Securing Justice: A Definitive Guide To Bail And BailorsJun 01, 2023
When the Accused, a party involved in the Criminal Justice System, is arrested to assist in investigations, he is usually detained. However, he may also be released if a Bailor (also known as a surety) posts bail for him. Bail is security pledged by the Bailor who executes a bail bond to ensure that the Accused attends for investigations or court. Such security can be in the form of money or personal property. When a Bailor posts bail for the Accused, the Accused is said to be “bailed out”. When there is no Bailor or the proposed Bailor cannot produce the required amount of security, the Accused will not be released.
The concept of bail is important in maintaining the presumption of innocence: that the Accused is innocent until proven guilty. As such, unless there are reasons not to release him pending conviction, the Accused should be released from detention. However, to prevent the Accused from absconding, i.e. disappearing and not showing up for investigations/court, the bailor is the one responsible for ensuring that the Accused does not.
The security furnished by the Bailor is liable to be forfeited if the Accused absconds. This incentivises the Bailor to do whatever is reasonable to ensure that the Accused shows up wherever and whenever required.
Types of bail
There are largely three kinds of bail that the Accused may be eligible for: agency bail, court bail, or the personal bond.
Agency bail, as its name suggests, is offered by the law enforcement agency during the investigations stage.
Court bail, as its name also suggests, is offered by the Court, usually when the Accused turns up for the first mention. Sometimes an arrest warrant issued by the Court can already offer bail to the Accused.
The Accused can therefore be bailed out on both kinds of bail during the whole criminal process. For instance, upon arrest and taking of his first long statement, the Accused can be released on agency bail. However, once he is presented before a Magistrate, he may be released on court bail.
The third kind of bail is the personal bond, which is not as common. Under the personal bond, the Accused is released without the need for a Bailor to post bail. Instead, the Accused personally provides security on his own behalf.
Bailable vs non-bailable offences
Contrary to its name, a non-bailable offence does not mean that bail cannot be given. Instead, it means that bail is not offered as of right. Bailable offences are offences where bail is offered as of right. This means that if the Accused is arrested for a bailable offence, the agency/Court must offer bail, while it does not if he is arrested for a non-bailable offence. That said, if the offence is not a fine-only one and the Court believes that the Accused will not turn up, the Court retains the discretion to refuse to grant bail.
There is a third category of offences that is neither bailable nor non-bailable. These offences are those that are punishable by death or life imprisonment, and certain arrests made under the Extradition Act 1968. If the Accused is arrested for such offences, bail cannot be given at all.
Requirements for bail
As mentioned above, for bailable offences, bail is offered as of right. As long as an eligible Bailor posts bail for the Accused and the Court believes that he will turn up, he will be released.
For non-bailable offences, since bail is not offered as of right, the Accused will need to satisfy certain conditions before he is granted bail. Certain factors that the Court will consider include:
- Risk of the Accused tampering with witnesses, e.g. communicating with, threatening, intimidating witnesses.
- Risk of the Accused absconding.
- Where the security is coming from, i.e. from the Bailor himself or from other people. This is a factor to consider because if the security is not the Bailor’s own property, there is nothing incentivising him to ensure the Accused turns up.
Requirements and duties for bailors
A Bailor must be:
- A Singapore citizen or Permanent Resident.
- 21 years and above.
- Not a declared bankrupt.
- Not facing criminal charges.
- Not a co-accused.
In addition, he must be willing and able to pledge the required security and to accept his heavy duties as Bailor. These duties include:
- Maintain daily communication with the Accused.
- Ensure that the Accused abides by the conditions of his bail.
- Ensure that the Accused turns up for investigations/Court whenever and wherever required.
- Make a police report within 24 hours of losing contact with the Accused.
On top of these common duties, the Court may also impose further duties on the Bailor.
Amount of security
If a proposed Bailor is unable to produce the required amount of security, the Accused will not be released, even if bail was offered to him. As such, the amount (or quantum) of the security is important to the Accused. The amount of security is also known as the bail amount.
The quantum of security is determined by the Court. In reaching the appropriate sum, the Court will have to balance between ensuring that the security is large enough to incentivise the Bailor to carry out his duties, and ensuring that the security is not so large as to deny the Accused bail.
Practically speaking, the Prosecution will usually suggest an amount for the amount of security. If the Accused believes it is too high, he may counter-suggest. The Court will make the final decision upon hearing both sides.
Valid forms of security
Security can take a non-monetary or a monetary form. If the security is non-monetary (usually for bail amounts below $15,000), examples of valid property include:
- Luxury goods.
The Bailor will not need to surrender such property, but will need to declare that they do own such property and that the value of the property is sufficient to cover the bail amount.
If the security is monetary (usually for bail amounts above $15,000), such monies can come in the form of cash, monies in savings accounts, or monies in a fixed deposit. It is important to note that each form of cash has its own conditions to be met. If you are a Bailor, you are encouraged to visit the Courts’ website or the Bail Centre at the State Courts building to find out more. The Bailor will not need to bring the physical cash but can usually bring a cashier’s order certifying that he has the requisite amount of cash on hand.
Conditions when on bail
There are mandatory conditions that are imposed upon the Accused when he is granted bail. These conditions are spelled out by the Criminal Procedure Code and can only be varied by an order from the Court. Such conditions include:
- The Accused must surrender his passport.
- The Accused must turn up for investigations, custody, or Court whenever and wherever so required.
- The Accused must not commit any offence while on bail.
- The Accused must not tamper nor interfere with any witnesses while on bail.
On top of these mandatory conditions, the Court has the power to impose any other condition as it deems necessary.
If the Accused breaches any of the conditions imposed on him, he may be arrested without a warrant. In such a scenario, the Court has the discretion to detain him in remand or to grant bail with whatever conditions it deems necessary.
Consequences for bailors
If the Accused breaches any of the conditions imposed on him, the Bailor will suffer consequences as well. The Bailor will receive a document called “Notice to Show Cause”. This means that the Bailor will have to turn up at Court on the specified date to explain why the Accused breached the condition. If the Bailor does not satisfy the Court that he has done all that is reasonable in ensuring that the Accused abides by the bail conditions, the Court may order that the Bailor surrender the security pledged.
It is crucial for the Bailor to note that if the security pledged is ultimately unable to cover the bail amount, the Bailor is liable to be imprisoned for up to 12 months.
Leaving Singapore while on bail
The Accused cannot leave Singapore without the permission of the Court. If the Accused wishes to leave Singapore, he must make a formal application to the Court to obtain the Court’s permission. In the application, the Accused must state the following:
- Reasons for leaving the country.
- Intended destination and place of residence while overseas.
- Intended departure and return dates.
- Overseas contact information.
If the Court decides to hear the application, the Accused will need to inform the Court of the intended destination(s) as well as his expected departure and return dates. The Bailor must also consent to the Accused leaving.
The Court will consider various factors such as the Accused’s domicile, the nature of the offence, his track record of attending court, and his reasons. If the Court decides to grant permission to the Accused to leave Singapore, the Accused must provide the Investigating Officer with his trip and flight itineraries and his overseas contact information.
The Defence Counsel and bail
If the Accused is represented, his Defence Counsel, or criminal lawyer, can submit to the Court on his behalf as to why he should have bail granted. Common applications that the Defence Counsel will be able to assist in making include applications to leave Singapore while on bail.