Brian Lenihan Jnr (Dublin West, Fianna Fail)

I am pleased to present the Criminal Procedure (Amendment) Bill 2007. This is a short item of legislation to rectify a legal anomaly that has recently come to light in the law relating to bail. The anomaly has arisen in relation to the acceptance of recognisances by prison governors.

Bail is often granted on condition that recognisances are met. Recognisances are those undertakings or conditions that the person granted bail must satisfy. They may be in monetary or non-monetary form. In many instances, the person is remanded in custody pending the taking of the recognisance.

I want to outline the context in which the present difficulty has arisen. Section 22(3) of the Criminal Procedure Act 1967 provided that judges of the District Court and peace commissioners could take bail recognisances. Prison governors are also peace commissioners and in that capacity they had been able to accept recognisances from persons remanded in custody pending entry of a recognisance. However, since the governor was acting in his or her capacity as a peace commissioner, he or she could not delegate this function in the same way as he or she could delegate other functions to, for example, a deputy governor. This gave rise to logistical difficulties, given the turnover in governors and the fact that, following an agreed change in work practices, they are not available 24 hours a day. In order to deal with this difficulty, the Prisons Act of this year, which modernised and updated prison-related provisions generally, amended section 22(3) of the Criminal Procedure Act to provide, at section 41(2), that prison governors or prison officers designated by the governor could accept recognisances from people remanded in custody by the District Court pending the entering of a recognisance. This provision came into operation on 1 May this year.

However, section 18 of the Criminal Justice Act 2007 also amended section 22(3) of the Criminal Procedure Act and removed the reference to peace commissioners. This was done as several references in the 1967 Act to the role of peace commissioners had already been removed by the Bail Act when it was passed in 1997. Following the same analogy, it was decided to remove the reference to peace commissioners in relation to the acceptance of recognisances. The amendment in section 18 of the Criminal Justice Act brought this about. It substituted the entire section 22(3) of the Criminal Procedure Act 1967 rather than deleting the reference to "peace commissioners". Hence, the new subsection provided for judges of the District Court to take recognisances but made no mention of prison governors or other designated prison officers. Section 18 of the Criminal Justice Act 2007 came into operation on 1 July this year, and, being the most recent of the amendments, I have been advised that the effect of the subsequent Act was to effect an implied repeal of the previous legislation. Unfortunately, the full implications of the relationship between these two amendments was not realised until it was brought to the attention of my Department on 11 October by the Courts Service.

That is the context in which the present difficulty has arisen. The operational implications for the prison system of the changes in the legislation have prompted me to bring this Bill before the Houses of the Oireachtas. Since the recognisances can no longer be taken by a prison governor or other designated officer with respect to a person in custody, the prison authorities must now arrange to bring the person before a judge of the District Court. This has serious implications for the Irish Prison Service in terms of providing prison escorts and ensuring the availability of judges at short notice. I am aware that certain short-term arrangements have been agreed between the Courts Service and the Irish Prison Service to minimise the difficulties but those arrangements cannot continue in the longer term. I am satisfied that the difficulties, if left unchecked, would have serious implications, especially for the Irish Prison Service, in terms of staff deployment and overheads. There is a concern that it could create tensions in prisons if persons on remand felt their release was being unduly delayed.

I emphasise that while there is an operational and logistical problem - it is a significant problem - it does not in any way affect the granting of bail or the conditions under which bail is granted. Any person affected by this anomaly will already have been granted bail by the District Court and remanded in custody pending entering of a recognisance. There is no question that any person has been released who should not have been released. I emphasise that the only issue at stake here is the question of who is authorised to receive the recognisance that has already been stipulated by the District Court. This amending legislation will resolve the practical difficulties that are arising. The Attorney General has advised that the most appropriate response to deal with the current position is to bring forward legislation on an urgent basis. I thank the other parties which are represented in this House, as in the Lower House, which have facilitated the rapid passage of this legislation.

The Bill will restore the position to that which obtained prior to the commencement of section 18 of the Criminal Justice Act 2007, that is, prison governors and prison officers designated by them can accept recognisances from persons remanded in custody. Since the taking of a recognisance is essentially an administrative consequence of an earlier judicial decision, the opportunity is being taken to include District Court clerks in the list of persons who may accept recognisances. I have decided also to reinstate peace commissioners as persons empowered to take recognisances.

I will now deal with the content of the Bill which has just two sections. Section 1 is the substantive section which amends section 22(3) of the Criminal Procedure Act 1967. It substitutes a new subsection (3) for that inserted by the 2007 Act. The new subsection provides that a judge of the District Court, a District Court clerk, a prison governor, a prison officer designated by a prison governor and a peace commissioner designated by order of the Minister for Justice, Equality and Law Reform may take recognisances. I have decided to reinstate peace commissioners as persons empowered to take recognisances for practical reasons. However, as the role of peace commissioners in relation to bail matters has changed, I am inserting a provision whereby they must be designated by ministerial order rather than including a universal empowerment provision. As already indicted, the opportunity is also being taken to extend the provision to include a District Court clerk in the list of persons who may accept a recognisance from a person on remand. Section 2 is the standard provision providing for the Short Title and citation of the Bill.

Before I conclude, I acknowledge that it should not be necessary to introduce a short item of legislation such as this to address an unfortunate and regrettable oversight. However, when the issue arises we must face up to it and deal with it as quickly as possible. In that regard, let me express again my appreciation for the co-operation of the Members of this House in facilitating the introduction of this Bill at short notice.

The net effect of the current difficulty has not been in any way detrimental to our legal system. The accidental omission of the reference to prison governors or those designated by them has, as I have indicated, resulted in operational and logistical difficulties for the Irish Prison Service. It has not resulted in any difficulties of a legal kind for the granting of bail by the courts or the setting of conditions to bail. Nobody is out on bail who should not be at liberty. In a nutshell, the simple issue at stake is the question of who is authorised to accept a bail recognisance. My major concern is to eliminate disruption to the system that has worked well and to ensure the efficient operation of the courts and the Irish Prison Service.

I look forward to hearing the views of Senators on this matter and I commend the Bill to the House.