Power to Grant Bail

At common law, a court or judge having power to hear and determine an

application for bail, grants or denies bail in the exercise of a sound discretion,
according to the circumstances of each particular case. Therefore, it is a matter of
discretion. Such discretion, it has been pointed out, is not a wild, arbitrary
discretion, but a discretion to be exercised according to certain fixed rules.
Discretion, said Lord Mansfield, speaking of this subject, means sound discretion
guided by law. It must not be arbitrary, vague and fanciful, but legal and regular.

According to Criminal Procedure Code, the following authorities can grant bail,

(1) Police officers

(With warrant) Paragraph 1355 of Burma Police Manual provides that in the case o
f a person arrested on warrant, the Police Officer to whom the warrant is directed
or endorsed may lake the bail (if any) prescribed by the warrant. (Without
Warrant) Section 60 of Criminal Procedure Code provides that a police officer
making an arrest without warrant shall without unnecessary delay and subject to
the provisions hereinafter contained as to bail take or send the person arrested
before an officer in charge of a police station.

(2) Magistrates

According to Section 63 of the Criminal Procedure Code, no person who has been
arrested by a police officer shall be discharged except on his own bond or on bail
or under the special order of a Magistrate.

(3) President

Section 401(a)

Bail Application

In Section 496 and 497 of Criminal Procedure Code, it does not provide for
the accused to apply for bail by writing. In bailable cases, even the accused does
not apply for bail, the Court has to grant bail either on a personal bond or with
sureties. However, in non-bailable cases the accused has to apply for bail by
writing. Bail can be applied either by the accused of his agent or through the jail
officer if the accused is in detention. Bail has to be applied to Court examining the
case. If it was rejected, it can be applied to higher Court. The law does not prevent
the re-application of bail. Since, during examination, circumstances may arise that
the accused should be granted bail, bail can be applied again even after it was
rejected.

Categorizing Pretrial Release

Pretrial release can be categorized as follow

(1) Release on the accused’s own recognizance

According to Section 496 of Criminal Procedure Code, when any person other than
the accused of a non-bailable offence is brought before a Court, the Court may if it
thinks fit, instead of taking bail, discharge him on his executing a bond without
sureties for his appearance. This kind of release is a written by the accused saying
that he will appear before Court on a given date and will not involve in any
illegal activities. No money or security is charged on the accused. The decision to
release an accused on personal recognizance rests upon the determination that the
accused poses no risk of flight and no risk of danger to the community or any of its
inhabitants.

(2) Release on a cash bond

Cash bond which are referred as bail involves a payment into the Court. Such
payment is taken as security for the appearance of the accused.

(3) Release with a surety bond

According to Section 499 of Criminal procedure Court, before any person is

released on bail or on his own bond, if the police officer or the Court thinks fit a
bond of a sum of money may be executed with sufficient sureties who would
ensure the appearance of the accused before Court at such time and place
mentioned in the bond. Surety bond is often used when the accused cannot afford
to pay their bail in cash.
 (4) Release with a property

In this type of bond the defendant offers a property in the form of bail bond.

Types of Bail under CRPC

Bails can be classified into

(1) Bail in a bailable offence

According to section 496 of Criminal Procedure Court, except in a non bailable

offence, if the accused is prepared at any time of the custody or at any stage of
the proceeding to give bail, such person shall be released on bail.

(2) Bail in a non bailable offence

Second schedule of Penal Code provides bailable offences and no bailable

offences. According to Section 497 of Criminal Procedure Code, when any
person accused of any non bailable offence is arrested or detained without
warrant by an officer in charge of a police station or appears or is brought
before the Court, he may be released on bail but he shall not be released of there
appear reasonable grounds for believing that he has been guilty of an offence
punishable with death or with transportation for life.

It further provides that underage or any women or any sick or infirm person
accused of such offence be released on bail.

If also provides that if there are reasonable grounds for believing that the
accused has committed a non bailable offence, he may be released on bail.

(3) Bail in Appeal and

According to section 426 of Criminal Procedure Code pending any appeal by

convicted person, the Appellate Court may order that the execution of the
sentence or order appealed against be suspended and also if he is in the
confinement that he be released on bail or on his bond,

(4) Anticipatory Bail

Although it was deleted by the Union of Burma R.C Law No II, 1975, Section
438 of Criminal Procedure Code provides that when any person has reason to
believe that he may be arrested on an accusation of having committed a non-
bailable offence, he may apply to the High Court or the Court of Session for a
direction that Court may, if it thinks fit, direct that in the event of such arrest, he
shall be released on bail. Such direction is followed by conditions such as he
has to make himself available for interrogation by a police officer, he cannot
leave form where he resides.

Link

In Stack v. Boyle, the Court noted that “the traditional right to freedom
before conviction permits the unhampered preparation of a defense, and serves
to prevent the infliction of punishment prior to conviction. Unless this right to
bail before trail is preserved, the presumption of innocence, secured only after
centuries of struggle would lose its meaning.”

Bail Reform

In National Conference in Bail and Criminal Justice of 1964 (US), Attorney

General Robert Kennedy stated that “For 175 years, the right to bail has not
been a right to release, it has been a right merely to put up money for release,
what has been made clear today is that our present attitude towards bail are not
only cruel but really completely illogical. What has been demonstrated here is
that usually only one factor determines whether a defendant stays in jail before
he comes to trial. It is not guilt or innocence. It is not the character of the
defendant. That factor is simply money.

California is the first state in US to eliminate money bail completely.

“Abolishing money bail and replacing risk-based system will enhance justice
and safety. For too long, our system has allowed the wealthy to purchase their
freedom regardless of their risk, while poor who pose no danger languish in
jail” said by one of the lawmakers who introduced the bill.
History

The notion of bail has been traced to ancient Rome. It was said that the right
to be bailed is as old as the law of England itself. In Anglo-Saxon period,
wrongs were settled through a system of bots or payment designed to
compensate grievances. Crimes were private affairs unlike our current system
of prosecuting in the name of the State and suits brought by persons against
other persons typically sought remuneration as the criminal penalty. In a
relatively small number of cases persons, persons who were considered to be a
danger to the society were either mutilated or executed.

However, Anglo-Saxons were concerned that the accused might flee. Prisons
were costly and troublesome, so an arrestee was set free so soon as some
sureties undertook pledge or became bound for his appearance in court. Thus a
system was created in which the defendant was required to find a surety who
would provide a pledge to guarantee both the appearance of the accused in court
and payment of the bot upon conviction. The amount of the pledge called ‘bail’
(akin to modern money bail bond) was identical to the amount of the penalty.
Thus if an accused were to flee the responsible surety would pay the entire
amount to the accuser and the matter was done.

The system became significantly more complex after the Norman Conquest.
In the period following Norman invasion, criminal justice gradually became the
affair of state. Capital and other forms of corporal punishment replaced money
fines. The use of corporal punishment increased giving many offenders a
greater incentive to flee. The un-checked discretion given to judges and
magistrates to release defendants led to instances of corruption and abuse.
Moreover as penalties changed, ideas about which persons should be bondable
also shifted. The first to lose right to bail were persons accused of homicide and
forest offenses (i.e. violating royal forests). Blackstone wrote that “by the
ancient common law, before and since the conquest, all felonies were bailable
till murder was excepted by statue”

In medieval England, magistrates rode a circuit from county to county to

handle cases. The county’s reeve (now known as sheriff) was given the duty of
 holding the individuals accused until the magistrate arrived. Because of the
broad discretion given to these sheriffs to hold person pretrial, bail
administration varied from county to county and instances of abuse became
more frequent. Indeed, bail law developed in twelfth and thirteen centuries as
part of assertion of royal control over the authority of the sheriffs which had
grown increasingly corrupt.

Bail as a Right

Time held in pre-trial detention may be needlessly long because of

insufficient and overloaded court system.

ICCPR Article 11

UDHR Article 9

International human rights law permits the use of bail and other conditions of
pretrial release and it also permits pretrial detention. But any pretrial restrictions
must be consistent with the right to liberty, the presumption of innocence, and the
right to equality under the law. Pretrial detention imposed on criminal defendants
accused of low level offenses solely because they cannot afford bail is inconsistent
with those rights. (International human rights standards regarding pretrial detention
are predicated not only on the fundamental rights, they are also grounded in
recognition of the stress and suffering detainees may endure from being confined
in jail.)

According to Article 9(3) of ICCPR, it shall not be the general rule that
persons awaiting trial shall be detained in custody, but release may be subject to
guarantees to appear for trial at any other stage of the judicial proceedings and,
should occasions arise, for execution of the judgment.

According to Article 14 of ICCPR, everyone charged with a criminal

offence shall have the right to be presumed innocent until proved guilty according
to law. (By presumption of innocent, the burden of proof of the charge is on the
prosecution and the accused has the benefit of doubt. No guilt can be presumed
until the charge has been proved beyond reasonable doubt. Therefore, it is the duty
of all public authorities to refrain from prejudging the outcome of a trial.

Article 9(1) of the International Covenant on Civil and Political Rights

(ICCPR), which the United States ratified in 1992, codifies the right to liberty:
“Everyone has the right to liberty and security of person.” A person’s liberty may
not be curtailed arbitrarily, either through arbitrary laws or through the arbitrary
enforcement of the law in a given case. In reviewing the case of a Dutch solicitor
held in custody for nine weeks in the course of a criminal investigation, the United
Nations Human Rights Committee stated “‘arbitrariness’ is not to be equated with
‘against the law,’ but must be interpreted more broadly to include elements of
inappropriateness, injustice and lack of predictability. This means that remand in
custody pursuant to lawful arrest must not only be lawful but also reasonable in the
circumstances. Van Alphen v. the Netherlands, Human Rights Committee, No.
305/1988, §5.8, U.N. Doc. CCPR/C/39/D/305/1988 (1990) [ Read whole chapter
of International Human Rights Laws from The Price of Freedom]

Disadvantages of the accused deprived of Right to Bail

Negative impact on economic and social life

At any given time, up to a third of the world’s prisoners are waiting trial or
final sentence. Some may be acquitted; others may see their cases dropped before
they even get to trial. Some will be convicted at trial but will not receive a
custodial sentence, perhaps because the time on remand was longer than the
maximum sentence of the offence. In all these scenarios, the time spent in pretrial
detention will usually have major consequences of the individual; these commonly
include loss of employment, accommodation, family and community ties, and
deterioration in physical and/or mental health.

Prison conditions are often worse for those in pre-trial detention than for
sentenced prisoners. The detainees have to wait for their trial in overcrowded,
cramped court custodies. (Personal experience)

The pretrial detention also affects the families and/or relatives of the
detainee. When prison are located a long way from detainee’s home, family
members will also be forced to bear travel expenses and if the prisons fails to
provide things for detainee properly they have to buy things for him not to mention
the fact that they are the ones who have to bear the burden of cash bail.

Stigma? ( how people think of him)

Negative outcome of the case

Pretrial detention significantly impacts the outcome of a defendant’s case

because it hampers his ability to assist in his defense. Being in detention
compromises the ability to prepare a defence, making it difficult to consult with
one’s lawyer review the prosecution case and prepare for trial.

Criminogenic effect

Pretrial detention carries the theoretical potential to affect later criminal

activity. Effects of pretrial detention may occur in several mechanisms. Some
would reduce future offending. First, at least, since the accused is detained, he can
be expected to commit fewer crimes than similarly situated releasees. Second,
detention might change the perceptions of the offender concerning confinement. If
the offenders discover that confinement is worse than expected, this could enhance
the deterrent effect of the criminal law.

Other mechanisms would increase future crimes. First, if detention teaches

that confinement is less unpleasant than expected it could reduce deterrence.
Second, detention may lead to job loss, disrupted interpersonal relationships, or
other collateral consequences that change the relative attractiveness of crimes in
the future. For example if a detainee losses his/her job, criminal activity such as
larceny or robbery might become more attractive as a means making up for lost
income. Third, detention may also make new social ties or learn new skills through
their interactions with other jail inmates that change their tendency for crime.

A working paper by Michael Mueller Smith finds that the

incarceration for misdemeanor defendants lead to 6 percentage increase in the
likelihood of being charged with a new misdemeanor and 6.7 increase in the
likelihood of being charged with a new felony.( Downstream Consequences)

Pressure on prison conditions

 The overuse of pretrial detention puts additional pressure on staff time and
leads to prison overcrowding. In 2016 the United Nations Secretary General
identified the excessive use of pretrial detention as one of the major causes of
prison overcrowding.

Disastrous Bail Refusal

Bail Reform throughout the Globe

Justifiable Grounds for Bail rejection

Additional Sparks

*bail provisions for special law offences

*Human Rights Disputes

*Pretrial release standards

*mere an accusation costs so much (expenses) take charge into account

NOTO

People in custody are at greater risk of pressure from police or prosecutors

which raises the risk of wrongful convictions.

(Factors which contribute unnecessary pretrial detention, judges afraid of

risks and favors to prosecutor from page one of overused pretrial detention)

People from backgrounds of disadvantages are more likely to be arrested and

more likely to be detained pretrial; they are less likely to have the means to pay
bail or to be able to afford good legal representation. (Those lacks good legal
representation has to bear the burden of bail)

Section 29 of Rangoon Police Act and Section 45 of Police Act 1945

“Bail remains an undefined term in the Code of Criminal Procedure.

Spencer, C. J expressed that the object and end of punishment before trial and
conviction, is to secure the forthcoming of a person charged with the commission
of a crime; and it is never intended as any part of the punishment; for, until the
guilt of the party be legally ascertained, there is no ground for punishment; it
would be cruel and unjust to inflict it.

According to paragraph 1785 of the Police Manual, it must be understood that in

bailable cases bail is a right not a favour, detention is the lock up is the alternative,
not original order. The bail demanded will never be excessive but will be fixed
with the reference of the social status of the prisoner and the character of the
offence.

Paragraph 481 of Courts Manual provides that in non-bailable cases, an accused

person may, for reasons to be recorded in writing, be released on bail but he shall
not be released on bail, if there appear reasonable grounds for believing that he has
been guilty of the offence of which he is accused.

Provided that any person under the age of 16, any women or any sick or infirm
person may be released on bail in any case

Disadvantages of pretrial detention (losses on the part of accused from not getting
bail)

There is widespread agreement among witnesses that the accused who is

unable to post bond and who is consequently held in pretrial detention is severely
handicapped in preparing his defence. He cannot locate witnesses, cannot consult
his lawyer in private and enters the courtroom not in the company of an attorney
but from a cell block in the company of police. Furthermore, he is unable to retain
his job and support his family and is made to suffer the public stigma of
imprisonment even though he may later be found not guilty.

The Right to Compensation in the Event of Unlawful Deprivation of Liberty

Article 9(5) of the International Covenant on Civil and Political Rights

provides that anyone who has been the victim of unlawful arrest or detention shall
have an enforceable right to compensation. Accordingly, everyone has the right to
compensation for unlawful deprivation of liberty by reason of violations of
international and/or national law. Such compensation may depend on the
demonstration of damage.

The victim of the unlawful arrest has a right to institute a suit either in civil
proceeding or criminal proceeding e.g. Section 166, 219 and 220 of Penal Code.
(Still more) Section 166 provides for where the public servant knowingly disobey a
direction and by such disobedience, knowingly cause injury to any person. Section
219 provides for where a public servant corruptly or maliciously makes or
pronounces any order or verdict which he knows is contrary to law. Section 220
provides that any public officer who corruptly or maliciously commits any person
to trial or confinement shall be liable.

Why the accused is detained (Follow up with Preventive pretrial detention)

The reasoning of pre-trial detention is assessed in the light of following

circumstances such as:

- the gravity of the offences,

(Talk about serious crimes and non-serious crime, offences the Court are willing to
grant bail and offences the Court not willing and grounds)

- the risk of absconding,

With regard to the danger of an accused person’s absconding, the European Court
has emphasized that this danger “cannot be gauged solely on the basis of the
severity of the sentence risked” and the courts must explain not only there is a
danger of absconding also why they have not sought to counter it by, for instance,
requiring the lodging of a security and placing the accused under court supervision.

- the risk of influencing witnesses and of collusion with co-defendants,

- the detainee’s behavior,

- risk of relapse into crime

Throughout detention the right to presumption of innocence must be guaranteed

Cases

In the case of Mg Kyaw vs Union 1965 BLR ( ) 666, it was held that the
accused should not be detained for a long period of time before his trial or
during investigation. Such detention on him should not act as a preliminary
punishment although his guilt is yet to be proved.

In the case of Mg Lu Min vs Union 1965 BLR ( ) 122, it was mentioned that
application for bail should not be refused on the ground that it is still early to
apply such application.

In the case of Husain Bakhan, it was mentioned that granting bail according
to Section 496 and 497

Right to Bail vs Preventive Pretrial Detention