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3. General Principles

Bail and bond decision-making shall be guided by the following principles, which are derived from international best practices:

(a) The right of accused person to be presumed innocent. Every accused person shall be presumed innocent (Article 50(2) of the Constitution). This is the primary rationale for the requirement of the Constitution that an arrested person has the right to be released on bail or bond. The presumption of innocence dictates that accused persons should be released on bail or bond whenever possible.

The presumption of innocence also means that pretrial detention should not constitute punishment, and the fact that accused persons are not convicts should be reflected in their treatment and management. For example, accused persons should not be subject to the same rules and regulations as convicts. In this respect, the International Covenant on Civil and Political Rights (ICCPR) provides that “accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons.” Further, the ICCPR states that accused children should be separated from adults and brought as speedily as possible for adjudication.

(b) Accused Person’s Right to Liberty. Every accused person has the right to liberty. As a general rule, therefore, every accused person should not be detained, but should be released subject to his/her guarantee to appear for trial. Pretrial detention should therefore be a measure of last resort, and the criminal justice institutions should make every reasonable effort
to avoid pretrial detention.

(c) Accused’s obligation to attend trial. Bail and bond provide guarantees that accused persons will attend trial. They are securities that aim to procure the release of an accused person from legal custody together with an undertaking that he or she will appear for trial.

(d) Right to Reasonable Bail and Bond Terms: Bail or bond amounts and conditions shall be reasonable, given the importance of the right to liberty and the presumption of innocence. This means that bail or bond amounts and conditions shall be no more than is necessary to guarantee the appearance of an accused person for trial. Accordingly, bail or bond amounts should not be excessive, that is, they should not be far greater than is necessary to guarantee that the accused person will appear for his or her trial. Conversely, bail or bond amounts should not be so low that the accused person would be enticed into forfeiting the bail or bond amount and fleeing. Secondly, bail or bond conditions should be appropriate to the offence committed and take into account the personal circumstances of the accused person. In the circumstances, what is reasonable will be determined by reference to the facts and circumstances prevailing in each case.

Since the ultimate goal of bail or bond is to guarantee that an accused person attends his or her trial, it is important to underscore that Article 49(2) of the Constitution does not necessarily mean that all persons accused of committing offences that are punishable by a fine only or by imprisonment for not more than six months are entitled to free bonds or release on personal recognizance. Accordingly, in this context police officers and judicial officers have the power to impose appropriate bail or bond terms when releasing such offenders. Unless they do so, “there is a real probability that many persons who are charged with offences that attract only fines or that attract imprisonment for six months or less,
will not bother to turn up in court for their trials [thereby increasing] the volumes of pending cases in leaps and bounds.”

(e) Bail determination must balance the rights of the accused persons and the interest of justice. On the one hand, police officers and judicial officers should endeavor to preserve the liberty of an accused person, who is presumed to be innocent and should be allowed to keep the fabric of his or her life intact by, for example, maintaining employment and family and community ties. Preserving the liberty of an accused person also permits him or her to take an active part in the planning of his or her defense. On the other hand, the State has a duty to prosecute those who commit crimes, which may entail qualifying the individual right to liberty. The State has a duty to ensure public safety between the time of arrest and trial of accused persons, and a duty to protect the integrity of the criminal justice system. This means that where there is convincing evidence that an accused person may undermine the integrity of the criminal justice system, by, for example, intimidating witnesses or interfering with the evidence, then a need arises to either deny such a person bail or bond, or set stringent bail or bond terms. Equally, where there is convincing evidence that the accused person will endanger a particular individual (for example, victims of the crime) or the public at large, or even commit a serious crime, it also becomes necessary to subject an accused person to pretrial detention. The interests of justice therefore demand the protection of the investigation and prosecution process against probable hindrance by accused persons. It is therefore important for police officers and judicial officers to appreciate that the public have an interest in the effective prosecution of offences.

In appreciating the need to balance the rights of accused persons with the interests of justice, the Constitution states that an accused person can only be denied bail or bond where the court establishes that there are compelling reasons not to be released. That is, while the Constitution stipulates that every accused person is presumptively entitled to bail or bond, it permits the denial of bail or bond where the prosecution presents convincing evidence to justify such denial. In denying an accused person bail or bond, it must therefore be demonstrated with convincing evidence that his or her release will present risks, and that such risks cannot be managed, even with the attachment of appropriate conditions.

(f) Consideration for the rights of victims. Police officers and judicial officers should consider the views of victims before making decisions that affect them. In particular, police officers and judicial officers should consider the safety of victims and victims’ families in fixing the amount of bail and the release conditions for suspects and accused persons. Second, victims should be informed about bail conditions imposed on suspects and accused persons, particularly those designed to protect victims and victims’ families. Third, victims who have so requested should be kept informed about any bail applications made by suspects and accused persons, and the outcomes of such applications.