INDUCTION COURSE FOR RESIDENT MAGISTRATES HELD AT NKOPOLA LODGE, MANGOCHI FROM MARCH 18 24, 2007 BAIL I think that the starting point in this presentation should be to answer the question, what is `bail'? According to "Collins English Dictionary" Bail is "a sum of money by which a person is bound to take responsibility for the appearance in Court of another person or himself, forfeited if the person fails to appear". Also "the person or persons so binding themselves; surety". Also - "the system permitting release of a person from custody where such security has been taken". Thus we talk of a person released on bail. "Jump Bail" or formally "FORFEIT BAIL" are the terms used when a person fails to appear in Court to answer to a charge "STAND" Or "GO BAIL" are the terms used to mean to act as surety (for someone). We see from the foregoing that bail is a condition of pretrial release from custody, normally set by a court at the initial appearance. The purpose of it is to ensure the return of the accused at subsequent proceedings. If the accused is unable to make bail, or otherwise unable to be released on his own or her own recognizance, he/she is detained in custody. BAIL BOND This is a three-party contract, so to speak, which involves the State, accused and surety. The surety guarantees the State the accused will appear whenever required to do so. This can also be a two-party contract when the accused is able to be released on his/her own recognizance. In both cases, the undertaking is that the accused will appear in a designated criminal proceedings when his/her attendance is required and otherwise render himself/ herself amenable to the orders and processes of the court. Commonly, BAIL BOND can either be cash or unsecured. CASH BAIL BOND, as the term suggest, a sum of money is deposited with a court or other authorized public officer upon condition that such money will be forfeited if the accused does not comply with the directions of the court requiring him to attend court and does not otherwise render himself/herself amenable to the orders or processes of the court. "Unsecured Bail Bond", this is a bond for which the accused is fully liable upon failure to appear in court when ordered to do so or upon breach of a material condition of his/her release but which is not secured by any deposit of or lien upon property - This will usually be the case where bail has been on ones own recognizance. THE LAW Bail. `is a right under the Constitution of the Republic of Malawi - See s. 42 (2) (e) and (fl (i) which provides: "42 (2) Every person arrested for, or accused of, the alleged commission of an offence shall, in addition to the rights which he or she has as a detained person, have the right - (e) : to be released from detention, with or without bail unless the interests of justice require otherwise. (fl as an accused person, to a fair trial, which shall include' the right (i) to public trial before an independent and impartial Court of law within a reasonable time after having been charged. A magistrate will be guided by s 118 of the Criminal Procedure and Evidence Code which, in the relevant part provides "118 (1) When any person other than a person accused of an offence punishable with death is arrested or detained without warrant by a police officer, or appears or is brought before a court, and is prepared at any time while in the custody of such police officer or at any stage of the proceedings before such court to give bail, such person may be released on bail by such police officer or such court, as the case may be, on a bond, with or without sureties: Provided that when a person accused of the offence of rape contrary to s. 132 of the Penal Code is brought before a court, such person may be released on bail by such court on a bond with or without sureties". The law requires that the amount of bail shall be fixed with due regard to the circumstances of the case and shall not be excessive. This is to say that the amount of bail shall not be used deny liberty. The High Court has power to reduce or vary any such amount. A magistrate, other than that of 3rd Grade, may direct that the amount of, or any condition attached to, any bail required by a subordinate court or police be reduced or varied. It is also important to bear in mind that an application for bail may not be entertained by the High Court unless it will first have been refused by a subordinate court in which the proceedings are pending. BOND (Practice) Before any person is released on bail under s. 118, a bond for a certain sum shall be executed by such person and/or sureties containing conditions, as appropriate, or as the case may be. CASE EXAMPLES In the case of Wiseman Walazi and Another -VsRepublic, MSC App. No. 67 of 1996 (unreported) the High Court said this: "It has been said in earlier decisions that this court has the discretion to direct the release of any person who is in custody for any offence. The discretion, however, is exercised judicially and according to the seriousness of the case". The offence in that case was one of murder. And it is rare that a suspect of murder will be released on bail except in exceptional circumstances. The court was of the opinion that 31/2 years of awaiting trial coupled with uncertainty as to when the prisoner could be tried, constituted exceptional circumstances. The decision was based on the constitutional provision that an accused shall be entitled to trial "within a reasonable time". The Court was of the same view in the later case of Jackson M6eto -Vs- the Republic, MSC App. No. 20 of 1998 (unreported). CONCLUSION Bail is by and large a matter of discretion by the court which should be exercised judicially and not left to the caprice of each individual magistrate. This calls for reasons for the decision. It should always be remembered that the primary purpose of bail is to ensure that the accused person attends court whenever required, and to avoid punishment ahead of conviction. JUSTICE I. J. MTAMBO, SC, JA.
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