There have been several bail applications I have dealt with where averments in the supporting affidavit have been centered on the ill health of the accused person or convict. Some have gone further to attach medical reports proving the alleged condition. These applications are mostly granted although the reasons given in the rulings are not emphatic that the basis of the grant of bail is the ill health of the applicant. It is therefore necessary that we answer the question posed in the title: is ill health a ground for the grant of bail. This article will also look at the circumstances under which ill health will be considered.
Let me state from the onset, that detention is not an avenue for the rights of a detainee to be trampled on, especially their rights to life and healthcare. Hence, medical care is offered to persons in police and prison custody at the expense of the state.
Before 2004, the general rule was that ill health was not a ground for the grant of bail. In the case of Martin Kpebu vrs The Attorney-General[1], it was held that the grounds for the grant or refusal of bail are set out in article 14(4) of the 1992 Constitution of the Republic of Ghana and section 96 of the Criminal and Other Offences (Procedure) Act, 1960 (Act 30). The grounds in these provisions are unreasonable delay, that the bail applicant will not avail himself for the determination of his case, that he may interfere with witnesses/evidence or hamper police investigations, that he may commit a further offence when on bail or that he was charged with an offence punishable by imprisonment exceeding six months which is alleged to have been committed while the applicant was on bail.
It is noteworthy that the courts had made pronouncements affirming the general rule above mentioned. As early as 1967 in the case of Okoe vrs The Republic[2], Taylor, J (as he then was) held that the fact that detention would affect a person’s ill health was not a proper ground for the grant of bail.
However, considering that the basic laws of humanity require that the medical wellbeing of every person be considered, the courts did not hold this rule as absolute. Thus, in the Okoe case, Taylor J (as he then was) added that, bail may be granted if the detention in custody was the cause of the applicant’s ill health. This position was affirmed in the case of The Republic vrs Kevin Dinsdale Gorman & Others (Gorman case)[3]. The Gorman case also made reference to the 1999 case of The Republic vrs Court of Appeal, Ex Parte Attorney-General (Frank Benneh Case)[4]where the serious medical condition of the accused while in detention was taken into account in the exercise of the court’s permissive discretion under section 96(1) of Act 30.[5]
The legal proposition was expanded in the Gorman case when the apex court stated as follows:
“In the exercise of their judicial discretion as constitutionally circumscribed, courts are accorded under section 96(1) (of Act 30) the general right to grant bail as long as the accused person is prepared to give bail or enter into a bond. The section impliedly grants the right to refuse bail as well. It should also [be] noted that this provision does not list any specific grounds for the grant of bail, and one would surmise that any reasonable ground, such as the deterioration of the health of the accused while in detention, would suffice as a proper ground for the grant of bail. But it is made subject to other provisions of the section. The second aspect, embodied in section 96(5), states a general duty to refuse bail in certain situations, including the likelihood that the defendant may not appear to stand trial. This is followed by section 96(6), which lists the factors the courts should take into account in assessing the likelihood of the defendant's non-appearance for trial.”
It can therefore be stated that the rule has been modified to include considerations of ill health as a ground for the grant or refusal of bail. To put this legal position in the Gorman case into practice, the Practice Direction (Determination of Bail and Consequential Matters), 2019[6], has included the following as determinants of bail:
- whether the health condition of the accused has deteriorated due to the failure of the Prosecution or persons keeping custody of the accused to grant him access to health[care] and
- whether the accused has contracted a serious disease directly as a result of an insanitary condition in the custody where he is kept.
It is interesting to note that in 2016, the Court of Appeal in the case of Kwasi Adu @ Etseafo vrs The Republic[7] set a strict standard of proof of ill health of a bail applicant. The appellant in the case had appealed against the ruling of the trial court refusing his application for bail on grounds of ill health, among others. The applicant had attached a Medical Report to the affidavit. The applicant’s counsel submitted to the appellate court that he had suffered ill health after his detention. In dismissing this ground of appeal, the appeal court observed that the appellant appeared to be in good health, his Medical Report was six years old and there was no recent medical evidence of his sickness. The allegation of ill health was critically analyzed by the court before the appeal was dismissed on the basis that the applicant was misleading the court with this ground of appeal.
The position of the law surmised from the above analysis is as follows:
1. Ill health is a consideration for the grant/refusal of bail pending.
2. The ill health complained of must either be caused or worsened by detention.
3. The applicant must provide proof of the condition complained of.
It is my opinion that a court ought to hasten in granting bail where the parameters above have been met especially in cases of bail pending trial because an applicant is at this stage still presumed innocent until proven guilty[8]. And an applicant is more likely to provide for himself specialized medical care than the general care the State may initially provide. In cases of bail pending appeal however, this consideration of ill health must be made only in exceptional cases where there is an apparent error on the face of the record for which a conviction cannot be sustained, because until set aside, the conviction of the applicant remains lawful and ill health is not a ground to indefinitely stay a sentence.[9]
[1] [2020] Crim.LR 97
[2] [1976] 1 GLR 80
[3] [2003-2004] 2 SCGLR 784
[4] (1998-1999) SCGLR 559
[5] See the Gorman case for discussions on the Benneh case.
[6] See page 4
[7] [2020] Crim.LR 423 @ 427
[8] See article 19(2)(c) of the 1992 Constitution
[9] The legal parameters for the grant of bail pending appeal in Fynn v The Republic [1971] 2 GLR 433 were considered.