Ms Deirdre Malone:

In my view, the court already has the power to refuse an application under the 1997 Act. That was introduced in response to a referendum which was put to the people and passed, the 16th amendment of the Constitution. The option is already there. I reiterate Dr. Rogan's point that having full information before the court is extremely important to ensure that the appropriate decision is made in a particular case. This amendment moves us well beyond that. It is not permissive, allowing the court to take that decision if it wishes to, but makes it mandatory. It removes any judicial space to look at all the relevant factors. They are well known but will include such matters as the seriousness of a charge that is in front of the court, the strength of the evidence, which varies widely in each case, previous convictions, the likely length of time to trial and issues of whether there is evidence of potential intimidation of the victim's family. These are all relevant issues. A judge in a case has that evidence in front of him or her, is faced with two lawyers, usually defence and prosecution, or a presenting garda, weighs up that evidence, which is a difficult balancing act in light of the constitutional framework, and tries to make the best decision in each case. That is the current system. This Bill undercuts that and makes it mandatory in every case. Ideally, we would have a situation where that type of decision could deliver a reduction in pre-trial offending. It ignores that each of these cases involves different factors. It ignores what implications there will be for our prisons if a blanket provision is introduced.

We woke up today to headlines that six of our 12 prisons are overcrowded, with prisoners sleeping on the floor. It is important for resources to be targeted where they are needed so those who are a risk or may intimidate witnesses will be refused pre-trial detention. Where one introduces a blanket measure such as this, however, and greatly increases the number who are in pre-trial detention, not necessarily those who ought to be but those who happen to fall foul of a provision such as this, it is unconstitutional but also will be ineffective. When that happens, the resources available in our prisons to deal with people serving a sentence after conviction will be completely diluted. There will be chaos on the landings. There are not enough officers to deal with the offending behaviours programmes to get people into education and work to reduce the risk of offending. That does not deliver a safer community. It is important that the provisions are used in the right way to ensure the right people are detained where risk is identified and that evidence is before a court. In my view, however, only a judge can make that decision within the limits of the law.