BAIL UNDER THE SEXUAL OFFENCES ACT

1. SPECIAL DUITES OF PROSECUTORS AND THE POLICE IN BAIL APPLICATIONS UNDER THE SEXUAL
OFFENCES ACT

The Sexual Offences Act imposes special duties on prosecutors and the police in respect to bail for
offences committed under the Act. Where an accused standing trial is charged with an offence of a
sexual nature, the prosecutor is required to consult with the complainant in order to ensure that all
information relevant to the trial has been obtained from her, including information relevant to the
question whether the accused should be released on bail and, if the accused were so released whether
any conditions of bail should be so imposed. See s. 10 (a) of the Sexual Offences Act 2011.

Where an accused standing trial is charged with an offence of a sexual nature, s. 11 of the Sexual
Offences Act requires the police officer in charge of the investigation:

a. To forthwith inform the prosecutor in such proceedings of any reason to believe that the
complainant would be at risk if the accused is released on bail and of any other investigations
involving the accused;
b. If bail has been granted to the accused, to forthwith, after becoming aware thereof, inform the
prosecutor of any failure by the accused to comply with his or her conditions of bail.

2. RIGHTS OF THE COMPLAINANT IN BAIL APPLICATION

Section 12 of the Sexual Offences provides for the following rights to complainants in proceedings
involving a rape charge:

a. A complainant has the right to attend any proceedings where the question is to consider
whether an accused who is in custody on a charge of rape should be released on bail or, if bail
has been granted to the accused, whether any further conditions of bail should be imposed or
whether any such conditions of bail should be amended or supplemented. See s. 12 (1) (a)
b. A complainant has the right to request the prosecutor in proceedings involving a rape charge to
present any information or evidence to the court that might be relevant to any question under
consideration by the court in such proceedings. See s. 12 (1) (b)
c. Where the accused is in custody on a rape charge, s. 12 (2) requires the person in charge of the
police station the accused is detained to inform the complainant as soon as possible of the
place, date and time of the first appearance of the accused in court and her rights in paragraph
(a) and (b) above.
d. Where an accused in custody on a rape charge intends to apply for bail on a date or at a time
the complainant is not aware of, the accused or his or her legal representatives are required
under s. 12 (3) to request the person in charge of the police station the accused is detained to
inform the complainant accordingly. Upon such request from the accused or his legal
representative, the complainant is then informed by the person in charge of the police station
that the accused intends to apply for bail.

GAYE SOWE - LECTURER – THE GAMBIA LAW SCHOOL Page 1

 e. Any person required to provide information to the complainant under s. 12 (2) and (3) of the Act
must prepare an affidavit stating the following:
i. Whether the provisions of s. 12 (2) and (3) as the case may be have been duly complied
with and, if they have not been so complied with, the reasons for not complying with
any such provisions;
ii. The manner in which the complainant has been so informed; and
iii. The date and time when the complainant has been so informed. See s. 12 (4)

Note that such an affidavit is to be handed to the judge or judicial officer presiding at the
proceedings at which bail is considered, and such affidavit shall form part of the record of such
proceedings. See s. 12 (5)

f. If a complainant is present at a proceedings at which bail is considered in respect of an accused

who is in custody on a rape charge, and such proceedings are postponed the court is required to
inform the complainant of the date and time to which such proceedings have been postponed
and of the complainant’s right under paragraphs (a) and (b) above. See s. 12 (6)
g. If the complainant is not present at the proceedings at which bail is considered in respect of an
accused who is in custody on a rape charge, the court is required to enquire into the question
whether the complainant has had knowledge of such proceedings and if it is satisfied that it is
likely that the complainant is aware of such proceedings, it shall direct that the matter be dealt
with in the absence of the complainant. If the court is satisfied that the complainant is not
aware of the proceedings, it shall postpone the proceedings in order to obtain the presence of
the complainant. It should be noted that if it is in the interests of justice (with due regard to the
interests of the complainant) that the matter should be dealt with forthwith, it may be dealt
with in the absence of the complainant. See s. 12 (7).
h. If a complainant is not present, as contemplated in s. 12 (7) above, the prosecutor is required to
inform the complainant that bail was granted to the accused if that was the case and the terms
of conditions of such bail. By virtue of s. 12 (8) (b), if the proceedings were postponed, the
prosecutor must inform the complainant of the date and time to which such proceedings have
been postponed and the complainant’s rights in paragraphs (a) and (b) above. See s. 12 (8). Note
that the provisions of s. 12 (4) (5) referred to above must be complied with (with necessary
changes) in respect of any notification given under s. 12 (8) (b). See s. 12 (9).
i. If the accused who is in custody on a rape charge is released on bail, the court shall add such
further conditions of bail as will, in the court’s opinion, ensure that the accused does not make
contact with the complainant. See s. 12 (12) (sic).

GAYE SOWE - LECTURER – THE GAMBIA LAW SCHOOL Page 2