Jim O'Callaghan (Dublin Bay South, Fianna Fail) | Oireachtas source

In 1966, a man called Roger O'Callaghan was charged with a number of criminal offences, including larceny, breaking and entering, malicious damage and assaulting a member of An Garda Síochána. He was remanded in custody by An Garda Síochána. He sought bail and when he went to the High Court, he was refused bail. One of the grounds on which he was refused bail was that the court ruled there was a serious risk he would commit further offences while on bail. He then appealed the matter to the Supreme Court, as he was entitled to do. When the matter came before the Supreme Court, it delivered a very significant judgment entitled People (AG) v. O'Callaghan. In that decision, the Supreme Court ruled that bail could not be refused on grounds that an accused might commit further offences while on bail. The court at the time, including Chief Justice Ó Dálaigh and Mr. Justice Walsh, ruled that the reason this could not be a ground was that it was a form of what they said was preventive justice, which at that time, they said, was unknown to our legal system and contrary to the true purpose of bail.

That was in 1966. The law, however, changed in respect of this matter in 1996, some 30 years after that decision, because the people decided in the referendum on the 16th amendment to the Constitution to change the law in respect of the grounds upon which bail could be granted. The article that was inserted into the Constitution, Article 40.4.6°, states: "Provision may be made by law for the refusal of bail by a court to a person charged with a serious offence where it is reasonably considered necessary to prevent the commission of a serious offence by that person." Members may recall that in advance of that referendum in 1996, there was a very full and considered debate. People were on either side of the debate but, ultimately, the people decided, as they were entitled to do, that the law should be changed. The law is now as I have outlined. The provision in Article 40.4.6° may come within the categorisation of what Chief Justice Ó Dálaigh referred to as preventive justice, but so be it. The people decided to change the law in 1996 and that is what happened.

The law that was introduced on foot of that amendment to the Constitution was the Bail Act 1997, which the Bill going through the Dáil at present seeks to amend. The Bail Act 1997 expressly provides in section 2: "Where an application for bail is made by a person charged with a serious offence, a court may refuse the application if the court is satisfied that such refusal is reasonably considered necessary to prevent the commission of a serious offence by that person", The section continues to outline the factors that may be taken into account by a court when exercising that jurisdiction. It is proposed in the legislation before the House to amend section 2 by adding further sections to it and to amend other sections of the Bail Act 1997. I will turn to them presently, but it is important to identify some core principles in respect of the contentious issue of bail. I wish to put forward a number of principles.

First, since people are presumed innocent until proven guilty, the assumption should be that bail is granted. This is because no one is convicted and guilty of an offence until he or she goes through due process and is convicted by the courts. The second principle I wish to refer to is that most offences for which people are prosecuted are summary offences. Bail is not an issue in respect of these offences. Third, bail is sought where people are remanded in custody for what are referred to as serious indictable offences.

Fourth, in most applications, bail is granted with conditions, and a significant factor for a court in determining whether to grant bail is the attitude of An Garda Síochána to the application for bail. A court will not be completely subservient in any way to the attitude of An Garda Síochána, but this is one of the factors taken into account.

Fifth, those who are granted bail sometimes have conditions applied to their grant of bail. These conditions have a particular purpose, that is, restraining the person from interfering with witnesses, fleeing the jurisdiction or committing further offences. I welcome the fact that in this legislation, some of the conditions will be extended and some of the grounds on which bail can be granted will include the introduction and application of electronic monitoring. Some people may think this is an oppressive interference in the rights of individuals. However, when one considers the alternative is that these individuals may likely be remanded in custody, we must recognise that it provides them with a lesser of two evils. Rather than being remanded in custody pending their trial, they have electronic monitoring attached to them.

Sixth, unfortunately, we still have significant examples in this country of people committing crimes on bail. The logic or incentive as to why people would commit crimes on bail is that they know a serious prosecution may be coming down the line for which they may be likely to receive a custodial sentence. In effect, they may say there is no deterrent to their committing other offences since in all likelihood the sentences they would receive would run concurrently with the former prosecution. This is sometimes referred to as anecdotal evidence. However, there is in fact actual statistical evidence in respect of this matter. I commend our colleague, Deputy Noel Grealish, for getting information from the Central Statistics Office on criminal offences that have been committed by people on bail. I will outline these statistics as a seventh relevant principle. We know from figures provided by the Central Statistics Office in 2016 that 89 people were killed, 123 kidnappings were conducted and 237 sexual offences were committed in the past ten years by people who were out on bail.

It would be remiss of us not to record in this House the examples of five individuals who were killed by people who were on bail. I do this not for any sensationalist reason but because it is appropriate we recognise there is a basis for seeking to strengthen the bail laws. It is not simply in order to appease some unjustifiable concern or some concern that is not based on facts. We know that Sylvia Roche Kelly, a mother who was killed in a Limerick hotel room in December 2007, was killed by a man who was on bail for two crimes at the time. One of those crimes was the assault of a female taxi driver; the other was for the false imprisonment of a child. We know that Garda Tony Golden who gave his life while working as a member of An Garda Síochána was shot dead at a house in Omeath, in the Acting Chairman's constituency, in October 2015 by a man who was on bail at the time. We know that the Swiss student Manuela Riedo who was raped and killed in 2007 was killed by a man who was on bail at the time for a violent assault against his ex-girlfriend and who is now serving life sentences. We know that a man called Paul Kelly was killed in April 2007 by a Dublin man who was out on bail and had 26 previous convictions.

We know that a man called John McManus was killed in February 2009 by a man who was out on bail. I cannot be sure, or assure the House, that those five individuals would be alive today if the persons had not been out on bail but it is relevant to our debate and to whether our bail laws should be strengthened that they were killed by persons who were out on bail.

We had a good discussion at the Joint Committee on Justice and Equality this morning about penal policy and reform. There was universal agreement there and I am sure there would be here that there are probably too many people in jail. There are many in jail for non-violent offences such as a failure to pay fines. That is an area we need to examine as policy and law makers. There are also people for whom prison is absolutely necessary. There is unfortunately no other appropriate punishment for people who are extremely violent, who are involved in sexual assaults and who are a threat to the community. That does not mean that once people are imprisoned we do not seek to rehabilitate, assist and transform them. Our society needs to be protected from people who are violent or dangerous. I hope we do not get into a stereotypical analysis of bail as though this is an issue where civil libertarians are on one side and those who say lock them up are on the other. I would have thought the consensus in Ireland is that we would like to have fewer people in our jails. People who are a threat to the community, however, need unfortunately to be put behind bars. There are circumstances where people out on bail have committed offences and the court should refuse bail if it believes those individuals are likely to commit a serious offence whilst out on bail.

The proposal in the Bill to amend section 2 of the Bail Act 1997 is not as significant as it would appear. In fact, section 2(2)(a) to (f), inclusive, and section 2(2)(f)(i) are already in the 1997 Act while subparagraphs (ii) and (iii) are being added. Subparagraph (ii) provides that the following matters can be taken into account when a court is deciding whether to grant bail, namely, "the extent to which the number and frequency of any previous convictions of the accused person for serious offences indicate persistent serious offending by the accused person,". If the previous convictions indicate somebody continually breaks the law in respect of serious offences that should be taken as a ground for refusing a grant of bail. Paragraph (iii) states "the nature and likelihood of any danger to the life or personal safety of any person or danger to the community that may be presented by the release on bail of a person charged with an offence punishable by imprisonment for a term of 10 years or by a more severe penalty". It is appropriate to put into the law the fact that a court is entitled to take into account the "life or personal safety of any person" or persons in the community who may be affected or threatened by the release on bail of a person charged with a serious offence. Bail is necessary and granted in certain circumstances.

The unusual situation is where individuals are remanded in custody but there are circumstances where that must happen. For instance, knowing of the gangland killings in this city in the past year or 18 months, it is untenable to suggest that individuals arrested because they are suspected of being involved in those criminal acts would be granted bail until such time as their trial came up. They would abscond and may commit further offences. It would be appropriate to try to ensure that criminal trials get on as quickly as possible. There has been an improvement. Serious criminal trials can come to prosecution within a year or 18 months. It is important from the point of view of the community and the accused that those trials are expedited.

Another proposed change in the legislation is provided for in section 3, that the accused person may as a condition be required to refrain from having contact with a person and from driving a mechanically propelled vehicle. These conditions come with a benefit to the accused. If they are set the accused is not remanded in custody but gains the benefit of bail.

Section 5 refers to the ability of the court to hear a complainant give evidence in bail applications. That is an unusual procedure. It permits a court that is considering a bail application to hear from the person who alleges that he or she is the victim of the crime. Of course, at that stage, the crime has not been established since the accused has not had a trial and been convicted. Notwithstanding that, it is appropriate that there are circumstances where a court can hear from a complainant in respect of a bail application by a person who he or she believes may continue to be a threat when he or she gets out. I know that the Acting Chairman, Deputy Declan Breathnach, has a particular interest in this area. He raised the issue of our bail laws with me because of specific crimes in County Louth. He was very anxious that legislation would be introduced to strengthen the bail laws. The Bill brought before this House today constitutes a strengthening of our bail laws and targets individuals who may be categorised as persistent offenders or individuals who have long previous records in respect of convictions. It is not a threat to our civil liberties. Courts will always seek to vindicate and protect the rights of the individual who appears before them. They are fully aware that individuals accused of criminal offences are innocent before the law. They will listen and take into account applications for bail and the instinct of a court will be to grant bail. There are, however, circumstances where individuals should not be granted bail because of the threat they pose to commit future offences within the jurisdiction. We agreed to do that in 1996 when we amended the Constitution. This legislation is an appropriate consequence of that amendment.

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