Tairgim: "Go léifear an Bille an Dara hUair." I move: "That the Bill be now read a Second Time."
I was concerned when I saw a vote being called on the Order of Business that Opposition colleagues did not want to deal with this serious matter, but I am glad we are now able to proceed with the debate.
The Bill proposes to amend the Constitution through inserting a new Article 40.4.7º which will state:
Provision may be made by law for the refusal of bail by a court to a person charged with a serious offence where it is reasonably considered necessary to prevent the commission of a serious offence by that person.
Since I became Minister for Justice I have made clear my belief that changes need to be made to our bail regime to tilt the balance in favour of the victims of crime and the protection of the community generally. If the amendment is passed by the people, as I believe it will be, it will do just that.
No Government lightly brings forward a proposal to amend the Constitution. However, it is the strongly held view of the Government that in the public interest changes need to be made to our bail laws and that the effective way of making those changes requires an amendment to the Constitution. While conventional wisdom suggests that the amendment we are proposing has the support of a large majority of the people, I nevertheless appeal to people to follow the debate over the next few weeks as to whether we should make this fundamental change to their Constitution.
The amendment being proposed is relatively straightforward. There are no great complexities of law involved nor sophisticated technicalities at issue. What people are being asked is whether they agree with the idea that it should be possible to introduce laws which would allow a court to refuse bail to a person charged with a serious offence if it is reasonably considered necessary to prevent the commission of a serious offence by that person.
As the House is aware, the amendment arises against the background of the Supreme Court decision in the O'Callaghan case in 1965. Following that decision, bail can be refused by our courts on only two grounds, the likelihood that an accused will not turn up for trial or will interfere with witnesses or evidence. This means that it is not open to our courts when considering a bail application to take into account at all the question of a person committing serious offences if released on bail, even where, for example, the accused has a long track record of being involved in serious crime while on bail on previous occasions. If people believe that situation is wrong, then the only way to change it is by amending the Constitution along the lines proposed.
Since the amendment was published groups which are opposed to it have put forward a number of criticisms and it is important that I should address these issues in my contribution to this debate. It is argued that changes can be made to our existing law which would deal with the problem of offending on bail without the necessity for an amendment of the Constitution. The Government accepts that some worthwhile reforms of our bail laws can be made without an amendment to the Constitution and I am preparing legislation to this end. The main purpose of the legislation is to make changes in three areas.
At present bail is often granted on the promise of someone to pay money if the accused fails to turn up for trial. At that stage no money changes hands. The new legislation will provide that generally some cash or equivalent of cash has to be put up as part of bail. The proposed legislation will also allow a condition to be attached to bail that an accused is of good behaviour and bail money can be forfeited if an offence is committed while on bail.
The legislation will strengthen the provisions of the 1984 Criminal Justice Act relating to the imposition of consecutive sentences for offences committed on bail to ensure as far as possible that an offender is always worse off in terms of penalty where an offence is committed on bail. However, while these changes are worthwhile they cannot ensure that offences will not be committed on bail. They do not and cannot address the central issue of whether a court should be allowed in certain circumstances to take into account the question of someone committing a serious offence if granted bail.
Another suggestion is that providing for speedier trials would do away with the need for the bail referendum. A wide range of measures has been taken to ensure speedier trials. These measures include the appointment of additional judges, extended sittings in the courts and, perhaps most fundamentally, the establishment of the Working Group on the Courts Commission which is involved in a radical overhaul of the operation of the courts. Yesterday I announced the establishment of an advisory group on criminal law and procedure which will also have a useful role to play in this regard.
However, the reality is that despite all the improvements which are being brought about there will always be some lapse of time between a person being charged with an offence and the trial taking place, not least to give the accused an opportunity to prepare a defence. The provision of speedier trials does not and cannot address the central issue of whether a court should be allowed in certain circumstances to take into account the question of someone committing a serious offence if granted bail. It is worth putting on record the fact that traditionally the courts give priority to hearing cases where the accused has been remanded in custody.
Opponents of the amendment have also suggested that our prisons will not be able to cope with the extra numbers of prisoners who will have to be accommodated on remand. This suggestion seems to overlook that the changes we propose in our bail laws are being brought forward against a background of a major programme of prison building which will involve the provision of about 800 extra places, an unprecedented increase of about one-third of our existing accommodation. I think it fair to describe the criticisms I have mentioned as being to some extent tactical in nature rather than going to the heart of the issue.
Opponents of the amendment believe that as a matter of principle it is wrong to deprive someone of their liberty without that person having been convicted. It is perfectly legitimate to argue in favour of that principle but the question which arises is whether, given the modern realities of crime, we can afford to make that principle absolute or whether it should be modified in the interest of providing an appropriate balance in our law. Treating the principle as an absolute one means that there would be no circumstances in which a person is deprived of his or her liberty on remand no matter how strong the evidence that an offence will be committed by that person if granted bail. In fact, under the law as it stands the courts are allowed to detain a person in custody pending trial on the basis of taking a view of the accused's likely behaviour if released. This arises where a court has to take a view as to whether the current grounds for refusing bail apply, the likelihood that an accused will fail to turn up for trial or interfere with witnesses or evidence. The concept of taking a view as to someone's future behaviour in deciding whether bail should be granted is, therefore, not new, as some would suggest. What is at issue in the amendment is whether the question of offending if granted bail should also be a matter which the court can take into account.
Our bail laws are regarded as liberal compared to those which apply elsewhere. The Law Reform Commission's report on the law of bail examined the position in many other jurisdictions and found that all of these allowed the question of offending on bail to be taken into account by the courts in deciding whether to refuse bail. It is not, I suggest, a sustainable proposition to argue that our crime problems are so uniquely different from those in other jurisdictions that we need not arm ourselves with provisions in our law to prevent offending while on bail which are readily available in other countries.
A balance must be struck in our bail laws between the rights of the accused and the rights of the community. The present proposals represent a measured way to tilt the present balance in favour of the victims and potential victims of crime and the community generally while building in necessary safeguards. What is at issue in passing this legislation is allowing the people to express a view — in the light of their knowledge and in too many cases, unfortunately, their experience of the modern realities of crime — and to decide whether we as a society can afford to have our present liberal bail laws. It gives the people an opportunity to have their say as to how one aspect of our crime problem should be tackled.
Much consideration went into the task of devising a suitable amendment to the Constitution. On one hand, we did not want to bring about a situation where people would be refused bail in relation to relatively trivial offences. On the other, we wanted to produce a wording that would make a genuine difference in practice to the bail regime where serious offences were at issue. We finally settled on a proposed wording which we believe strikes this balance and has two practical advantages. First, it is relatively straightforward and it will be easily understood by the people. Second, in the longer term it has the advantage that it is based on the relevant part of the European Convention on Human Rights, Article 5(1), which allows for the deprivation of liberty "when it is reasonably considered necessary to prevent [a person] committing an offence".
The House will be aware that the Government has made available an outline of the main provisions of the bail legislation it proposes to introduce should the Constitution be amended. The Government believes these proposals should help to inform public debate on the proposed amendment of the Constitution. The outline legislation sets out the serious offences to which the new bail regime would apply and the criteria to which the courts would have regard in considering whether the refusal of bail to a person charged with a serious offence is reasonably considered necessary to prevent the commission of a serious offence by that person.
A dual approach is taken to specifying the offences to which the new bail regime can apply. First, a "serious" offence is defined as an offence carrying a maximum penalty of five years' imprisonment or more. Second, a schedule is included setting out the wide range of offences covered by the legislation. This approach means that, while all offences to which the legislation will apply must carry a maximum penalty of five years or more, not all such offences will be covered by the legislation, primarily on the grounds that some of the offences in our current law carrying such a penalty are archaic or unlikely to be ones where the question of reoffending is relevant.
Refusal of bail will not apply automatically in respect of any particular offence or category of offence. Such refusal in relation to any particular offence is and will continue to be a matter for the courts to decide in the light of the criteria set out in the legislation.
The outline legislation sets out seven matters to be taken into account by the courts, where appropriate, in deciding whether it is reasonably considered necessary to refuse bail to prevent the commission of a serious offence. The first is the nature and degree of seriousness of the offence in respect of which the accused person is charged and the potential penalty; second, the nature and degree of seriousness of the offence apprehended and the potential penalty; third, the conviction of the accused person in respect of an offence committed while on bail on a previous occasion; fourth, any previous conviction of the accused person including a conviction under appeal; fifth, any other offence in respect of which the accused person is charged and is awaiting trial; sixth, the nature and strength of the evidence in support of the charge; and seventh, whether the accused has a substance addiction.
It is important to note that the outline legislation provides that in determining whether refusal of bail is reasonably considered necessary to prevent the commission of a serious offence it shall not be necessary that the commission of a specific offence is apprehended. To have to prove that a specific offence would be at issue if bail were to be granted would be likely in practice to impose a standard of proof which could rarely, if ever, be met. The particular provision I mentioned will ensure that the new bail regime will be workable and effective.
The outline legislation provides for a review of bail applications if the trial has not commenced within four months of the initial refusal of a bail application. While the granting of bail would not be automatic in such circumstances, the court is to have regard to any undue delay on the part of the prosecution in bringing the case to trial and to order the release on bail of the accused if satisfied that the interests of justice require it.
When announcing the wording of the amendment, I indicated I was still considering with my Government colleagues the best way to make information available to the public in the run-up to the vote. In keeping with the McKenna judgment the Government will not be spending public moneys to achieve a particular outcome to the referendum. However, it has decided today that there will be anad hoc commission in relation to the provision of information and the Minister for the Environment will make the details known shortly.
The issue of bail has been discussed in this House on numerous occasions over the past couple of years. Opposition Deputies have expressed frustration at what they regarded as delays in dealing with this matter. All Governments over the past 30 years have grappled with this issue but this is the first one which has succeeded in grasping the nettle and bringing forward comprehensive, considered and practical proposals which should deal with it once and for all. I believe it will be possible for all sides of the House to put aside political differences and not detract from the message which I am sure all of us want to go clearly from this House to the people: this is a necessary change to the Constitution which will help in the fight against crime. Amending our bail laws is no panacea for dealing with all our crime problems but the referendum provides a practical opportunity for people who are so understandably concerned about crime to use their democratic franchise to make a difference for the better to the quality of life in our society.
I commend the Bill, ultimately to the people and for the present to this House.