Clare Daly (Dublin Fingal, Independent) | Oireachtas source

I may share some time with Deputy Mick Wallace if there is some remaining. I will make a few brief points.

The Bill gives more power to the Garda and prosecutors when it comes to bail and it allows more grounds for a court to refuse bail. It attaches extra conditions to a grant of bail, including, as Deputies have alluded to, curfews and electronic tagging. If Ireland is to move to a position with fewer people in prison, which I and many Deputies support, the creation of new reasons for courts to refuse bail and giving more power to the Garda in regard to bail, including allowing gardaí to arrest someone on bail without a warrant because a garda believes the person is about to break any of his or her bail conditions, will not get us to a point where we stop locking up people. It will not get us to a point where we can deal effectively with offending behaviour.

This is the second bail Bill that we have seen in the House in just over a year, with the previous Government having introduced the Criminal Justice (Burglary of Dwellings) Bill in September 2015. That made it less likely that burglars and repeat burglars would get bail. As we stated at the time, it was a bit of an electioneering stunt, with an eye to the rural base that was being blighted by rural crime at the time, instead of being a serious and considered attempt to deal with our bail laws. I see this Bill somewhat in the same context. This Bill goes further and it may, in part, be a reaction to the high media profile given to the number of people who commit further crimes while on bail. That is an issue but I warn against following the lead of sensationalist media coverage that highlights crime to sell newspapers but does not deal with reality or the evidence base around these issues.

What the media fails to concentrate on is Ireland's very high recidivism rates, particularly for certain crimes, as we dealt with this morning in the justice committee meeting. The recidivism rate for burglary is 69%, meaning that 69% of people who go to prison for burglary come out to commit another burglary. We can look at it another way in taking in the number of people committing crimes while on bail; our recidivism rates are really two sides of the same coin in this respect. If the people on bail who commit crimes had been thrown straight into prison instead, they would come out to commit more crimes anyway because our criminal justice policy does not put enough emphasis on supports and rehabilitation. In that sense, we solve nothing by making it harder for people to get bail or sending them to prison, which is in essence the same thing. We may cause more problems, as was again highlighted this morning when we heard of the massive overcrowding in a number of our prisons, including Cloverhill and all the women's prisons. There are other serious issues, such as half the prison population sharing cells, and nearly half the prisoners do not having access to private toilet facilities. There are 30 acutely psychotic individuals in prisons awaiting transfer to the Central Mental Hospital. These people will still have conditions on their release if they do not get the treatment they are seeking and need.

There have been a number of high-profile and tragic cases where individuals on bail have committed serious crimes. For example, an individual on bail killed Mr. Shane O'Farrell. He was a Lithuanian whose name I could not even pronounce. There is also the case of Mr. Jerry McGrath who murdered Ms Sylvia Roche Kelly while on bail as a result of assaulting a female taxi driver nine months before. That case was referred to by Deputy Jim O'Callaghan.

While this Bill may be, in part, a reaction to such cases, I do not believe the provisions would prevent a recurrence of those tragedies, since it is not clear that the provisions would have applied in either the case of Shane O'Farrell or Syliva Roche Kelly. This is because the key causes were the withholding of information from the court by gardaí coupled with Garda incompetence and negligence. They were the real reasons. The problem was not with our bail laws. The judge was not given accurate information by the gardaí. The existing bail laws could have dealt with that problem. Unfortunately, this Bill does not address that issue. Deputy Jim O'Callaghan has dealt with the case of Syliva Roche Kelly, but it is well known that Garda error, incompetence and negligence were responsible.

The proposed section 9A of the 1997 Act would allow An Garda Síochána to make an application to the court for the person against whom an offence is alleged to have been committed to present evidence as to the likelihood that the accused might try to intimidate that person or her family or any witnesses and to inform the court as to the nature and seriousness of any danger to any person that may be presented by the release of the accused person on bail. Allowing alleged victims of crime to tell the court about the danger an accused person might present to them or to the public is perhaps a step forward and something we need to consider. I am keen for the possibility to be explored rather than simply relying on the gardaí to give the evidence. However, the power to permit a member of the public to make the case would still rest with the Garda, since the Garda would have to make the application to the courts. Therefore, I am unsure whether the issue is entirely addressed by the Bill, as it stands.

Similarly, the proposed amendments to section 2 of the 1997 Act would empower the court to take into account persistent offending and the likelihood of any danger to the community presented by someone released on bail. However, this would apply only if the person in question is charged with a serious offence and it would depend on gardaí informing the court of the history of the accused. Again, we come back to the reliability of Garda evidence in court. The Bill does not address that issue.

Research by the Irish Penal Reform Trust has found that monitoring of bail conditions by the Garda is extremely patchy. One interviewee said that in 40% of his applications to revoke bail, the conditions were not being monitored properly. If potentially dangerous people are given bail with conditions attached, we will have a problem if the Garda is not monitoring them. If we change the law, it will not address that situation. The solution is not to impose conditions on others who are not dangerous. The presumption of a right to bail always should be the starting point. The role of the Garda is not addressed in this Bill. That is the key point.

An important point was made by the barrister Paul Anthony McDermott. He has made the point that the greatest problem with bail in Ireland is that judges have to carry out bail hearings within two or three minutes because of the number of cases on their lists. This Bill would add extra conditionality to bail, for example, with curfews and electronic tagging. These would be accompanied by serious infringements, even though they are being put forward in the context of an alternative to incarceration. Complex issues arise around these conditions and in the context of a court system where decisions on bail are made in the space of two or three minutes, they are potentially seriously unhelpful.

Deputy Jonathan O'Brien made a particular point. The Irish Penal Reform Trust has strongly recommended to the Minister that the Bill should include the provision of bail services and supports aimed at the prevention of offending on bail, ensuring appearance at court and reducing remand to custody to the absolute minimum. These recommendations have not been included in the Bill, sadly, but they should be included. Without the inclusion of these recommendations, the Bill comes across somewhat more in the spirit of criminal justice policy as a suite of punitive measure rather than an effort to genuinely prevent crime from taking place. All the evidence shows that taking a punitive approach to reducing crime does not work. As it is with people in prison, so it is with people on bail. Bail supports have been proven to reduce reoffending. If we want to reduce reoffending - we do - then it would be far more effective to put in place bail supports than the measures proposed in this Bill. Bail supports would give the person an opportunity to address the offending behaviour. In a programme of supervised bail supports in Scotland, 80% of those involved in the programme went on to avoid a custodial sentence. The Irish Penal Reform Trust has stated the most effective way to improve compliance with bail conditions, especially where the accused person has a chaotic life and complex personal challenges, lies in the provision of bail supports and services that allow the accused to remain within his or her community and address offending behaviour in a familiar environment. Bail supports include bail information schemes, bail support and supervision schemes, remand fostering, bail hostels, mentoring and bail reviews on custodial remand. All of these measure have been found to be especially useful in reducing reoffending and dealing with support for younger people, people with addictions, people with mental illness, women and people with unstable lives. Since the Bill does not make such provisions, it simply provides the courts with more grounds to refuse bail, in some ways, as well as more latitude to impose onerous conditions on people put on bail.

The evidence shows that judges have a tendency to adopt a pro formaapproach to conditions, imposing a long list of the same conditions on everyone they release on bail, regardless of the circumstances of those involved, the crime and the likelihood of offending. In the light of the new and onerous conditions in this Bill, including the controversial ideas of tags and curfews, it is likely that these measures will be imposed on the majority of people released on bail regardless of whether the measures are necessary or proportionate. The evidence for this comes from the review of 91 cases in 2015. The review found that in every case the same list of bail conditions was imposed despite the fact that the offences involved included everything from minor matters by first-time offenders to charges of murder and numerous property offences in between. It makes no sense whatsoever that the conditions would be so uniform. There was, and still is, an opportunity – if the Bill passes Second Stage – to nudge the courts towards imposing individualised bail conditions. That is what we should aim for. We are far more likely to prevent offences being committed if judges were to adopt an individual approach, taking into account the circumstances of the accused, the offences with which he or she has been charged and the objections raised. Judges would then attach only such conditions as are strictly necessary and proportionate. I imagine the Minister will tell us that is exactly what the Judiciary will do. Sadly, the reality is that the Judiciary does the opposite. Increased costs and administration will be involved in tagging people. Obviously, it is cheaper to tag an offender than to put him or her in prison, but it is cheaper again to have these people out on bail with proper supports. It is not only cheaper; it is about ensuring a reduction in the number of people who reoffend. This is not about money, it is about the public interest.

The issue of remand is linked. We need to use this opportunity to remind ourselves that there is no statutory maximum duration of remand detention. This means that people can, and sometimes are, detained on bail for longer than the maximum sentence, with remand being used in lieu of short sentences. This is utterly unacceptable. Approximately 15% of all prisoners in Ireland are on remand; they have not been convicted of a crime. They are in prison because they have not been granted bail and this needs to be addressed. We need to reduce the numbers on remand. On average, anything upwards of 520 remand prisoners are being held at a cost of €100,000 per day. This is the cost simply to house these people in our prisons. Clearly, reducing the number of people on remand is what we should be aiming for. In part, this could be done by speeding up and unlocking some of the logjams in the courts system in order that people do not have to wait so long for a hearing. It is not necessarily about making the conditions more difficult for the accused to get bail.

The broader reasons people end up before the courts need to be addressed. There are many issues that need to be teased out in the Bill. We probably will not oppose its progression to Committee Stage, but it will need a radical overhaul before we will able to support it.

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