Remand and Bail

Relationship between Remand and

bail
• Remand and bail constitute distinct though related inquiries
• Practitioners often make the mistake of either equating a remand enquiry with a
bail inquiry Or
• Substituting a bail inquiry for a remand inquiry
• A remand enquiry must precede a bail inquiry, bail will enquiry takes
place only after propriety of remand is established
• Placement on remand must be challenged and appealed otherwise the
placement stands S v Maguwu FARI MAGUWU (jsc.org.zw),
• If placement on remand is not challenged on first appearance, it cannot
be raised for the first time in a bail appeal Ching’ono v State HH519/20
Remand
• An arrested person must be brought before court as soon as possible
but no more than 48 hours after arrest s50(2) Constitution s 32 (2) &
(3)
• 48 hour period includes Sunday and public holiday
• If police decide that, after arrest, they want to either hold the person
in custody, or wish to formally request the court to notify the accused
that the person should continue to appear in court, they make an
application for the remand on a Request for remand form, a ZRP form
242
Form 242
• Provides for:
• The police station, section and name of the investigating officer
• Prosecutor ref (this is the ref given by the registrar of the prosecution department that receives dockets when they come from station
• CRB number (this is the court record book number allocated by the clerk of court after the prosecutor decides to bring the matter before court)
• Prison number (allocated By ZPCS after a warrant of committal is signed by the magistrate)
• Section A
• Identity of the accused, full name, gender age National Identification number, residential and work address
• Date on which the accused was arrested (goes to the 48hr period)
• Section B
• The offence that the accused is alleged to have committed
• The facts that support the allegations (can be prepared on a separate paper)
• A list of any material evidence linking the accused to the offence
• Value of property stolen or recovered
• Any names of victims
• Section C
• The attitude of the police towards bail-
• Is bail opposed? Why
• Section D
• Estimated duration of investigations and possible number of witnesses
• Investigating officer and Officer in charge ’s signature
• Section E
• For office use addressed to OIC
• Record of case whether remand and/or bail granted
Inquiry on remand
• Any person who is arrested has the right to
• Be informed of the reason for arrest Constitution s 50(1)(a) CPEA s 41A (1)(a)
• Challenge the lawfulness of their arrest before a court Constitution s50 (1)(e) of CPEA s 41A(6)(b)
• Be released if arrest is unlawful s 41A(6)(c)
• “Undoubtedly, an accused is entitled to challenge the power and right of the State to
place him on remand. He may do so upon a submission that insufficient facts have been
alleged for the court to objectively find the existence of a reasonable suspicion of his
having committed or being about to commit the criminal offence in question. Where in
possession of immutable evidence, which if disclosed to the court would completely
demolish the reasonable suspicion arising from the facts alleged by the prosecutor, he
may, at his option adduce such proof) AG v Blumears
• Onus is on the state to prove reasonableness of suspicion and must be objectively
demonstrated Bull v AG
Inquiry on remand AG v Blumears
• The Magistrate must decide whether the facts alleged by the prosecutor are such as to give grounds for
suspicion that that are reasonable, assuming that such facts are eventually proven. Duty on magistrate arises
whether or not the accused raises the issue
• The standard for deprivation of liberty under s 13(2)(e) of the Constitution (upon reasonable suspicion of his
having committed a criminal offence) are facts and circumstances sufficient to warrant a prudent man in
suspecting that the accused had committed or was about to commit criminal offence. This standard
represents a necessary accommodation between the individual’s fundamental right to the protection of his
personal liberty and the State’s duty to control crime. It seeks on the one hand to safeguard the individual
from rash and unreasonable interference with liberty and privacy, and from unfounded charges if crime,; yet
on the other, to give fair leeway for enforcing the law in the community’s protection.
• The criterion of reasonable suspicion is a practical, non technical concept which affords the best compromise
for reconciling these often opposing interests. Requiring more would unduly hamper legitimate enforcement
of the law. To allow less would be to leave law-abiding persons at the mercy of the whim or caprice of the
authorities.
• Viewed in the context of s13(2)(e) the remand procedure which precedes the trial offers the accused person a
neutral and detached determination of the existence of reasonable suspicion by someone independent of the
police or prosecution,
Procedure on remand
• Facts disclosed must constitute that a criminal offence has been committed if not that is the
end of the question
• The adversary safeguards customarily employed at a trial, such as the presentation of
witnesses, the full exploration of their testimony on cross examination and the application of
the hearsay rule are not essential for the determination of reasonable suspicion. That issue is
capable of being reliable determined without the adversary hearing
• The standard is the same as that for arrest without a warrant. It does not require the fine
resolution of conflicting evidence that guilt beyond a reasonable doubt demands, or even a
preponderance of probability
• Certainty as to truth is not involved for otherwise it ceases to be suspicion and becomes fact
• Suspicion us after all nothing more surmise than a state of conjecture lacking whereof proof is
• Prosecution must be open and forthright when informing the remand court of the facts relied
upon as establishing the nexus between the offence and the accused. Prosecution must not
uncooperative or seek to conceal facts in such a way as to hinder the defence