Bail (Amendment) Bill 2016: Second Stage

Minister for Justice and Equality (Deputy Frances Fitzgerald)

I move: "That the Bill be now read a Second Time." I am very pleased to present the Bill to the House. It is a relatively short Bill which focuses specifically on commitments on bail in the programme for Government. The programme for Government commits to the preparation and fast-tracking of legislation aimed at providing for stricter bail terms for repeat serious offenders, strengthening Garda powers to deal with breaches of bail, increasing the use of curfews and introducing electronic tagging for those on bail where requested by the Garda. These are important objectives which should command support in the House and which will increase protection for the public and victims of crime but which can be achieved while also respecting the rights of those facing criminal charges. They form part of a wider programme of criminal law reform which includes, for example, legislation that had the full support of the House, the Criminal Justice (Burglary of Dwellings) Act and the Criminal Justice (Victims of Crime) Bill which was published in recent weeks and has yet to be brought into the House.

In that regard, I also inform Members that it is my intention to seek Government approval for a legislative proposal to allow An Garda Síochána, on a statutory basis, to detain intoxicated persons in Garda stations where they are considered to be a danger to themselves or others. Obviously, we are backing up this legislative reform with sustained investment in Garda resources which a recovering economy is enabling us to do. Deputies are very familiar with the programme of investment that has been taking place and also with the increase in Garda numbers. By 2021 the Garda workforce should comprise a total of 21,000 personnel, to include 15,000 Garda members, 2,000 Garda Reserve members and 4,000 civilians. We are investing €330 million, including €205 million under the capital plan, in much needed Garda information and communications technology, ICT, infrastructure between 2016 and 2021. There is a good deal of catching up to do.

Operation Thor which was launched in November 2015 has led to a sharp decline in the rate of burglary crime, with the most recent Central Statistics Office, CSO, crime figures showing a decrease of 31% in the number of burglaries for the 12 months ending 30 September 2016. I acknowledge that one crime is one too many. If one has been the victim of a burglary, it is certainly one crime too many. There has been a drop in the number of burglaries, as well as welcome reductions in other categories of property crime, including theft, the rate for which is down by 14.6%, while the rate for robbery is down by 11.1%. Overall, nine out of the 14 crime categories in the CSO classification showed a decrease. I have spoken on other occasions about the ongoing work we are doing with the CSO and the work being done within An Garda Síochána to make sure the statistics provided are as robust as possible. That is greatly helped by the investment in ICT infrastructure.

I will turn to the provisions of the Bill and outline what is proposed. Section 2 expands the factors which a court may take into account in refusing bail where this is reasonably considered to be necessary to prevent the commission of a serious offence by the person concerned. Currently, one of these factors is previous convictions of the accused. Section 2 specifically provides that a court may take into account the extent to which the number and frequency of previous convictions of the accused person for serious offences indicate persistent serious offending by him or her. It also enables a court to take into account the nature and likelihood of any danger to the life or personal safety of any person or danger to the community that may be presented by the release on bail of a person charged with an offence punishable by ten years imprisonment or more, in other words, a very serious offence. The decision to refuse bail will, of course, always be a matter for the court. However, these additional factors which I believe will be extremely helpful and which the court may take into account will constitute significantly strengthened guidance from the Legislature on the factors relevant to decisions on the granting or refusal of bail.

Section 3 expands the number of conditions which may be set by a court in granting bail. A court has general discretion to attach conditions to bail, but section 6 of the Bail Act 1997 also lists specific conditions that may be set such as having to reside in a particular place, to report to a particular Garda station, to surrender a passport, to refrain from going to certain places and to refrain from having contact with certain people. Three new specific conditions are being added to this list in section 3, namely, to refrain from direct or indirect contact with the victim of the alleged offence or any member of his or her family, to refrain from driving a vehicle where the person is charged with a serious driving offence and to observe a night-time curfew, whereby the person on bail could be required to stay in a specified place between 9 p.m. and 6 a.m. the following morning. These conditions are very important in terms of personal safety and very much based on the direct experience An Garda Síochána in managing various offences and cases.

Section 3 also provides for the arrest without warrant of a person on bail in carefully defined circumstances which respect the constitutional rights of persons facing criminal charges. The Garda already has, under section 6 of the Bail Act 1997, a power to arrest a person on bail who is about to contravene a condition of bail but only on a warrant of arrest issued by the court. There are legal constraints on the extent to which the law on arresting a person on bail can be extended beyond this. Section 3 contains a limited but important power of arrest without warrant of a person on bail who is contravening a condition of bail and where the arresting garda considers arrest to be necessary to prevent harm to, interference with or intimidation of the victim of the alleged offence, a witness to the alleged offence, or any person with whom the person on bail is not permitted to contact as a condition of bail. This is very much in line with the Criminal Justice (Victims of Crime) Bill that we will be introducing in which we consider this very much from the victim's perspective or lens and in terms of providing for his or her safety.

Section 4 deals with electronic monitoring. The Bail Act 1997 was amended in 2007 to permit a court granting bail to make it a condition of bail that the person’s movements be monitored electronically. This provision has not been brought into force largely because of concerns about how best to operate a system of electronic monitoring in a way that is sustainable and targeted. Section 4 amends the existing uncommenced provision by linking electronic monitoring with an application by the prosecution. The objective is to ensure, as far as possible, electronic monitoring is used in bail cases on a consistent and sustainable basis and that it is focused on those cases where it will prove most effective. In that regard, in parallel with the passage of the Bill, a working group has been established to identify how best this provision might be operated, including the categories of offences or offenders most suitable for electronic monitoring and the making of contractual arrangements for the provision of the service.

Section 5 introduces an important new provision regarding the evidence a court may hear when deciding on an application for bail. It will enable a court, on application by a garda, to hear evidence from the victim of the alleged offence as to the likelihood of direct, indirect or attempted interference by the accused with the victim or a member of his or her family and as to the nature and seriousness of any danger to any person that may be presented by the release of the accused on bail. The section also provides that such evidence, where the victim is a child under the age of 14 years or a person with a mental disability, may be given on the victim’s behalf by another person such as a parent or guardian or a family member.

Section 6 requires a court to give reasons for its decision to grant or refuse bail or impose conditions of bail. Deputies and members of the public often raise this issue and ask why was such a person was given bail. The objective of this provision is to promote the greatest possible transparency in the hearing of bail applications and the greatest possible understanding of decisions of the courts. This is a very important provision in people having an increased understanding of why and how courts make decisions in different cases. These are clear and focused provisions which will enhance the powers of courts in deciding whether to grant bail and which will improve the legitimate control which they may exercise over those granted bail. They will enhance the protection of victims of crime and those at risk of crime, while respecting the rights of those accused of crimes.

As I said at the beginning of my contribution, the balances are very important. We have been very careful to be extremely conscious of the rights of the victims, as well as those accused of crime. There must be a balance. The provisions of the Bill strike the right balance in improving the law on bail. I hope they will get support across the House. I look forward to hearing the views and comments of everybody taking part in the debate.

Deputy Jim O'Callaghan

In 1966, a man called Roger O'Callaghan was charged with a number of criminal offences, including larceny, breaking and entering, malicious damage and assaulting a member of An Garda Síochána. He was remanded in custody by An Garda Síochána. He sought bail and when he went to the High Court, he was refused bail. One of the grounds on which he was refused bail was that the court ruled there was a serious risk he would commit further offences while on bail. He then appealed the matter to the Supreme Court, as he was entitled to do. When the matter came before the Supreme Court, it delivered a very significant judgment entitled People (AG) v. O'Callaghan. In that decision, the Supreme Court ruled that bail could not be refused on grounds that an accused might commit further offences while on bail. The court at the time, including Chief Justice Ó Dálaigh and Mr. Justice Walsh, ruled that the reason this could not be a ground was that it was a form of what they said was preventive justice, which at that time, they said, was unknown to our legal system and contrary to the true purpose of bail.

That was in 1966. The law, however, changed in respect of this matter in 1996, some 30 years after that decision, because the people decided in the referendum on the 16th amendment to the Constitution to change the law in respect of the grounds upon which bail could be granted. The article that was inserted into the Constitution, Article 40.4.6°, states: "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." Members may recall that in advance of that referendum in 1996, there was a very full and considered debate. People were on either side of the debate but, ultimately, the people decided, as they were entitled to do, that the law should be changed. The law is now as I have outlined. The provision in Article 40.4.6° may come within the categorisation of what Chief Justice Ó Dálaigh referred to as preventive justice, but so be it. The people decided to change the law in 1996 and that is what happened.

The law that was introduced on foot of that amendment to the Constitution was the Bail Act 1997, which the Bill going through the Dáil at present seeks to amend. The Bail Act 1997 expressly provides in section 2: "Where an application for bail is made by a person charged with a serious offence, a court may 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 section continues to outline the factors that may be taken into account by a court when exercising that jurisdiction. It is proposed in the legislation before the House to amend section 2 by adding further sections to it and to amend other sections of the Bail Act 1997. I will turn to them presently, but it is important to identify some core principles in respect of the contentious issue of bail. I wish to put forward a number of principles.

First, since people are presumed innocent until proven guilty, the assumption should be that bail is granted. This is because no one is convicted and guilty of an offence until he or she goes through due process and is convicted by the courts. The second principle I wish to refer to is that most offences for which people are prosecuted are summary offences. Bail is not an issue in respect of these offences. Third, bail is sought where people are remanded in custody for what are referred to as serious indictable offences.

Fourth, in most applications, bail is granted with conditions, and a significant factor for a court in determining whether to grant bail is the attitude of An Garda Síochána to the application for bail. A court will not be completely subservient in any way to the attitude of An Garda Síochána, but this is one of the factors taken into account.

Fifth, those who are granted bail sometimes have conditions applied to their grant of bail. These conditions have a particular purpose, that is, restraining the person from interfering with witnesses, fleeing the jurisdiction or committing further offences. I welcome the fact that in this legislation, some of the conditions will be extended and some of the grounds on which bail can be granted will include the introduction and application of electronic monitoring. Some people may think this is an oppressive interference in the rights of individuals. However, when one considers the alternative is that these individuals may likely be remanded in custody, we must recognise that it provides them with a lesser of two evils. Rather than being remanded in custody pending their trial, they have electronic monitoring attached to them.

Sixth, unfortunately, we still have significant examples in this country of people committing crimes on bail. The logic or incentive as to why people would commit crimes on bail is that they know a serious prosecution may be coming down the line for which they may be likely to receive a custodial sentence. In effect, they may say there is no deterrent to their committing other offences since in all likelihood the sentences they would receive would run concurrently with the former prosecution. This is sometimes referred to as anecdotal evidence. However, there is in fact actual statistical evidence in respect of this matter. I commend our colleague, Deputy Noel Grealish, on getting information from the Central Statistics Office on criminal offences that have been committed by people on bail. I will outline these statistics as a seventh relevant principle. We know from figures provided by the Central Statistics Office in 2016 that 89 people were killed, 123 kidnappings were conducted and 237 sexual offences were committed in the past ten years by people who were out on bail.

It would be remiss of us not to record in this House the examples of five individuals who were killed by people who were on bail. I do this not for any sensationalist reason but because it is appropriate we recognise there is a basis for seeking to strengthen the bail laws. It is not simply in order to appease some unjustifiable concern or some concern that is not based on facts. We know that Sylvia Roche Kelly, a mother who was killed in a Limerick hotel room in December 2007, was killed by a man who was on bail for two crimes at the time. One of those crimes was the assault of a female taxi driver; the other was for the false imprisonment of a child. We know that Garda Tony Golden who gave his life while working as a member of An Garda Síochána was shot dead at a house in Omeath, in the Acting Chairman's constituency, in October 2015 by a man who was on bail at the time. We know that the Swiss student Manuela Riedo who was raped and killed in 2007 was killed by a man who was on bail at the time for a violent assault against his ex-girlfriend and who is now serving life sentences. We know that a man called Paul Kelly was killed in April 2007 by a Dublin man who was out on bail and had 26 previous convictions.

We know that a man called John McManus was killed in February 2009 by a man who was out on bail. I cannot be sure, or assure the House, that those five individuals would be alive today if the persons had not been out on bail but it is relevant to our debate and to whether our bail laws should be strengthened that they were killed by persons who were out on bail.

We had a good discussion at the Joint Committee on Justice and Equality this morning about penal policy and reform. There was universal agreement there and I am sure there would be here that there are probably too many people in jail. There are many in jail for non-violent offences such as a failure to pay fines. That is an area we need to examine as policy and law makers. There are also people for whom prison is absolutely necessary. There is unfortunately no other appropriate punishment for people who are extremely violent, who are involved in sexual assaults and who are a threat to the community. That does not mean that once people are imprisoned we do not seek to rehabilitate, assist and transform them. Our society needs to be protected from people who are violent or dangerous. I hope we do not get into a stereotypical analysis of bail as though this is an issue where civil libertarians are on one side and those who say lock them up are on the other. I would have thought the consensus in Ireland is that we would like to have fewer people in our jails. People who are a threat to the community, however, need unfortunately to be put behind bars. There are circumstances where people out on bail have committed offences and the court should refuse bail if it believes those individuals are likely to commit a serious offence while out on bail.

The proposal in the Bill to amend section 2 of the Bail Act 1997 is not as significant as it would appear. In fact, section 2(2)(a) to (f), inclusive, and section 2(2)(f)(i) are already in the 1997 Act while subparagraphs (ii) and (iii) are being added. Subparagraph (ii) provides that the following matters can be taken into account when a court is deciding whether to grant bail, namely, "the extent to which the number and frequency of any previous convictions of the accused person for serious offences indicate persistent serious offending by the accused person,". If the previous convictions indicate somebody continually breaks the law in respect of serious offences that should be taken as a ground for refusing a grant of bail. Paragraph (iii) states "the nature and likelihood of any danger to the life or personal safety of any person or danger to the community that may be presented by the release on bail of a person charged with an offence punishable by imprisonment for a term of 10 years or by a more severe penalty". It is appropriate to put into the law the fact that a court is entitled to take into account the "life or personal safety of any person" or persons in the community who may be affected or threatened by the release on bail of a person charged with a serious offence. Bail is necessary and granted in certain circumstances.

The unusual situation is where individuals are remanded in custody but there are circumstances where that must happen. For instance, knowing of the gangland killings in this city in the past year or 18 months, it is untenable to suggest that individuals arrested because they are suspected of being involved in those criminal acts would be granted bail until such time as their trial came up. They would abscond and may commit further offences. It would be appropriate to try to ensure that criminal trials get on as quickly as possible. There has been an improvement. Serious criminal trials can come to prosecution within a year or 18 months. It is important from the point of view of the community and the accused that those trials are expedited.

Another proposed change in the legislation is provided for in section 3, that the accused person may as a condition be required to refrain from having contact with a person and from driving a mechanically propelled vehicle. These conditions come with a benefit to the accused. If they are set the accused is not remanded in custody but gains the benefit of bail.

Section 5 refers to the ability of the court to hear a complainant give evidence in bail applications. That is an unusual procedure. It permits a court that is considering a bail application to hear from the person who alleges that he or she is the victim of the crime. Of course, at that stage, the crime has not been established since the accused has not had a trial and been convicted. Notwithstanding that, it is appropriate that there are circumstances where a court can hear from a complainant in respect of a bail application by a person who he or she believes may continue to be a threat when he or she gets out. I know that the Acting Chairman, Deputy Declan Breathnach, has a particular interest in this area. He raised the issue of our bail laws with me because of specific crimes in County Louth. He was very anxious that legislation would be introduced to strengthen the bail laws. The Bill brought before this House today constitutes a strengthening of our bail laws and targets individuals who may be categorised as persistent offenders or individuals who have long previous records in respect of convictions. It is not a threat to our civil liberties. Courts will always seek to vindicate and protect the rights of the individual who appears before them. They are fully aware that individuals accused of criminal offences are innocent before the law. They will listen and take into account applications for bail and the instinct of a court will be to grant bail. There are, however, circumstances where individuals should not be granted bail because of the threat they pose to commit future offences within the jurisdiction. We agreed to do that in 1996 when we amended the Constitution. This legislation is an appropriate consequence of that amendment.

Deputy Jonathan O'Brien

We welcome the opportunity to discuss this Bill and will support its passage to Committee Stage. We have some observations on some sections. I do not think anyone would oppose reviewing and where possible, strengthening, our bail laws, always on the premise that people are innocent until proven guilty and that the incarceration of any individual who has not been found guilty shall be used as a last resort.

Section 2(2)(f)(ii) expands the factors which a court may take into account when refusing bail to include "the extent to which the number and frequency of any previous convictions of the accused person for serious offences indicate persistent serious offending by the accused person,". As Deputy Jim O'Callaghan pointed out, the only difference from the 1997 Act is in section 2(2)(f)(ii) and (iii). Section 2(2)(f)(iii) states that "the nature and likelihood of any danger to the life or personal safety of any person or danger to the community that may be presented by the release on bail of a person charged with an offence punishable by imprisonment for a term of 10 years or by a more severe penalty".

Would that include a danger to the life of the individual in question? I presume the person referred to in the Minister's proposal regarding: "...the nature and likelihood of any danger to the life or personal safety of any person or danger to the community", is a witness or the alleged victim. I suggest that there could also be a danger to the life of the person who is charged with the offence. I wonder how that fits in with this section of the Bill. Is the offender covered?

Section 3 proposes to increase the range of conditions that may be attached to bail to include prohibiting contact by the accused with the victim or his or her family. This section will also allow a garda to arrest the accused without a warrant if it is believed that such an arrest is necessary to prevent a victim of an offence or a witness from being harmed, interfered with or intimidated. I have one observation in that regard. Section 6(1)(b)(viii) of the Bail Act 1997 provides that: "the accused person shall be at a specified place between specified times during the period commencing at 9.00 p.m. on each day and ending at 6.00 a.m. on each following day." I presume there is some discretion in the setting of such curfews, for example, in the case of a person who is in employment and needs to work beyond 9 p.m. If there is no such discretion, perhaps the Minister might give me the relevant information.

I will return later in my contribution to section 4 of the Bill, which allows for electronic monitoring to be made a condition of a bail application, because I would like to make a couple of observations on it.

Section 5 allows a court that is considering a bail application to hear evidence from the victim of the offence as to the likelihood of interference by the accused with him or her or a member of his or her family. That is very straightforward.

We welcome section 6 which requires the court to give reasons for granting or refusing bail and for imposing any restrictions on bail, because it will give bail decisions a sense of openness and accountability. We are certainly very supportive of this proposal.

We know that at past hearings of the Joint Committee on Justice and Equality, the Garda Inspectorate has raised concerns about people who breach their bail conditions and thereby cause An Garda Síochána to have to seek warrants to arrest them. We welcome the amendments in this regard in the Bill before the House. We have to be careful to ensure checks and balances are put in place. We cannot have gardaí going around arresting people without warrants willy-nilly. I know that is not the case. People need to be reassured that some checks and balances are being provided for.

I recognise that the levels of crime committed by people who are on bail are not insignificant. It is important for us to look at any review of our bail policy in a rounded manner, rather than simply basing our policy on some of the crude and sensationalist headlines we have seen in the past. I know that is not what is happening. Any changes in the bail regime will be based on the evidence and data needed to strengthen them.

I would like to pick up on the point made by Deputy Jim O'Callaghan about the timely manner of trials. If a person is denied his or her liberty by the refusal of bail, there is an onus on us to proceed to trial as quickly as possible. As such a person must be seen as innocent until proven guilty, it is important that we proceed to trial in a very timely manner. That should always be one of our key objectives.

I am sure the Minister is aware that my party's position has consistently been that because the legal system is premised on the fundamental principle that a person is innocent until proven guilty, we do not believe someone should be sent to jail unless a court declares his or her guilt. Therefore, people have a general right not to be imprisoned before trial. This means the right to bail should be protected. However, we recognise that this right is not unlimited. It is not unreasonable for a court to have the power to set bail conditions providing that bail can be withdrawn if those conditions are broken, or even the power to refuse bail in certain circumstances; for example, if the accused is a genuine flight risk or if there is a risk of the accused interfering with a witness. There may be exceptional cases in which the nature of the crime is such that the withholding of bail can be justified in the name of public safety. I refer, for example, to serial crimes of extreme violence with multiple victims. We recognise that the granting of bail to detained persons, particularly in cases of violent sexual offences, can be problematic for the victims of such crimes. We believe judges should take these concerns into account when they are setting bail conditions.

It should be noted that the presumption in favour of bail is a fundamental human right. It is protected by Article 5 of the European Convention on Human Rights, which provides that: "everyone arrested or detained .... shall be entitled to trial within a reasonable time or to release pending trial", and that: "release may be conditioned by guarantees to appear for trial". Article 9.3 of the International Covenant on Civil and Political Rights guarantees that:

Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial.

I have mentioned both of these international agreements as a way of pointing out that human rights issues arise in the context of this legislation. The importance of being brought before a court in a speedy manner, which has been touched on by me and Deputy Jim O'Callaghan in our contributions, is central in both cases. We believe the general presumption in favour of bail should not be interfered with.

According to the International Centre for Prison Studies, pre-trial detainees account for between 13% and 15% of the prison population in the State. While there is clearly a need for some defendants to be held on remand to ensure they stand trial, excessive use of bail refusal can result in higher costs to the Exchequer and can have an impact on the right to liberty and the presumption of innocence.

The difficulty with what is being proposed by the Minister is that the criteria under which a person can be refused bail are simply being widened without anything meaningful being done to ensure people can comply with their bail obligations. Refusing bail should really be a measure of last resort when the State has exercised all other options. I do not think human rights law, as set down in the European Convention on Human Rights, is reflected in this legislation.

There has been very little comprehensive public debate about bail provisions in the State since the bail referendum of 1996, notwithstanding the fact that these issues are sometimes raised in a sensational manner on the airwaves and in print media. I empathise absolutely with those who are aggrieved when they or their families are the victims of crimes perpetrated by people who have been out on bail. One of the bases on which the 1996 bail referendum was run was that it would reduce crime. I think it is fair to say this contention did not come to pass. The broadening of bail laws in 1996 did not reduce crime in the way that was hoped. It simply put more pressure on the prison system by allowing people to remain in prison without having gone through a trial and been found guilty.

We want to see the human rights framework at the core of the justice system. We do not disagree with any review of bail policy, but it should also be recognised that some prisoners have experienced inordinate and lengthy periods on remand in custody while awaiting trial. The lack of monitoring is something that must be addressed in this legislation.

We have some concerns about section 4, which provides for electronic monitoring of persons on bail. We support non-custodial alternatives for appropriate offenders, but we are opposed to the use of electronic monitoring as an alternative to custody. I welcome the Minister's indication that a working group has been established to examine how this provision might be operated, including the categories of offences and offenders. We await the outcome. Electronic monitoring is often seen as a cheap alternative to the cost of custody and it can be used to allay public fears about protection. However, the claims made for electronic tagging are questionable at best and the issue also raises some human rights concerns, particularly infringements on the right to privacy.

International evidence clearly repudiates the supervisory, rehabilitative and cost-effectiveness aspects of tagging. A report by Napo, the association representing probation service staff in Britain, examined the use of electronic monitoring for both curfew orders and offenders on early release. It concluded that it cost twice as much to tag an offender electronically as it does to supervise them on conditions by a member of the probation service. The Minister mentioned the possibility of contracting electronic tagging to security companies and this report indicates that security companies administering the electronic tagging schemes in the United Kingdom do not routinely follow up violations by individual offenders. The report concluded that electronic tagging did not reduce reoffending.

We will examine section 4 very closely and, as I stated, we are opposed to the use of electronic tagging; therefore, we have another concern that this Bill does not include any statutory provision for bail supports. That should form a crucial part of any discussion on bail and pre-trial detention. Without bail supports to offer interventions such as drug treatment or mental health support, given the chaotic nature of lives, the accused may find it difficult to adhere to bail conditions that may be imposed. The most effective way to improve compliance with bail conditions, particularly where the accused has a chaotic life and complex personal challenges, lies in the provision of bail supports and services that allow the accused to remain within the community and address offending-related behaviour in a familiar environment.

We welcome the decision to include a section requiring the court to give reasons for bail decisions but there is still possible overuse of bail conditions, particularly where they are not relevant to the circumstances or risk of offending by the accused. For example, the new section 2(f)(i) in the 1997 Act would allow for consideration of whether a person is a drug user is a most glaring example. I know this is in existing legislation and it will not be changed. Why is it that being a drug user is considered by the State to be indicative of a criminal predisposition? If someone is a drug user with addiction issues, why does the State believe refusing bail and keeping the accused in a prison system ill-equipped to address his or her needs would be better than allowing the accused to access some detox programmes? That goes to the argument of moving to a public health model and away from the automatic criminalisation of drug users.

The core of the justice system should be the protection of the presumption of innocence and bail. We will allow the Bill to go forward to Committee Stage, but we have some real concerns, particularly about section 4. We will put amendments to some of the other sections and if we were to vote on the legislation as presented, we would find it very difficult to give our support to it. We are hopeful that during the course of its passage through the Oireachtas, some of our concerns, particularly around bail supports, could be taken on board in order that we will be able to give our support at the final stages of its passage.

Deputy Clare Daly

I may share some time with Deputy Mick Wallace if there is some remaining. I will make a few brief points.

The Bill gives more power to the Garda and prosecutors when it comes to bail and it allows more grounds for a court to refuse bail. It attaches extra conditions to a grant of bail, including, as Deputies have alluded to, curfews and electronic tagging. If Ireland is to move to a position with fewer people in prison, which I and many Deputies support, the creation of new reasons for courts to refuse bail and giving more power to the Garda in regard to bail, including allowing gardaí to arrest someone on bail without a warrant because a garda believes the person is about to break any of his or her bail conditions, will not get us to a point where we stop locking up people. It will not get us to a point where we can deal effectively with offending behaviour.

This is the second bail Bill that we have seen in the House in just over a year, with the previous Government having introduced the Criminal Justice (Burglary of Dwellings) Bill in September 2015. That made it less likely that burglars and repeat burglars would get bail. As we stated at the time, it was a bit of an electioneering stunt, with an eye to the rural base that was being blighted by rural crime at the time, instead of being a serious and considered attempt to deal with our bail laws. I see this Bill somewhat in the same context. This Bill goes further and it may, in part, be a reaction to the high media profile given to the number of people who commit further crimes while on bail. That is an issue but I warn against following the lead of sensationalist media coverage that highlights crime to sell newspapers but does not deal with reality or the evidence base around these issues.

What the media fails to concentrate on is Ireland's very high recidivism rates, particularly for certain crimes, as we dealt with this morning in the justice committee meeting. The recidivism rate for burglary is 69%, meaning that 69% of people who go to prison for burglary come out to commit another burglary. We can look at it another way in taking in the number of people committing crimes while on bail; our recidivism rates are really two sides of the same coin in this respect. If the people on bail who commit crimes had been thrown straight into prison instead, they would come out to commit more crimes anyway because our criminal justice policy does not put enough emphasis on supports and rehabilitation. In that sense, we solve nothing by making it harder for people to get bail or sending them to prison, which is in essence the same thing. We may cause more problems, as was again highlighted this morning when we heard of the massive overcrowding in a number of our prisons, including Cloverhill and all the women's prisons. There are other serious issues, such as half the prison population sharing cells, and nearly half the prisoners do not having access to private toilet facilities. There are 30 acutely psychotic individuals in prisons awaiting transfer to the Central Mental Hospital. These people will still have conditions on their release if they do not get the treatment they are seeking and need.

There have been a number of high-profile and tragic cases where individuals on bail have committed serious crimes. For example, an individual on bail killed Mr. Shane O'Farrell. He was a Lithuanian whose name I could not even pronounce. There is also the case of Mr. Jerry McGrath who murdered Ms Sylvia Roche Kelly while on bail as a result of assaulting a female taxi driver nine months before. That case was referred to by Deputy Jim O'Callaghan.

While this Bill may be, in part, a reaction to such cases, I do not believe the provisions would prevent a recurrence of those tragedies, since it is not clear that the provisions would have applied in either the case of Shane O'Farrell or Sylvia Roche Kelly. This is because the key causes were the withholding of information from the court by gardaí coupled with Garda incompetence and negligence. They were the real reasons. The problem was not with our bail laws. The judge was not given accurate information by the gardaí. The existing bail laws could have dealt with that problem. Unfortunately, this Bill does not address that issue. Deputy Jim O'Callaghan has dealt with the case of Sylvia Roche Kelly, but it is well known that Garda error, incompetence and negligence were responsible.

The proposed section 9A of the 1997 Act would allow An Garda Síochána to make an application to the court for the person against whom an offence is alleged to have been committed to present evidence as to the likelihood that the accused might try to intimidate that person or her family or any witnesses and to inform the court as to the nature and seriousness of any danger to any person that may be presented by the release of the accused person on bail. Allowing alleged victims of crime to tell the court about the danger an accused person might present to them or to the public is perhaps a step forward and something we need to consider. I am keen for the possibility to be explored rather than simply relying on the gardaí to give the evidence. However, the power to permit a member of the public to make the case would still rest with the Garda, since the Garda would have to make the application to the courts. Therefore, I am unsure whether the issue is entirely addressed by the Bill, as it stands.

Similarly, the proposed amendments to section 2 of the 1997 Act would empower the court to take into account persistent offending and the likelihood of any danger to the community presented by someone released on bail. However, this would apply only if the person in question is charged with a serious offence and it would depend on gardaí informing the court of the history of the accused. Again, we come back to the reliability of Garda evidence in court. The Bill does not address that issue.

Research by the Irish Penal Reform Trust has found that monitoring of bail conditions by the Garda is extremely patchy. One interviewee said that in 40% of his applications to revoke bail, the conditions were not being monitored properly. If potentially dangerous people are given bail with conditions attached, we will have a problem if the Garda is not monitoring them. If we change the law, it will not address that situation. The solution is not to impose conditions on others who are not dangerous. The presumption of a right to bail always should be the starting point. The role of the Garda is not addressed in this Bill. That is the key point.

An important point was made by the barrister Paul Anthony McDermott. He has made the point that the greatest problem with bail in Ireland is that judges have to carry out bail hearings within two or three minutes because of the number of cases on their lists. This Bill would add extra conditionality to bail, for example, with curfews and electronic tagging. These would be accompanied by serious infringements, even though they are being put forward in the context of an alternative to incarceration. Complex issues arise around these conditions and in the context of a court system where decisions on bail are made in the space of two or three minutes, they are potentially seriously unhelpful.

Deputy Jonathan O'Brien made a particular point. The Irish Penal Reform Trust has strongly recommended to the Minister that the Bill should include the provision of bail services and supports aimed at the prevention of offending on bail, ensuring appearance at court and reducing remand to custody to the absolute minimum. These recommendations have not been included in the Bill, sadly, but they should be included. Without the inclusion of these recommendations, the Bill comes across somewhat more in the spirit of criminal justice policy as a suite of punitive measure rather than an effort to genuinely prevent crime from taking place. All the evidence shows that taking a punitive approach to reducing crime does not work. As it is with people in prison, so it is with people on bail. Bail supports have been proven to reduce reoffending. If we want to reduce reoffending - we do - then it would be far more effective to put in place bail supports than the measures proposed in this Bill. Bail supports would give the person an opportunity to address the offending behaviour. In a programme of supervised bail supports in Scotland, 80% of those involved in the programme went on to avoid a custodial sentence. The Irish Penal Reform Trust has stated the most effective way to improve compliance with bail conditions, especially where the accused person has a chaotic life and complex personal challenges, lies in the provision of bail supports and services that allow the accused to remain within his or her community and address offending behaviour in a familiar environment. Bail supports include bail information schemes, bail support and supervision schemes, remand fostering, bail hostels, mentoring and bail reviews on custodial remand. All of these measures have been found to be especially useful in reducing reoffending and dealing with support for younger people, people with addictions, people with mental illness, women and people with unstable lives. Since the Bill does not make such provisions, it simply provides the courts with more grounds to refuse bail, in some ways, as well as more latitude to impose onerous conditions on people put on bail.

The evidence shows that judges have a tendency to adopt a pro forma approach to conditions, imposing a long list of the same conditions on everyone they release on bail, regardless of the circumstances of those involved, the crime and the likelihood of offending. In the light of the new and onerous conditions in this Bill, including the controversial ideas of tags and curfews, it is likely that these measures will be imposed on the majority of people released on bail regardless of whether the measures are necessary or proportionate. The evidence for this comes from the review of 91 cases in 2015. The review found that in every case the same list of bail conditions was imposed despite the fact that the offences involved included everything from minor matters by first-time offenders to charges of murder and numerous property offences in between. It makes no sense whatsoever that the conditions would be so uniform. There was, and still is, an opportunity – if the Bill passes Second Stage – to nudge the courts towards imposing individualised bail conditions. That is what we should aim for. We are far more likely to prevent offences being committed if judges were to adopt an individual approach, taking into account the circumstances of the accused, the offences with which he or she has been charged and the objections raised. Judges would then attach only such conditions as are strictly necessary and proportionate. I imagine the Minister will tell us that is exactly what the Judiciary will do. Sadly, the reality is that the Judiciary does the opposite. Increased costs and administration will be involved in tagging people. Obviously, it is cheaper to tag an offender than to put him or her in prison, but it is cheaper again to have these people out on bail with proper supports. It is not only cheaper; it is about ensuring a reduction in the number of people who reoffend. This is not about money, it is about the public interest.

The issue of remand is linked. We need to use this opportunity to remind ourselves that there is no statutory maximum duration of remand detention. This means that people can, and sometimes are, detained on bail for longer than the maximum sentence, with remand being used in lieu of short sentences. This is utterly unacceptable. Approximately 15% of all prisoners in Ireland are on remand; they have not been convicted of a crime. They are in prison because they have not been granted bail and this needs to be addressed. We need to reduce the numbers on remand. On average, anything upwards of 520 remand prisoners are being held at a cost of €100,000 per day. This is the cost simply to house these people in our prisons. Clearly, reducing the number of people on remand is what we should be aiming for. In part, this could be done by speeding up and unlocking some of the logjams in the courts system in order that people do not have to wait so long for a hearing. It is not necessarily about making the conditions more difficult for the accused to get bail.

The broader reasons people end up before the courts need to be addressed. There are many issues that need to be teased out in the Bill. We probably will not oppose its progression to Committee Stage, but it will need a radical overhaul before we will able to support it.

Deputy Mick Wallace

I will make a few general points, many of which were discussed this morning at the meeting of the Joint Committee on Justice and Equality. We are very interested in how the prison system works and will visit prisons all over the island, North and South. The most striking aspect when one visit prisons on a regular basis and meets prisoners and staff is the realisation that prisons do not work as they do not do what they are supposed to do. The idea is that if people do something bad, bold or illegal, we put them in a place of detention in the hope that, first, we will prevent them from reoffending. The plan is that they will not do it again after being dealt with by the prison system. Obviously, however, we know that this is not actually happening. We all agree that, in theory, prison is a punishment, but it is not. The reality is that in many cases it is a punishment in terms of how things are done. Rather than being tougher on individuals, which is popular, partially because of how poorly the media deal with these issues, we should be providing greater support to help them. The vast majority of people in prison come from underprivileged backgrounds and broken families and had troubled childhoods. They need help, but the way we set about dealing with them when they arrive in prison is not based on a philosophy of "let us help these people." It is a case of detaining rather than rehabilitating them. Given that the rate of recidivism is so high and many people do not benefit from the experience of being in prison and reoffend often, surely we should be asking if we could do something different. It is not rocket science. Helping people to make use of their time in prison to give them a different perspective would be money well spent. It is scary that we are paying €70,000 per year to keep a prisoner in jail and actually making him or her worse.

There are so many aspects of the prison system that we need to examine. There are many people in prison who should not be there. We talked this morning about the crazy number of people committed to prison for the non-payment of fines. We had the privilege of being committed for not paying a fine for what had happened at Shannon Airport, but the prison did not actually have room for us. As the prisons were full, they were not even able to keep us overnight.

I completely disagree with the proposal that there be electronic tagging, but I certainly agree with making people do community work rather than keeping them in custody at crazy expense to the State. However, I do not see any serious effort on the part of the State to create the structures and facilities needed to make community service a reality. A lot of thought must be put into how we do it. We do not have the required structures in place. I know that approximately 2,000 people undertook some form of community service last year, but with the proper structures in place, a lot more could do such work rather than being locked up.

Deputy Mattie McGrath

I am pleased to be able to speak to the Bail (Amendment) Bill 2016, the publication of which is timely. I thank the Minister for meeting the Save Our Community group in Tipperary on two occasions. One meeting took place before the general election and in fairness to the Minister when we asked her to meet it again, she kept her commitment and did so. It is a wonderful group and I salute its members who are deeply concerned about crime levels in their community and the sense of fear that pervades the mid-Tipperary area in particular but which is replicated all over the country. They have shown leadership on the issue. There is an old adage that where Tipperary leads, Ireland follows. I am proud to reflect it.

Many of the provisions included in the Bill have been sought widely. About a year and a half ago I attended a public meeting which was attended by almost 2,000 people. A committee was set up and its members have done great work, not just on crime related issues. As I said during an earlier debate today, they organised a farm safety engagement day in conjunction with An Garda Síochána and other agencies, including the Road Safety Authority. It was held on the farm of the chairman of the committee, Mr. Robert O'Shea, and proved very beneficial for those who use agricultural machinery, contractors and so on, as well as gardaí. All parties learned and gained an understanding of each other's point of view. There is a need for further community engagement of that type.

The Bill includes four main provisions. It provides for stricter bail terms for repeat and serious offenders; the strengthening of Garda powers to deal with breaches of bail; increasing the use of curfews and introducing electronic tagging for persons on bail, when requested by An Garda Síochána. I have no problem with any of these provisions. They are all needed, although we must be very careful on the last one. I am very disappointed, however, that the Bill does not include a fifth provision, namely, a reduction in the level of access to free legal aid. I hope I am not frightening off my good colleague and member of the Law Library, Deputy Jim O'Callaghan, but the free legal aid scheme has become an industry for certain solicitors and barristers. Without diminishing anyone's rights, there must be a balance in how many times a person can receive free legal aid and how many times the taxpayer can be expected to pay for it. There has to be a limit. It is a joke to see people being given free legal aid time and again. To be honest, it is just farcical. The scheme is widely abused, while victims have to pay for their experience through the trauma caused. This is especially true in the case of serious crimes. I have no problem with people being given free legal aid once, twice or even three times, but it should be a case of three strikes and they are out. It cannot be revolving such that people will continually be given free legal aid. As I said, the figures are published every year and for some law firms, it is a huge business. I know that Deputy Jim O'Callaghan will say lawyers have to live, as do barristers, doctors and other professionals. That is true, but year after year, one sees the same names of solicitors on the list of those receiving free legal aid scheme fees. The system is being abused. As I said, I have no problem with people being given free legal aid up to three times, but after that, it should not be available. It is a pity the issue is not dealt with in the Bill. Perhaps the Minister has good reasons for not doing so and, if so, I would like to hear what they are. The provision of free legal aid was one of the issues of concern for the Save Our Community group in Tipperary.

A previous speaker said judges did not have enough time to deal with bail hearings properly and that such hearings often lasted for only three or four minutes.

That, however, is not the victim's or the Director of Public Prosecution's problem, it is the State's problem. We have set up a new Court of Appeal. It cannot hear criminal cases, which I opposed at the time, and I said I did not see any direction for it. Last week when we debated the Criminal Law (Sexual Offences) Bill 2015 we said that in two years' time there would be a review of it, and possibly a three year review. I saw no provision for a review in the Court of Appeal Bill. There was no clarification on the number of cases this new court would hear or how it would deal with the backlog. The system is archaic and justice delayed is justice denied. We need accountability from our good colleagues in the court. I strongly supported the demands of the Minister, Deputy Shane Ross, but the Minister for Justice and Equality, Deputy Frances Fitzgerald, rejected them, quite robustly, as well as a chapter on public disclosure for our judges, especially when hearing cases against financial institutions. That was necessary. I am not trying to be critical of judges. I will not go into it here, but the Minister, Deputy Frances Fitzgerald, knows what I am talking about, as she knows what the Minister, Deputy Shane Ross's Bill is all about. I support his Bill and I am delighted that he seems to have got it through the Cabinet.

Enough time must be allowed and this must not be rushed. A decision on bail, which is rushed, is not fair on the victim. I am not saying that perpetrators should be taken in and the key should be thrown away; I am not one of those merchants. I am, however, sick and tired of the bonds. The ordinary people who I represent live in fear in their homes.

There is also the issue of cutbacks in An Garda Síochána. I thank the Minister for the five new gardaí for Clonmel but we are still way behind in garda numbers because we lost so many. I thank the chief superintendent there and all the superintendents in Tipperary for the work they do with their teams with the limited resources they have. I deal with superintendents William Leahy and Pat O'Connor in Tipperary town and our new superintendent in Cahir. Of course, gardaí make mistakes; the man that never made a mistake never made anything. We should place more emphasis on restorative justice. There was a good project in Nenagh, which was needed.

Figures are being quoted in this debate about the number of repeat convictions, especially for burglaries. The vast majority of those repeat offenders are getting free legal aid. We are supporting and feeding the industry and it should not be allowed to carry on. Restorative justice is very important because in a different situation one of us, or someone in our family, could become involved in crime and end up not being able to see one's grandchildren.

There must be more use of the juvenile liaison officer system, a very good system which I have supported. Earlier it was suggested the court poor box would be gotten rid of. That is a very important, too. People can get hit hard in their pockets, often for motoring offences, and they must pay a nice sum to a very decent and well-meaning charity through the poor box. It gets them thinking and it is good for the charity and for the people who gain from it. In a way, that is restorative justice also.

Reference was made to professional development for judges. If a judge is appointed he or she is a judge for life, unless he or she is impeached but, thankfully, that has seldom happened. We need a measure, such as professional development courses, because, like everything else, the law is evolving. I am sure the Minister, if she was honest with us - I am not saying she is dishonest - would say she has learned a lot since she joined her Department of which she was not aware before. I admit this too. I do not have an infinite pot of knowledge to deal with situations. Situations are complex and crimes are changing all the time, such as Internet crime and cyber-crime and what we see unfolding before us with the international trade in people. It is very different now from what it was 20 years ago; therefore, judges need to be brought up to speed. I am not being critical of any one judge, but this is badly needed.

There was discussion around Garda powers to deal with breaches of bail and reference was made to a person who was disqualified from driving for a serious road offence but was still driving while out on bail. That person should not be allowed to drive again. As I said, there needs to be more connectivity with the courts. The courts administrative system must be brought up to speed. It is well able to deal with certain issues.

I asked a parliamentary question today, and received a reply from the Minister, about county registrars sitting as judge and jury in cases of home repossessions. I asked about the qualifications they have, who appointed them and under what Act but I received a vague enough answer. I believe it would be more appropriate to leave that work to judges and leave the registrars to look after the administration of fines, etc. The fines should not have to be collected by An Garda Síochána. Gardaí have too much to do to be going around begging people to pay their fines, especially for litter offences. As Deputy Mick Wallace said, those fines should be dealt with differently or by way of restorative justice. These people should be out doing community service. We should not have the wasteful situation of a garda using his or her time going back ten to 20 times to get a fine paid, eventually taking the person to prison where there is no room, so they are sent home again and the fine is wiped away. I have seen cases where an unfortunate businessman gets into trouble even though he does his best, and this happens to young people, in particular. The person is brought to the small claims court and is sentenced to jail to serve time. The bill, however, is still there and the person can be brought to court again. However, in the case of others brought before the courts in respect of other charges, once they turn up, sign in and sign out, they are left off and the charge is wiped away. Reform is needed in that area also.

I support the increased use of curfews, especially nighttime curfews because we cannot have certain people intimidating whole communities. There is a boldness and blatantness to their actions and they need to be under curfew.

Even my wife will not agree with me on the issue of tagging, but I must raise it. The Garda and superintendent Pat O'Connor have studied electronic tagging and I am sure the Minister and her officials are aware of it. I am not comparing humans to animals but in Scotland there was a study that used electronic tags on badgers to help combat bovine TB. The tags enabled the tracing of the badgers through the land and the checking of times. It shows how easy it would be for one person to monitor a person's movement rather than having gardaí, with limited resources, following people who are out on bail. There is no hope of them being able to do that. I am not a lock them up and throw away the key merchant, but we must defend our communities. Will the Minister tell us where the victims' rights charter comes into this? The unfortunate victims must become foremost in our minds.

I compliment gardaí on how they dealt with an atrocious attack on a young family in Tipperary in the dead of night. It was a most heinous crime and thanks to the good work of An Garda Síochána in detecting the persons, they have been convicted. Thankfully, the woman was able to dial 999 that night and throw her phone under the bed in order that those in the Garda station could hear her screams for help. Butchery, horror and savagery were inflicted by people who were out on bail and who had committed numerous crimes. We saw their scoffing behaviour towards media and others as they were led away in chains from the court house having been sentenced. These people must be taken off the streets and dealt with severely. The family who were the victims in that case will never recover from that kind of a trauma. How could they? A person's home is his or her castle and theirs was invaded.

Burglaries, breaches of property and terrorising communities must stop. The Bail (Amendment) Bill 2016 is very welcome as is the Criminal Law (Sexual Offences) Bill 2015. We need this legislation because it will save so much time, especially Garda time which we do not have. It enables people to sit in the Garda stations and monitor people, without prying or being peeping Toms, and ensure the safety of the community and law-abiding people who pay their water charges and their bills and who try to rear their families and do the best they can for themselves. They are getting tired of this. People are being pushed too much in one direction. There are certain aspects of the Bill that the Minister has said form part of a programme of criminal law reform, which includes, for example, the Criminal Justice (Burglary of the Dwellings) Act 2015 and the Criminal Justice (Victims of Crime) Bill 2016, published in recent days. I welcome that, but the Criminal Justice (Victims of Crime) Bill 2016 is not strong enough on victims' rights. Under the Constitution people are entitled to go about their daily work without fear or being hindered. It is a major disappointment that there is not some curtailment of the access to free legal aid. I wonder if the law lobby and the lawyers had a big influence on it.

Section 3 expands the number of conditions which may be set out by a court granting bail. Three new specific conditions are being added to the list. The first condition is that the person must refrain from direct or indirect contact with the victim of the alleged offence or any member of his or her family. This is vital as the victim must be protected. It is bad enough that the crime was committed, but if someone is being charged, the victim must be free from intimidation.

The second condition is that a person charged with a serious driving offence must refrain from driving. This issue was discussed earlier tonight in our debate on the Courts (No. 2) Bill 2016. Certainly, that must be a taboo. The third condition is that an accused may be made to observe a night-time curfew, which means he or she could be required to stay in a specific place from 9 p.m. each night until 6 a.m. the following morning, and longer in the winter time when it is dark from 5 p.m. until 8 a.m.

Section 4 deals with electronic monitoring. The Bail Act 1997 was amended in 2007 to permit a court granting bail to make it a condition of bail that the person's movements are monitored electronically. That provision has not been brought into force, largely because of concerns about how best to operate a system of electronic monitoring in a way that is sustainable and targeted. Section 4 amends the existing non-commenced provision by linking electronic monitoring to an application by the prosecution. It is a scandal that this provision has been in law since 1997 but was never implemented. Why are we pussy-footing around on this issue? People, young and old, must be protected. We cannot have marauding gangs intimidating people in their homes. Nor can we have third forces - the Minister knows what I am talking about - of repossession agents moving about in the dead of night. These people, too, should also be taken off the streets. We have An Garda Síochána, a noble force that always served the people well, and the Army available as back-up if needed. We do not need a third force acting on behalf of receivers and vulture funds. That is not the country for which the men of 1916 fought. Michael Collins, Liam Lynch and others fought for the right of Irish people to go about their business free and unencumbered - paying their taxes, certainly, but not being cowed into submission by bankers and receivers.

The county registrars are having to take on a lot of responsibility. Why are they holding up these cases and giving the Minister a watery reply? Justice must be done and must be seen to be done. It is incredible that this provision was introduced in 1997 but has never been invoked. Who is being protected? The cartels in the legal industry must be rooted out. There are many good solicitors and barristers, but they have a very strong lobby. Some of them arrived in force into the audio-visual room last week. Every time we went into or out of LH 2000, they were there to meet and greet us. That is fine and how things work, but perhaps they are worried we have woken up to what is going on in the industry and are wising up on the cost of insurance, difficulties with claims and so on. We must stop this carry-on and serve the people we were elected to serve.

Section 6 requires a court to give reasons for a decision to grant or refuse bail or to impose conditions of bail. The purpose of this provision is to provide the greatest possible transparency in hearing bail applications and the greatest possible understanding of the decision of the court. Again, this is vital in terms of transparency. One of the court cases I attended involved an unfortunate woman who was evicted from her home by bankers and receivers. I salute the kindness of the prison officers who brought her in a car from Cork Prison. She was going to go in as a lay litigant but then a barrister decided to take on her case. However, he was not allowed to represent her. I was at the back of the court and could not hear what the judge was mumbling. I moved up to the front and we asked the judge to speak up because nobody could hear what was going on. That poor frightened woman, God bless her, could not stand, never mind speak. She was treated with disgusting disdain in the Four Courts. It is not good enough that a frightened woman who had been through the traumatic experience of being in jail, having never committed a crime in her life, should be insulted in that way by a newly appointed judge. Incidentally, that judge had a lot of connections to this House and had given advice on the disbandment of town councils and the merging of the two county councils in Tipperary.

We must have transparency, truthfulness and honesty in all these matters. I support many of the measures in this Bill. I am not one of the do-good brigade who refuses to support things. I am for fairness, justice and respect for all citizens, including prisoners. I have called for reforms in the justice system and the broader use of restorative justice and community justice. However, repeat offenders can get legal aid, continue to offend and continue to get legal aid. It is an industry. If it walks like a duck and quacks like a duck, it is a duck. This effective industry is disgusting to the ordinary person who is paying his or her taxes. Legal aid does not come cheap. Ordinary people have to pay their own legal bills and that service does not come cheap either. The courts need more reform. There should be no space for courts to treat unfortunate family home owners in the way they are being dealt with in the Four Courts, down the road from this House. We know the history of the Four Courts and what happened there during the fight for freedom and democracy. When this Bill is passed, as I hope it will be, we must ensure there are no provisions that are not enacted, as happened on the last occasion, for nine, ten or 12 years. It must be debated and amended. We are entrusted by the people to do that and we must be responsible because we will have to face them before too long. We must give the necessary powers to the Garda to make our streets, roads and homes safer places in which to live.

Acting Chairman (Deputy Declan Breathnach)

Deputies Josepha Madigan and Peter Fitzpatrick are sharing time.

Deputy Josepha Madigan

To put this Bill in context, it represents the most significant change to bail law and procedure since 1997 and is a welcome overhaul of the legislation in this area. The 16th amendment to the Constitution which was passed in 1997 allowed a court to refuse bail in the case of a serious offence, namely, an offence carrying a potential prison sentence of five years or more. Before that constitutional amendment, it had been found unconstitutional to deny somebody bail on the basis that he or she might commit an offence while on bail. In practice, this meant criminals who knew they were going to prison for a long time could choose to go on a crime spree in order to provide for their families while they were inside and because the consequences were less severe given they were going to jail in any case. The amendment was passed by 75% of voters.

This form of preventive detention was found to be unconstitutional by the Supreme Court in the 1966 case to which Deputy Jim O'Callaghan referred. The court found in that instance that bail could be refused on a number of specified grounds, including for reasons such as the seriousness of the charge, the sentence likely to be imposed and a prisoner's failure to answer charges. Those grounds are still taken into account in our bail law, under section 2 of the Bail Act 1997. In fact, section 2 is treated more seriously than the O'Callaghan grounds due to the presumption of innocence. Where an application to refuse bail is made, the court must be cleared and gardaí must give their reasons in writing. The Criminal Justice Act 2007 introduced an amendment allowing a Garda superintendent to give evidence, as grounds for refusing bail, of his or her opinion that an accused would commit a serious offence while out on bail.

The Bill before us this evening amends section 2 of the 1997 Act to allow for more factors to be taken into account when considering an application for refusal of bail. The courts may now take into account the fact that the accused is a drug addict, the extent to which the number and frequency of any previous convictions of the accused for serious offences indicates a pattern of persistent serious offending, and the likelihood of any danger to any person or to the community that may present as a result of the release on bail of a person charged with an offence punishable by imprisonment for a term of ten years for more. The latter is presumably to deal with the gangland criminals who terrorise communities, as well as to prevent witness interference.

Section 3 of the Bill provides for the amendment of section 6 of the Bail Act to allow for further bail conditions to be imposed on an accused. The new conditions include preventing the person from having any contact, direct or indirect, with the injured party or his or her family without leave of the court, preventing the person from driving where he or she is charged with a serious offence relating to driving, and new provisions regarding the imposition of a curfew. The curfew and no-contact conditions have been relied upon by our courts for years without controversy. Indeed, the practice in regard to the curfew is even stronger than what is in the legislation as judges frequently give gardaí the power to call upon the accused at home to ensure that he or she is abiding by the curfew.

Another condition that might be utilised is a mobile telephone condition whereby the accused must obtain a telephone, give the number to the Garda and be obliged to have it on his or her person, charged and contactable at all times. This is a commonly used condition which should be included in the Bill, unless there is some difficulty with forcing people to get telephones. As most people have one these days in any case, perhaps an amendment might stipulate that accused persons must provide a number at which they may be contacted at any time.

Section 6 of the 1997 Act is further amended to allow gardaí to arrest without a warrant a person who is breaching his or her bail conditions.

They can even arrest someone to prevent harm, intimidation or interference to a victim or witness. I believe this is positive progress. The Bill also gives victims of crime the ability to give evidence of any dangers they face if the accused is released on bail or if they are likely to be interfered with, and family members can give evidence on behalf of children and the mentally disordered.

A further section amends section 9 of the Bail Act 1997 in order that the court is required to give reasons when it grants or refuses bail or varies bail conditions. As a general rule, courts are required to give reasons for all their decisions. In many bail applications, the Garda does not have an objection to bail and this requirement may lead to a waste of court time. It may result in some sneaky judicial reviews or habeus corpus applications by unscrupulous practitioners, but it might also be seen in some quarters as the Government putting undue pressure on judges in relation to bail. Bail is one of the areas, with sentencing, where judges come under most pressure from the public. On the other hand, the Bill might draw support from members of the public who feel that too many accused are getting bail. We can look at this on Committee Stage.

It is worth noting also - this was alluded to earlier - that there is a lot of overcrowding in the prisons. If the aim is to stop accused people getting bail, then there had better be places to put them. Some prisons are releasing prisoners early to make room for those who have been refused bail. It is not ideal to have guilty persons being released from prison to make room for innocent ones. This is a particular problem in the case of female prisoners. The Dóchas Centre does not have much space and many female offenders are released early, particularly where they have not been convicted of violent offences. We also must be cognisant of that aspect.

The Minister mentioned electronic tagging and a working group in that regard. I welcome that such tagging will be used to monitor those on bail. This was introduced in the 2007 legislation but it has not been introduced in practice for those on bail. It has, however, been introduced in practice for those who are on temporary release from custody, although not many people are aware that it has already been introduced in this way.

The recent Criminal Justice (Burglary of Dwellings) Act 2015 which also was alluded to earlier allows for bail to be refused to someone charged with burglary where he or she had previously been convicted of burglary or was facing two or more charges of burglary. The idea was to stop persistent burglars and recidivism, as was mentioned. The Minister told the Dáil a large proportion of domestic burglaries were committed by serial offenders. Figures from the Garda analysis service indicate that 75% of property offences were committed by 25% of offenders. In my view, similar style bail refusals should be allowed for other persistent offenders, including perhaps drugs dealers, sex offenders or domestic violence offenders.

I welcome the Bill, although I would like an assurance from the Minister that the legislation's effects have been taken into account. As I said, if bail is granted on fewer occasions, there will be more pressure on the already overcrowded prison services and we need to be cognisant of that fact. The points raised by Deputy Jonathan O'Brien in relation to rehabilitation resources for drug addicts must be taken into account also. Deputy Clare Daly mentioned the courts system and the resources in that regard. These all are interlinked. Overall, I very much welcome the Bill and look forward to it proceeding to Committee Stage.

Deputy Peter Fitzpatrick

I welcome the opportunity to participate in today's debate. I very much welcome the Bail (Amendment) Bill 2016 because its measures are badly needed. The amendments include that a court can take into account persistent serious offending by an accused and the likelihood of any danger to a person or the community if an accused was granted bail, and the strengthening of Garda powers to deal with breaches of bail conditions. The expansion of the range of conditions that may be attached to bail include prohibiting contact by an accused with a complainant or a member of the complainant's family, prohibiting an accused from driving where the offence charged is a serious road traffic offence, and the imposition of a night-time curfew. The Bill will also enable electronic monitoring to be made a condition of bail if required, the hearing of evidence from a complainant regarding the possibility of interference by an accused with the complainant or a member of the complainant's family, and also a court having to give reasons for granting or refusing bail and for imposing any conditions in respect of bail.

It is only right and proper that persistent offenders are dealt with in an appropriate manner and if it means that they are refused bail, then that is what is needed. Too often we read about the same offenders repeatedly committing crimes while on bail. Why should we, as a society, accept this? It is simply not right that criminals can be let out on bail to commit crimes. It is happening far too often that those out on bail believe they can go back to their criminal ways because the necessary deterrents are not there at present. The Bill before us will, I believe, be a first major step in putting in place deterrents that will once and for all stop criminals from committing crimes while on bail. It is welcome that we will now be able refuse bail to persistent offenders. Why should persistent offenders think they are entitled to bail? I strongly believe that the courts should adopt a zero tolerance policy when this legislation is passed. Offenders should be left in no doubt that should they offend while on bail, they will have no second chance.

I also warmly welcome the expansion and strengthening of conditions that may be attached to bail. It is welcome that an accused can be prohibited from contacting a complainant or a family member of the complainant and I look forward to seeing this rigorously enforced. Too often we have seen witnesses being subjected to abuse and threats which in some cases has led to cases collapsing. It is simply unacceptable that this has happened in the past and is happening even today. We must at all times protect complainants from interference by the accused.

Many people have raised concerns about the measures to be implemented, particularly in relation to electronic monitoring, but it is quite simple. If electronic monitoring is needed to protect society from criminals, it should be used. There can be no hiding place for criminals and we should provide the courts with every available option to ensure that these criminals cannot commit criminal acts, especially when they are out on bail. Other measures in the Bill that I welcome include the fact that a court can now hear evidence from a complainant if he or she feels that he or she will be interfered with by the accused.

When the Bill is enacted, I hope the courts will fully implement the measures included in it. There should be complete openness and transparency in the way the courts will implement these measures. I do not want to see courts in some areas treating defendants differently. We should ensure that the measures are implemented uniformly across the country. It is important that there is not only openness and transparency in the implementation of these measures, but also fairness. In this regard, I welcome the fact that the courts will have to give detailed reasons for the decision to either grant or refuse bail and the imposition of any condition on bail. This measure, I believe, will create an open, transparent and fair system.

I welcome the Bill. It is badly needed and will benefit complainants, their families and the wider community. It will also act as a serious deterrent to criminals who at present think they can do whatever they like while on bail. This must never be accepted and these criminals must be shown that should they wish to continue their criminal ways, they will have a price to pay. I expect that once the Bill is passed, the courts will use their new powers to deter criminals from committing crimes while on bail.

Minister for Justice and Equality (Deputy Frances Fitzgerald)

I thank all the Deputies for the thoughtful contributions we have heard from all sides of the House. It is clear that there is a deep interest in this area from a number of different perspectives. As Deputy Josepha Madigan said, these all are interconnected.

I will make a number of points about penal policy in general. Many of the comments were about our penal policy and the approach we should take. Given that the Joint Committee on Justice and Equality heard from the Irish Penal Reform Trust this morning, that is an extremely topical issue. There is no binary choice between enhancing the law on bail to protect the public against serious crime and ensuring that prison is only used in appropriate cases. The two objectives are perfectly consistent. Deputy Jim O'Callaghan made that point and I agree with him. That is central.

There have been massive improvements in prison accommodation and significant investment, for example, in single cell accommodation and access to sanitation. There have been massive changes.

The other point of which Deputies are aware - I believe it was debated by the last justice committee - concerns the very important penal policy review carried out. It is a roadmap in ensuring we will limit imprisonment to those who absolutely should be there and that we will work to support those who can be rehabilitated. There are a number of initiatives being taken in that regard. In fact, there has never been such a good relationship between the Probation Service and the Irish Prison Service. That was unheard of a number of years ago, but they now work closely together. There are many good initiatives, including youth diversion and Garda diversion programmes, the joint agency response to crime, JARC, and the newly established programmes to identify and work with serious offenders to ensure they receive the multifaceted support they need. The question of support while on bail is one to which we can return.

On the payment of fines, there is legislation in place in that regard. The courts are working on the IT part and it will change the situation of individuals going into prison for the non-payment of fines. We have largely dealt with that issue.

To return to the question of support while on bail, the courts can impose bail conditions such as requiring a person to attend particular services. We are focusing increasingly on community service.

Deputy Jonathan O'Brien made the point that human rights were at the centre of this issue. I agree, but the bail laws already fully respect the rights of an accused person under the Constitution and the European Convention on Human Rights. The Bill enhances the laws on bail while fully respecting those rights which must be central. Every Member would agree with the Deputy on that point.

The Deputy also spoke about electronic tagging and monitoring. During the pre-legislative scrutiny of the Bill, the justice committee expressed the view that the use of electronic monitoring was an acceptable alternative to pre-trial detention but recommended that it not be used excessively. That is the key point. The aim of the provision included in the Bill is that it will be used appropriately. It is worth noting that the Bill will limit the use of electronic monitoring to cases in which the prosecution applies for it.

Deputy Mattie McGrath spoke about the provision of free legal aid. The granting of such aid is a matter for the courts. There is a serious constitutional issue relating to the right to be represented. If a person was not represented, there would be no cases before the courts and it would be in contravention of every international right. I am, however, examining some elements of the scheme. Perhaps where it is proved that people have resources, they might make a further contribution. If, however, no free legal aid was to be given, many criminal prosecutions would be frustrated, something none of us would wish for either.

Deputies have concerns about different sections of the Bill. Deputy Jonathan O'Brien asked whether the inclusion of the provision in section 2 was meant to protect the offender or the safety of others.

Deputy Jonathan O'Brien

I know that it is to protect the safety of others; I was querying the way it was worded.

Deputy Frances Fitzgerald

It is not intended to deal with the person who is charged.

Undoubtedly, we will engage in further discussion of these issues on Committee Stage. I thank Deputies for their support for the Bill in principle allowing it to proceed to Committee Stage.

Question put and agreed to.

Dáil Éireann debate - Wednesday, 8 Feb 2017

Bail (Amendment) Bill 2016: Second Stage

Dáil Éireann debate -
Wednesday, 8 Feb 2017