When is a crime suspect released on bail?

THIS WEEK'S LEGAL BRIEFING: Any law abiding citizen hates crime, and by the same token those who commit crimes. When one hears or reads about criminal activity, especially in one`s neighbourhood,one gets worried.

This is because crime threatens our security, our peace and our property. When we hear someone has been arrested on suspicion of committing an offence, the general feeling in society is that the person should be locked up and the key thrown away.

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The issue which often raises emotive debate is the release, on bail, of a suspected criminal. To the victim of crime and the society, this is wrong. So many theories are advanced and public opinion is overloaded with assumptions ranging form corruption or incompetence on the part of thepoliceand the court system. Granted, this is sometimes true. Certain suspects released from prison when it was either not safe to do so, or in certain instances they ended up disappearing into thin air.

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In reality our law provides for a bail system wherein an awaiting trial suspect can apply to be released on bail until they have been tried in court. The reason the law provides for bail is; there are two competing interests that must be balanced up.

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On hand is the private interest of the suspect (who is presumed innocent until proven guilty), who must not suffer the pain and indignity of pretrial incarceration, especially if he is later acquitted by court. On the other hand is the public interest, where the State, the victim of the crime and the general public want to see perpetrators of crime arrested, tried swiftly, convicted and sentenced in accordance with the severity of their crimes.

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When a suspect appears before a court, he can, on his own or through his lawyer, apply for bail. In considering whether or not to release a suspect on bail, the court is generally guided by the following questions;

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· What chance is there that the accused person will run abscond and not stand his trial?

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· Can the accused compromise the case against him by influencing witnesses or somehow tampering with the evidence?

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· Is the accused likely to commit further offences if released on bail? It is the accused`s duty to show the court that he will not any way jeopardize the proper administration of justice if released on bail. Needless to say, the court will look at each case on it`s merits and exercise it`s discretion diligently.

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If an application for bail succeeds, the court will set the conditions for a suspect`s release. These may include, in most cases, that a sum of money be paid to the Clerk of Court`s office, travel documents and title deeds to a property be surrendered with the court.

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In some cases, the suspect is ordered to report to the nearest police at determined intervals. Yet other suspects can be ordered to move out of a certain neighbourhood or to stop reporting for work.Clearly,these are conditions meant to ensure that a suspect does not abscond or interfere with the case against them.

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In judging the probability of an accused person absconding when released on bail, the courts are guided by any or more of the following;

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· (a)the nature of the charges facing the accused and the severity of the punishment likely to be imposed upon conviction,

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· (b)the apparent strengths and weaknesses of the case against the accused and the merit of the evidence against him,

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· (c)the accused`s ability to flee and reach another country and the absence of extradition facilities from other countries

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· (d)the accused`s previous behavior, and

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· (e)the credibiltyof the accused`s own assurances of his intention and motivation to remain and stand trial.

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In essence, while a suspect is presumed innocent until proven guilt, this presumption weakens if the evidence against him is overwhelming. This leads to the conclusion that conviction is a near certainty. If that is the case, and the crime with which he is charged attracts a very heavy punishment, e.g, death penalty, that increases the likelihood of the suspect fleeing once released. In such cases, courts ordinarily turn down applications for bail.

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Often, the question asked by the public is; what happens to the money or assets deposited with the court as part of bail conditions?

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In answer to that, if an accused person religiously attends court until the date when judgment is pronounced, money or assets paid as bail must be called back, whether he has been convicted or acquitted. If however an accused person absconds without good reason or violates one or other of his bail conditions, the State can apply for the forfeiture of such monies or assets.

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Just like many other features of our judicial system, the bail procedure is often abused, through corruption and incompetence, but it now seems its more of the former than the later.

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We now often hear of dangerous criminals getting bail and committing other more heinous crimes while on bail. This is the result of abuse of court process. Then on one hand you find persons accused of relatively petty crimes languishing in jail while awaiting trial.Again,this is the result of rampant abuse of court process.

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Yes, there are clear guidelines in our law as to when, how and to whom bail can be granted.Yes,as the public, we entrust good judgment upon these matters on our judicial which ideally should be run by competent, qualified and upright officials. But no, it does not always translate into an efficient,honourable and trustworthy judicial system.

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That is why there is always an outcry when the serial rapist, armed robber or murderer in your neighborhood is always released on bail despite the piling number of cases against him.

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That is why we wont understand it when some poor guy rots in remand prison for years for stealing a wet shirt off a washing line! That is why those in my profession say one would do well to consult the nearest lawyer one can find.

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Runyararo Munhuweyi (LLBS) is The Zimbabwe Mail weekly columnist. She provides vital general commentaries and analysis of legal issues affecting us in our daily lives. Runyararo can be contacted at: runyararo.munhuweyi@gmail.com