Bail and remand practice
The exam tests the judicial exercise of discretion: what a court weighs, when bail should be refused, how a remand is lawfully ordered, and how conditions are varied.
The framework
Bail in Ghana is governed by the bail provisions of the Criminal Procedure Act, 1960 (Act 30), now to be read alongside the 2023 abolition of the death penalty for ordinary crimes such as murder, treason, genocide and piracy, which replaced it with life imprisonment. That reform has narrowed, but not eliminated, the category of cases in which bail is treated as practically unavailable. Police enquiry bail operates before charge; court bail operates after charge. Bail is discretionary, not automatic, and the discretion must be exercised judicially and with reasons.
Factors the court weighs
- Nature and gravity of the offence, and the strength of the prosecution case.
- Character and antecedents of the accused, including previous convictions and any record of absconding.
- Ties to the jurisdiction: fixed residence, employment, family, travel documents.
- Ability to provide sureties of sufficient means.
- Risk of interfering with witnesses or evidence.
- Public safety and the prevalence of the offence.
Typical conditions: recognisance, one or more sureties, reporting to police, surrender of travel documents, no contact with witnesses, deposit of title documents.
Refusal and remand
Refusal must be reasoned, not formulaic. Remand is by warrant specifying the period; repeated remand must be justified by reference to the progress of investigations and the accused's right to trial within a reasonable time under Article 19(1). Remand is not a punishment and cannot be used to pressure a plea.
Worked example
Client is charged with robbery where a cutlass was used; the prosecution opposes bail on prevalence and witness interference. Argue: no previous convictions, fixed address, two sureties with verified means, willingness to report weekly, the presumption of innocence, and the delay already incurred. The court may admit on stringent conditions or refuse with reasons. If a Circuit Court refuses, renew the application in the High Court, addressing each reason given in the ruling rather than repeating the original affidavit.
Traps that cost marks
- Telling a client that bail is a right rather than a discretion.
- Failing to address the sureties' means and the reporting conditions in the application.
- Not applying for variation when circumstances change, such as delay by the prosecution.
- Treating police enquiry bail as a bar to a later court bail application.