Josepha Madigan (Dublin Rathdown, Fine Gael) | Oireachtas source

To put this Bill in context, it represents the most significant change to bail law and procedure since 1997 and is a welcome overhaul of the legislation in this area. The 16th amendment to the Constitution which was passed in 1997 allowed a court to refuse bail in the case of a serious offence, namely, an offence carrying a potential prison sentence of five years or more. Before that constitutional amendment, it had been found unconstitutional to deny somebody bail on the basis that he or she might commit an offence while on bail. In practice, this meant criminals who knew they were going to prison for a long time could choose to go on a crime spree in order to provide for their families while they were inside and because the consequences were less severe given they were going to jail in any case. The amendment was passed by 75% of voters.

This form of preventative detention was found to be unconstitutional by the Supreme Court in the 1966 case to which Deputy Jim O'Callaghan referred. The court found in that instance that bail could be refused on a number of specified grounds, including for reasons such as the seriousness of the charge, the sentence likely to be imposed and a prisoner's failure to answer charges. Those grounds are still taken into account in our bail law, under section 2 of the Bail Act 1997. In fact, section 2 is treated more seriously than the O'Callaghan grounds due to the presumption of innocence. Where an application to refuse bail is made, the court must be cleared and gardaí must give their reasons in writing. The Criminal Justice Act 2007 introduced an amendment allowing a Garda superintendent to give evidence, as grounds for refusing bail, of his or her opinion that an accused would commit a serious offence while out on bail.

The Bill before us this evening amends section 2 of the 1997 Act to allow for more factors to be taken into account when considering an application for refusal of bail. The courts may now take into account the fact that the accused is a drug addict, the extent to which the number and frequency of any previous convictions of the accused for serious offences indicates a pattern of persistent serious offending, and the likelihood of any danger to any person or to the community that may present as a result of the release on bail of a person charged with an offence punishable by imprisonment for a term of ten years for more. The latter is presumably to deal with the gangland criminals who terrorise communities, as well as to prevent witness interference.

Section 3 of the Bill provides for the amendment of section 6 of the Bail Act to allow for further bail conditions to be imposed on an accused. The new conditions include preventing the person from having any contact, direct or indirect, with the injured party or his or her family without leave of the court, preventing the person from driving where he or she is charged with a serious offence relating to driving, and new provisions regarding the imposition of a curfew. The curfew and no contact conditions have been relied upon by our courts for years without controversy. Indeed, the practice in regard to the curfew is even stronger that what is in the legislation as judges frequently give gardaí the power to call upon the accused at home to ensure that he or she is abiding by the curfew.

Another condition that might be utilised is a mobile telephone condition whereby the accused must obtain a telephone, give the number to the Garda and be obliged to have it on his or her person, charged and contactable at all times. This is a commonly used condition which should be included in the Bill, unless there is some difficulty with forcing people to get telephones. As most people have one these days in any case, perhaps an amendment might stipulate that accused persons must provide a number at which they may be contacted at any time.

Section 6 of the 1997 Act is further amended to allow gardaí to arrest without a warrant a person who is breaching his or her bail conditions.

They can even arrest someone to prevent harm, intimidation or interference to a victim or witness. I believe this is positive progress. The Bill also gives victims of crime the ability to give evidence of any dangers they face if the accused is released on bail or if they are likely to be interfered with, and family members can give evidence on behalf of children and the mentally disordered.

A further section amends section 9 of the Bail Act 1997 in order that the court is required to give reasons when it grants or refuses bail or varies bail conditions. As a general rule, courts are required to give reasons for all their decisions. In many bail applications, the Garda does not have an objection to bail and this requirement may lead to a waste of court time. It may result in some sneaky judicial reviews or hapeus corpusapplications by unscrupulous practitioners, but it might also be seen in some quarters as the Government putting undue pressure on judges in relation to bail. Bail is one of the areas, with sentencing, where judges come under most pressure from the public. On the other hand, the Bill might draw support from members of the public who feel that too many accused are getting bail. We can look at this on Committee Stage.

It is worth noting also - this was alluded to earlier - that there is a lot of overcrowding in the prisons. If the aim is to stop accused people getting bail, then there had better be places to put them. Some prisons are releasing prisoners early to make room for those who have been refused bail. It is not ideal to have guilty persons being released from prison to make room for innocent ones. This is a particular problem in the case of female prisoners. The Dóchas Centre does not have much space and many female offenders are released early, particularly where they have not been convicted of violent offences. We also must be cognisant of that aspect.

The Minister mentioned electronic tagging and a working group in that regard. I welcome that such tagging will be used to monitor those on bail.This was introduced in the 2007 legislation but it has not been introduced in practice for those on bail. It has, however, been introduced in practice for those who are on temporary release from custody, although not many people are aware that it has already been introduced in this way.

The recent Criminal Justice (Burglary of Dwellings) Act 2015 which also was alluded to earlier allows for bail to be refused to someone charged with burglary where he or she had previously been convicted of burglary or was facing two or more charges of burglary. The idea was to stop persistent burglars and recidivism, as was mentioned. The Minister told the Dáil a large proportion of domestic burglaries were committed by serial offenders. Figures from the Garda analysis service indicate that 75% of property offences were committed by 25% of offenders. In my view, similar style bail refusals should be allowed for other persistent offenders, including perhaps drugs dealers, sex offenders or domestic violence offenders.

I welcome the Bill, although I would like an assurance from the Minister that the legislation's effects have been taken into account. As I said, if bail is granted on fewer occasions, there will be more pressure on the already overcrowded prison services and we need to be cognisant of that fact. The points raised by Deputy Jonathan O'Brien in relation to rehabilitation resources for drug addicts must be taken into account also. Deputy Clare Daly mentioned the courts system and the resources in that regard. These all are interlinked. Overall, I very much welcome the Bill and look forward to it proceeding to Committee Stage.

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