Ms Deirdre Malone:

The IPRT very much welcomes the invitation of the committee to address it on the general scheme of the Bill. While the Bill is a largely welcome development, constituting a comprehensive restatement of the law on bail, it also provides an opportunity to revisit some aspects of the legislation that are problematic, in addition to flagging some concerns, especially about omissions in the Bill.

In the interest of keeping to time, which I know is very limited, I will not repeat the submission of my colleague from the ICCL. However, I can say without reservation that we endorse each of the recommendations she has made. I refer members to our written submission, which we stand over. It might be helpful to address the committee on the scale and impact of pre-trial detention and go into a little more detail on the case for bail supports and services. I will address electronic monitoring, which I believe has not been addressed elsewhere, and talk very briefly about mandatory sentencing, which finds a place within head 40 of the Bill.

There is no question but that pre-trial detention does have a place within the criminal justice system in ensuring that certain defendants will be brought to trial. However, overuse of pre-trial detention and its impact on liberty and the presumption of innocence are really significant. Pre-trial detention is expensive. When used excessively, it not only has an impact on individuals but also places a strain on prisons, which are already under strain, and diverts resources away from those who are already serving a sentence and the rehabilitation of the latter. Exposure to prison itself is damaging and makes people more likely to reoffend, not less likely. An accused person who is remanded in custody may find it more difficult to prepare his or her defence adequately. It is for all these very practical reasons, in addition to principled reasons, that the European Convention on Human Rights requires that pre-trial detention be used as a measure of last resort.

Given all the foregoing, it is really regrettable that the general scheme of the Bail Bill does not include any statutory provision whatsoever for bail supports. Bail supports and services include supervised bail. I refer to mechanisms by which supports are made available for those placed on bail to ensure they turn up for appointments and for court and so some preliminary work can be done on any issues raised that relate to offending or alleged offending. An example would be working with factors such as addiction, which in some cases can be a contributing and significant factor when it relates to offending.

We have laid out in some detail the research from other jurisdictions, such as England, Wales, Australia and Canada. We have seen from it that the use of the supervised bail and other schemes has a number of outcomes. It creates positive changes in behaviour over time, including a desire to avoid trouble or jail, learn to deal with conflict and refrain from drinking or taking drugs. It results in court attendance of 80% to 90%. That means increased court efficiency. We know how overstretched our courts are at present. Punctual attendance is crucial and everybody has an interest therein. The schemes ensure this while managing risks in the community. Obviously, the schemes reduce the number of remands to custody. We should not leave out the fact that there are significant cost savings. In Scotland, for example, which is a very comparable jurisdiction in regard to criminal justice, research shows that offsetting the cost of supervised bail against the reduction in prison costs from reduced use of remand over a three-year period resulted in a net benefit of between £2 million and £13 million.

We recommend that the Bill include an evidence-based approach to provision of bail services and supports, obviously aimed at the prevention of offending on bail, ensuring appearance at court and reducing the number of remands to custody to the essential minimum.

With regard to the draft heads, we endorse the recommendation in both the ICCL's submission and our own on ensuring the period of remand remains at eight days and is not extended to 15. We encourage the introduction – in head 10, we suggest – of the no-real-prospect test. This is a test that was proposed by the Prison Reform Trust in the United Kingdom. Essentially, it means the addition of words such as, “or where there is no real prospect that the person who is making an application for bail will, even if convicted, be given a custodial sentence”. In those circumstances, it makes no sense, economic or social, to remand the person to custody.

We very much welcome the requirement to give reasons for bail decisions. Victims, criminal justice analysts and anybody working in the criminal justice system would welcome more accountability and transparency around all judicial decision-making.

It is really important to address the electronic monitoring issue in some detail. This relates to heads 18 and 19. There is legislative provision for electronic monitoring but it does not happen in practice and we very rarely see it being used. Where it is a genuine and well-resourced alternative to remanding somebody to prison while awaiting trial, particularly given the length of time we are talking about currently where trials are being listed in 2017 and there is an extremely long period of pre-trial detention, and where we have examined how it might work in the Irish system, it would be welcome. We know from research in the UK and the recently published recommendations of the Council of Europe that we cannot lump in electronic monitoring without considering a number of issues about the way it will work and how it will affect individuals. Proportionate and necessary use of electronic monitoring would be welcome but must be considered extensively.

Head 40 provides for mandatory consecutive sentences for certain specified bail offences. I think I can say there is consensus in this regard. The Law Reform Commission, the strategic review group on penal policy and my organisation have all come to the view that the impact of presumptive minimum mandatory sentences, prisoner numbers and questions as to the extent that those sentences have contributed to reducing crime are a concern. The strategic review group recommended that no further mandatory sentences or presumptive minimum sentences should be introduced. Going ahead with the bail Bill without looking at bail supports and services is akin to trying to solve a perceived illness without looking at the cheapest and most effective medicine. It simply does not make sense. I urge the committee to consider in more detail the research available and to examine the possibility of including a provision on that very socially and economically effective issue in the Bill.