Bail


Bail is a set of pre-trial restrictions that are imposed on a person charged with a criminal offence to ensure that they will not hamper the judicial process. Court bail may be offered to secure the conditional release of a defendant with the promise to appear in court when required. In some countries, especially the United States, bail sometimes includes a deposit of money or some form of property to the court by the person charged with an offence in return for the release from pre-trial detention. If the defendant does not return to court, the money is forfeited and the defendant may face additional criminal charges, such as failure to appear. If the defendant makes all their required appearances, the money is returned after the trial is concluded.
In other countries, such as the United Kingdom, bail is more likely to consist of a set of restrictions that the defendant will have to abide by for a set period of time. Under this usage, bail can be given both before and after charge. Bail offered before charge is known as pre-charge or police bail, to secure the defendant's release under investigation.
For minor crimes, a defendant may be summoned to court without the need for bail, or may be released on recognizance following arraignment. For serious crimes, or for defendants who are deemed likely to fail to turn up in court, they may be remanded while awaiting trial. A defendant is given bail in cases where remand is not justified but there is a need to provide an incentive for the defendant to appear in court. Bail amounts may vary depending on the type and severity of crime the defendant is charged with; practices for determining bail amounts vary.

Worldwide

Australia

Bail laws in Australia are similar to the laws of New Zealand and Canada, but are different in each state. Each state holds that there is a prima facie entitlement to bail for most charges upon application by a defendant. However, there is an exception when the charges are especially serious, such as drug trafficking, family violence or murder. In such cases, there is no entitlement to bail, and it must be argued as to what circumstances exist that justify a grant of bail.
In Victoria, bail may be refused to a defendant who faces a more serious charge unless the defendant demonstrates compelling reasons why bail should be granted. Compelling reasons may generally be established by demonstrating that jail is an unlikely outcome for the charge, or that bail conditions can be imposed that make re-offending unlikely. In cases where a defendant is charged with murder, terrorism or offending with a moderately serious charge while on bail, to become eligible for bail the defendant must prove exceptional circumstances. Exceptional circumstances are difficult to demonstrate, but may arise as a consequence of significant delay in a criminal prosecution.

Canada

People charged with a criminal offence in Canada have a constitutional right to reasonable bail unless there is some compelling reason to deny it. These reasons can be related to the accused's likelihood to skip bail, or to public danger resulting from the accused being at large. The accused may be denied bail because the public confidence in the administration of justice may be disturbed by letting the individual go free pending the completion of the trial or passing of sentence. Sureties and deposits can be imposed, but are optional.

Czech Republic


Notable Czech bail cases
  • Radovan Krejčíř
  • * charged with fraud
  • * bail denied, following Krejčíř's complaint bail set at CZK 40 million, then denied by appellate court following state prosecutor's complaint
  • David Rath
  • * charged with accepting bribe
  • * bail set at CZK 14 million
  • Michal Hala
  • * charged with accepting bribe
  • * bail set at CZK 4 million, but denied and returned by appellate court following prosecutor's complaint
  • Randy Blythe
  • * charged with intentionally inflicting bodily harm which resulted in death
  • * bail set at CZK 4 million, then doubled by appellate court following prosecutor's complaint
  • Robert Rosenberg
  • * charged with procuring prostitution, trafficking
  • * bail set at CZK 600,000

Instead of remand, a court in the Czech Republic may decide to accept:
  • a guaranty from a trustworthy person or association
  • a written word of honor from the person charged
  • surveillance by a probation officer
  • bail
Bail can be considered when a charged person is held because of concern of possible escape or of a continuation of criminal activity. Bail cannot be considered where there is a concern of influencing witnesses or otherwise frustrating the proceedings. Bail is also excluded in case of 31 specified serious crimes when the person is held due to concern of continuation of criminal activity. Bail may be posted either by the charged person, or with his or her consent, by a third party, but this only after this third party has received a thorough briefing regarding the charges and reasons for custody and possible grounds for the forfeiture of the bail.
After the bail has been posted, the court must again review the grounds for bail, and must decide either to accept or refuse the bail. When accepting the bail, the court may also require the charged person to stay in the country.
The court may decide to rescind the bail if the charged person
  • escapes, is in hiding or fails to report a change of address and thus frustrates the possibility of delivery of summons or other documents from the court, the prosecution or the police, or
  • is at fault for failing to appear for a proceeding, which may not take part without him or her, or
  • continues criminal activity, or attempts to finish the crime which they had attempted or threatened previously, or
  • is evading execution of imprisonment sentence, court-ordered fine or other court-ordered punishment.
The court holds out on bail as long as the reasons for custody remain, and in case of conviction until the convict starts serving prison sentence, reimburses the criminal proceedings and/or pays court-ordered fine. In case that the court decided also on damages and the aggrieved party asks for it within three months, the bail or its part may be used also to reimburse the damages. Otherwise, the court returns the bail.
Both the prosecutor and the person in custody may challenge any decision on custody by filing a complaint which leads to review by an appellate court.

Denmark

The possibility of posting bail is mentioned in passing in § 71, part 3, of the constitution of Denmark.
The possibility is further established in Retsplejeloven § 765:
However, the practice is rarely used. For example, there were seven instances during the period 1973–1987.

France

In France, bail may be ordered by the examining magistrate or the judge of freedoms and detention within the framework of judicial control in French law. It guarantees:
  • The representation of the indicted person, the accuser or the accused in all the acts of the procedure and for the execution of the judgment, as well as, if necessary, the execution of the other obligations which were imposed on them. This part is restored if the person under examination has presented themselves to all the acts of the procedure, satisfied the obligations of the judicial control and submitted to the execution of the judgment;
  • A payment in the order defined below. This part is returned in the event of dismissal in French criminal proceedings.

    India

Indian law stresses the principles of presumption of innocence. The principle embodies freedom from arbitrary detention and serves as a bulwark against punishment before conviction. More importantly, it prevents the State from successfully employing its vast resources to cause greater damage to an un-convicted accused than he/she can inflict on society. While considering bail applications of the accused, courts are required to balance considerations of personal liberty with public interest. Accordingly, the granting of bail should be the rule rather than the exception. The Supreme Court has laid down in its judgements,
The courts have also held that foreign nationals cannot be deprived of the right to seek bail. The Delhi High Court observed,
The Code of Criminal Procedure, 1973 does not define bail, although the terms bailable offence and non-bailable offence have been defined in section 2 of the Code. A Bailable offence is defined as an offence which is shown as bailable in the First Schedule of the Code or which is made bailable by any other law, and non-bailable offence means any other offence. A person who is arrested for a 'bailable' offence may secure bail at the police station, while those who fail to secure police bail and those arrested for non-bailable offences have to secure bail in court.
Sections 436 to 450 set out the provisions for the grant of bail and bonds in criminal cases. The amount of security that is to be paid by the accused to secure his release has not been mentioned in the code. Thus, it is left to the discretion of the court to put a monetary cap on the bond. The Supreme Court of India has delivered several cases wherein it has reiterated that the basic rule is – bail and not jail. One such instance came in State of Rajasthan, Jaipur v. Balchand alias Baliay which the Supreme Court decided on 20 September 1977, and held that the basic rule is bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court. The bench of Krishnaiyer, V.R. had observed that when considering the question of bail, the gravity of the offence involved and the heinousness of the crime which are likely to induce the petitioner to avoid the course of justice must weigh with the court. Taking into consideration the facts of the case the apex court held that the circumstances and the social milieu do not militate against the petitioner being granted bail.
When a person accused of a crime is arrested, his statement is recorded and information such as the name, residence address, birthplace, charges filed are noted. The police officer may also check back the criminal record if any in the police station and ask for fingerprints to file a case against the accused. Under the Code of Criminal Procedure 1973, offences have been classified as "bailable" and "non-bailable" offences. In the case of bailable offences, if the accused produces proper surety, and fulfils other conditions, it is binding upon the Investigating officer to grant bail. However, in case of a non-bailable offence, the police cannot grant bail; it can only be granted by a judicial magistrate/judge. The Investigating Officer must produce the accused before the judicial magistrate/judge concerned within 24 hours of his arrest. At that time, the accused has a right to apply for bail. Depending upon the facts of the case, the judge decides whether bail should be granted. If bail is granted the accused must deposit money with the court. Generally, for lesser crimes, a standard amount is asked to be deposited for awarding the bail.
There are some conditions put under section 437 of the Cr.P.C. wherein bail can be requested even for a non-bailable offence. In non-bailable cases, bail is not the right of the accused, but the discretion of the judge if regards the case as fit for the grant of bail, it regards imposition of certain conditions as necessary in the circumstances. Section 437 elaborates the conditions set by the law to get bail in non-bailable offences. The sub-section says that when a person accused or suspected of the commission of an offense punishable with imprisonment which may extend to seven years or more or of an offense under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abatement of, or conspiracy or attempt to commit, any such offense, is released on bail under sub-section. However, for that, the Court has the power to impose any condition which it considers necessary. Some conditions that the court may place while granting bail are to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or to ensure that such person shall not commit an offence similar to the offence of which they are accused or of the commission of which they are suspected, or otherwise in the interests of justice.