Ms Deirdre Malone:

I thank the members for the invitation to address the committee. The commission of offences on bail is rightly a matter of serious concern for the committee and for victims' advocates, who will have the safety of the community at the forefront of their minds. Our position is that the solution does not lie with the introduction of further legislation which is, in our view, unconstitutional. Pretrial detention has an important part to play in some criminal proceedings, but it is important to examine what is in place. We believe there is a robust bail system in place which deals with many of the concerns Deputy O'Callaghan raised.

With regard to the constitutional issues, the court has the power to refuse an application for bail under 1997 Act, as amended, where the court is satisfied that such refusal is reasonably necessary to prevent the commission of a serious offence. Deputy O'Callaghan correctly said that this was introduced in response to the referendum put to the people. However, the Bill makes that decision mandatory. Effectively, it removes any course of reflection from the Judiciary and makes the decision mandatory. The Deputy said it is important that legislation be evidence-based and necessary. We welcome that assertion. It is also important that legislation should be constitutional and proportionate and that it will work. That is where we raise questions about the introduction of this measure.

The provisions oblige the court to refuse bail in the circumstances set out. That precludes the court from considering other relevant factors, for example, the seriousness of the immediate charge before the court, the strength of the evidence in the case, any previous convictions, the personal circumstances of the accused and, crucially, the time it will take for the charge to go to trial, which in this jurisdiction can be lengthy. We support the position of the Irish Human Rights and Equality Commission, IHREC, which observed that the refusal of a bail application is a responsibility that rests under law with the Judiciary alone. For that reason and the further reasons set out in our submission, it is our view that this provision, because of its mandatory nature, is unconstitutional in all the circumstances.

Regarding electronic monitoring, it is important to clarify that there is legislative provision for electronic monitoring as a condition of bail. This Bill makes it mandatory to impose electronic monitoring where a person applies and satisfies the relevant criteria set out in the legislation. There are two issues with that. First, it does not meet the proportionality test and as such it is in breach of Article 5. Second, it misunderstands the way electronic monitoring operates and what it can deliver in practice. All of us have a concern about delivering a safer community for members' constituents and colleagues but there is a misunderstanding of what electronic monitoring can deliver. The court is obliged under the Constitution and the European Convention on Human Rights to restrict the right to liberty to the minimum extent necessary to achieve the legitimate aim. That does not mean electronic monitoring should not be imposed by the court in some cases. The court has the power to do that. However, if the court is precluded from considering any other alternative in all circumstances, that falls foul of the proportionality test and is in breach of Article 5.

The other issue is what electronic monitoring can deliver. Research from the UK, on which Dr. Rogan will elaborate, highlights difficulties with electronic monitoring in terms of inaccuracies in the data returned. It also does not prevent a crime being committed by the person. It tells one where a person might be at a particular time. It requires significant Garda resources to make it effective in any way in terms of geographical location. We would all like a simple legislative provision that would reduce offending on bail. There is no debate that everybody would like to see offending on bail reduced, but it is a misunderstanding to suggest that electronic monitoring imposed as a mandatory condition can deliver that. We have also set out how the provision does not consider the recommendations of the Council of Europe that were made in 2014.

In saying all of that, I do not wish to suggest that the IPRT is minimising or trivialising the number of offences on bail. They are high numbers and must be examined carefully, but the solutions might lie in places not being considered by this committee or in legislation in respect of Garda resourcing, the capacity available to the Garda, bail supports and services which are not touched on in any of these debates, ensuring that pro formabail conditions are not being handed out and diluting the effect of bail conditions when they are being imposed. The right to liberty and privacy is important and it is important that the court has the option of refusing bail where that is constitutionally appropriate. It is also important that the court has the option to impose electronic monitoring where that is seen as appropriate. However, introducing mandatory provisions in this way is not constitutional and will not deliver what the Deputy and all of us would like to deliver which is a safer community.