For those accused of an offence and detained in police custody, an opportunity to apply for bail will be of paramount concern. With the length of time that defendants are required to wait before trial being in many cases extensive, it is understandable that avoiding spending this time in custody is a priority.
If you find yourself accused of committing an offence, it is vital that you have access to the best available legal advice to ensure that your bail application is made with careful consideration, providing the judge with all the information they need to demonstrate that any bail conditions will be complied with.
Innocent until proven guilty is a fundamental principle of the criminal justice system. Accordingly, the starting point in most cases is that bail should be granted.
At an opposed bail hearing the prosecutor will submit evidence to the court to argue that you should be refused bail and held in custody. In decisions over whether bail will be granted or not, the Constitution directs the court to consider whether there is an unacceptable risk that you would:
In considering whether there is an risk of any of the above, the court will have regard to matters including:
In most bail applications, it is the prosecutor’s onus (or job) to convince the court to refuse bail and remand you in custody. However, in some circumstances the onus of which party needs to prove matters in a bail application is reversed and it becomes your responsibility to show why you should be released. In these situations, bail becomes significantly more difficult to secure and having expert bail representation becomes even more important.
It is possible to appeal a decision to refuse bail. This must be done immediately.
If you have previously applied for bail and it has been declined, we can launch an application to the Hight Court, Court of Appeal and even the Supreme Court of Kenya to fight for release. While an application of this nature is not strictly an “appeal”, it is an application best made by lawyers well-versed in the jurisdiction’s formalities and requirements. We at Hassan Luk have the experience and ability to make these applications on your behalf.
If you are under constant police harrassment, you can apply for bail before the actual arrest occur. Bail is given to avoid having a potentially innocent person held in police custody for what might be a significant length of time.
Anticipatory bail is meant to safeguard a person who has false accusation or charges made against him/her, most commonly due to professional, political motives or personal enmity, as it ensures the release of the falsely accused person even before they are arrested.
Below are some of the more frequently asked questions by clients about the investigation (police station) stages of cases. The answers here do not constitute legal advice and you should contact our lawyers to discuss the specific facts of your case with us before making any legal decisions.
The first thing you should ask of the police in this situation is whether you are a suspect in a criminal investigation. If you are then the police have to treat you in accordance with the Constititution 2010. If you receive a phone call inviting you down to the police station for either a chat or an interview contact us immediately.
No. The police have to have reasonable suspicion that you have committed or are about to commit a criminal offence. Additionally, for your arrest to be lawful it must be necessary as defined in the Penal Code Act 1930 and Criminal Procedure Code 1930. The police have to inform you of your arrest and tell you why you are being arrested as soon as it is practicable. Challenges to the lawfulness of arrest and detention should be done as soon after the fact of both as possible. This is one of the reasons why you need a lawyer at the police station.
Yes you can have a lawyer and you don’t have to pay. This is a free service where we aim to arrive within 45 minutes of being told by the police that they are ready to interview. We are contactable 24 hours a day, seven days a week for Police Station representation and we will gladly represent you. If you have a pre-arranged appointment with the police you can always call us direct beforehand and, despite what the police may say, you do not have to ask for the Duty Advocate- you can request your own advocate.
As stated above we will seek to arrive within 45 minutes of being requested to attend. In reality when you are first arrested the police are hardly ever in a position to deal with you straight away and interview you immediately. Often we will speak to the police and seek to agree a time when they think they will be ready to deal with you so there can be as little delay as possible. If you are still not convinced, think of it this way: if the time you spent in the police station waiting for a lawyer increased your chances of not being charged, securing a ‘Not Guilty’’ verdict at trial or a lower sentence, wouldn’t it be worth the wait?
No. It is your right in law and there is nothing wrong with exercising your legal rights. If there was, you would not have those rights in the first place.
Whether you are going to tell the truth or not is not the point. In law it is for the Prosecution, comprising usually of the Police and the Director of Public Prosecutions, to prove your guilt: it is not for you to prove your innocence. This underpins your right to remain silent. Remember you cannot be convicted by your silence alone and once you have said something in evidence e.g. under caution in a police interview, it cannot be unsaid.
No. You have to be fit for interview and this means healthy in body and mind. Therefore if you are physically unwell, in pain or possibly have mental health issues which affect your judgement then you cannot be interviewed under those circumstances. When we arrive at the police station we will ensure your welfare has been taken care of. If an interview does proceed, despite these difficulties you have raised, then there may be legal argument to challenge the admissibility of that interview.
This depends on a number of factors. In most cases, despite what you may have seen on television, you may not be able to take legal action against the police if they have properly arrested and interviewed you. If they have not then we can discuss if you have a case against the police.
This is one of the most frequently asked questions we get from clients. The vast majority of police investigations now feature suspects released under investigation. Some investigations due to their nature take much longer than others. For example, in a complex fraud where there is a lot of documentary evidence and perhaps digital evidence, there is the likelihood that you will be released under investigation for a long period of time.
Compounding this is the fact that investigations where suspects have been released on bail will inevitably take priority due to the time constraints. At Hassan Luk we have a dedicated unit that track the status of all cases at the police station so we are able to keep clients regularly informed. If you are currently released under investigation and do not have a lawyer please contact us so that we may assist you in finding out the status of your case.
Following the conclusion of the police investigation a decision will be made as to what happens next. You may find that the police take no further action which means, unless further evidence comes to light, that is the end of the matter. In our experience this is highly unusual but you must be aware that this is a possibility.
We will explain the implications of these outcomes, among others, when required.
Finally, you may find you are charged with one or more offences and be required to attend Court. This can be done by the police who will then bail you to Court or remand you in custody for you to be produced at the next available Magistrates Court sitting.
The ramifications of being refused bail can be devastating to you and your family. Loss of work, income, benefits, contact with children and partners, and the effects of prison life on mental health are significant and severe. In recognition of this, we can meet with you when you are in custody and develop a customised strategy that will give you the best opportunity to secure your release.
Our key function as your defence is to argue against the prosecutor’s submissions by presenting your information in a meaningful, relevant, legally admissible, and persuasive way. In building our strongest application for you to be granted bail, we will design and structure your submission so that:
As with most legal work of any description, there is no substitute for preparing thoroughly when applying for bail. Good preparation of a bail application will raise avenues of inquiry that bail lawyers should follow to firm up.
We will secure and assess every item of evidence involved in your case and create a strong strategy that will show the court that bail should be granted and that any conditions imposed on your bail should be restricted.
If you are happy for us to represent you and funding is in place (either legal aid or privately) then yes we will be there. In most criminal cases, defendants/accused persons are unable to afford legal services and therefore require legal aid.
Where this is the case, our lawyers will provide free legal advice and representation to individuals and groups who otherwise can't easily access justice. At Hassan Luk, our Pro Bono lawyers are required to donate their time and expertise in deserving cases.
You will be allocated or may request a specific lawyer and we will endeavour to ensure continuity of representation. We do, however, work as a team so, although there will be one lawyer with overall responsibility for your case, others may work on your case also to ensure all necessary work is done.
Not necessarily. A limited number of bail applications can be made at the Magistrates and High Courts. There are a number of factors to be considered and bail cannot be guaranteed in every case. We appreciate bail is often the most important question for clients and we do our best to try and secure bail for all of our clients. A common mistake we often find clients make when applying for bail is that they want to reapply for bail immediately after they have been remanded into custody.
While this can be done, in our experience it is best to take time and consider the case as a whole as often the success of an application depends as much on its timing as it does on its substance. You should be aware that if the Court does not grant you bail it does not mean you will be found guilty should you go to trial. The issues involved in a bail application and that in a trial to determine your guilt or innocence are not the same thing.
This depends upon the offence for which you have been charged. If you have been charged with a ‘Summary’ only offence then your case will be heard in the Magistrates Court. Common examples of these types of offences are Driving while under the influence of excess alcohol or Common Assault.
If you have been charged with an ‘Indictable’ only offence, such as Murder or Manslaughter, then your case will be heard in a High Court. The first hearing will still be in the Magistrates Court.
The remaining class of offences are known as those ‘Either way’. This means they can be tried in either the Magistrates or High Court.
You should also be aware that even if your case is heard in the Magistrates Court and the offence for which you are charged is an ‘Either way’ offence then the Magistrates Court can still commit (transfer) your case to the High Court for sentence. There are exceptions to the above and this is a rough guide only. You should contact us for more specific advice to your case and not make any decisions about your case without taking proper legal advice.
Yes. Under most circumstances if your case is going to be a trial then you will often be represented by an advocate. While we pride ourselves on picking the best advocate for the case, if you have a specific lawyer you wish to represent you then please ask us and we will do our utmost to arrange this for you. Ultimately you must have complete confidence in your legal representation.
Prison remains an option in many cases. There are a number of factors to consider before you are sentenced. Equally you may be eligible for a community-based sentence or a suspended term of imprisonment. Our goal will always be to try and secure the best sentence for you.
You have an automatic right of appeal from the Magistrates Court to the High Court. You should be aware if you are unsuccessful in the High Court then your sentence can be increased.
To appeal from the High Court to Court of Appeal you will need a positive advice from Counsel and grounds of appeal. There is no automatic right of appeal in this instance. Please contact us if you wish to appeal against a conviction or sentence.
No. After a criminal trial you will not be ordinarily entitled to compensation even if you have been remanded in custody pending the outcome of your case.
Although the police will keep a record of any arrest and detention, you will only have a criminal record if you are cautioned for, or convicted of, a criminal offence. How long before a matter is ‘spent’, i.e. when you don’t have to declare it any more depends on the sentence you receive.
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