Definition of Bail
The undertaking that an accused person will come back for investigations or trial made by him and his sureties is called bail. The Ghanaian Supreme Court, defined bail as “the process whereby the liberty of an accused person in custody is secured pending further investigations into the crime he is accused of or his trial for the offence with which he is charged”. {Republic vs Registrar of High Court; ex parte Attorney-General [1982-1983] GLR 407, at 411}.
Bail may be granted on a guarantee given by another person who, by standing surety, agrees to assume responsibility for the accused person’s appearance in court. Bail may even be granted on the accused’s own promise to be available for trial or other lawful process.
Bail may be granted before trial, during trial {Fynn vs The Republic [1971]; Owusu vs State [1967] and upon conviction pending an appeal {Republic vs Registrar of High Court Supra}.
Bail in law refers to the release of a person from custody while they await trial of court proceedings. It involves the temporary surrender of an Accused Person’s freedom in exchange for certain conditions such as the court may deem fit. Some of these conditions include the accused person providing a surety and in some cases self-recognizance.
The grant of bail usually depends on the nature of the offense, flight risk, and the Accused Person’s criminal history.
Pursuant to Kpebu Vrs Attorney General (J1 13 of 2015) [2016] GHASC 15 (5 May 2016), Attorney General (2016) declared the provisions in Section 96(7) of COOPA (Act 30) as contravening articles 15(2) and 19(2)(c) of the Constitution 1992 and is therefore null and void and of no effect. Thus, the ruling made all offences bailable. Does Every Accused Person Get Bail? The granting of bail is discretionary.
Discretion of the Court in Granting Bail
The grant of bail is still at the discretion of the court.
This discretion is goaded by a balancing of certain conditions:
· accused may not appear to stand trial 96(5)(a);
· accused may interfere with witness or evidence or hamper investigations 96(5)(b);
· accused may commit another crime while on bail 96(5)(c); or
· the accused committed another punishable offence while on bail 96(5)(d).
Section 96(6) of Act 30 provides guidelines in determining the likelihood of an accused absconding if granted bail: nature of the crime; nature of the evidence; severity of the punishment if convicted; accused’s prior bail conduct; accused’s fixed place of abode; accused’s employment; and independent, wealthy surety of good character.
Conclusion
Bail terms shall not be excessive. Under Section 96(3) of Act 30, the terms of bail shall be determined having regard to the circumstances of each case. And under Section 96(4) of Act 30, a court must not withhold or withdraw bail to punish an accused. But ultimately, in granting or refusing bail, the fundamental matter is whether the accused will appear to stand trial.
Section 96(7) of Act 30 prohibited the grant of bail in murder, subversion, treason, robbery, hijacking, piracy, rape, defilement and escape from lawful custody.
And in the fourth case, Kpebu (No. 4) vs Attorney General, the valedictory judgement of former Chief Justice Sophia A. B. Akuffo, given on December 18, 2019, the Supreme Court held that the 48 hours rule mandating the police to put a detained accused before court or release him included weekends and public holidays.
Source: Aubrey Aidoo Esq
