Jonathan O'Brien (Cork North Central, Sinn Fein) | Oireachtas source

We welcome the opportunity to discuss this Bill and will support its passage to Committee Stage. We have some observations on some sections. I do not think anyone would oppose reviewing and where possible, strengthening, our bail laws, always on the premise that people are innocent until proven guilty and that the incarceration of any individual who has not been found guilty shall be used as a last resort.

Section 2(2)(f)(ii) expands the factors which a court may take into account when refusing bail to include "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,". As Deputy Jim O'Callaghan pointed out, the only difference from the 1997 Act is in section 2(2)(f)(ii) and (iii). Section 2(2)(f)(iii) states that "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".

Would that include a danger to the life of the individual in question? I presume the person referred to in the Minister's proposal regarding: "...the nature and likelihood of any danger to the life or personal safety of any person or danger to the community", is a witness or the alleged victim. I suggest that there could also be a danger to the life of the person who is charged with the offence. I wonder how that fits in with this section of the Bill. Is the offender covered?

Section 3 proposes to increase the range of conditions that may be attached to bail to include prohibiting contact by the accused with the victim or his or her family. This section will also allow a garda to arrest the accused without a warrant if it is believed that such an arrest is necessary to prevent a victim of an offence or a witness from being harmed, interfered with or intimidated. I have one observation in that regard. Section 6(1)(b)(viii) of the Bail Act 1997 provides that: "the accused person shall be at a specified place between specified times during the period commencing at 9.00 p.m. on each day and ending at 6.00 a.m. on each following day." I presume there is some discretion in the setting of such curfews, for example, in the case of a person who is in employment and needs to work beyond 9 p.m. If there is no such discretion, perhaps the Minister might give me the relevant information.

I will return later in my contribution to section 4 of the Bill, which allows for electronic monitoring to be made a condition of a bail application, because I would like to make a couple of observations on it.

Section 5 allows a court that is considering a bail application to hear evidence from the victim of the offence as to the likelihood of interference by the accused with him or her or a member of his or her family. That is very straightforward.

We welcome section 6 which requires the court to give reasons for granting or refusing bail and for imposing any restrictions on bail, because it will give bail decisions a sense of openness and accountability. We are certainly very supportive of this proposal.

We know that at past hearings of the Joint Committee on Justice and Equality, the Garda Inspectorate has raised concerns about people who breach their bail conditions and thereby cause gardaí to have to seek warrants to arrest them. We welcome the amendments in this regard in the Bill before the House. We have to be careful to ensure checks and balances are put in place. We cannot have gardaí going around arresting people without warrants willy-nilly. I know that is not the case. People need to be reassured that some checks and balances are being provided for.

I recognise that the levels of crime committed by people who are on bail are not insignificant. It is important for us to look at any review of our bail policy in a rounded manner, rather than simply basing our policy on some of the crude and sensationalist headlines we have seen in the past. I know that is not what is happening. Any changes in the bail regime will be based on the evidence and data needed to strengthen them.

I would like to pick up on the point made by Deputy Jim O'Callaghan about the timely manner of trials. If a person is denied his or her liberty by the refusal of bail, there is an onus on us to proceed to trial as quickly as possible. As such a person must be seen as innocent until proven guilty, it is important that we proceed to trial in a very timely manner. That should always be one of our key objectives.

I am sure the Minister is aware that my party's position has consistently been that because the legal system is premised on the fundamental principle that a person is innocent until proven guilty, we do not believe someone should be sent to jail unless a court declares his or her guilt. Therefore, people have a general right not to be imprisoned before trial. This means the right to bail should be protected. However, we recognise that this right is not unlimited. It is not unreasonable for a court to have the power to set bail conditions providing that bail can be withdrawn if those conditions are broken, or even the power to refuse bail in certain circumstances; for example, if the accused is a genuine flight risk or if there is a risk of the accused interfering with a witness. There may be exceptional cases in which the nature of the crime is such that the withholding of bail can be justified in the name of public safety. I refer, for example, to serial crimes of extreme violence with multiple victims. We recognise that the granting of bail to detained persons, particularly in cases of violent sexual offences, can be problematic for the victims of such crimes. We believe judges should take these concerns into account when they are setting bail conditions.

It should be noted that the presumption in favour of bail is a fundamental human right. It is protected by Article 5 of the European Convention on Human Rights, which provides that: "everyone arrested or detained .... shall be entitled to trial within a reasonable time or to release pending trial", and that: "release may be conditioned by guarantees to appear for trial". Article 9.3 of the International Covenant on Civil and Political Rights guarantees that:

Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial.

I have mentioned both of these international agreements as a way of pointing out that human rights issues arise in the context of this legislation. The importance of being brought before a court in a speedy manner, which has been touched on by me and Deputy Jim O'Callaghan in our contributions, is central in both cases. We believe the general presumption in favour of bail should not be interfered with.

According to the International Centre for Prison Studies, pre-trial detainees account for between 13% and 15% of the prison population in the State. While there is clearly a need for some defendants to be held on remand to ensure they stand trial, excessive use of bail refusal can result in higher costs to the Exchequer and can have an impact on the right to liberty and the presumption of innocence.

The difficulty with what is being proposed by the Minister is that the criteria under which a person can be refused bail are simply being widened without anything meaningful being done to ensure people can comply with their bail obligations. Refusing bail should really be a measure of last resort when the State has exercised all other options. I do not think human rights law, as set down in the European Convention on Human Rights, is reflected in this legislation.

There has been very little comprehensive public debate about bail provisions in the State since the bail referendum of 1996, notwithstanding the fact that these issues are sometimes raised in a sensational manner on the airwaves and in print media. I empathise absolutely with those who are aggrieved when they or their families are the victims of crimes perpetrated by people who have been out on bail. One of the bases on which the 1996 bail referendum was run was that it would reduce crime. I think it is fair to say this contention did not come to pass. The broadening of bail laws in 1996 did not reduce crime in the way that was hoped. It simply put more pressure on the prison system by allowing people to remain in prison without having gone through a trial and been found guilty.

We want to see the human rights framework at the core of the justice system. We do not disagree with any review of bail policy, but it should also be recognised that some prisoners have experienced inordinate and lengthy periods on remand in custody while awaiting trial. The lack of monitoring is something that must be addressed in this legislation.

We have some concerns about section 4, which provides for electronic monitoring of persons on bail. We support non-custodial alternatives for appropriate offenders, but we are opposed to the use of electronic monitoring as an alternative to custody. I welcome the Minister's indication that a working group has been established to examine how this provision might be operated, including the categories of offences and offenders. We await the outcome. Electronic monitoring is often seen as a cheap alternative to the cost of custody and it can be used to allay public fears about protection. However, the claims made for electronic tagging are questionable at best and the issue also raises some human rights concerns, particularly infringements on the right to privacy.

International evidence clearly repudiates the supervisory, rehabilitative and cost-effectiveness aspects of tagging. A report by Napo, the association representing probation service staff in Britain, examined the use of electronic monitoring for both curfew orders and offenders on early release. It concluded that it cost twice as much to tag an offender electronically as it does to supervise them on conditions by a member of the probation service. The Minister mentioned the possibility of contracting electronic tagging to security companies and this report indicates that security companies administering the electronic tagging schemes in the United Kingdom do not routinely follow up violations by individual offenders. The report concluded that electronic tagging did not reduce reoffending.

We will examine section 4 very closely and, as I stated, we are opposed to the use of electronic tagging; therefore, we have another concern that this Bill does not include any statutory provision for bail supports. That should form a crucial part of any discussion on bail and pre-trial detention. Without bail supports to offer interventions such as drug treatment or mental health support, given the chaotic nature of lives, the accused may find it difficult to adhere to bail conditions that may be imposed. The most effective way to improve compliance with bail conditions, particularly where the accused has a chaotic life and complex personal challenges, lies in the provision of bail supports and services that allow the accused to remain within the community and address offending-related behaviour in a familiar environment.

We welcome the decision to include a section requiring the court to give reasons for bail decisions but there is still possible overuse of bail conditions, particularly where they are not relevant to the circumstances or risk of offending by the accused. For example, the new section 2(f)(i) in the 1997 Act would allow for consideration of whether a person is a drug user is a most glaring example. I know this is in existing legislation and it will not be changed. Why is it that being a drug user is considered by the State to be indicative of a criminal predisposition? If someone is a drug user with addiction issues, why does the State believe refusing bail and keeping the accused in a prison system ill-equipped to address his or her needs would be better than allowing the accused to access some detox programmes? That goes to the argument of moving to a public health model and away from the automatic criminalisation of drug users.

The core of the justice system should be the protection of the presumption of innocence and bail. We will allow the Bill to go forward to Committee Stage, but we have some real concerns, particularly about section 4. We will put amendments to some of the other sections and if we were to vote on the legislation as presented, we would find it very difficult to give our support to it. We are hopeful that during the course of its passage through the Oireachtas, some of our concerns, particularly around bail supports, could be taken on board in order that we will be able to give our support at the final stages of its passage.

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