Ms Jane Mulcahy:

I thank the committee for the opportunity to draw attention to certain troubling aspects of the general scheme of the bail Bill 2015, which on the whole is to be welcomed for consolidating and restating existing law on bail matters. I will focus on notable omissions in part 1 of the proposed Bill and a number of legislative innovations of dubious value and necessity which may drive up the prison population if enthusiastically embraced by the Judiciary.

I will start by making a point about the language surrounding the discussion of bail. The language accompanying the unveiling of the Bill to new Garda graduates at Templemore in July 2015 was reminiscent of that used in advance of the 16th Amendment to the Constitution, the bail amendment. It was quite out of step with the recent progressive penal reform agenda pursued by this Government. One presumes this so-called crime control language was calculated to appeal to the law and order cohort of Fine Gael voters in the run-up to the election. The Minister for Justice and Equality, Deputy Frances Fitzgerald, stated that the Bill "will strengthen the law to protect the public against crimes committed by offenders out on bail”, while the Taoiseach added that, "This is the first comprehensive review of bail law since 1997 and demonstrates this Government's ongoing commitment to crack down on crime."

The main goal of the proposed legislation is to restate and consolidate existing Irish law in accordance with the Constitution and the jurisprudence of the European Court of Human Rights, while giving judges "better guidance" as to how they might "protect the public" in certain key areas. It is unfortunate that the Minister did not see fit to give the courts "better guidance" as to how they might also protect the rights of accused persons. There is currently no explicit presumption in favour of granting pre-trial bail to an adult in Ireland, nor is the presumption of innocence explicit in the Constitution or any statute. The European Court of Human Rights has stated that to justify the pre-trial detention of an accused person who is presumed innocent, there must be "a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty". That was in Kalashnikovv.Russia. The court also held that states should consider less intrusive measures than detention and must prove that a less intrusive alternative to detention would not meet the objection or objections to release pending trial. Under the European Convention on Human Rights, therefore, an accused should only be detained if one of the grounds in Article 5(1) applies and a condition of bail cannot mitigate the risk in question.

In terms of reflecting the jurisprudence of the European Court of Human Rights, the proposed Bill should contain a clear statutory articulation in part 1, recognising the presumption of innocence and the presumption in favour of release on bail. This would serve as an important reminder to judges and the prosecution when objecting to bail that people accused of criminal offences are innocent until proven guilty and should generally be released before trial, unless the evidence demonstrates that their remand in custody is necessary, proportionate and grounded in law. This means it should not be based on unlawful presumptions or vague, unsubstantiated statements by the prosecuting garda.

A general provision should be inserted into the Bill to the effect that"in every bail application, the court must consider whether a condition or conditions could be attached to bail which would be sufficient to meet the objection or objections raised under head 26 or 27 of this Bill". An additional provision should explicitly require that judges only impose such conditions as are strictly necessary and proportionate to meet the identified risk or risks to ensure an individualised approach is taken regarding the setting of conditions.

I will make a point on addiction to alcohol with respect to codifying section 2 of the Bail Act 1997. While addiction to controlled substances and alcohol certainly is a major factor in the offending behaviour of many people who come before the criminal courts, permitting judges to remand people with addiction issues in custody to prevent further offending on bail does little to address the complex underlying issues. In this regard, the justice committee’s recent consideration of Ireland's failed war on drugs is timely. Important lessons can be learned from the recent successes of the Portuguese decriminalisation strategy which has increased its focus on addiction as a public health issue rather than a social ill to be addressed primarily by recourse to the criminal courts. In the context of a revised bail scheme and any new approach to drugs policy, holistic supports should be funded, including Probation Service supervised hostels providing access to mental health and addiction treatment and other necessary interventions in order that people can address underlying problems.

As noted by the Strategic Review of Penal Policy, Irish penal policy has suffered from a failure to plan adequately for the future and to understand the consequences of changes in policy. The result has been an explosion in our prison population since the mid-1980s, with no evidence or suggestion that society has become correspondingly safer. It is highly likely that proposed stringent bail measures, such as those relating to domestic burglary and the so-called guidance given to judges regarding head 27 and how they may protect the public more generally have been conceived without adequate or any assessment having been undertaken to examine their potential impact on the already overburdened prison system or of the pressure that additional remands in custody will place on the investigating gardaí as well as the Director of Public Prosecutions to get the case ready for trial. As my colleague from the Irish Council for Civil Liberties stated, the legal right to a speedy trial is all the more important and pressing when the accused is in custody. Anyone who has any experience of the criminal justice system will attest that trials are anything but speedy at present, especially in the Circuit Court, where it can take upwards of a year and a half due to busy court lists and other inefficiencies. The situation will only worsen if substantially more people are remanded in pre-trial detention.

Perhaps the key question for the Minister, her officials and all Members of the Oireachtas at this juncture is to consider whether it is prudent, responsible and conducive to a safer society to remand more people in pre-trial custody, primarily to incapacitate them, if it would necessitate the emergency temporary release of convicted offenders to free up beds.