Types of Bail: Police Enquiry Bail

Introduction:

This note will discuss the meaning of a police enquiry bail, its basis, the factors that affect the conditions of the bail, and highlight the fact that the grant of a police enquiry bail is without prejudice to subsequent proceedings.

Meaning of Police Enquiry Bail:

This is bail granted by the police in the course of investigations. When a person is suspected of committing a crime or about to commit a crime, he may be arrested by the police. While the police are investigating the person, they may release him from their custody on a police enquiry bail.

Basis for Police Enquiry Bail:

Article 14(3) of the 1992 Constitution and Section 15 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) contain the basis for the grant of a police enquiry bail.

In Article 14(3), it is provided that a person who is arrested upon reasonable suspicion of having committed a crime or about to commit a crime, must be brought before court within forty-eight hours after his arrest. The courts have held that a person who is not brought before the court within this period must be released. In Kpebu (No. 3) v. Attorney General [2019] GHASC 90 (18 December 2019), where the Supreme Court, speaking through Sophia Akuffo C.J., said:

It is essential that every unit of the Police Service of Ghana become aware of the need to comply with the spirit of article 14(3)(b), which empowers the police to release an arrested person. Our understanding of this is that, having arrested a person, there is nothing that compels the police to hold on to that person, and certainly is there is no possibility of that person being brought before a court within the 48 hours, he/she ought to be released.

In the case of Harry Katamani v. Executive Director Nacob & Attorney General, Suit No: HR/052/2019 , dated 19 December 2019 (Unreported), Gifty Adjei Addo advanced that:

The plain and clear meaning from Article 14(3) of the 1992 Constitution referred to above is that where a person, like the Applicant herein, is arrested, restricted or detained upon being suspected of having committed or being about to commit a criminal offence under the laws of Ghana and is not released, he must be brought before a court within 48 hours of his arrest, restriction or detention. In other words, where for any reason, the Respondents will be unable to produce the Applicant before a court within 48 hours of his arrest and detention, he ought to be released. Most often, such release is anchored on a police enquiry bail. There will thus be no justification whatsoever for the Applicant to be in continuous detention and not be admitted to a police enquiry bail, nor brought before any court. The Respondents admit that the Applicant was not produced before a court within forty eight hours of his arrest. However, the Respondents seek to justify the non-production of the Applicant herein before a court within the constitutional time frame on the grounds aforementioned, which unfortunately, I find to be of no moment.

This was cited with approval in the case of Lawrence Acquah And 4 Ors v. Inspector General of Police and 4 Ors [2023] DLHC16077.

In addition to the constitutional provision, Section 15 of Act 30 provides that:

(1) A person taken into custody without a warrant in connection with any offence shall be released from custody not later than forty-eight hours after his arrest unless he is earlier brought before a court of competent jurisdiction. [As amended by the Criminal Procedure Code (Amendment) Act, 2002 (Act 633), s. (2) (a)].

(2) A person so taken into custody [thus without warrant] may at any time whether before or after the expiration of the said period [48 hours] be required to enter into a bond with or without sureties for a reasonable amount to appear before such court or at such police station or place and at such time as may be stated in the bond. [so he is released, but undertakes to appear before court or at the police station, or anywhere he is needed].

(3) Any such bond may be enforced as if it were a bond executed by order of a court and conditioned for the appearance of the said person before a court.

Summarily, if a person is arrested and is not brought before the court within forty-eight hours, where the court may order that he be kept in custody, he is to be released. The release is often done while the police continue with their investigations.

Factors Affecting the Conditions of the Bail:

In Section 15(2), it is provided that the person given bail (principal party) may be required to enter into a bond. The bond, also known as the bail bond, is a written agreement stating the terms under which bail is granted, including the obligations of the accused and the sureties. These obligations may include periodic reporting to the police, surrendering travel documents, or other conditions imposed by the court.

Section 96(3) provides that in setting the conditions of the bail bond, “the amount and conditions of bail shall be fixed with due regard to the circumstances of the case and shall not be excessive or harsh.” Among others, the police may set the following conditions:

i. Conditions to prevent or reduce the likelihood of a suspect leaving the jurisdiction during investigations.

ii. Conditions to ensure that the suspect does not interfere with witnesses or tamper with evidence.

iii. Conditions requiring the suspect to report periodically to a police station or other designated authority.

Subsequent Proceedings After Police Enquiry Bail:

The release of a person on a police enquiry bail is without prejudice to subsequent proceedings that may be instituted against him. This is expressly stated in Article 14(4) of the Constitution . See the note on Institution of Criminal Proceedings through a Warrant or Summons .