Accra: In criminal law, bail refers to the temporary release of a person who has been arrested or charged with a criminal offence, on the condition that the person will return to the police or court whenever required. In simple terms, bail is a legal promise by an accused person to appear before the authorities, sometimes backed by money or by other persons who guarantee that promise.
According to Ghana Web, when bail is granted, the accused person usually enters into a bond, also known as a recognisance. A bond is a formal written promise to appear before the court or the police. In some cases, the bond is supported by sureties, who may be liable to pay money if the accused absconds. Bail may be granted with sureties, without sureties, or on self-recognisance, where the accused alone gives the undertaking. The concept of bail is grounded primarily in the constitutional presumption of innocence under Article 19(2)(c) of the 1992 Constitution of Ghana, which provides that every person charged with a criminal offence shall be presumed innocent until proved guilty.
Bail serves as a mechanism to prevent unnecessary detention whilst ensuring that the accused remains available for justice to take its course. This rationale extends, in appropriate cases, even to persons who have been convicted but whose guilt is not yet conclusive, such as where an appeal is pending. As Taylor J affirmed in Okoe v The Republic [1976] 1 GLR 80, adopting the statement of Coleridge J in R v Scaife (1841) 5 JP 406, bail 'is not a question as to the guilt or innocence of the person' but a mechanism 'to ensure the certainty of [the accused's] appearing to take their trial.' His Lordship further endorsed the principle, first stated by Lord Russell of Killowen CJ in R v Rose [1895-1899] All ER Rep 350 and affirmed through section 96(4) of Act 30, that bail 'is not to be withheld as a punishment,' but as a procedural tool to balance personal liberty with the interests of justice.
Under Ghanaian law, the grant or refusal of bail by a court is discretionary and is guided by several statutory and judicially recognised factors. These include the likelihood that the accused may interfere with investigations or witnesses, and the likelihood that the accused may commit further offences whilst on bail. These factors have become common grounds for refusal in many contemporary bail hearings.
The problem arises when these 'likelihood' factors are used without concrete evidence. It is increasingly common for the prosecution to allege that an accused person is 'likely to interfere with investigations' or 'likely to commit further offences' without providing any credible evidence. Regrettably, some courts have accepted these claims without insisting on substantiation, resulting in refusals of bail grounded more in speculation than in proof. This approach runs counter to the constitutional presumption of innocence and to the reasoning in the seminal decision of Okoe v The Republic.
Section 96(5)(b) allows a court to refuse bail if satisfied that the accused 'may interfere with any witness or evidence, or in any way hamper police investigations.' However, its broad wording has sometimes been used as a general reason to oppose bail, even where investigations are largely complete or where no evidence supports the allegation. Justice Taylor criticised this ground as suffering from the same defect as the likelihood of further offences, stating that claims of 'likelihood' must be supported by cogent and compelling evidence, not mere allegations.
Similarly, Section 96(5)(c) requires a court to refuse bail if satisfied that the accused 'may commit a further offence when on bail.' Although intended to protect the public, this ground has often been invoked speculatively and without evidence. Justice Taylor rejected speculative fears of future offending as insufficient to justify pre-trial detention.
It is crucial for courts to directly address these 'likelihood' factors when they are contested in bail proceedings. A failure to evaluate and pronounce upon these issues renders the decision unreasoned and vulnerable to appellate intervention. Justice Taylor's methodical engagement with the bail factors exemplifies the proper judicial approach and underscores the obligation of courts to justify any curtailment of personal liberty with clear and rational reasons.
The grant or refusal of bail is a judicial discretion that must be exercised judicially and not arbitrarily. The factors under section 96 are not intended to support refusals based on unsubstantiated fears. The 'likelihood' of interference or reoffending must be supported by evidence, not speculation. Justice Taylor's reasoning continues to serve as a vital reminder that bail protects liberty, and the judiciary must safeguard this principle against unsubstantiated claims in contemporary bail applications.