The court should also consider:

(i)     Whether the accused had previously been refused bail by another court and is awaiting trial;

(ii)   The accused previous conduct and behaviour in court;

(iii) whether the principal accused, accomplices and co-accused (if any) have been offered bail;

(iv)  whether the accused surrendered himself to the authorities;

(v)   whether the accused co-operated with the authorities and assisted in the investigation to recover evidence or misappropriated other property;

(vi)  whether the accused had made restitution in part or in full;

(vii)                    Whether the accused had shown any remorse for the commission of the offence; and

(viii)                  whether the accused is addicted to a controlled drug or other intoxicating substance/s.

 

  1. Quantum      of Bail: general considerations

In the case of an offence where bail may be granted the court shall in determining the quantum of bail consider the following:

a)     Financial ability of the accused to meet monetary bail conditions;

b)     Nature and circumstances of the offence;

c)     Penalty for the offence charged;

d)     Character and reputation of the accused;

e)     Age and state of health of the accused;

f)      Weight of the evidence against the accused; whether incriminating or exculpatory

g)     Probability of the accused appearing at the trial;

h)     Forfeiture of other bail;

i)      The fact that the accused  was a fugitive from justice when arrested; and

j)      Pendency of other cases where the accused is on bail.

 

  1. 7.      Bail Amount and security

(1)  Sufficient security must be furnished by a surety to ensure the attendance of the accused at his trial. The guide in paragraph (3) of this guideline is meant to apply to a Nigerian accused, facing a single criminal charge only and who has no criminal antecedents. Where the accused is a foreigner, bail is likely to be set at a higher amount as there is a greater risk of him absconding.

 

(2)  The guide in paragraph (3) of this Guidelines may be revised depending on the facts and circumstances of the case, bearing in mind consideration such as:

  1. The seriousness of the offences(s) – including the likely sentence upon conviction and any mandatory sentences;
  2. The number of charges involved;
  3. The accused’s antecedents (if any);
  4. The accused individual circumstances, including his means of raising bail;
  5. Where the offence relates to property, the benefits obtained or loss caused by the accused, including the value of any unrecovered property;
  6. Whether the accused surrendered himself.

The court should also evaluate, based on available evidence, the likelihood of the accused absconding if he is released on bail and consider what would be an appropriate amount to secure his attendance.

 

(3)  As a general guide, bail in respect of offences investigated by the police and other enforcement agencies should be at least to N50,000, depending largely on the nature of the offence. Bail in respect of regulatory offences should normally be set at between N300,000 to N5,000,000 depending on the sum involved in the charge. These include offences under the following principal and subsidiary legislation, which do not attract mandatory imprisonment and usually result in the imposition of fines only (in the case of first offenders) upon conviction:

 

(1)  Environmental  public Health Act and Regulation

(2)  Road Traffic Rules.

(3)  Destruction of public property

(4)  Embezzlement of public funds

(5)  Financial or Banking Related offence

 

  1. 8.      Imposition of additional Conditions

(1)Where the court releases an accused on bail the court may if it thinks it necessary, impose additional conditions on the accused and where such additional conditions are imposed the court may take them into consideration in determining the appropriate bail quantum.

(2) Any condition imposed under this guideline must be such that the accused and the surety are in a position to comply with and of such nature as to be easily enforceable.

(3) A court may under this guideline impose all or any of the following conditions:

(i)                      That the accused should refrain from attending such premises or other place as the court may specify;

(ii)                    That the accused should not approach or communicate with the victim and/or other witnesses whilst released on bail;

(iii)                   (in case involving domestic violence) that the accused voluntarily leaves the matrimonial home and takes up residence elsewhere i.e. to reside or remain in a particular place or state to prevent interference with the family;

(iv)                   That the accused reports routinely (e.g. daily/weekly) to the nearest police station at specified intervals to ensure that he/she remains within the jurisdiction;

(v)                   That the accused surrenders all travel documents forthwith to the investigating officer;

(vi)                   Where the accused was granted permission to leave the jurisdiction, that he reports to the investigating officer (IO) upon his arrival within the jurisdiction and surrenders to the IO his international passport and /or other travel documents;

(vii)            That the accused furnishes a signed promise by trustworthy persons or an organization that they would ensure his proper conduct and appearance in court.

 

(4)  Where the accused breaches any condition in a bail bond the court may revoke bail and order that the accused be remanded pending trial.

(5)  Bail may also be revoked if the accused is charged for a fresh offence while on bail for an earlier offence.

 

  1. 9.      Application by an accused to leave jurisdiction

(1)  As a general rule an accused should not travel out of the country whilst he is on bail unless he has sought and obtained the court’s permission to do so.

(2)  An application for leave to travel out of jurisdiction can be made:

  1.  before the trial,
  2. at adjournments during the trial, and
  3. after conviction of the accused.

(3)  In determining whether to grant an application to leave jurisdiction, the court must ascertain from the surety whether there is any objection to the application.   If the existing surety objects to the application, the accused should find a new surety who is prepared to consent to the application and who will undertake the original bail as well as any additional bail imposed.

(4)  Where an application is made before or during the trial, the court should subject to the surety’s consent under paragraph (3) of this guideline being obtained, consider the following factors in determining the application or in assessing an appropriate amount of bail to secure the attendance of the accused, namely:

(a)   Whether the accused is a foreigner;

(b)  Whether the accused is gainfully employed and is either working or has business interests outside the jurisdiction; if so, the court may require the production of documents to substantiate the type of business, course, conference etc. Requiring the accused’s attendance and ascertain the length of time required for the accused to remain outside jurisdiction (e.g. return air-tickets, visa etc);

(c)   Whether the accused has family, property and business interests within the jurisdiction that ought to deter him from absconding;

(d)  Whether the accused has made full or substantial restitution in respect of the offence/s charged;

(e)   The seriousness of the charges against the accused;

(f)    Whether there is a likelihood of the prosecution amending the charges to lesser ones;

(g)   Whether there is a valid defence to the charges;

(h)  Whether the case is still under investigation;

(i)    The possibility of interfering with prosecution witness who may reside overseas or with documentary evidence that may be located overseas;

(j)    Whether the accused is required to keep to a curfew, remain at a particular place or required to undergo regular urine tests at a particular police station or legally recognized detention centre on specified dates;

(k)   Whether the accused will be posting additional bail as added security to cover the period of the trip;

  1. Bail      pending Appeal

(1)  An accused after his conviction at trial, may appeal against the conviction on ground of fact or law. He may also appeal against the sentence. An accused who has pleaded guilty may only appeal against sentence imposed on grounds that it is manifestly excessive.

(2)  Once an appeal is filed, the accused (the appellant) may apply for bail pending appeal. The High Court or Magistrate’s Court that recorded the conviction shall normally hear the application for bail. On receipt of such an application from the appellant’s solicitor in writing, a hearing date to deal with the application will be set down.

(3)  In the exercise of its discretion to grant bail pending appeal, the court should consider the following:

a)     The gravity of the offence;

b)     Whether the length of the term of imprisonment is shorter than the length of time before which the appeal is likely to be heard;

c)     Whether the accused is a first offender or has previous convictions;

d)     Whether there are difficult point of law involved;

e)     The possibility of the accused repeating similar or other offences whilst on bail pending appeal; and

f)      Whether the security imposed will ensure the attendance of the accused before the appellate court.

(4)  Where the applicant for bail pending appeal is dissatisfied with a decision by a court to disallow bail or where the applicant objects to the amount of bail as being excessive he may apply to a higher court next in hierarchy for a revision of the order or the bail amount set.