Introduction
The Hon. Chief Justice, Umu Hawa Tejan-Jalloh, on Friday 2nd October this year launched the long-awaited “Bail Policy” at a well attended ceremony which comprised major stakeholders in the justice sector at the High Court No.1 at the Law Courts in Freetown. This document, “The Bail Policy”, came about as a result of the hard work by the Bail Committee that was established pursuant to the consensus adopted at the Judicial Oriental and Refreshers Workshop held at the Kimbima Hotel in 2007 by the former Chief Justice, Hon. Dr. Ade Renner-Thomas, with specific reference: “To look into all aspects of the grant and processing of bail in Magistrate’s Court and High Court respectively… and submit recommendations to be embodied into a policy,” with the Hon. Justice ME Tolla-Thompson as Chairman[i].
This outcome, “The Bail Policy,” has been a step in the right direction especially as it relates to upholding the rights of accused persons and has therefore been applauded in many quarters especially amongst Human Rights Organisations who continue to advocate unflinchingly for holistic reforms in every facet of the judiciary.
The “Bail Policy” reiterates in many respects the provisions under the title: “Admission to Bail” as provided for in the Criminal Procedure Act of 1965. As an addition, it introduces good practices by playing the balancing act of making the country safer whilst at the same time guaranteeing the rights of persons suspected of being in conflict with the law as provided for in our legislations and other international instruments. This judicial masterstroke will be a cornerstone in helping the judiciary achieve its vision: “quality and accessible justice for all”. This piece aims at doing no more than examining the major issues addressed in the bail policy, and where necessary draw attention to certain areas of concern. It will start by looking at bail as a right; what has been the general practice by the courts in relation to the granting and processing of bail; some of the issues addressed in the Policy itself, and a conclusion.
Bail is a Right!
Bail, according to Black’s Law Dictionary 7th Edition, is to obtain the release of (oneself or another) by providing security for future appearance. Also, it refers to a security such as cash or a bond; especially security required by a court for the release of a prisoner who must appear at a future time. The Criminal Procedure Act (CPA) of 1965 and the International Covenant on Civil and Political Right (ICCPR) in Sec. 79 and Article 9(3) respectively guarantee the right to bail of accused persons in line with the principles of fair trial. In fact, it is a constitutional right in most jurisdictions and as such, Judges must explain why that right needs to be derogated in the particular circumstances of the case. However, important to point out is that although bail is a right, in certain cases, to be granted or refused bail is a matter of judicial discretion to be exercised judiciously taking constitutional, statutory provisions and all surrounding circumstances into consideration.[ii] For instance, a Judge in granting bail under Sec. 79(2) of the CPA should take into consideration the nature of the offence, gravity of the punishment, the possibility of the accused turning up to take his trial, and the possibility of the accused interfering with witnesses[iii]. Generally, however, bail is imperative for minor offences unless the Judge “sees good reason to the contrary”.[iv]
Bail Practice in Courts
The practice of granting and processing of bail has been marred by inconsistencies and in some instances bureaucratic bottlenecks invariably leaving the accused at the mercy of the court. Although an established principle is that every case on its own merit, many a time, accused persons with similar criminal records, facing similar charges in different courts, have been given different bail conditions; in fact some have been granted bail whilst others have not, the majority for unexplained reasons for the significant difference. In some cases, bail conditions are unreasonably too cumbersome to be satisfied by the average accused person thus making it more or less a privilege and not a right. Where they are satisfied, getting the authorities to effect it is another challenge. There are instances where accused whose bail applications have been granted are taken back to prison because their bail bonds have not been processed accordingly. In order for such to be processed in time, some accused persons resort to use of personal contacts with the officers responsible. Also, Magistrates are seldom predisposed to give guidelines for self bail to the accused even when the alleged crime is a misdemeanour thus adding to the growing number of remand prisoners with its attendant effects.
Moreover, some Magistrates are usually not enthusiastic in the effective use of sec. 79 of the CPA especially in felonious matters. As such, they are more likely to grant the prosecution’s objection to bail than upholding the defence’s bail application. This is often the case even where there are reasonable grounds for the accused to be admitted to bail; and the defence has advance strong arguments for such admittance. In the “Poachers’ Case” for instance, several bail applications have been refused with the prosecution’s objection primarily based on the fact that the accused persons are non-nationals and therefore have the tendency to jump bail. Such a counter argument is some how deficient in substance as Sec 15 of the Constitution of Sierra Leone guarantees the human rights and freedoms of the individual irrespective of place of origin amongst others. Furthermore, some use such as a way of punishing the accused even before guilt is determined. Hence, they are less incline to invoke Sec. 113 of the CPA-which deals with remanding of accused persons in custody for not more than eight days during adjournments.
The Bail Policy
The Policy reiterates amongst others that the issue of granting bail is in principle left to the discretion of the Presiding Judge. Nevertheless, one good practice that the bail policy introduces is for the Judicial Officer to provide an explanation where bail is refused. There are primarily two benefits to derive from such practice. One such is that it implicitly encourages the Judicial Officer to make good use of sec 79 of CPA more often than not and that where a contrary intention appears, the Officer should formulate sound reason(s) for such refusal rather than relying on the usual refrain of “Bail application refused; accused to be remanded in custody until the adjourned date”. It also helps the accused to know the reason(s) for his continued incarceration. This will help him to adjudge whether or not he has strong reasons to make an application under Sec 79(5) of the CPA. And where such application is made, the files should be sent to the Judge to know the reason why bail was refused as it will help the said Judge assess whether the Magistrate had good reason(s) for denying bail. If he finds it to the contrary, then bail is granted by the Judge if he thinks fit to do so. This practice is consistent with that in other jurisdictions around the world.
Another important practice introduced by the Policy is that fresh files be dealt with first each day. This will enable bail applications and processing to be done in time. It will help ease the congestion at the lock-up at the Law Courts as those who will be granted bail will be released immediately. Also, the tendency of taking back to the maximum prison of accused who have been granted bail but whose bail documents have not been prepared in time for the close of the day will be greatly reduced. Moreover, the policy also recommends that sureties should no longer be interviewed by Magistrates and where sureties are found after adjournment, accused persons should be admitted to bail. The former will help enhance court productivity as Magistrates used to spend considerable time interviewing sureties; and the latter will help reduce the rigidity that used to govern the issue of bail. Also, self bail will help reduce the burden of scouting for sureties with the relevant requirements as requested by the court.
Furthermore, the recommendation of the Committee which has to do with the setting up of a Special Magistrate’s Court (Bail Court) charged with the specific responsibility of dealing with bail matters on fresh cases is good radiance. Such innovation will help greatly to alleviate congestion, and minimize delays in the Courts as the normal courts will busy themselves only with adjourned cases. In addition, the thought of Magistrates having to grant bail in non bailable offence, eg., murder where the circumstance demands such is key in meeting the justice for all goal.
However, good as the Policy may look; there are certain areas of concern that is worth discussing. Perhaps the most important of all is that which has to do with cash deposit by accused for very serious offences such as economic crimes, as in the discretion of the Judge or Magistrate shall appear appropriate. Such practice gives one the impression that where there is the general presumption of innocence until proved guilty; that the accused is guilty as charged. Also, leaving such to the discretion of Magistrates and Judges is equally so worrisome. Some Judicial Officers will, whether consciously or unconsciously, have the tendency to go over the limit of their authority and unfairly keep the accused in custody for as long as the trial takes. More importantly, it discriminates against indigent accused who may not have the financial means to satisfy this bail requirement. Such practice is likely to undermine the rationale of the Policy as it will, instead of decongesting the prisons, more or less add to the prison population.
Conclusion
The introduction of the Bail Policy in our jurisdiction would not have come at a better time like this especially when prison congestion was gradually becoming a cog in the wheel of justice. We therefore encourage Judicial Officers to make adequate use the Policy by playing the balancing act between the two extremes so as to help decongest prisons whilst at the same time reducing the fear of crime and making society safer. As we look forward to additional guidelines and possibly a Bail Act, we hope that introducing the Bail Policy will help restore public faith in the administration of justice.
[i] The Bail Policy, pp 6
[ii] Ibid, pp 3
[iii] Ibid, pp 11
[iv] Ibid, pp 12
