Understanding bail

What is bail?

Bail is the process by which any person arrested and detained for an offence is released from custody either on the undertaking of a surety or on his own recognizance to appear on a future date.

Bail may also be defined as the temporary release from custody of a person arrested or detained for an offence, with instructions to make an appear on a given day, place, and time to respond to the accusations levelled against him.

In other terms, bail is a process by which a suspect arrested or detained is temporarily released from custody upon satisfying certain conditions or requirements for securing such a release.


What is the purpose of bail?

The core reason for granting bail is that since the law presumes that an accused person is innocent until proven guilty, they should not be deprived of their constitutionally guaranteed liberty except where absolutely necessary. In essence, bail is the general rule and it is given to avoid wrongful detention pending the completion of investigations.

However, the granting of bail to an accused person does not mean unfettered liberty as they still have to face trial at any time, place, date required of them to appear in court.


Who is entitled to bail?

Any person that has been arrested and detained on allegations of committing a crime is entitled to bail. The right to bail is a constitutional right under the following legal frameworks:

  • Section 35(4) of the Nigerian Constitution.
  • Section 158 of the Administration of Criminal Justice Act of 2015.
  • Section 27 of the Police Act.

 However, some crimes are so serious that the right to bail is sometimes restricted depending on the nature of that crime.

It helps to know the following categories of offences defined by the Criminal Procedure Act:

  • A Simple offence is one that is punishable with less than six months imprisonment.
  • A Misdemeanour is any offence punishable with imprisonment of more than six months but less than three years
  • A felony is any offence punishable with a term of imprisonment of three years and above
  • A capital offence in Nigeria is any offence punishable by a sentence of death penalty.

If you are arrested and detained on the allegation of committing a capital offence, bail may not be granted due to the severity of the offence.

For other offences, there is usually a presumption in favour of bail.

In exceptional circumstances however, a suspect charged with an offence punishable with death may be granted bail by a judge of a High Court in Southern Nigeria. (This however does not apply to Northern Nigeria). The decision and power to grant bail in capital offences is the exclusive decision of the High Court.

Lastly, in an application for bail in respect of a capital offence such as murder, where the state opposes bail, the onus is on the accused/applicant to show by credible affidavit evidence that very peculiar and coercive circumstances exist to justify the court in granting the applicant bail.


Are there different kinds of bail?

Yes, there are different kinds of bail depending on what you need to provide to be granted bail.

Bail on self-recognizance

This means that if you prove that you are responsible, prominent or well-known, not motivated to run away, bail can be granted based on these grounds in that it is assumed that such person cannot jump bail.

Bail on undertaking by a surety

In this instance, a surety ( a person) guarantees to provide security (money guarantee) for the release of the accused and promises that the accused will abide by the terms of the bail agreement by appearing in court as required. If the accused person violates these terms, or “jumps bail” then the surety will forfeit the security undertaken for the bail, unless they are able to convince the court as to why they should not.


When can I ask for bail?

Police bail:

A police bail, also known as an administrative bail, may be granted by the police. The police bail only lasts you as long as your matter stays with the police. Once you are before a court, the police bail lapses and you need to make a fresh application for bail in the court.

Rules for police bail:

  1. If you are taken into police custody for an offence that attracts a punishment of less than 3 years imprisonment, you may be released on bail, if you are not brought before a court within 24hrs of your arrest.
  2. Also, you may be released on bail if the police cannot complete their investigations or inquiries on time.
  3. The application for bail can be made by the suspect.
  4. Your release on bail may be subject to conditions of entering into a recognizance with or without sureties to appear at the police station on the date stated in the recognizance. You may also be admitted on bail without these conditions.
  5. Please note that police bail is FREE. You should not pay anything to the police to secure your release.

Court Bail:

There are 2 types of court bail: bail pending trial; and bail pending appeal.

Bail pending trial – this is bail whilst waiting for trial when charged after an arrest. A charge is a formal accusation of an offence made by a government authority (usually the police or state prosecutor) that a person has committed a crime, as a step to prosecution. You can apply for court bail pending the determination of your case.

  • When you are formally charged before a court and you seek bail, the court will take into consideration certain factors.

Bail pending appeal – this is a bail application made after conviction by a trial court. If you have been convicted (found guilty) of an offence, your right to liberty will cease and any subsisting bail will end. As a convict, you are no longer presumed innocent as it has been proven that you are guilty. Thus, it is more unlikely that you will be granted bail pending trial rather than when bail is applied for pending appeal.

  • The burden lies on you to prove special circumstances that the courts deem reasonable enough to grant you bail. This type of bail is at the utmost discretion of the court to grant or refuse.

Government Agency Bail:

You can be granted bail by a government agency, such as the Economic and Financial Crimes Commission (EFCC), the State Security Service (SSS), Independent Corrupt Practices and other Related Offences Commission (ICPC) and so on.

When arrested and detained, you can apply for administrative bail if your offence is not of a serious nature.

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