Dr. Mary Rogan:

I thank the committee for the invitation to speak on the topic of bail and the use of pretrial detention as part of discussions on the Bill sponsored by Deputy O'Callaghan.

I will provide an overview of a research project I undertook as part of a study of the use of pretrial detention and bail in Ireland and six other European countries - Austria, Belgium, Germany, Lithuania, the Netherlands and Romania. The project is called "DETOUR - Towards Pre-trial Detention as Ultimo Ratio" and it was funded by the European Commission. I will share with the members the outcomes of our research that are most relevant to the committee's deliberations under three headings: first, the use of pretrial detention in Ireland generally and the European context; second, observations on the risk of offending as a ground for pretrial detention; and third, some reflections on the use of electronic monitoring.

The rate of pretrial detention in Ireland stands at approximately 14 detainees per 100,000 of the population. Ireland's rates of pretrial detention are lower than in the other six countries which formed part of our study. The most recent figures which can be compared indicate, for example, that our rate of pretrial detention to the number of pretrial detainees per 100,000 of the population is about half that of the Netherlands, Belgium and Austria. The Irish rate is comparable to the rate found in Germany. However, the number of people in pretrial detention in Ireland has shown a marked increase over the past two years.

For example, in January 2015, the average number of people in pretrial detention was just under 500. In October of this year, it is was 725. This increase is especially notable, though the overall numbers are smaller among women where the number went from 14 to 39. It is not possible to point to the precise reasons for this increase but the committee will be aware that there have been recent changes to legislation affecting pretrial detention, which sought to limit the possibility of a person taking up bail in circumstances where a risk of offending while on bail is an issue. It is notable and regrettable that we cannot say more about the reasons behind these changes. The information we have from the Courts Service is not adequate for public policymaking or research purposes.

Pre-assessment of the effects of legislation on the numbers in prison and on other sanctions has been recommended by the penal policy review group. No such formal assessments have been completed since this recommendation was made in 2014. On this point, the committee might also note that where the upward trend in the numbers of people in pretrial detention to continue to increase Ireland would be going against the trend at European Union level, which seeks to reduce the numbers of people in pretrial detention and to use alternatives wherever possible. It is also important to recall that debates on pretrial detention tend to revolve around the binary distinction between liberty and detention. We must not forget that bail is not liberty simpliciter. The decision before a court is, in the vast majority of cases, between pretrial detention and gradations or levels of liberty. A wide variety of conditions can be imposed on a person as an alternative to pretrial detention. The question of the monitoring of them and the supports in place to ensure compliance needs to be considered.

The emphasis in the Bill on the risk of offending as a ground for pretrial detention raises some interesting issues which our research findings address. Our participants reported that the O'Callaghan grounds, the risks of flight and of interference with witnesses, remain the dominant consideration in bail applications in Ireland. It was a notable conclusion of the authors of the comparative report we produced that countries focusing on preventive aspects in the pretrial detention practice seem to have rather high rates of pretrial detention. This raises a strong concern that increasing use of the risk of offending ground is likely to lead to higher rates of pretrial detention. Careful consideration must be given to what the purposes of electronic monitoring in the Irish context are to be. The experience of other jurisdictions is instructive and I respectfully recommend that advice be sought on that experience. For example, European colleagues in this study found that of the seven countries involved, Belgium and the Netherlands use electronic monitoring most frequently. These are also countries with rates of pretrial detention almost double that of Ireland. Many technical matters also need to be considered. An impact assessment should again be carried out.

There were mixed feelings among the Irish participants as to whether the availability of electronic tagging would be a useful development. Some felt that it might give judges more confidence to impose restrictions on movement and they would, therefore, be more likely to grant bail. Other participants said there should be an emphasis on the reasons people do not turn up for trial or offend on bail, such as addiction problems, rather than investing in an electronic tag. As one probation practitioner said, it is about what is going on in people's heads. A particularly interesting perspective that emerged concerned the idea that defendants might seek electronic monitoring as an alternative to pretrial detention and review or appeal an outcome where pretrial detention was ordered and electronic monitoring was not used. A common view expressed by participants in Ireland was that electronic tagging would be similar to the curfew and mobile phone conditions which are currently frequently imposed as conditions of bail by the Irish courts. It is respectfully recommended that the Courts Service be asked to provide data on the number of bail applications made, granted and refused at District Court and High Court levels on a consistent basis, and broken down by offence type; that analysis be undertaken of the trends developing in the use of pretrial detention in Ireland; that an assessment be made of the implications of this Bill in terms of prison numbers of the overall cost; that an assessment be made of the logistical requirements for electronic monitoring and methods use along with likely costs; and that evidence be sought from those administering systems of electronic monitoring in other jurisdictions such as Belgium and the Netherlands.

I thank the committee for the opportunity to discuss these matters and I look forward to questions from members.