Michael McDowell (Dublin South East, Progressive Democrats)

This is a proposal to insert in the conditions under which bail can be granted that the person shall not infringe the criminal law and also "shall otherwise be of good behaviour". It mirrors the conditions frequently laid down when sentences are suspended that the person being admitted to liberty on a suspended sentence enters into a cognisance to keep the peace and be of good behaviour. However, the Attorney General advised me that he was unhappy with the good behaviour requirement in the original text generated in my Department. His argument was that we were dealing with an innocent person, because bail decisions were necessarily being made about people who were innocent of the charge on which they were being admitted to bail. The proposal is for a condition that an applicant should not infringe the criminal law be attached to the granting of bail, and he had no problem with that. However, the Attorney General's view was that to attach additional obligations of good behaviour or good citizenship was vulnerable to a challenge by the European Court of Human Rights. A requirement that a person who was wholly innocent, about whom a decision was to be made as to his or her liberty pending trial, not only obey the law but also be an impeccable citizen of exemplary behaviour might not stand up to challenge. The original draft, which was along the lines of Senator Cummins's amendment, was moderated on advice that we were going too far by imposing uncertain, arbitrary and unjustifiable standards of good behaviour, over and above compliance with the law, as a requirement for being granted liberty at a time when a person is presumed to be innocent.