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Bail Application- Your Rights And Perils

Featured- Kwaw Kesse- Bail Application: Your Rights and PerilsBail Application- Your Rights And Perils

…Research, Information & Advocacy-- The Changing Boundaries of State Policing- Justice and Fair Trial begin with the Police- A Comparative Study of the Rights of The Victim, the Accused and the general Rules/Principles governing Bail Application & Process in Ghana and the United Kingdom


In the UK, the Bail Act 1976 instructs courts to start with the presumption that an accused should be granted bail, unless there is a justified reason to refuse it. In deciding whether or not to grant bail, the court will among others consider the nature and seriousness of the crime; the character of the defendant, his past criminal record, associations and ties with the community; the defendant’s recorded previous in regard to his/her commitments to bail conditions; and the strength of the evidence against the defendant. If the police or a judge, wish to refuse a suspect a bail, the said custody officer, the judge or the prosecution ought to show why the accused could not be credited favourably, with any of the bailable conditions above. Under the Code for Crown Prosecutors, the Threshold Test may only be applied where the prosecutor is satisfied that all the following four requirements are met: *there is insufficient evidence currently available to apply the evidential stage of the Full Code Test, and *there are reasonable grounds for believing that further evidence will become available within a reasonable period, and *the seriousness or the circumstances of the case justifies the making of an immediate charging decision, and* there are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and, in all the circumstances of the case, an application to withhold bail may be properly made [1].


The Ghana’s Criminal Procedure Code, 1960 (Act 30) describes at its Section 3 how arrest ought to be made- stating that “in making an arrest the police officer or other person making the same shall actually touch or confine the person to be arrested, unless there be a submission to the custody by word or action.” The Section 8(2) of the Act 30 adds that “Whenever the person arrested can be legally admitted to bail and bail is furnished, he shall not be unless there are reasonable grounds for believing that he has about his person, any- (a) stolen articles; or (b) instrument of violence; or (c) tools connected with the kind of offence which he is alleged to have committed; or (d) other articles which may furnish evidence against him in regard to the offence which he is have committed.” Whatever might be the reasons for our arrest and detention, the Prosecution’s crucial interests, as stated above, had been arguably, to allow evidence to be gathered; to thwart the unpredictable suspect from further crime or bolting away. Yet bail application at the courts had arguably, travelled not more than 5-15 minutes. So what could be the issue in securing prompt release of suspects in Ghana if no such inherent threats exist?

In the UK the criminal justice and public order Act 1994, gave the police power to impose conditions on granting bail. The types of conditions that may be imposed include: suspect has to surrender his passport; report to the police station at regular intervals set by the custody officer; and have another person stand as surety for his surrender These conditions are, per inbrief.co.uk [2], imposed to ensure that the defendant follows the conditions of his bail, does not commit another offence whilst on bail and does not interfere with any witnesses during his release. “If the custody officer decides to refuse bail, then the defendant must be taken in front of the magistrate court at the first possible opportunity. If the magistrates' court cannot deal with the whole case at first instance, then the court will decide upon the granting of bail until the trial date in which they will set. If a defendant is charged with an offence that is not punishable with a prison sentence, then bail can only be refused if [he] has failed to surrender to bail in the past and there are grounds for reasonably believing the defendant is likely to do the same again.”

From legal standpoint, it could be argued that the doctrine of rule of law, human rights and justice, kick in our favour the moment the police intends to arrest and detain us for a suspected crime. In Ghana, the Chapter Five 1992 Constitution- which deals with Fundamental Human Rights and Freedoms- envisaged this in Articles 12; 13; 14 and 15. The Article 12(1) states that “The fundamental human rights and freedoms enshrined in this chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies and, where applicable to them, by all natural and legal persons in Ghana, and shall be enforceable by the Courts as provided for in this Constitution.” The Clause (2) of this article provides with the emphasis that “Every person [rich/poor] in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to the fundamental human rights and freedoms of the individual contained in this Chapter[five] but subject to respect for the rights and freedoms of others and for the public interest.”

Perhaps, the cross-reference to this is Article 13 which states: “(1) No person shall be deprived of his life intentionally [and indeed civil liberties- freedom of movement] except in the exercise of the execution of a sentence of a court in respect of a criminal offence under the laws of Ghana of which he has been convicted. (2) A person shall not be held to have deprived another person of his life in contravention of clause (1) of this article if that other person dies as the result of a lawful act of war or if that other person dies as the result of the use of force to such an extent as is reasonably justifiable in the particular circumstances.- (a) for the defence of any person from violence or for the defence of property; or (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or (c) for the purposes of suppressing a riot, insurrection or mutiny; or (d) in order to prevent the commission of a crime by that person.” In the United Kingdom, the general principles relating to arrest, and where applicable detention and prosecution, are that Prosecutors may only start a prosecution if a case satisfies the test set out in the Code for Crown Prosecutors. This test, per the DPP, has two stages set out below:

The first is the requirement of evidential sufficiency and the second involves consideration of the public interest. According to DPP, as far as the evidential stage is concerned, a prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. The interpretation given to this is that an objective, impartial and reasonable jury (or bench of magistrates or judge sitting alone), properly directed and acting in accordance with the law, is more likely than not to convict. This is an objective test based upon the prosecutor’s assessment of the evidence (including any information that s/he has about the defence). A case which does not pass the evidential stage shall not proceed, no matter how serious or sensitive it may be. According to DPP, it has never been the rule that a prosecution will automatically take place once the evidential stage is satisfied. “In every case where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest. Every case must be considered on its own individual facts and merits… prosecutors should only decide whether to prosecute after the investigation has been completed. [3]

However, it is said that there will be cases where it is clear, prior to the collection and consideration of all the likely evidence, that the public interest does not require a prosecution. In these cases, prosecutors may, according to DPP, decide that the case should not proceed further. The futility in this is to ensure that individual’s personal liberty is cherished and respected. In Ghana Article 14 of the Constitution states that “(1) Every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law –

(a) in execution of a sentence or order of a court in respect of a criminal offence of which he has been convicted; or (b) in execution of an order of a court punishing him for contempt of court; or (c) for the purpose of bringing him before a court in execution of an order of a court; or (d) in the case of a person suffering from an infectious or contagious disease, a person of unsound mind, a person addicted to drugs or alcohol or a vagrant, for the purpose of his care or treatment or the protection of the community; or (e) for the purpose of the education or welfare of a person who has not attained the age of eighteen years; or (f) for the purpose of preventing the unlawful entry of that person into Ghana, or of effecting the expulsion, extradition or other lawful removal of that person from Ghana or for the purpose of restricting that person while he is being lawfully conveyed through Ghana in the course of his extradition or removal from one country to another; or (g) upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana.

What might be of interest here are set out as follows: Art 14- “(2) A person who is arrested, restricted or detained shall be informed immediately, in a language that he understands, of the reasons for his arrest, restriction or detention and of his right to a lawyer of his choice. (3) A person who is arrested, restricted or detained - (a) for the purpose of bringing him before a court in execution of an order of a court; or (b) upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana, and who is not released, shall be brought before a court within forty-eight hours after the arrest, restriction or detention. (4) Where a person arrested, restricted or detained under paragraph (a) or (b) of clause (3) of this article is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released wither unconditionally or upon reasonable conditions, including in particular, conditions reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial. (5) A person who is unlawfully arrested, restricted or detained by any other person shall be entitled to compensation from that other person.”

The relevance of clauses 2-5 of the Article 14 imposes a duty on the arresting and/or prosecution officers in their decisions/judgments to arrest, detain or to prosecute. And our rights and perils begin on the hour of our detention. Art 14(6) states that: “Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he has spent in lawful custody in respect of that offence before the completion of his trial shall be taken into account in imposing the term of imprisonment.” The clause (7) explains that “Where a person who has served the whole or a part of his sentence is acquitted on a appeal by a court, other than the Supreme Court, the court may certify to the Supreme Court that the person ac quitted be paid compensation; and the Supreme Court may, upon examination of all the facts and the certificate of the court concerned, award such compensation as it may think fit; or, where the acquittal is by the Supreme Court, it may order compensation to be paid to the person acquitted.”

For example, Art 15(1) states: “the dignity of all persons shall be inviolable [that] (2) No person shall, whether or not he is arrested, restricted or retained, be subjected to - (a) torture or other cruel, inhuman or degrading treatment or punishment; (b) any other condition that detracts or is likely to detract from his dignity and worth as a human being. (3) A person who has not been convicted of a criminal offence shall not be treated as a convicted person and shall be kept separately from convicted persons.” In the UK, the process of arrest and detention is regulated by the following laws: Bail Act 1976 (The Act); Bail (Amendment) Act 1993 (The BAA); Magistrates' Court Act 1980; Magistrates' Court Rules 1981; Supreme Court Act 1981; Rules of the Supreme Court; Criminal Procedure Rules 2005; Police and Criminal Evidence Act 1984; (PACE) and the Consolidated Criminal Practice Direction as amended. [4]


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It is perhaps, worth noting that a suspect even with blooded hands and machete could not be a criminal until the law found him/her to be one- there could be more to his/her obvious crime- for example, insanity and lack of the required intention for the said suspected crime. So, a suspect must be treated with every dignity s/he is entitled to under the law- both on arrest and at the police station. The presumption that we are not guilty until the courts find us so means that we can be released on bail at any point from the moment s/he had been arrested even if we have voluntarily conceded to a crime. A bail may be given in the police station after interview or the court after the preliminary hearing. But it is at the discretion of the authorities in charge. If we are awarded bail we are at liberty or have freedom until the next part of the hearing. Thus the police in charge may decide that it is in our best interest to be [or not be] released on bail whilst they go ahead with their probing about the matter we are involved.

When this happens, we might usually be asked to return to the police station in question at a certain date or possibly if a preliminary hearing has been slated before bail has been granted, then as a defendant, we will be given the court date with the condition placed on the bail that we must attend court for the hearing. As said, this decision to grant bail is at the bosom of the custody officer. S/he may refuse bail if: the defendant’s name and address cannot be obtained or; there are doubts about the personal details given to the police. If we are released on bail on condition but fail to either return to the police station at a specified time, or turn up to court on the given date, then the police has the power to order for our arrest for breaching bail conditions. We could be granted a conditional bail by the court and/or the police on the basis of a surety. A surety is where another person who is prepared to promise to pay the court a certain sum of money on our behalf should we breach any of our bail terms- eg. failing to attend court. The promise to pay the money is called a recognisance, and no money has to be paid unless we breach bail. If any one of us, as a defendant, abides by his/her conditions then no money has to be paid.

But it must be told that it is illegal for any police officer or authority, to demand money from us before we are granted bail. In UK, Article 5(1) of the Human Rights Act 1996 provides that “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so..” Article 6(2) of the European Convention on Human Rights (ECHR) provides that "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. “ Admittedly, the Anti Terrorism, Crime and Security Act 2001, puts some bar on the right to bail on foreign nationals arrested on suspicion of some kind of terrorist offence.Then are offences related to Rape; Attempted Rape; Murder; Attempted Murder and adult offenders who have tested positive for class A drugs in their system where for example: s/he is either charged with possession or intent to supply a class A drug, which are not within the scope of these discussions. [2]

The granting of bail is a crucial pre-trial matter to be decided by the police/courts whether we should be allowed back into the public whilst awaiting trial or shall be remanded in custody until the trial date. Even though our hands may be tainted with blood and machete or a known offender (ex-convict) that could not summarily mean that we are criminals. No authority has the legal right to coerce/torture you in submission- physically or mentally, to adduce evidence for his/her case. Accordingly, prudent legal practitioners had from the word go, strove to punch holes into for example, how the police had treated their clients upon arrest or while under their custody. For example, emphasis is put on your health status - if you were to be on medication and the police had refused to abide by what it ought to have done or documented on the custody records- then the lawyer, could hang/pitch his/her future case on them.


On arrest we should always have the right to legal advice, to have someone of our choice informed about our detention and not least, the right to remain silent to police questioning- but this comes with inference and at our perils. But even if where you have a starring previous, can’t your prudent counsel persuade the court to ‘take into account (TIC)’ your reformed state of person- positive community ties, stable employment, education & training engagements, not forgetting your family circumstances such as a breadwinner or carer of an ageing and ailing vulnerable parents, friend or relative, to rebut the prosecution’s quest to keep you in cell/remand? A good criminal justice system had always struck for the fairness and reasonable balance. In Ghana, Ewuraekua had told that in a busy cell like that of Airport Police Station, at times the officer in-charge of a case had to feed the suspect because he doesn’t know anybody to bring him food. Our thesis is: how are the inmates of the police cells across the country, being fed?

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Researched and Compiled By Asante Fordjour for the ShelterGhana Project @ JusticeGhana Group.



[1] Bail, Prosecution Policy and Guidance, http://www.cps.gov.uk/legal/a_to_c/bail/, date accessed, 09 January 2015

[2] “How do the courts decide whether or not to grant bail?”, http://www.inbrief.co.uk/court-proceedings/bail.htm, date accessed, 09 January 2015

[3]The Director of Public Prosecutions(13 September 2012) “Guidelines for prosecutors on assessing the public interest in cases affecting the media”, http://www.cps.gov.uk/legal/d_to_g/guidance_for_prosecutors_on_assessing_the_public_interest_in_cases_affecting_the_media_/, date accessed, 20 August 2015

[4] Plowden, Philip(2008-2009)(Practical Text Series) “Criminal Litigation in Practice), North Humbria Law Press



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