Donnchadh Ó Laoghaire (Cork South Central, Sinn Fein) | Oireachtas source

It is right and proper, like other Deputies have said, that we reflect on the context. The crime statistics released this afternoon do not make for positive or encouraging reading. There are significant increases across a number of heads. The first three months of the year saw close to 19,000 burglaries and 70,000 thefts. Those are staggering figures. There was a 15.9% increase in fraud, deception and hijacking and a 14.7% increase in sexual offences - and over 3,000 of those were in the first three months of the year. I acknowledge that murders is one of the heads that has fallen. I recognise, particularly in respect of ongoing feuds and an extremely challenging environment, that An Garda Síochána is working hard to tackle that. While the environment remains difficult, some headway, I hope, is beginning to be made. Nonetheless, that figure remains far too high in a general sense.

I believe this is a resources issue. Despite what the Minister has said, many Garda stations and districts are still running to stand still. Many Garda stations are only just at or below 2010 levels. That is certainly the case in the Cork City division, where some of those, such as Mayfield, are well below the 2010 levels. The figures tell us that Dublin has lost almost 100 gardaí since last year despite what the Minister said about increased numbers and resources. In real terms, Dublin has lost about 900 core unit gardaí since 2010. Assistant Commissioner Pat Leahy said that rock bottom had been hit in respect of policing numbers in Dublin.

The solution to this is to be found within policing. While the Minister is keen to flag the number of probationers etc., I am of the view that is where the focus must be. In rural areas, a farcical situation has arisen whereby almost 50% of front-line gardaí do not have adequate training and clearance to pursue cars at high speed. Those figures were provided by the Garda Representative Association, GRA; I do not believe the Minister has released the statistics. Clearly, the ability of gardaí to pursue criminals is severely constrained by that. The Minister is shaking his head. He is more than welcome to publish the figures, but until he does so I can only rely on the GRA statistics. If the Minister has the statistics, he can publish them and I will absolutely accept them. However, if it is the case that there is anything approaching the number of gardaí who cannot pursue criminals at high speed suggested by the GRA statistics, that is clearly a problem for the tackling of crime in rural areas and in large districts.

The Bill seeks to address conditions of bail and electronic tagging. We support some of the provisions in the Bill, have difficulties with others and would prefer to have the wording amended in others still. The legislation has some significant flaws, but I hope these can be remedied on Committee Stage. We will allow this Bill to go forward to Committee Stage so that these amendments can be tabled. However, we will seek to amend the Bill before it is enacted because it contains quite significant flaws. It is important that legislation of this kind is in compliance with international human rights and contains mechanisms based on evidence of what works, as opposed to gestures, and that is it constitutionally sound.

The Bill contains a number of provisions which will change the law as it relates to bail. Section 2(a) changes the wording of section 2 of the Bail Act 1997 to make it an imperative that the court shall refuse the application for bail if it is satisfied that such a refusal is considered necessary to prevent the commission of a serious crime by that person. The 1997 Act states, "Where an application for bail is made by a person charged with a serious offence, a court shall 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 explanatory memorandum states that this will make it "mandatory for a Court to refuse a bail application where such application is made by a person charged with a serious offence and where the Court is satisfied that such refusal is reasonably considered necessary to prevent the commission of a serious offence by that person." I presume it is intended that people listening to this or reading the transcript will pay more attention to the word "mandatory" than to the phrase "where the court is satisfied". Of course, it is still conditional and still at the discretion of the judge to be so satisfied. To provide otherwise would be an unreasonable fettering of judicial discretion. This is a matter of framing the decision - for it is still a decision for the judge to grant bail or not - as an imperative. The Minister has spoken about this matter. In previous debates, the point has been made that framing judicial decisions as imperatives has been considered constitutionally questionable. Indeed, Deputy O'Callaghan made that point to me when we were discussing sentencing guidelines on the radio on one occasion. I remain open-minded in this regard and will consider arguments as to what is the most appropriate wording. However, it is important that judicial discretion is preserved.

Section 2(b) concerns the strengthening of language in respect of judicial decisions about bail. This amends the section of the Bail Act 1997 inserted by the Criminal Justice (Burglary of Dwellings) Act 2015, which allows a court to consider the fact that a person who has committed relevant offences in the past in a dwelling as evidence that the person is likely to commit a relevant offence in a dwelling. Section 2 of the Bill extends this to say that circumstances in which relevant offences have been committed in a dwelling shall be considered evidence of likelihood to commit a relevant offence and shall lead to a judge refusing an application of bail if he or she is satisfied that such refusal is reasonably considered necessary to prevent the commission of a relevant offence by that person. Again, while this is framed in a way which suggests an imperative, the final decision remains with the judge and he or she has final jurisdiction. However, the same question of constitutionality applies here. If a judge feels that such a refusal is likely to be necessary to ensure that a crime will not be committed, it seems that he or she should properly refuse bail if she or he was properly convinced. However, this is phrased as an imperative and so it may be constitutionally hazardous. I retain an open mind and I will listen carefully to the rebuttal which I am sure Deputy O'Callaghan will give.

We recognise that the right to bail is not unlimited. It is not unreasonable for a court to have powers to make bail conditions such that bail can be withdrawn if these are broken or even to refuse bail to an accused who is a flight risk or who poses a demonstrable risk of interfering with witnesses or of committing an additional serious crime. There will also cases where the nature of the crime is such - for example, extreme violence or violence against multiple victims - that the withholding of bail can be justified in the name of public safety. It is our view that the protection of the presumption of innocence should be at the core of our justice system and that there should be a presumption of bail. The general presumption in favour of bail is important. The European Convention on Human Rights states that pre-trial detention should only be used as a measure of last resort. There are rightly situations where this can be qualified or circumscribed, but I do not believe we should depart too far from that principle. Paragraphs (a) and (b) of section 2 may well do that.

Paragraphs (c) and (d) of section 2 relate to the conditions in which a judge may refuse bail. Of course, that hinges upon section 2(a) of this Bill to a considerable extent. Taken in isolation, we have no difficulty with the judge having the discretion to refuse bail in circumstances outside what is currently considered. This would allow for a situation whereby if a crime was previously committed in a dwelling, that it could be considered a circumstance in which bail could be refused. I have read the memorandum and I am not quite sure that it equates to what is contained within the legislation. The memorandum outlines that for which the Bill provides. Where a serious offence has been committed and a judge is satisfied that there is a likelihood of reoffending, in a dwelling or otherwise, it would be logical to refuse bail. To an extent, that is contingent on paragraphs (a) and (b). The Minister has said that it is difficult to see how a provision requiring the court to accept a single offence as evidence could be permissible. A different situation would pertain if we were looking at a provision that allows a court to accept a single offence as evidence of a risk of future offending. If the crime is of a serious nature, containing a certain level of violence, we should allow judges to take that into consideration and potentially to refuse bail. That may require that the first two subsections be changed so that they do not create an imperative to act.

Section 3 relates to electronic tagging. Making electronic tagging mandatory and removing the discretion of the judge is not an idea with which we agree. It undermines the discretion of the Judiciary, and pushes for a wide application of a policy when we are not yet sure of its effectiveness. Sinn Féin does not have an objection, in principle, to the use of such tagging. There are circumstances in which it may provide an alternative to custody which make sense, particularly in cases involving very serious crimes, such as sexual crimes, but we do have some concerns about operability and cost-effectiveness. There is a need for safeguards, and we do not agree with the blanket use of the measure as proposed in this Bill. There is an element of removing judicial discretion involved. We have had significant discussions in recent times about trusting the judgment of judges. This is a decision which is traditionally a discretionary power and it should remain so.

Moreover, tagging is only as good as whoever is monitoring it. Tagging will not tell one what someone is doing, merely where he or she is doing it or whether he or she is outside a particular area. Clearly the attendant staffing of that activity is crucial to ensuring it works even in the circumstances in which it is applied, and there need to be safeguards there.

Deputy Breathnach made a point about the case of Shane O'Farrell. I would argue that the failures in that case were not particularly to do with the approval or refusal of bail. They related to the failure to pursue breaches of Bail. That is quite a significant issue which was highlighted by the "RTÉ Investigates" programme before Christmas; bail breaches are not always pursued to the extent that they should be, where people are failing to report to a Garda station or where people have committed additional crimes or appeared before a court again. That is certainly an area where we have had a breakdown and we need to focus quite considerably on ensuring that bail is enforced and applied.

In the context of this debate, we need to be conscious of the impact on the prison population. Pre-trial detainees make up between 13% and 15% of the prison population in the State. Clearly there is a need for some defendants to be held on remand in order to ensure that they stand trial, but it does not come cheap for the Exchequer. In 2014, the average cost of a staffed prison space was €68,959, or an average of €189 per prisoner per day. If there are, on average, 520 or so remand prisoners held on a day, it costs the State approximately €100,000 a day to hold prisoners on remand. Obviously that is necessary on occasion, but we do need to take consideration of that.

We also should take consideration of the fact that our prison population is quite substantial. My understanding is that as of yesterday, Limerick Prison was at 179% capacity in respect of female prisoners. The Dóchas Centre is at 129% capacity. There are approximately 4,000 prisoners in Irish prisons and the main remand prison already is more or less at capacity at 97%. Obviously if we increase the number of pre-trial detainees, that will push the numbers even higher and that increases pressure on staff, restricts access to existing offender behaviour programmes and leads to physical overcrowding. Finally, the Bill does not really address the need for bail supports, which I think represents a crucial issue in any discussion of pre-trial detention.

We will not oppose the Bill proceeding to Second Stage. As I have outlined, there are some provisions we can live with, some we would not and some we seek to amend. In summing up, however, I believe the solutions to the problems described by numerous Fianna Fáil Deputies - real problems of increased crime figures which I myself have outlined and dwelt upon - ultimately involve policing. We must ensure that members of the Garda are in a position to respond quickly and are visible, as the visibility of police offers a far more effective form of discouragement than what is proposed here.

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