Brian Lenihan Jnr (Dublin West, Fianna Fail)

I move: "That the Bill be now read a Second Time."

The purpose of this short Bill is to correct a legal anomaly that has recently come to light in the law relating to bail. The Bill addresses a difficulty that has arisen in respect of the acceptance of recognisances by prison governors. Section 22(3) of the Criminal Procedure Act 1967 provided that judges of the District Court and peace commissioners could take bail recognisances. Prison governors are also peace commissioners and in that capacity they have been able to accept recognisances from persons remanded in custody pending entry of a recognisance. However, as this function could not be delegated, logistical difficulties occurred given the turnover in governors and the fact that, following an agreed change in work practices, they are not available 24 hours a day. In order to deal with this difficulty, the Prisons Act 2007, which modernised and updated prison-related provisions generally, amended section 22(3) of the Criminal Procedure Act to provide at section 41(2) that prison governors or prison officers designated by the governor could accept recognisances from people remanded in custody by the District Court pending entering of a recognisance. This provision was commenced on 1 May of this year.

However, section 18 of Criminal Justice Act 2007 also amended section 22(3) of the Criminal Procedure Act and removed the reference to peace commissioners. This was done as several references in the 1967 Act to the role of peace commissioners had already been removed in the Bail Act 1997 and it was decided to also remove the reference to peace commissioners accepting recognisances in section 18 of the Criminal Justice Act, in the interests of consistency. This was done by means of the substitution of the entire subsection 22(3) of the Criminal Procedure Act 1967 rather than by deletion of the relevant phrase. The new subsection provided for judges to take recognisances but failed to refer to prison governors or other designated prison officers. That section of the Criminal Justice Act 2007 was commenced on 1 July of this year, with the implied repealing of the earlier provision in the Prisons Act.

This has resulted in certain operational implications for the prison system in that recognisances can now no longer be taken by a prison governor or other designated officer with respect to a person in custody. The recognisance must be taken by a judge and this has had serious implications for the Prison Service in terms of provision of prison escorts and the availability of judges at short notice. I wish to emphasise, however, that it has resulted in an operational and logistical problem and does not in any way affect the granting of bail or the conditions under which bail is granted. Any person affected by this anomaly would already have been granted bail by the District Court and remanded in custody pending entering of a recognisance. There is no question that any person has been released who should not have been released; the only issue at stake is the question of who is authorised to receive the recognisance that has already been stipulated by the District Court. Without this amending legislation, practical difficulties are being created and the system of the taking of recognisances becomes difficult as a matter of operations. The Attorney General has advised that the most appropriate response to deal with this situation is to bring forward legislation on an urgent basis.

This Bill will restore the position to that which was in place prior to the commencement of section 18 of the Criminal Justice Act 2007, that is to say, prison governors and prison officers designated by them could accept recognisances from people remanded in custody. On the basis that the taking of a recognisance is essentially an administrative matter, the opportunity is being taken to extend the provision to include District Court clerks in the list of persons who can accept recognisances and also to reinstate peace commissioners as persons empowered to take recognisances.

Section 1 of the Bill amends section 22(3) of the Criminal Procedure Act 1967. It substitutes a new subsection 22(3) for that inserted by the Criminal Justice Act 2007. The new subsection provides that a judge of the District Court, a District Court clerk, a prison governor, a prison officer designated by a prison governor and a peace commissioner designated by order of the Minister for Justice, Equality and Law Reform, may take recognisances. I have decided to reinstate peace commissioners as persons empowered to take recognisances for practical reasons. However, as the role of peace commissioners in relation to bail matters has changed, I am inserting a provision whereby they must be designated by ministerial order rather than including a blanket empowerment provision. As already indicated, the opportunity is being taken to extend the provision to include District Court clerks in the list of persons who can accept recognisances.

While I appreciate that in an ideal world it should not be necessary to introduce a short piece of legislation such as this in order to tidy up what could be called a loose end, it is the case that sometimes this cannot be avoided. Minor conflicting provisions can sometimes be inadvertently overlooked when multiple Bills are being progressed within a short timeframe. In this case, a reference to prison governors and designated prison officers was inadvertently omitted. I reiterate that the net effect has not been in any way detrimental to our legal system. This accidental omission has resulted in operational and logistical difficulties for the prison service for a short period and for which reason I wish to correct the anomaly, but it has not resulted in any difficulties on a legal basis or in terms of legal interpretation. It has not affected the granting of bail by the courts or the setting of conditions to bail. Nobody is out on bail who should not be. The simple issue at stake here is the question of who is authorised to accept bail recognisances.

The concerns I have in this matter are in relation to the smooth and efficient operation of the courts and of the prison service. As I have noted, there are significant logistical issues for the Prison Service if prison governors or staff cannot accept recognisances and it is in the best interests of the smooth operation of the service that this anomaly be rectified as soon as possible. Section 2 is a standard provision and provides for the Short Title of the Bill.

I thank the members of the different parties for facilitating time this evening to deal with this urgent legislation. I look forward to the support of Deputies and to hearing their views in this matter and I commend the Bill to the House.

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