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The concept of bail originates in British criminal law practice and became institutionalized in North America and other common law jurisdictions after
America’s independence in the 18th century. It is, therefore, not as established and institutionalized in civil law jurisdictions as found in most European states.
Bail refers to a judicial interim release, or pretrial release, of an accused who has been taken into custody, pending the determination of charges. In Western legal systems, a person is innocent until proven guilty, but an innocent person can be held in custody and not be released unless bail is posted or a judge decides that the case is serious enough not to allow bail. This decision can be made as early as at the so-called arraignment. After arrest, the accused makes a court appearance, at which he or she is formally charged; this is called arraignment. At the arraignment, the accused is called in court by name, the charges are read to the accused, and the accused is asked whether he or she enters a plea of guilty or not guilty.
In some countries, a legal right to bail is guaranteed in constitutional documents. For example, Section 11(e) of the Canadian Charter of Rights and Freedoms provides that “any person charged with an offence has the right not to be denied reasonable bail without just cause.”
A bail review is an appeal on the decision of judicial interim release (bail) and allows the accused or the prosecutor to apply to a judge of a superior court of criminal jurisdiction for a review of the bail set by a justice or a provincial court judge.
The bail bond is the document executed to secure the pretrial release of an individual in custody of the law. This document is used as a surety bond to ensure that the defendant returns to court at the specified place and time. If the defendant does not show up on the scheduled court dates, he or she forfeits the bond and a warrant for arrest is issued.
Likewise, in the United States, for example, a bail review before a judge can be requested by the accused if the bond is set very high. This gives the accused the chance to plead her or his case without entering trial proceedings, show support from family and friends, and give the judge some insight into the personality of the accused for the purpose of bail review only. A bail review can be asked for at the arraignment (when the bail is set) and can be administered immediately.
Posting bail serves two purposes: (1) it relieves the accused of imprisonment, and (2) it secures the appearance of the accused at trial without burdening the state with the cost and bother of keeping the accused in jail pending trial. If an accused has posted bail and breaches the bail terms, the prosecutor can apply for forfeiture of the money to the state. In this case, the accused is treated as if no bail was posted, and an arrest warrant for the capture of the defendant is issued. The court can also set a date for apprehending the fugitive, or else the full bond amount must be paid.
Bail jumping, the violation of bail terms, is a separate criminal offense. It demonstrates ignorance of judicial procedures and may result in the imposition of additional prison time, over and above that for the offense that provoked the defendant’s flight in the first place.
The bailiff is a court attendant, a person to whom some authority, guardianship, or jurisdiction is entrusted. A bailiff is usually employed by the sheriff’s department to serve writs and to make arrests and executions of court orders. The bailiff is bound annually to the sheriff by a bond with sureties for the proper execution of his or her office and is therefore called a bond bailiff.
Bail bond companies make it their business to post bail for the arrested. Usually, the bail bond will cost the defendant 10 percent of the bail amount, and many companies take property as collateral. The bail bond amount is nonrefundable, but it can get a murderer out of jail until trial. On payment of the bail amount, the bondsman posts bail, and the accused is released immediately.
Hiding to avoid arrest or prosecution is called absconding. Absconding while on bail is a criminal offense subject to a penalty. It is an indictable offense, carrying terms of imprisonment.
Bail As Surety Obligation (In General)
Bail is, in effect, a contract, but a contract by the person bailed or a third party to indemnify a surety is void as contrary to public policy. Generally, bail is a monetary or other security given to ensure the appearance of the accused at every stage of the proceedings. Those posting bail are sureties or guarantors (bondsman), and the money is the security for the accused’s appearance.
A bailee is one to whom the property involved in a bailment is delivered. The bailee holds the goods of another for a specific purpose pursuant to an agreement between the parties. The person to whom possession of goods is entrusted by the owner, but with no intention of transferring ownership, is the bailee. A bailee acquires a special interest or property in the goods. He or she is bound to take care of the goods bailed and is liable for negligence to an extent that varies with the specifics of negligence.
In criminal law, the accused is released from the custody of the police and entrusted to his or her sureties, who are bound to produce the accused at a specified time and place. Failure to do so results in the forfeiture of the security placed as bail.
A bailor is the party who bails or delivers goods, chattels, or personal property to another person in a contract or bailment. The bailor need not be the owner of the property involved.
Bailment is the delivery of personal property or chattels from the bailor (who delivers the goods) to the bailee (who receives the goods) in trust with a special purpose, to benefit either or both of the parties. The purpose of the trust conforms to an express or implied contract. The elements of lawful possession and the duty to account for the article as the property of another are important aspects of the bailment. Different forms of bailment can be distinguished.
Actual bailment is a bailment established by an actual or constructive delivery of property to the bailee or his or her agents.
Constructive bailment arises when the person having possession holds it under such circumstances that the law imposes an obligation to deliver it to another, even where such a person did not come into possession voluntarily and thus no bailment was voluntarily established. A primary example is that of the finder who, although possessing goods without the knowledge or consent of the owner, is deemed to owe him or her a duty of reasonable care and a duty to convert the chattel.
Gratuitous bailment is a type of bailment in which the care and custody of the bailor’s property is accepted without consideration by the bailee. In this type of bailment, the bailee is liable for the loss of the bailed property only if the loss results from the bailee’s gross negligence.
Involuntary bailment arises whenever goods of one person have by accident become lodged on another’s land. If the person on whose land the personal property is located should refuse to deliver the goods to their rightful owner on demand or refuse to permit the owner to remove them, he or she might be liable for conversion of the said property.
- Arena, Samuel J., Jr., Bruce Charles King, and Richard Towle. The Law of Commercial Surety and Miscellaneous Bonds, 2nd ed. Chicago: American Bar Association, 2013.
- The Crown Prosecution Service. “Legal Guidance to Bail.” http://www.cps.gov.uk/legal/a_to_c/bail (Accessed October 2014).
- Harr, J. Scott, Kären Matison Hess, Christine Hess Orthmann, and Jonathan Kingsbury. Constitutional Law and the Criminal Justice System, 6th ed. Boston: Cengage Learning, 2014.
- Lippmann, Matthew Ross. Criminal Thousand Oaks, CA: Sage, 2014.
- Saltzburg, Stephen A. and Daniel J. Capra. American Criminal Procedure: Cases and Commentary, 9th ed. St. Paul, MN: Thomson-West, 2010.
- Trotter, Gary T. The Law of Bail in Canada, 2nd ed. Scarborough, Ontario, Canada: Carswell, 1999.
- Van Malleghem, Franz, Henry VanMalleghem, and Louis VanMalleghem. Le bail à ferme: compilation des textes législatifs usuels de droit rural—guide pratique (The Lease: Compilation of Customary Laws of Rural Law: A Practical Guide). Brussels, Belgium: La Charte, 2011.