This past week came with an intriguing story about a person who was released on bail under baffling conditions while his trial was pending in court in the UK.
A student named Patrick Thelwell was arrested over a public order offence after throwing eggs at King Charles and Queen Consort Camilla while they were on a royal engagement in Yorkshire early this month.
The student will be appearing in court next month and will be charged with an offence under the UK Public Order Act.
What was interesting was that as a condition for being released on bail, the student was required to adhere to the rather strange condition that he would not carry any eggs in public! This condition had to be revised to enable him to go grocery shopping. Outside the context, many, including myself found this condition rather funny and in some instances even obnoxious.
However, it brought to mind the fact that whereas a person accused of an offence has a right to bail — that is to be freed from incarceration while attending trial, it is not always unconditional and that the courts have power to determine the conditions of such release.
In theory, bail conditions are meant to ensure the accused person attends court while on trial, keeps good behavior during that time and that he does not interfere with the trial, witnesses and victims of the case.
The most common condition for release on bail (whether a person is released by the police or by a court after being charged), is a cash or property guarantee of one kind or another.
The intention here is that the surety pledges to ensure that the accused person attends court and will forfeit the property pledged or cash paid if the accused person fails to attend court when required to do so.
In the United states for example, the cash bail system is the most common method by which accused persons are released from custody.
This has resulted in cases where those who cannot afford the bail conditions remain in jail for the duration of their trial. It is reported that as of 2021, about 70 per cent of the persons in jail in the US were there because of inability to meet the condition for cash bail.
The injustice of this led to reforms such as in the state of Illinois, which abolished cash bail altogether. Instead, alternative methods of ensuring attendance in court are employed and judges impose conditions such as regular phone checks by regular meetings with social workers to confirm that the accused persons remain within the jurisdiction of the courts under which they are being tried.
There is also the emerging technological option of electronic tagging of the suspect as a condition for bail. This is where the suspect is compulsorily fitted with a gadget on their foot or hand, which gives electronic signals to the police on his whereabouts at any given time.
Next door in Canada, the state of Ontario shows that courts can sometimes impose bail conditions such as a requirement to abstain from bars or any place where alcohol is sold or dispensed, except when having a meal; not to be seen with co-accused persons or persons charged with similar offences; and in cases of drug offences, to seek drug addiction therapy.
Other conditions in respect of violent crimes may include orders to surrender weapons, curfews and restrictions on movement by the requirement to surrender passport and other travel documents.
If the accused is a truant juvenile, courts in Ontario make orders for them to enroll in school.
In April 2020, a court in India ordered an accused person, Som Marandi, and his co-accused to pay 35,000 rupees each in the Prime Minister's Citizens Assistance and Relief in Emergency Situations (PM Cares) Fund and show proof of the payment to the court as one of the conditions for bail.
This was at the height of the Covid-19 pandemic, and the court ordered the accused to download the Aarogya Settu app on their phones immediately. This was to aid in contact-tracing as one of the measures of containing the pandemic. This would, appear to have been a situation where the court was going into other objectives of social improvement such as the prevention of an epidemic in this case.
The courts may also set bail conditions taking into account the status of the accused person and tie in conditions meant to ensure the attendance of the trial. This was the case in 2018 when Duduzane Zuma, the son of former South African President Jacob Zuma was arrested and charged in the specialised commercial crime court in Johannesburg.
The bail conditions did not just include cash of 100,000 rand, but also an extra condition to surrender his passport to the police, he was barred from seeking a visa to travel out of South Africa while the case was pending, as well as a requirement to present himself to the police twice a week for the duration of the trial.
Noting the status of the accused as a person who may need to travel abroad, the court said the accused would have to provide his itinerary, a copy of the plane ticket and a letter of invitation from the party he was to visit abroad, before he would be eligible for a return of his passport for overseas travel.
The courts in Kenya also routinely grant bail to accused person but do take account of the circumstances of the case and even the need to protect victims and ensure a fair trial for the accused.
In one case where the accused person was a governor, the court granted bail not only on what would be a sizable cash amount having regard to the country’s income per capita, but added the conditions specific to the status of the accused person as a governor with considerable political and social influence.
Among these conditions was a restriction of movement of the accused to a given radius within the county in which he was governor at the time, a requirement to report to the registrar of the court on a monthly basis, an order to desist from discussing the case in his political gatherings and a prohibition from seeking an adjournment of the trial. These were in addition to the usual conditions such as the of surrender of passport to the court.
In another Kenyan case, a television broadcast journalist on trial was granted bail on the condition not to make public appearance on, and broadcasts on, the news outlets where she worked as a journalist and news anchor.
These examples show that the intention of bail and the conditions with which it comes is to reiterate the presumption of innocence for an accused person and to ensure that the person is not held in prison unduly while the trial is pending.
For these reasons, judges and in some instances, arresting police officers, are expected to give conditions that ensure the person attends trial and does not interfere with any investigations.
In the case of Thelwell, the intention was to ensure that he does not use his weapon of choice — eggs — in a similar manner. This is why some of the conditions on which accused persons are granted bail may appear bizarre.
The writer is the head of Legal at Nation Media Group. [email protected]