Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

I thank the Chairman and I thank all of the witnesses for coming to the committee. We appreciate the assistance that the representatives provide to the committee in respect of the job we have to do.

I will give a brief overview of the process of this legislation, which is the same as for every other item of legislation. The Bill was introduced in Dáil Éireann one year ago, on 14 December 2017. There is no real debate when the Bill is being introduced, it was just five minutes allocated to introduce it. The Bill then proceeded to Second Stage, the substantive debate on which happened on 28 June 2018. Members do not have to be fully supportive of a Bill to vote for it. The Bill before us passed Second Stage. A number of individuals expressed some concerns about the Bill. These can be dealt with on Committee Stage and addressed now as part of this detailed scrutiny process. It is very important for me and for the committee that our guests are here and engaging in this process. It is important to state that just because it is my Bill, our guests should not feel that they cannot trash it or indicate that they do not agree with it. There is lots of legislation which comes from those on my left and which might attract similar reactions.

We want to try to get some form of agreement on the basis that there is a problem in the context of offences being committed by people who are out on bail. The committee and I are of the view that legislation should only be introduced if it is evidence-based, if it is necessary and if it is going to work. Although we are all politicians, we do not believe in introducing legislation just because it looks good. Legislation has to be based on evidence. When we consider the evidence basis and the legal basis for this Bill, we probably have to look back 22 years to a referendum held in December 1996 when the people overwhelmingly voted to change the Constitution. They changed it by putting a provision into Article 40 to the effect that "Provision may be made by law for the refusal of bail by a court to a person charged with a serious offence where it is reasonably considered necessary to prevent the commission of a serious offence by that person." The public changed the law and that is the fundamental document we have.

We also need to see if there has been a continuing problem in respect of offences being committed by people who are on bail. Regrettably, there is a continuing problem. I have circulated to my fellow committee members - I apologise if there are not enough copies - the reply to Parliamentary Question No. 445, which I tabled to the Minister for Justice and Equality, Deputy Flanagan, on 6 November last. The Minister set out, very concisely in tabular form, 15 different types of offences by year from 2013 to 2017, inclusive. In respect of each of the offences, we can see there are recorded crime incidents with at least one suspected offender on bail when the crimes were committed. I could go down through these figures, but I do not intend to do so. I ask the members to look at 07 on the table, which relates to burglary and related offences. In 2013, there were 1,241 incidents of burglary or relates offences; in 2014, there were 1,674; and, in 2017, there were 1,342. The committee should have no difficulty accepting that, unfortunately, we have a problem with crimes being committed by people who are out on bail. There may be reasons for that and it does not mean that there should not be further research. Part of the reason may be that people think there is no deterrent against committing other offences when they are out on bail because any sentences for such offences will be served concurrently with sentences for the original offences. This may be one of the factors but I will start by stating that we do a problem and there is a responsibility on us, as legislators, to try to deal with it.

I have an opening statement, which I will read into the record. The principal purpose of the Bill is to amend the Bail Act 1997. That legislation was introduced in the aftermath of the constitutional amendment. I have to repeat that, unfortunately, there is evidence of a high rate of offending among people who are out on bail. In 2017, 12% of all crimes committed were by persons who were out on bail for other offences. This Bill attempts to make it mandatory for a court to refuse bail if the court is satisfied that such a refusal is "reasonably considered necessary to prevent the commission of a serious offence by that person." At present, it is optional for a court to refuse bail if it is of the view that such a refusal is reasonably considered necessary to prevent the commission of a serious offence. The constitutional amendment is clear and the obligation should be that if one thinks it is going to be reasonably considered necessary, then bail should be refused. The legislation also concentrates specifically on the crimes of burglary and aggravated burglary because these are offences in respect of which there is a high rate of recidivism, as the figures in the reply to my parliamentary question highlight.

According to the 2013 Irish Prison Service recidivism study the recidivism rate is approximately 80% among persons imprisoned for burglary and related offences. This is the highest rate for any offence and is considerably above the overall recidivism rate, which is 62%. Statistics from the CSO which are published under reservation, indicate there is a problem.

I read the submissions, including that by AdVIC. AdVIC's concern in part is that the substantive part of this legislation applies only to burglary and aggravated burglary. It is Ms Deane's desire to see the provision applied more broadly to other serious offences. That is an argument with which I have considerable sympathy. On the basis of an evidence-based analysis and the statistics, however, it is clearly the case that burglary and aggravated burglary are associated with a particularly high rate of recidivism.

The Bill also seeks to introduce a provision in respect of electronic monitoring. Electronic monitoring seems to be presented such that if one is in favour of it, one is regarded as draconian, whereas if one is opposed to it, one is regarded as liberal. Unfortunately, these simple analyses of views on issues pertaining to bail and alternatives to losing one's liberty are not helpful. Electronic monitoring applies throughout Europe, including Northern Ireland. It applies in many countries that have fewer prisoners than Ireland. It exists as an option and an alternative to incarcertation. Assistant Chief Constable Todd and others from Northern Ireland appeared before this committee a couple of weeks ago. Electronic monitoring is used in the North for bail applications. The alternative is that if one does not opt for electronic monitoring, one might be denied bail. I would have believed any person trying to avoid being subjected to pre-trial detention should recognise that electronic monitoring is an option. The Irish Prison Service uses electronic monitoring to monitor some prisoners and that there are pilot programmes in this regard.

Section 1 is a standard provision.

Section 2(a) deals with what I referred to, namely making it mandatory for a court to refuse bail if it believes it is reasonably considered necessary to prevent the commission of a serious offence.

Section 2(b) substitutes a new provision for subsection (2A), which was inserted into the Act of 1997 by the Criminal Justice (Burglary of Dwellings) Act 2015. The new subsection (2A) requires the court to refuse an application for bail where an application for bail is made by a person charged with a relevant offence, where the relevant offence is alleged to have been committed in a dwelling and the circumstances specified in subsection (2B) are complied with. A relevant offence in the legislation is aggravated burglary or burglary.

Sections 2(c) and 2(d) amend subsection (2B) by providing for a broader range of circumstances that will warrant the refusal of bail by the court. Under the provisions of the Bill, a person charged with burglary or aggravated burglary will be refused bail if the applicant has a conviction for burglary or aggravated burglary in a dwelling in the previous five years; the applicant has been charged with and awaiting trial for at least two offences of burglary or aggravated burglary in a dwelling within a period commencing six months before and ending six months after the offence in respect of which the bail application is being made; or the applicant has a conviction for burglary or aggravated burglary in a dwelling and is awaiting trial for another such offence that is alleged to have occurred within a period commencing six months before and ending six months after the offence in respect of which the bail application is being made.

Section 3 deals with the use and provision of electronic monitoring of persons as a condition of bail in certain circumstances. The section provides that where a person is charged with an offence, as provided for in section 2(2B) of the Act of 1997, the court shall make recognisance subject to the use of an electronic monitoring device.

That is the overview of the Bill. Sometimes people criticise politicians. Politicians have one great ability: they are very much aware of what the public is considering regarding the issues that affect them. In this regard, they are much more aware than journalists, academics, lawyers, builders or those with other occupations. It must be emphasised that the public is legitimately concerned, that there is a high risk that the offence of burglary or aggravated burglary will be recommitted by those out on bail, especially those on bail after having committed those offences. I know fully as a lawyer that persons who are arrested for offences may not be guilty of those offences but they have to go through a trial process. I am aware of the academic arguments about constitutional rights relating liberty and the presumption of innocence, which are owned and are precious to individuals, and I am conscious of the rights under the European Convention on Human Rights but I am also conscious that there is a reality that needs to be addressed by legislators. I fully respect that each delegate comes from a different advocacy group or organisation seeking to advocate for a certain cause. I commend them all for doing so because it is important that we have groups advocating on behalf of certain groups of individuals, be they prisoners or victims. When there is a problem, politicians can ignore it or seek to deal with it. We need to deal with this problem because statistically it is clearly a problem.