A client once consulted me on an issue she had, and I asked her if she had lodged a complaint with the police as a preliminary step towards the resolution of the problem. She retorted that she would never report any matter to the police; her grouse with the police was that they released a person she reported shortly after he was arrested, she felt the police had been bribed into releasing the suspect; ‘He should never have been released,’ she said. She echoed the feelings and experience of so many people who feel it is wrong for the police to release an arrested person before charging such a person to court.

It is against this background that the right of the police to grant bail would be examined.

‘Bail is the process by which an accused person is temporarily released from state custody to sureties on conditions given to ensure his attendance in Court whenever he is required until the determination of the case against him’.[1]

Bail can be granted by either the police or the courts depending on the circumstances of the case and the nature of the offence the suspect or accused is charged with.

Bail is a constitutional right guaranteed and protected by the Constitution of Nigeria. The right to bail is hinged on two provisions of the constitution; the first is the presumption of innocence (the law presumes that every person accused of a crime is innocent until his guilt is proven) and the second is the right to Liberty.

The constitution provides that every person shall be entitled to his personal liberty, and no person shall be deprived of his liberty except in accordance with the procedure laid down by the law.[2] When a person is arrested and kept in custody upon suspicion of having committed an offence and the person is not charged to court within one or two days depending on the distance between the place of arrest or detention and the court, the continued detention of the person by the police or any Law Enforcement agency could amount to an infringement of the person’s right to his personal liberty.

The police cannot detain a person indefinitely while it conducts its investigation. The law and the courts recognise that it is essential for the police to conduct investigations whenever a report is made, thus, the police have been vested with power to grant bail to a person arrested. Police can grant bail to any person who has been arrested without a warrant of arrest for an offence which is not punishable by death. The court once stated “that the police have not been given unbridled powers to deprive citizens of their liberty while the case against them is still being investigated.[3]

Bail can only be granted by the police when the suspect is still in their custody and has not yet been charged to court. The moment a suspect is charged to court and arraigned, the bail granted by the police is revoked and it will be necessary for the accused person to apply for bail pending trial.

The grant of bail by the police to a person arrested for committing an offence is therefore a correct exercise of the powers conferred on them under the law and amounts to respecting the right of a person to his personal liberty.

Bail pending trial will be discussed in a subsequent article.

[1] Onyebuchi V FRN & Ors. (2007) LPELR-4134(CA)

[2] Section 35 of the 1999 Constitution of the Federal Republic of Nigeria.

[3] .” Johnson V. Lufadeju (2002) 8 NWLR (Pt. 768) page 203