Brian Lenihan Jnr (Dublin West, Fianna Fail)

There is a distinction between the remanding and sentencing of a prisoner by the courts. The system of temporary release operates in relation to sentenced prisoners. Where a prisoner is on remand for trial for an offence, clearly the prisoner is within the jurisdiction of the courts system and the trial, conviction and punishment of criminal offenders is a matter reserved to the courts under the Constitution. The Minister for Justice, Equality and Law Reform cannot be empowered to interfere with that particular process. That has been well established in our constitutional law for decades. The Minister cannot have a function in this matter.

Bail applications are made to the courts who decide whether it is prudent to release a particular offender on bail pending trial or take the view that there are serious or grave circumstances in relation to interference with witnesses and, since the constitutional amendment, the possibility of the repetition of offences means that the offender should be retained pending trial. Often, when a court makes such a determination, an application is made invoking the High Court's inherent power in relation to the liberty of the citizen by way of a bail application to release him or her. That is practice in that area.

I do not accept that we can interfere with this particular matter in this legislation. The decision to grant or refuse bail in any case is a matter for the courts who are independent in the performance of their traditional functions. I appreciate that this means where a humanitarian issue arises for a person in custody pending trial, the person then has to make application to the courts to obtain temporary release. Bail applications, as I know the Senator is aware, are a constant feature of the legal diary and continue during the vacation period. The courts provide for emergency sittings to deal with urgent matters.

I am aware that the Inspector of Prisons in his first annual report made a number of recommendations for legal and systematic change including the granting of temporary release for remand prisoners in special circumstances. The recommendations are under consideration. As I outlined already, there is a fundamental constitutional issue involved. The trial, conviction and sentencing of prisoners is, under the Constitution, exclusively a matter for the courts.

Amendment, by leave, withdrawn.