Clare Daly (Dublin Fingal, Independent)
Link to this: Individually | In context | Oireachtas source

I move amendment No. 4:

In page 4, between lines 12 and 13, to insert the following:“(a) in subsection 1(b) by the substitution of “considers necessary and proportionate” for “considers appropriate”,”.

This amendment might seem like a small change but it feeds into the discussions we have been having on penal policy regarding how justice committees are taking quite progressive stances on these issues, but that needs to be reflected by legislation. The amendment is changing the 1997 Act with the effect that when a judge is deciding to impose conditions on bail, those conditions have to be "necessary and proportionate". The Act says "appropriate". That might seem like a small change. The decision to grant or refuse bail is an incredibly serious one. We have to be very careful in legislating in this area. We have to take into account the costs of the decision. There are substantial economic and social costs of using prison for remand as an alternative to bail. When breaching one's conditions of bail is likely to result in a penal sentence, that has implications which need to be taken into account. We must also bear in mind that the person has not been convicted.

Remand is disproportionately used against women. The most up-to-date statistics were for 2013. They showed that 13% of the male prison population were on remand compared with 20% of female prisoners. The impact of women getting a custodial sentence, which we have explored over recent weeks in our consultation on penal policy, is that even a few weeks on remand could result in a woman losing her accommodation, custody of her children or whatever. It is incredibly disruptive. We have to be careful about the conditions imposed by the court and that they are such that the person has a decent chance of complying with them. Otherwise, they could end up in prison.

The problem with "appropriate" is that it can vary from court to court depending on the judge. It is quite vague. The Irish Penal Reform Trust, IPRT, has said that where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty is satisfied. Therefore, "necessary and proportionate" will be a greater guiding tool for the judiciary than "appropriate".