Bail (Amendment) Bill 2017: Discussion

The purpose of our second session is a detailed scrutiny of the Bail (Amendment) Bill 2017, which is sponsored by Deputy Jim O'Callaghan. We are joined by Ms Joan Deane, vice chairman of Advocates for Victims of Homicide, AdVIC. We are also joined by Ms Deirdre Malone, executive director, Ms Fíona Ní Chinnéide, deputy executive director, and Ms Michelle Martyn, senior research and policy project manager with the Irish Penal Reform Trust. From Trinity College Dublin, we are joined by Dr. Mary Rogan, associate professor in law. All of the witnesses are very welcome. Ms Deane was to have been joined by Mr. Conor Nolan but, unfortunately, he is not able to be here. We thank him for his initial indication of intent. I welcome our guests and will shortly invite them to make their opening statements in the order in which I have announced them. I hope that is okay.

Before we commence, in accordance with procedure I am required to draw attention to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to the committee. However, if a witness is directed by the committee to cease giving evidence in regard to a particular matter and continues to do so, the witness is entitled thereafter only to qualified privilege in respect of his or her evidence. Witnesses are directed that only evidence connected with the subject matter of these proceedings is to be given and are asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against any person, persons or entity by name or in such a way as to make him, her or it identifiable. I remind members and visitors to switch their mobile phones to silent as they may interfere with the recording system.

Deputy O'Callaghan will outline his Bill and our guests will then be invited to make their opening statements. Thereafter, members will be free to contribute and engage.

I thank the Chairman and I thank all of the witnesses for coming to the committee. We appreciate the assistance that the representatives provide to the committee in respect of the job we have to do.

I will give a brief overview of the process of this legislation, which is the same as for every other item of legislation. The Bill was introduced in Dáil Éireann one year ago, on 14 December 2017. There was no real debate when the Bill was being introduced; just five minutes were allocated to introduce it. The Bill then proceeded to Second Stage, the substantive debate on which happened on 28 June 2018. Members do not have to be fully supportive of a Bill to vote for it. The Bill before us passed Second Stage. A number of individuals expressed some concerns about the Bill. These can be dealt with on Committee Stage and addressed now as part of this detailed scrutiny process. It is very important for me and for the committee that our guests are here and engaging in this process. It is important to state that just because it is my Bill, our guests should not feel that they cannot trash it or indicate that they do not agree with it. There is lots of legislation which comes from those on my left and which might attract similar reactions.

We want to try to get some form of agreement on the basis that there is a problem in the context of offences being committed by people who are out on bail. The committee and I are of the view that legislation should only be introduced if it is evidence-based, if it is necessary and if it is going to work. Although we are all politicians, we do not believe in introducing legislation just because it looks good. Legislation has to be based on evidence. When we consider the evidence basis and the legal basis for this Bill, we probably have to look back 22 years to a referendum held in December 1996 when the people overwhelmingly voted to change the Constitution. They changed it by putting a provision into Article 40 to the effect that "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." The public changed the law and that is the fundamental document we have.

We also need to see if there has been a continuing problem in respect of offences being committed by people who are on bail. Regrettably, there is a continuing problem. I have circulated to my fellow committee members - I apologise if there are not enough copies - the reply to Parliamentary Question No. 445, which I tabled to the Minister for Justice and Equality, Deputy Flanagan, on 6 November last. The Minister set out, very concisely in tabular form, 15 different types of offences by year from 2013 to 2017, inclusive. In respect of each of the offences, we can see there are recorded crime incidents with at least one suspected offender on bail when the crimes were committed. I could go down through these figures, but I do not intend to do so. I ask the members to look at 07 on the table, which relates to burglary and related offences. In 2013, there were 1,241 incidents of burglary or related offences; in 2014, there were 1,674; and, in 2017, there were 1,342. The committee should have no difficulty accepting that, unfortunately, we have a problem with crimes being committed by people who are out on bail. There may be reasons for that and it does not mean that there should not be further research. Part of the reason may be that people think there is no deterrent against committing other offences when they are out on bail because any sentences for such offences will be served concurrently with sentences for the original offences. This may be one of the factors but I will start by stating that we do have a problem and there is a responsibility on us, as legislators, to try to deal with it.

I have an opening statement, which I will read into the record. The principal purpose of the Bill is to amend the Bail Act 1997. That legislation was introduced in the aftermath of the constitutional amendment. I have to repeat that, unfortunately, there is evidence of a high rate of offending among people who are out on bail. In 2017, 12% of all crimes committed were by persons who were out on bail for other offences. This Bill attempts to make it mandatory for a court to refuse bail if the court is satisfied that such a refusal is "reasonably considered necessary to prevent the commission of a serious offence by that person." At present, it is optional for a court to refuse bail if it is of the view that such a refusal is reasonably considered necessary to prevent the commission of a serious offence. The constitutional amendment is clear and the obligation should be that if one thinks it is going to be reasonably considered necessary, then bail should be refused. The legislation also concentrates specifically on the crimes of burglary and aggravated burglary because these are offences in respect of which there is a high rate of recidivism, as the figures in the reply to my parliamentary question highlight.

According to the 2013 Irish Prison Service recidivism study the recidivism rate is approximately 80% among persons imprisoned for burglary and related offences. This is the highest rate for any offence and is considerably above the overall recidivism rate, which is 62%. Statistics from the CSO, which are published under reservation, indicate there is a problem.

I read the submissions, including that by AdVIC. AdVIC's concern in part is that the substantive part of this legislation applies only to burglary and aggravated burglary. It is Ms Deane's desire to see the provision applied more broadly to other serious offences. That is an argument with which I have considerable sympathy. On the basis of an evidence-based analysis and the statistics, however, it is clearly the case that burglary and aggravated burglary are associated with a particularly high rate of recidivism.

The Bill also seeks to introduce a provision in respect of electronic monitoring. Electronic monitoring seems to be presented such that if one is in favour of it, one is regarded as draconian, whereas if one is opposed to it, one is regarded as liberal. Unfortunately, these simple analyses of views on issues pertaining to bail and alternatives to losing one's liberty are not helpful. Electronic monitoring applies throughout Europe, including Northern Ireland. It applies in many countries that have fewer prisoners than Ireland. It exists as an option and an alternative to incarcertation. Assistant Chief Constable Todd and others from Northern Ireland appeared before this committee a couple of weeks ago. Electronic monitoring is used in the North for bail applications. The alternative is that if one does not opt for electronic monitoring, one might be denied bail. I would have believed any person trying to avoid being subjected to pre-trial detention should recognise that electronic monitoring is an option. The Irish Prison Service uses electronic monitoring to monitor some prisoners and that there are pilot programmes in this regard.

Section 1 is a standard provision.

Section 2(a) deals with what I referred to, namely making it mandatory for a court to refuse bail if it believes it is reasonably considered necessary to prevent the commission of a serious offence.

Section 2(b) substitutes a new provision for subsection (2A), which was inserted into the Act of 1997 by the Criminal Justice (Burglary of Dwellings) Act 2015. The new subsection (2A) requires the court to refuse an application for bail where an application for bail is made by a person charged with a relevant offence, where the relevant offence is alleged to have been committed in a dwelling and the circumstances specified in subsection (2B) are complied with. A relevant offence in the legislation is aggravated burglary or burglary.

Sections 2(c) and 2(d) amend subsection (2B) by providing for a broader range of circumstances that will warrant the refusal of bail by the court. Under the provisions of the Bill, a person charged with burglary or aggravated burglary will be refused bail if the applicant has a conviction for burglary or aggravated burglary in a dwelling in the previous five years; the applicant has been charged with and awaiting trial for at least two offences of burglary or aggravated burglary in a dwelling within a period commencing six months before and ending six months after the offence in respect of which the bail application is being made; or the applicant has a conviction for burglary or aggravated burglary in a dwelling and is awaiting trial for another such offence that is alleged to have occurred within a period commencing six months before and ending six months after the offence in respect of which the bail application is being made.

Section 3 deals with the use and provision of electronic monitoring of persons as a condition of bail in certain circumstances. The section provides that where a person is charged with an offence, as provided for in section 2(2B) of the Act of 1997, the court shall make recognisance subject to the use of an electronic monitoring device.

That is the overview of the Bill. Sometimes people criticise politicians. Politicians have one great ability: they are very much aware of what the public is considering regarding the issues that affect them. In this regard, they are much more aware than journalists, academics, lawyers, builders or those with other occupations. It must be emphasised that the public is legitimately concerned, that there is a high risk that the offence of burglary or aggravated burglary will be recommitted by those out on bail, especially those on bail after having committed those offences. I know fully as a lawyer that persons who are arrested for offences may not be guilty of those offences but they have to go through a trial process. I am aware of the academic arguments about constitutional rights relating liberty and the presumption of innocence, which are owned and are precious to individuals, and I am conscious of the rights under the European Convention on Human Rights but I am also conscious that there is a reality that needs to be addressed by legislators. I fully respect that each delegate comes from a different advocacy group or organisation seeking to advocate for a certain cause. I commend them all for doing so because it is important that we have groups advocating on behalf of certain groups of individuals, be they prisoners or victims. When there is a problem, politicians can ignore it or seek to deal with it. We need to deal with this problem because statistically it is clearly a problem.

I thank the Deputy. I invite Ms Deane to make her opening statement on behalf of AdVIC.

Ms Joan Deane

AdVIC is a registered charity that advocates on behalf of victims of homicide. It was founded in 2005 and is run entirely by volunteers who have been bereaved by homicide. Today I shall speak about bail only as it relates to homicide.

AdVIC welcomes any attempts to improve our bail law, which will ensure fairness for the accused and victims, but we wonder whether this Bill goes far enough. If we are in a position to review the current law, we should take the opportunity to ensure any change is significant and effective. We must not forget the family of the victim of homicide when it comes to bail. In every case of homicide, a grieving family is left behind to try to come to terms with an immense tragedy while, at the same time, having to navigate its way through a legal system that is dense and often alien to them. The criminal justice system, as it stands, does not serve the needs of such families at all.

Bail is a complex issue and for a bereaved family it can present issues and concerns. A person accused of homicide out on bail can, and often does, present a real danger to the family of his or her victim, which can increase stress, worry and anxiety for a family. The accused may live in close proximity to the family. Very often, the accused can even be a family member. In all cases, the levels of stress are increased to such an extent that it becomes a great burden on a family. Very often, there is a real danger to such a family. AdVIC has worked with families bereaved by homicide since 2005 and the issues and concerns raised with it over the years have included intimidation by an accused, or by his or her family. This can take many forms. There can be openly aggressive behaviour or often more subtle but nonetheless real intimidation, and this can result in re-victimisation. There are occasions where an entire community might be affected by the behaviour of a person accused of homicide while out on bail, and the safety of individuals and the wider community must be considered before bail is granted.

AdVIC understands that the constitutional right to bail and the presumption of innocence must be upheld. AdVIC in no way wishes to take away the rights of an accused person, but we strongly feel that the right to protection of the victim, or the victim's family in the case of homicide, must be given equal consideration at the very least. This Bill does not sufficiently address the practical issues that affect families of homicide. It is vital that any change to our existing bail laws be enforceable and resourced if it is to be effective.

AdVIC proposes that where an accused breaches his or her bail conditions, having been charged with an unlawful killing, this in itself must be considered a serious offence regardless of the nature of the breach. This new offence should not be punished concurrently but should be treated consecutively. AdVIC also proposes that a person convicted of, or pleading guilty to, any unlawful killing should not be released on bail while awaiting sentence.

It must also be remembered that the time it takes to bring a case to trial creates stress and anxiety for families, and any changes to the bail law should take this into account. It can increase the time during which a family is under threat.

Electronic monitoring is a good idea, particularly for the most serious crime of all, but we wonder how it would work, how it would be resourced and how long it would take to implement. Meanwhile, there are some practical and enforceable ways to afford protection to victims' families following a homicide such as applying strict bail conditions. Perhaps regular blood testing should be a condition of bail where drugs or alcohol are an issue. Revoking a driving licence in some cases may afford protection. We strongly believe that when a senior garda objects to bail, this is never done lightly and should be given careful consideration by a judge. The views and fears of the family of the victim should also be taken into account.

I stress that AdVIC has no wish to interfere with the rights of an accused person to bail. However, we believe the family of a homicide victim is entitled to protection, as is society in general. It is essential that any objection to bail by a senior member of An Garda Síochána is given serious consideration, at the very least, before bail is granted. It is also important that the views of the family of the victim are taken into account and that their fears and concerns are heard. If we have this opportunity to change, we should ensure that any such change will significantly and effectively address the needs of families of homicide victims.

I thank Ms Deane for that informative and passionate presentation. I invite Ms Deirdre Malone, of the Irish Penal Reform Trust, to make her presentation.

Ms Deirdre Malone

I thank the members for the invitation to address the committee. The commission of offences on bail is rightly a matter of serious concern for the committee and for victims' advocates, who will have the safety of the community at the forefront of their minds. Our position is that the solution does not lie with the introduction of further legislation which is, in our view, unconstitutional. Pretrial detention has an important part to play in some criminal proceedings, but it is important to examine what is in place. We believe there is a robust bail system in place which deals with many of the concerns Deputy O'Callaghan raised.

With regard to the constitutional issues, the court has the power to refuse an application for bail under 1997 Act, as amended, where the court is satisfied that such refusal is reasonably necessary to prevent the commission of a serious offence. Deputy O'Callaghan correctly said that this was introduced in response to the referendum put to the people. However, the Bill makes that decision mandatory. Effectively, it removes any course of reflection from the Judiciary and makes the decision mandatory. The Deputy said it is important that legislation be evidence-based and necessary. We welcome that assertion. It is also important that legislation should be constitutional and proportionate and that it will work. That is where we raise questions about the introduction of this measure.

The provisions oblige the court to refuse bail in the circumstances set out. That precludes the court from considering other relevant factors, for example, the seriousness of the immediate charge before the court, the strength of the evidence in the case, any previous convictions, the personal circumstances of the accused and, crucially, the time it will take for the charge to go to trial, which in this jurisdiction can be lengthy. We support the position of the Irish Human Rights and Equality Commission, IHREC, which observed that the refusal of a bail application is a responsibility that rests under law with the Judiciary alone. For that reason and the further reasons set out in our submission, it is our view that this provision, because of its mandatory nature, is unconstitutional in all the circumstances.

Regarding electronic monitoring, it is important to clarify that there is legislative provision for electronic monitoring as a condition of bail. This Bill makes it mandatory to impose electronic monitoring where a person applies and satisfies the relevant criteria set out in the legislation. There are two issues with that. First, it does not meet the proportionality test and as such it is in breach of Article 5. Second, it misunderstands the way electronic monitoring operates and what it can deliver in practice. All of us have a concern about delivering a safer community for members' constituents and colleagues but there is a misunderstanding of what electronic monitoring can deliver. The court is obliged under the Constitution and the European Convention on Human Rights to restrict the right to liberty to the minimum extent necessary to achieve the legitimate aim. That does not mean electronic monitoring should not be imposed by the court in some cases. The court has the power to do that. However, if the court is precluded from considering any other alternative in all circumstances, that falls foul of the proportionality test and is in breach of Article 5.

The other issue is what electronic monitoring can deliver. Research from the UK, on which Dr. Rogan will elaborate, highlights difficulties with electronic monitoring in terms of inaccuracies in the data returned. It also does not prevent a crime being committed by the person. It tells one where a person might be at a particular time. It requires significant Garda resources to make it effective in any way in terms of geographical location. We would all like a simple legislative provision that would reduce offending on bail. There is no debate that everybody would like to see offending on bail reduced, but it is a misunderstanding to suggest that electronic monitoring imposed as a mandatory condition can deliver that. We have also set out how the provision does not consider the recommendations of the Council of Europe that were made in 2014.

In saying all of that, I do not wish to suggest that the IPRT is minimising or trivialising the number of offences on bail. They are high numbers and must be examined carefully, but the solutions might lie in places not being considered by this committee or in legislation in respect of Garda resourcing, the capacity available to the Garda, bail supports and services which are not touched on in any of these debates, ensuring that pro forma bail conditions are not being handed out and diluting the effect of bail conditions when they are being imposed. The right to liberty and privacy is important and it is important that the court has the option of refusing bail where that is constitutionally appropriate. It is also important that the court has the option to impose electronic monitoring where that is seen as appropriate. However, introducing mandatory provisions in this way is not constitutional and will not deliver what the Deputy and all of us would like to deliver, which is a safer community.

I thank Ms Malone. The final opening statement will be delivered by Dr. Mary Rogan.

Dr. Mary Rogan

I thank the committee for the invitation to speak on the topic of bail and the use of pretrial detention as part of discussions on the Bill sponsored by Deputy O'Callaghan.

I will provide an overview of a research project I undertook as part of a study of the use of pretrial detention and bail in Ireland and six other European countries - Austria, Belgium, Germany, Lithuania, the Netherlands and Romania. The project is called "DETOUR - Towards Pre-trial Detention as Ultimo Ratio" and it was funded by the European Commission. I will share with the members the outcomes of our research that are most relevant to the committee's deliberations under three headings: first, the use of pretrial detention in Ireland generally and the European context; second, observations on the risk of offending as a ground for pretrial detention; and third, some reflections on the use of electronic monitoring.

The rate of pretrial detention in Ireland stands at approximately 14 detainees per 100,000 of the population. Ireland's rates of pretrial detention are lower than in the other six countries which formed part of our study. The most recent figures which can be compared indicate, for example, that our rate of pretrial detention per 100,000 of the population is about half that of the Netherlands, Belgium and Austria. The Irish rate is comparable to the rate found in Germany. However, the number of people in pretrial detention in Ireland has shown a marked increase over the past two years.

For example, in January 2015, the average number of people in pretrial detention was just under 500. In October of this year, it is was 725. This increase is especially notable, though the overall numbers are smaller among women, whose number went from 14 to 39. It is not possible to point to the precise reasons for this increase but the committee will be aware that there have been recent changes to legislation affecting pretrial detention, which sought to limit the possibility of a person taking up bail in circumstances where a risk of offending while on bail is an issue. It is notable and regrettable that we cannot say more about the reasons behind these changes. The information we have from the Courts Service is not adequate for public policymaking or research purposes.

Pre-assessment of the effects of legislation on the numbers in prison and on other sanctions has been recommended by the penal policy review group. No such formal assessments have been completed since this recommendation was made in 2014. On this point, the committee might also note that were the upward trend in the numbers of people in pretrial detention to continue to increase Ireland would be going against the trend at European Union level, which seeks to reduce the numbers of people in pretrial detention and to use alternatives wherever possible. It is also important to recall that debates on pretrial detention tend to revolve around the binary distinction between liberty and detention. We must not forget that bail is not liberty simpliciter. The decision before a court is, in the vast majority of cases, between pretrial detention and gradations or levels of liberty. A wide variety of conditions can be imposed on a person as an alternative to pretrial detention. The question of the monitoring of them and the supports in place to ensure compliance needs to be considered.

The emphasis in the Bill on the risk of offending as a ground for pretrial detention raises some interesting issues which our research findings address. Our participants reported that the O'Callaghan grounds, the risks of flight and of interference with witnesses, remain the dominant consideration in bail applications in Ireland. It was a notable conclusion of the authors of the comparative report we produced that countries focusing on preventive aspects in the pretrial detention practice seem to have rather high rates of pretrial detention. This raises a strong concern that increasing use of the risk of offending ground is likely to lead to higher rates of pretrial detention. Careful consideration must be given to what the purposes of electronic monitoring in the Irish context are to be. The experience of other jurisdictions is instructive and I respectfully recommend that advice be sought on that experience. For example, European colleagues in this study found that of the seven countries involved, Belgium and the Netherlands use electronic monitoring most frequently. These are also countries with rates of pretrial detention almost double that of Ireland. Many technical matters also need to be considered. An impact assessment should again be carried out.

There were mixed feelings among the Irish participants as to whether the availability of electronic tagging would be a useful development. Some felt that it might give judges more confidence to impose restrictions on movement and they would, therefore, be more likely to grant bail. Other participants said there should be an emphasis on the reasons people do not turn up for trial or offend on bail, such as addiction problems, rather than investing in an electronic tag. As one probation practitioner said, it is about what is going on in people's heads. A particularly interesting perspective that emerged concerned the idea that defendants might seek electronic monitoring as an alternative to pretrial detention and review or appeal an outcome where pretrial detention was ordered and electronic monitoring was not used. A common view expressed by participants in Ireland was that electronic tagging would be similar to the curfew and mobile phone conditions which are currently frequently imposed as conditions of bail by the Irish courts. It is respectfully recommended that the Courts Service be asked to provide data on the number of bail applications made, granted and refused at District Court and High Court levels on a consistent basis, and broken down by offence type; that analysis be undertaken of the trends developing in the use of pretrial detention in Ireland; that an assessment be made of the implications of this Bill in terms of prison numbers of the overall cost; that an assessment be made of the logistical requirements for electronic monitoring and methods use along with likely costs; and that evidence be sought from those administering systems of electronic monitoring in other jurisdictions such as Belgium and the Netherlands.

I thank the committee for the opportunity to discuss these matters and I look forward to questions from members.

I thank Dr. Rogan for her opening statement.

I thank the witnesses for attending. It is much appreciated. I also thank Deputy O'Callaghan for the opportunity to address this issue. We previously discussed it during the summer in the week the quarterly crime statistics were published, which indicated a significant increase in burglaries, thefts and so on. Much of the discussion at that time related to the levels of crime that happen while people are out on bail. There is a significant issue in this regard which needs to be addressed. Whether this Bill is the means of doing so is another issue. As legislators, we should strive to find a resolution to the number of crimes that are committed by people who are on bail.

I have a number of questions on electronic tagging and bail more generally. Ms Deane mentioned that there are not enough practical supports for those bereaved by homicide. Perhaps she would elaborate on that point and set out what other issues she believes the committee should examine.

Ms Joan Deane

A Garda's objection to bail in the first instance needs to be given more consideration by a judge. We would prefer if judicial discretion were retained by a judge, rather than a mandatory imposition of conditions. A judge hears the evidence of Garda in court. A senior Garda is unlikely to object to bail for no good reason. The Garda would have all of the information and the facts relating to the case having investigated it up to that point. The fears of a family are real. The courts can be stressful places for families. They need to be listened to and taken into account.

I agree with much of what Ms Deane said, in particular that judicial discretion is important and should be retained. On the legislation and section 2, on Committee Stage, I expressed the view that paragraphs (c) and (d), on their own, would expand the circumstances in which a judge could refuse bail. This may be worthy of consideration. Sections 1(a) and 1(b) would make that an imperative. I also urge caution regarding section (2B)(a). If my understanding of this is correct - I did not raise this on Second Stage - it is possible that if somebody is charged with two relevant offences and facing another relevant offence, he or she could be refused bail without being convicted of an offence. It would be far beyond existing practice if people could be refused bail without ever having been convicted. I ask Deputy O'Callaghan to clarify if I am correct that if a person has been charged with two relevant offences and is facing a further charge, he or she can be refused bail.

There is a difficulty in regard to the mandatory imposition of conditions. The general intent of this is that it makes it as good as automatic. The solution to bail issues lies in supervision and in pursuit of breach of bail. There are countless incidences, detailed in "Prime Time Investigates", of the frequency with which people have breached their conditions of bail and committed crimes.

Very often the conditions of their bail have been breached and bail can be suspended on account of that. We need much stronger structures and resourcing to ensure that breaches of bail are pursued. I discovered an answer to a parliamentary question revealing that there were 9,000 examples of bench warrants executed for breaches of bail in 2017. Can any of the speakers offer a comment on that? What more can be done by the Garda or any other statutory body to ensure that where bail is breached, that breach is pursued?

We will address that first. I will then go back to Deputy O'Callaghan regarding the first part of Deputy Ó Laoghaire's questioning. Who would like to take that up?

Ms Joan Deane

In the first place any breach of bail has to be considered a serious offence, as I said earlier. That needs to be recorded and shared. There are instances where data are not shared between different regions. Somebody might commit an offence here and go to another county and reoffend. Authorities there are not aware of the breach of bail. Recording and sharing data will be vitally important.

It is worth adding that this applies on a cross-Border basis too.

Ms Joan Deane


Ms Deirdre Malone

I thank the Deputy for his comments. There are two ways that could be addressed. First, we did some research in 2016 in which a researcher sat in court and listened. We found that bail conditions were attached in every single case observed. There were around 90 cases. One approach is to ensure that where conditions are imposed, they are actually necessary and tailored to the particular case. In the exercise of its function the Judiciary should be looking at what specific risk, if any, has been identified, and what the sensible response to that risk is. The Criminal Justice Act 2017 specifically makes provision for a condition prohibiting contact with the alleged victim or his or her family. It also allows for the imposition of curfews and prohibition of driving if charges are for a serious road traffic offence. It is important to ensure that the conditions are tailored and are not pro forma conditions thrown out in every single case. Conditions are impossible for An Garda Síochána to deal with and monitor if they are being handed out on a blanket basis.

Second, there are very good international examples of bail support and supervision schemes, such as providing bail hostels so that people can have a residence they can name. Basically, these involve using very practical measures to ensure that people turn up for court, the court's time is not wasted and the right people are turning up at the right time. Moreover, in instances where clearly the test is met, for example where there is a clear flight risk or a clearly evidenced risk of interference with the family, refusal of bail is an option for the court. It is an option for the court at the moment and can be used. However, unless these provisions are used and conditions are attached in a tailored way and gardaí are resourced to monitor them, the system will freeze up and will not work. A tailored approach to these things is needed but there are lots of international and Irish examples of useful approaches. Extern has a bail support scheme for the under-18s. It is very successful and has worked very well in ensuring that people turn up at court and answer their charges and those cases are progressed. Perhaps the committee could look at that and consider how it could be extended to the adult population.

Before calling on Dr. Rogan I note that if Ms Ní Chinnéide and Ms Martyn want to come in at any time we will not censor them. The Irish Penal Reform Trust, IPRT, is getting three bites at this.

Ms Michelle Martyn

To follow up on Ms Malone's point, looking at it from a social justice perspective, statistics have shown that 70% of adults in prison have addiction issues. That figure is 85% for women. We need to look at their access to residential drug treatment programmes in the country, as well as issues around homelessness accommodation, mental health needs and the possibility of bail supports for adults. As Ms Malone said, there is a pilot bail supervision scheme for young people run by Extern. It is a wraparound programme based on multi-systemic therapy. Evidence-based research shows a reduction in rearrest rates in out-of-home placements. Support is available 24-7. We must look at the issues of mental health, addiction and disability. It is important to have a support that encourages people to come to court. There are bail schemes in Scotland, the UK and Australia. The basic principle must be to support as well as to supervise.

Dr. Mary Rogan

I thank the Deputy for the question. The first thing to say is that it is a notable feature of our system that we have such a wide range of very flexible conditions which can be imposed on a person and can be tailored to the particular concern which the court has about him or her, be it flight risk, evading justice or reoffending. That is potentially very extensive and can involve multiple conditions and requirements on behaviour. In the study that we completed, we observed bail hearings and interviewed practitioners, judges and staff of the Probation Service. There was also a strong view among our participants that a standard list of conditions is imposed in every case; the signing-on condition, the curfew condition, being contactable by a mobile phone and staying away from certain areas or people. Some of our participants, notably defence practitioners, criticised what they saw as a tendency to impose a "kitchen-sink" approach to conditions. It is very important to tailor conditions to target the precise concern. Our system of conditions is already very extensive and very flexible, notably so in comparison with our European neighbours.

It is absolutely necessary to consider the question of full information before a court. That implies a very well-functioning IT system and a well-functioning system for sharing data between the various criminal justice agencies and within individual agencies. That is a very important recommendation. The monitoring of conditions to make sure that the court has the full information before it is really key.

The second question is about monitoring of conditions generally. That is definitely a question for Garda resources. In reference to the third question, the individuals who come before the courts are the same cohort who are within the prison system. We know from multiple studies that the backgrounds of most of those individuals are characterised by problems with housing, addiction and mental health. That was very much borne out in the research we completed. Our participants referred to a lack of housing as a major impediment to a person who is trying to live a better life. Addiction and mental health were major concerns. What do we do in that scenario, if those factors are making it more likely that the person is going to either not turn up for their trial or to commit offences while on bail? That is where we get into the area of bail supervision and support schemes. The Extern scheme for young people, which has been mentioned, received a great deal of praise among our research participants, who felt it was very effective and it was working.

Finally, it is very tempting and completely understandable in discussions like this to view the bail hearing as an opportunity to intervene. A person has come to the attention of the authorities. There is a strong suspicion against him or her and he or she may have a prior record which is very troubling and worrying. We immediately rush to that moment and wonder what we can do at that point. Naturally we turn to legislation to ensure that this kind of thing does not happen again. That fails to see the multiple stages in the process where what is going on with this person has not been identified, and the previous encounters with the judicial system which have not prevented them from coming to the attention of the courts again.

We often see a sticking plaster with bail where we say we will intervene and do what we can right at that point, which limits our focus on what might really have an effect, which is to address what is going on and the underlying causes.

We already have an extensive system of conditions. Full information before court is essential. Monitoring needs to be looked at. There are some questions there. The issue of supervision and support also merits attention.

I do not want to take too much time but wanted to say to Deputy Ó Laoghaire that for section 2(a) to be triggered under the proposed Bill, one would still have to have a conviction for a relevant offence within the period of five years. There would not be a situation where somebody could be refused bail without having been convicted of a relevant offence. That is my assessment.

Will Deputy Ó Laoghaire move on with other questions if he has more?

That is my current reading of the legislation. I will reflect on it again if there is a report to be written. I have two remaining points which I will make together. People can address them but I am not looking for a response. My view is that there needs to be more resourcing, especially for the Garda, to pursue people where there are significant breaches of bail. Numerous cases have been highlighted. The case of Shane O'Farrell is well known but there are other cases where significant breaches of bail happened and nothing was done to address it. The issue of conditions being laid down but not being pursued is as significant as what we have before us.

Electronic monitoring is already possible. I believe it has a role. Deputy O'Callaghan said it can sometimes be defined as liberal, conservative, reactionary or however one wants to describe it. I believe that with certain safeguards, in certain circumstances, it can have a role. The safeguards need to exist and we need a sense of how effective it can be in particular circumstances. We discussed this issue generally last week with a different set of guests. I am of the view that electronic monitoring is only as effective as those who are charged with monitoring the information it provides. If the information provided by electronic tagging shows that people are in places where they are not meant to be or are not in the place they are meant to be in, that does not put us in a different situation to the current one where people are breaching conditions of bail regarding location. Electronic tagging might provide us with additional information but it will not necessarily prevent anybody from doing those things unless the resources exist within the Garda to pursue people about this.

My final question is specifically for the IPRT but if Dr. Rogan or Ms Deane want to address the issue, they may as well. I think I understand the point about constitutional issues relating to the imperative but want to see it elaborated on if possible. An imperative is provided in this Bill that the judge shall refuse bail. Having said that, within the same section, there is something of a safeguard relating to whether such a refusal is "considered necessary to prevent the commission of a relevant offence by that person". In the witnesses' view, does that save it constitutionally?

Ms Deirdre Malone

In my view, the court already has the power to refuse an application under the 1997 Act. That was introduced in response to a referendum which was put to the people and passed, the 16th amendment of the Constitution. The option is already there. I reiterate Dr. Rogan's point that having full information before the court is extremely important to ensure that the appropriate decision is made in a particular case. This amendment moves us well beyond that. It is not permissive, allowing the court to take that decision if it wishes to, but makes it mandatory. It removes any judicial space to look at all the relevant factors. They are well known but will include such matters as the seriousness of a charge that is in front of the court, the strength of the evidence, which varies widely in each case, previous convictions, the likely length of time to trial and issues of whether there is evidence of potential intimidation of the victim's family. These are all relevant issues. A judge in a case has that evidence in front of him or her, is faced with two lawyers, usually defence and prosecution, or a presenting garda, weighs up that evidence, which is a difficult balancing act in light of the constitutional framework, and tries to make the best decision in each case. That is the current system. This Bill undercuts that and makes it mandatory in every case. Ideally, we would have a situation where that type of decision could deliver a reduction in pre-trial offending. It ignores that each of these cases involves different factors. It ignores what implications there will be for our prisons if a blanket provision is introduced.

We woke up today to headlines that six of our 12 prisons are overcrowded, with prisoners sleeping on the floor. It is important for resources to be targeted where they are needed so those who are a risk or may intimidate witnesses will be refused pre-trial detention. Where one introduces a blanket measure such as this, however, and greatly increases the number who are in pre-trial detention, not necessarily those who ought to be but those who happen to fall foul of a provision such as this, it is unconstitutional but also will be ineffective. When that happens, the resources available in our prisons to deal with people serving a sentence after conviction will be completely diluted. There will be chaos on the landings. There are not enough officers to deal with the offending behaviours programmes to get people into education and work to reduce the risk of offending. That does not deliver a safer community. It is important that the provisions are used in the right way to ensure the right people are detained where risk is identified and that evidence is before a court. In my view, however, only a judge can make that decision within the limits of the law.

Dr. Mary Rogan

Returning to the question of electronic monitoring, the most important question is what it will be for. Other countries which form part of our study introduced electronic monitoring to reduce the number of people in pre-trial detention. The rates were so high that an alternative was sought to try to bring those numbers down. That does not seem to be the purpose behind the proposed introduction in this case, which is instead additional monitoring for individuals in certain circumstances. What is the value of that? I will share the experiences of the other countries which were part of our study. Participants from other countries expressed serious doubts about the ability of electronic monitoring to prevent offending. In all of the countries which had electronic monitoring, there was evidence that practitioners were unclear as to what the purposes and real practical possibilities of electronic monitoring were. It is not possible to have a scenario where one has eyes on an individual at all times and in all circumstances. The experience has also been that it imposes many logistical and administrative burdens on a court in trying to set it up and then in monitoring the experience after it has been imposed.

An important question, which has not yet been answered in Ireland, is what the purpose of electronic monitoring is. Is it to reduce pre-trial detention rates or is it something else? One might get different answers depending on one's perspective. I strongly recommend that evidence be taken from those responsible for administering these systems in other countries, for example, Belgium and the Netherlands.

I would be very happy to support any such requests to the research partners in our study to facilitate that to hear what the exact experience is.

The 2015 and 2017 Acts took steps to reduce the likelihood of bail being granted in certain circumstances but maintained the discretion. As Ms Malone stated, what we have seen in our study through our observations and interviews is there are multiple factors present in any discussion about whether bail is to be granted or not. Limiting discretion for a person who has the opportunity to hear all that evidence, including the various concerns and possible ways to address those concerns, would be quite a significant step and a big change in our approach to pre-trial detention. We have very clear evidence from the other European countries in our study that when there is more emphasis on risk of offending as a ground, pre-trial detention rates tend to go up. That is the information; people may have views on whether it is a good or bad thing but it is the likely outcome. It is something to be aware of. It is why I am recommending an impact assessment of the numbers who are likely to be placed on pre-trial detention as a result of the Bill.

I do not want to put anybody on the spot. Does Ms Deane wish to add anything?

Ms Joan Deane

I am not a lawyer but I understand what Dr. Rogan and Ms Malone have said. It is obvious there is a law to refuse bail. We do not feel it is being applied well enough because the evidence given by gardaí and families is not being listened to sufficiently. Where bail is breached, I do not think the information is being recorded sufficiently. Data are not being shared with other regions. Therefore, people are free to move around and offend in one area and nothing is done about it. They go to another area and commit another offence. We need to join up a few dots to make the system more effective. With regard to electronic tagging in homicide cases, one can have a tag on one's ankle and still shoot or stab somebody. It will not stop that. It may place a person at the scene of a crime after the event but I am not sure it would prevent such an attack if that were to happen. That is what I have to say about that.

I do not think Ms Malone addressed the electronic tagging issue.

Ms Deirdre Malone

Is the Deputy referring to the constitutionality of electronic tagging?

Ms Malone dealt with that. I am asking about the efficacy of it and the fact it is only as good as the system that is backing it up.

Ms Deirdre Malone

I do not want to stray into an area I do not have expertise in. I agree it appears that unless there are sufficient Garda resources to back up the system, the system does not deliver anything one would wish it to deliver. It was stated earlier that surely electronic tagging would be a good thing if it were used as an alternative to pre-trial detention. I echo the concerns of Dr. Rogan about electronic tagging. If it were used as a genuine alternative where custody was very likely, there might be some merit in it but the reality is we are very far from being prepared. We are operating with very little information when it comes to the potential impact on rates of incarceration, our court system or our ability to deliver it. I echo Dr. Rogan's view about a full impact assessment. There are a number of other steps that could be taken, such as not having pro forma bail conditions, tailoring those conditions for the right people to meet them and looking into the issue of data sharing among criminal justice agencies, which is not yet at a level where it could inform us and allow us to have an evidence-based policy on all these issues.

I thank the witnesses for coming in. Their presence is timely in light of the discussion we had last week. We had a number of sessions. One was with a group from Ireland, North and South, during which issues around electronic monitoring were discussed with regard to sex offences, particularly child sexual offences, and how it might be regulated. We discussed other Bills last week.

Deputy O'Callaghan made the point, which I do not really agree with, that politicians know the people and that is our great asset. I am not so sure about that. It could be said, and the Deputy is absolutely right, that issues of crime and sentencing are issues of significant public interest in which our tabloid media, in particular, play a very damaging role in informing - that is, misinforming - the public. They actually prey on the hurt that has been done to victims and do not help anybody. Politicians have a responsibility in their responses to the genuine hurt and problems that exist to deal with these things in an evidence-based way. Sometimes what we put forward actually fuels that media problem and does not address it properly. We discussed Bills here last week. It was as plain as could be that one in particular would not achieve anything it was supposed to achieve but was being put forward as an emotional response to an horrific crime. I do not agree with such a method. Deputy O'Callaghan does not normally do that either but I am not sure if he is doing it on this Bill. The purpose of this Bill is to make the community safer. That is what it is about. It is about making people safer in response to some of the horrible crimes that have happened while people were out on bail. The problem is it does not do that. It is as simple as that. All it does is tie the hands of judges. That is what it seems to do. We need to tease that out a bit more. If we look at some of the decisions that have been made and some of the court judgments, we note that much of the time the judicial decision was not because the judge decided "I want to let this fella out" but because he or she was given inaccurate information by the gardaí or was not given the full picture. Changing this legislation will not address the deficit in information that is often given to judges. We should hear a little bit more on that point. I very much accept Ms Deane's point that the judges should listen to senior gardaí but there have been some awful cases in recent years where senior gardaí have given very bad evidence. Instinctively judges side with gardaí but there has been much information that indicates they have not always been as good as it says on the tin.

It has been emphasised by the Supreme Court and the European Court of Human Rights that while previous convictions can be considered in bail applications there are serious constitutional issues such as the right to liberty that have to be considered when making previous convictions a reason for mandatory refusal of bail. I would like Deputy O'Callaghan to tease it out a bit more, particularly when it is taking away from a judge the possibility of factoring in other issues such as disability or serious illness or other criteria that should be taken into account.

It is timely that the replies to parliamentary questions we received on prison overcrowding were reported in the media today. What are we saying here? We are going to incarcerate more people pre-trial and put them into a Prison Service that had 676 people sleeping on mattresses in July. How will that impact on the safety of staff, the morale of other prisoners and on education and training?

We know prison numbers have risen to more than 4,000. What level of research has been done? I know Dr. Rogan gave some good figures relating to those in pre-trial detention but what level of analysis has been done to show from where the rise in incarceration is coming, and whether it is linked to bail breaches?

I would also like to hear more about the evidence in much of this, particularly the process of electronic monitoring. It has been provided for since 2006 but it has not been implemented anywhere in the State except with the Irish Prison Service monitoring people on temporary release. Last year's criminal justice Bill was enacted but the impact has not been reflected in any statistics. Would we not be better off analysing this a bit more? Why has it not been implemented? Last week everybody was saying it was not a silver bullet, and everybody here agrees, but the process has not been implemented. Should we not do it first? There were constitutional issues raised about mandatory monitoring and removing judicial discretion but have further issues been raised? Does anybody have information on the lack of safeguards detailed in the provision to operate an effective monitoring system, as this must be taken into account as well?

There is also the matter of cost-effectiveness, as there is a major expense in the monitoring. If we go along with this we are creating the illusion of making society safer but we are ignoring all the evidence indicating that this does not happen. Putting legislation on the Statute Book on that basis is a matter of incredible concern when we could be diverting resources. It is incredibly costly to do electronic monitoring and we would be far better investing in the types of initiatives spoken about by Ms Dean, such as beefing up the Probation Service to give people support while on bail, so they can understand conditions and turn up in court. It is good stuff. This is definitely the wrong direction and I emphasise the point made by Ms Malone in that judges have power. Restrictions are imposed all the time. Perhaps people may wish to comment on judicial guidelines. We could improve sentencing guidelines and how people deal with the pretrial process. It could be a far better basis for this process. I am just asking for a couple of comments as the points have been incredibly well made by the panel.

In order to shuffle it around a bit, does Dr. Rogan mind if we start with her this time?

Dr. Mary Rogan

I thank the Deputy for her questions. The first point is about electronic monitoring and I come back to the question of what is the purpose and possible impact of it. It is not to say there is not a role for electronic monitoring in some circumstances but we must take on board the evidence of other jurisdictions where it has been in place for some time. There are many questions to ask. For example, would electronic monitoring be used as a type of "location ban" or house arrest? What would be the modality by which electronic monitoring would be used? We need much more information to be able to make a conclusion on the impact of electronic monitoring or its costs and so on.

The study also mentions other elements, such as the use of radio frequency electronic monitoring or global positioning systems, GPS, and the associated cost implications. There are several practical logistical questions that deserve much consideration before a significant step is taken and imposed. If all this has not been worked out in advance, we could run into much difficulty later. Taking direct evidence from those who run these systems in other countries would be very valuable.

We asked participants in Ireland what they thought of electronic monitoring and the impact it would have. These are people who work in the area of bail and pretrial detention every day of the week. There was no consensus at all among the group as to whether it would be good or bad. We noted almost equally balanced perspectives on both sides. Some participants felt it would be likely to lead to more bail being granted while others felt it would give more comfort to judges and the public. Others felt that defendants would look for it and it would be more likely to be something sought by defendants than the prosecution, which is an interesting perspective. There was consensus that the existing curfew condition and keeping mobile phones on and with credit to facilitate contact were kind of "low-tech" versions of electronic monitoring. Many participants felt they were doing the job and perhaps more could be invested in how those processes are implemented. The idea was that they were, in effect, taking the place of electronic monitoring.

The Deputy mentioned constitutional implications and we have a much longer paper that addresses some of these matters. The Director of Public Prosecutions v. Mulvey case notes that bail is not an automatic right and there is no suggestion the existing system means people must get bail. The case goes on to say it is an important aspect of the individual's constitutional right to liberty, a right that can only be restricted on limited grounds, supported by cogent evidence. If we move to a scenario where the nature of the offence charged and aspects of the person's pre-existing offending background constitute the tipping point to making the decision that a person goes to pretrial detention, questions are raised about whether we would be in conformity with that existing principle from the Mulvey case.

There was a question about the numbers in pre-trial detention and overall questions about data and what is driving increasing numbers. Before I address those I might touch on the matter of crime statistics. It has been very fairly mentioned that crime statistics are being published under reservation. In itself, it is a really regrettable state of affairs that our nation is not able to say with certainty what are the crime statistics because there are question marks about the quality of the information. I was a member of an expert group on crime statistics chaired by the Central Statistics Office, CSO, some years ago. It is critical that we invest and support our Central Statistics Office in gathering this kind of information and ensure that what is put to the public, and which has a real effect in terms of public perception and policymaking, is accurate and beyond reproach. It is really important that we know the CSO statistics are still under reservation and there are questions about whether improved accuracy in recording data might play a role too. That is not to minimise in any way the numbers we are seeing, which are worrying.

There was a question about whether the rise in pre-trial detention figures are a factor in the overall rise in the prison population. As a general point, we need much more analysis in general of what is going on and we need regular assessments of the offence types going in and the backgrounds of people going in. Is there a change in sentencing practice or is there a factor of increased crime rates or Garda activity? We just do not know and that vacuum for policymaking is very serious. I presented graphs to the committee and mentioned numbers and we are seeing rises in the numbers of people in pretrial detention. If, roughly speaking, this amounts to approximately 200 additional people per day in the prison system, there will be an effect. Overall numbers are much smaller but those for women have really increased a lot. Much assessment must be done as to why that is the case.

Deputy Clare Daly spoke about the lens through which we view these matters. The question is whether to take the road of legislation or other ways to try to do what we all want, which is to achieve safer communities and have people feeling safe and that they have received justice. I return to the penal policy review group, which published in 2014. I am the chairperson of the implementation oversight group for the report.

We are not going to get the solutions we want unless we look at a whole-of-Government approach to the issue of crime and offending. We need to make sure that when we bring in changes or reforms in the area of crime, offending, prisons, probation and so on, we make sure we include in those conversations health professionals and experts in health, addiction and social policy. It comes down to what lens one wants to look at these issues through. The penal policy review group would very much advocate the need for a whole-of-Government approach. I refer to the work of Dr. Ruth Barrington's Interagency Group on Co-operation for a Fairer and Safer Ireland, which is trying to examine these issues from a more interdepartmental and interagency perspective. That work needs much more support.

Ms Fíona Ní Chinnéide

I thank the Deputy for the question. As she pointed out, given the headlines this morning it is important that we are having this conversation. I echo everything Dr. Rogan said. We welcome the data and research strategy of the Department of Justice and Equality and also the active recruitment that is happening at the same time. Hopefully, in the future we will have more evidence on which to base our responses to public concerns and public safety.

I will just add a few figures to what Dr. Rogan said. We do not know what the drivers are in the absence of information but we can see certain trends. I have chosen to use 31 October to give us a snapshot of the past five years, given that is the most up-to-date date. On 31 October 2018, there were 809 prisoners on remand for trial; on 31 October 2017, it was 745; and on 31 October 2016, it was 648. This is in line with Dr. Rogan's point about there being an extra 200. Yesterday, 18% of people in prison were on remand but 23.3% of women in prison were on remand. We must be mindful that women in prison are more likely to be there for less serious offences, which is an issue that needs to be examined.

To go back to the issue of bail and the most effective use of resources, the bail supervision scheme is being run by Extern at Oberstown. The Department of Children and Youth Affairs awarded Extern just under €490,000 to run the scheme in 2017, for which it engaged and supported 24 young people. That has to be considered in light of the fact the cost of holding a young person in Oberstown is €350,000 to €400,000 each. We are looking at the most effective but also the least damaging way of dealing with this. We have to be mindful that detention has multiple damaging effects, be it of an adult with caring responsibilities or a child, for whom detention must be a sanction of last resort.

Ms Michelle Martyn

Penal Reform International did a study last year and again highlighted the increase in the number of people on remand and the number of women being sentenced to prison. It highlighted issues around domestic violence and the number of people from ethnic minorities in prison. A reply to a parliamentary question last year showed the number of remand prisoners sharing a cell with sentenced prisoners was 222. With regard to data, the Irish Prison Service, following the recommendation about publishing more data on remand, has recently started to publish details on remand figures on its website.

Ms Joan Deane

I agree with everything that has been said. While we debate the merits or demerits of electronic monitoring, we have to acknowledge we have a problem. For instance, in a recent trial where a man was convicted of murder, it turned out he had 78 previous convictions and had been out on bail when that murder occurred. Only three days prior to that murder, he had attempted a similar street attack on somebody else, which, thankfully, was unsuccessful. We have those kinds of occurrences where a breach of bail has occurred and somebody is still walking around free to commit further serious crimes.

Why do we have situations where multiple breaches of bail are allowed to happen so people are free to commit other serious crimes? As I said earlier, if a human life has been taken and somebody receives bail, that is fine, but where that bail is breached for any reason, it has to be considered a further serious offence. We need to be looking at what is happening on the ground while we debate the merits and demerits of other measures. It is happening today. Somebody out on bail will commit a serious offence and will probably get a slap on the wrist. While I am not a lawyer and cannot go into the details of what may happen, it is happening and we know this. People are being killed when it is avoidable if the law that exists is applied properly and followed up. It again may be a question of resources. If resources are the issue, we cannot consider other solutions that will take even more resources.

The points Ms Deane made would not be addressed by Deputy O'Callaghan's Bill but it is good that we are having the discussion. We need to look at the reasons people commit crimes, why they breach their bail conditions, who is charged with monitoring that and sharing the information and the interagency lack of co-operation. If that were introduced properly, we would not be having this conversation about tying the hands of judges, because that is all this does. It assumes the information the Judiciary is getting is accurate, when there is a big argument to be had about beefing up Garda information, probation officer reports and all of that sort of backup and support.

I do not want to add too much but this is important. To have 23% of women prisoners on remand is incredibly troubling because of the destabilising impact. The evidence is there to show the impact that putting a woman into prison has on a family, with children being taken into care and so on, and this is far worse than in the case of a man. We need to look at that. Incarceration is always damaging. Putting people in earlier if they are going to reoffend when they finish their sentence is not dealing with the issue, which is more complex. Legislation like this does not help.

I do not take anything personally, Chairman.

I thank Deputy O'Callaghan and thank the witnesses for attending. To go back to a point made by Ms Deane, while there is a qualification on the crime statistics and trends, the trends are going in a worrying direction around the whole bail issue, repeat offences and recidivism. The witnesses have taken an approach to the legislation and said they think it has constitutional implications, and so on. Is there any type of legislative change they would welcome that would balance the concerns they are raising with what is a worrying trend, which no one can deny? There are real human stories where people are the victims of serious offences, whether it is murder, burglaries or otherwise. Again, we cannot generalise about the people behind those offences, and Deputy Daly mentioned there are difficult life stories behind why people end up doing certain things. However, there is also a cohort of psychopaths, probably a very small minority of people overall, who are slipping through. I recognise it is difficult in a legislative piece to balance all of those considerations. Nonetheless, there are some who continue to reoffend and who are slipping through all the time.

Given the trends and the legislation, as experts on penal reform, can the witnesses suggest how we could move to try to clarify the legislative framework in order to balance the constitutional considerations and also the aspirations we have around penal reform? I recognise such aspirations are important, in particular those around addiction and the complexity of incarceration.

However, a whole-of-government approach is important, too. Something needs to happen. Communities are faced with increased fear and anger when they see people committing the same offence over and over and they hear from the gardaí investigating the burglary that they know who it was and they are in this cycle. How would the witnesses see this in terms of policy and legislative changes? Could there be amendments that might balance their considerations or does it rest completely outside the remit of legislative change?

Ms Deirdre Malone

At the very opening of this session, I said that the commission of offences on bail is rightly a matter of concern to this committee, to the members' constituents and to society at large. There is absolutely no denying that at all. The Deputy's question presupposes that the solution lies in more legislation. That is where there is a significant point of difference between us. We all would love if it was as simple as introducing a new provision which made refusal of bail mandatory, which would slash the rates of crime committed on bail. However, if that was the solution, it would have been discovered and used in other jurisdictions. It has never delivered what the Deputy is asking for. The difficult reality about crime and criminality in Ireland and in every other country is that the causes are complex. The way crime happens over time is complex. The criminal justice system is complex. The interrelationship between social justice - or injustice - and the criminal justice system is complex. The solution to these things is never straightforward and there is never a silver bullet.

There are several proposals, between what Dr. Rogan said, what we have said and indeed what Ms Deane has said, encompassing examining the rights of victims within the criminal justice system in general and ensuring that they are protected; using existing legislation in respect of the imposition of conditions; and having proper consultation with victims' families where there are fears of intimidation. It is about making sure that the Garda is resourced to do the job properly. It is about ensuring there is an impact assessment of any criminal justice measure before it is implemented so we know what is likely to happen. It is about collecting data so we know the measures that are being used and not used and their efficacy.

That is a messy answer because the system is messy, crime is messy and social justice and injustice are messy. There are no silver bullets. It is going to require the committee and legislators at large to start to grapple with what penal reformers and academics have been saying for the last 25 years, which is that the roots of these problems lie in failures in services that happen in people's childhood and teenage years. We are not saying that excuses crime; we are saying the State has many opportunities to intervene and provide services for people. People are availing of services as we speak in terms of homelessness, mental health provision and addiction services. As long as we try to address the issue of offending on bail in a vacuum as if it exists without relationship to anything that happens beforehand, we are not going to solve the issue. It is clearly a significant issue. I do not think anyone on the panel would attempt to suggest that these numbers are anything but concerning. The solution does not lie in more legislation but in a whole number of other areas which are difficult but not impossible.

Ms Malone would not be for any legislative change whatsoever.

Ms Deirdre Malone

The legislation already exists. The legislation is there to provide for electronic monitoring, for refusal of bail, and to consider the issue of flight risk. If the legislation is there already, we have to look at the whole set of other points in the system including Garda resourcing; the use of pro forma conditions; the failure, perhaps, to monitor bail conditions, or the inability to monitor them because they are being handed out on a blanket basis; and, indeed, the support that is required for victims' families as well. It is already accepted that refusal of bail is appropriate in some instances. This is more a matter of accepting the reality that the solution does not lie in further legislation because the legislation is already there to allow judges to refuse bail where appropriate. Dr. Rogan has done work on assessing the complexity of the issue when it comes to electronic monitoring. We are aware of failures in the social system that happen years and years before people reach the criminal justice system. These are complex issues that unfortunately require a whole-of-Government approach, which is difficult, and data so that we know what is happening and understand the reasons. Those are difficult things to deliver and they require resources. The answer is not a simple solution of proposing two provisions and expecting them to solve this problem, which is of clear concern to everybody.

In fairness, although I am not speaking for Deputy O'Callaghan, I think he accepts, as do I, that it is complex, as he has made clear in previous contributions. The question is whether legislation or any amendment can play a role in the complex solution. To broaden the question, can legislation ever perform any role in solving these complex issues across any area of policy? I take Ms Malone's point. Perhaps another witness would like to come in.

Dr. Mary Rogan

It is absolutely an honourable intention to seek to reduce offending and offending on bail. Offending on bail is an insult to the public. It is a harm to victims and communities. We all share the same objective, which is to make sure communities are as safe as possible and that people are protected. It is a matter of differences in our approach to what might be the most effective way of achieving this. The question of offending while on bail is linked to the broader question of prolific offending generally. While this is not a suggestion for a legislative amendment, it definitely merits further analysis by the criminal justice agencies in conjunction with research into the extent of prolific offending and re-offending and the factors that can be influential in reducing them. That may well include more monitoring and supervision - indeed, this is likely. It may well include recommendations on legislation. A study and analysis at Department level of prolific offending and reoffending would be very useful.

On the broader question of what legislation can do, I would go back to the penal policy review group from 2014. We had historic highs in prison numbers, a feeling that the objectives of penal policy were not clear and a feeling that there was a lack of energy or even enthusiasm for what we could achieve to make sure our communities were safer. The review group sought to take stock of the penal system as a whole and to suggest a blueprint for what might actually work to improve our penal policy and reduce the rates of offending. The penal policy review group comprised senior members of the Department, senior members of the Irish Prison Service and the Probation Service, a judge, a consultant psychiatrist and people from civil society organisations. I was a member for a period - the members can take that into account in their analysis. All of these individuals who were very experienced in the criminal justice agencies decided that in the end, the most effective approach was a whole-of-Government approach. Such an approach understands that crime is a multidimensional, multifaceted issue within which legislation absolutely plays a role but where the more likely effective outcomes are to be found outside of legislation. We have to bear that in mind. When it comes to possible duties and things to be imposed, it would be really interesting to see what would happen if we placed a duty on all Departments and agencies to co-operate to prevent crime. That might be around the information sharing side and it might also be about bringing Departments and agencies together to put forward policies across the board seeking to prevent crime and promote safer communities.

I also want to mention the victims' directive, which is really important. The penal policy review group emphasised that the directive must be monitored in the context of its full implementation. If we are to address the concerns of victims properly, we must ensure that this legislation is being fully implemented and monitored at all stages. Ms Malone mentioned that quite robust legislation is already in place. In some of the seven countries we studied, there is extensive use of risk of offending as a ground. We found evidence in our research that 90% of pre-trial decisions in Austria are made on the ground of risk of offending. The same frustration exists among Austrian practitioners and participants about crime rates, reoffending and all the concerns we share about the effect of crime on people.

In summary, it is absolutely the case that something needs to happen. It is a question of finding the best mechanism to make it happen. While legislation has a role to play, it is not always the most effective mechanism. I reiterate the need to incorporate the perspectives of health, social policy and mental health into these kinds of discussions.

Ms Joan Deane

I agree with much of what Dr. Rogan and Ms Malone have said. It seems that existing legislation could be sufficient to deal with this issue. I think our application of that legislation leaves a lot to be desired. We must acknowledge that we have a problem. Every problem must be measured if it is to be solved. If we can measure the problem and present the proper information to a court to enable it to tailor the bail conditions, as Ms Malone has suggested, that would be a good step forward. In the specific case of homicide, I suggest that the psychological report, the Garda evidence and the views of the family should be taken into account before bail is granted. The granting of bail is not something to which we would object. We understand that bail happens, but we have an issue when nothing happens about breaches of bail. It is a very identifiable problem. It is not hidden. It is out there. What can we do to address it? Is it a Garda resource issue? Perhaps resources need to be put into this area.

I take the general point that political interaction with penal policy has been quite damaging over generations. I studied this matter in Trinity College, where Dr. Rogan lectures. I accept that there is an evidence base for the point that we have to be careful about how we set and interact with penal policy. Many positive changes have been made in Finland, where issues like recidivism have been addressed. It is important for us to remember this point when we are discussing issues of penal reform.

I thank the witnesses for their clear and precise presentations. This is my first time to get an understanding of Deputy O'Callaghan's Bill. The work that Ms Deane is doing is absolutely fantastic. I cannot imagine what it would be like for a family member to lose somebody to homicide. When we bring it back to the human level of what it is like for family members - the devastation they feel when they lose somebody in this way - we appreciate that it must be one of the worst things that can happen to a family. I just want to name that. I hear our guests' frustration regarding the judicial system. I do not know a huge amount about the latter, but I agree with Ms Malone's point that it can be very messy because it has to deal with trauma, crisis, addiction and mental health, with which I would be very familiar.

I understand why Deputy O'Callaghan would want to introduce a Bill such as this. It is about protecting the community. Some of the work I do in the area of addiction and mental health happens within prisons. Many of the women I work with - I work with women only - experienced childhood traumas of the kind described by Ms Malone. In many cases, they have been victims of crime and have ended up in addiction because of violence or sexual abuse. I really understand that there has to be compassion from that perspective. I hope I am getting it right when I say I am hearing from everybody - including Ms Deane, who has an understanding from a family perspective - that there needs to be more interagency work. I completely agree with that. Agencies and organisations must work together. I was struck by Ms Deane's really important comment that families are not getting heard by the judges. There must be some way for mental health and addiction organisations to come together as part of an interagency approach to work with people who commit crimes.

I will give an example. When my mother had a small shop many years ago, a man armed with a knife jumped the counter. It was absolutely terrifying for her as an old woman. He robbed her, but she survived. When he told his story in court - he had young kids, they were homeless, he was not in addiction and he just needed money - she ended up feeling really sorry for him because he was given six months in prison. I know I am only giving a small example of the reality of people who commit crimes and why they commit them. There is always a story involved. I suppose that is from where I am coming. It does not help when one loses somebody. I suppose I am just not sure that this is the answer. When one is dealing with addiction, one often sees that the prisons are in crisis. Prison officers are in crisis because they are all burnt out and exhausted. They are all trying to deal with their own mental health issues. It is just a cycle. It is a vicious circle. It would be great if we could look at all of that. I suppose that is where I would be coming from in this respect.

I thank all of our guests for their presentations, which have given me a really good understanding of what is going on in the context of the judicial system. We see it all the time. Last month, a judge let a young man walk free even though there was evidence that he may have committed rape. By contrast, a woman who broke open a packet of Pringles in a shop got four months in prison. Something is not right with the judicial system. That is what I am saying. That matter really needs to be addressed. I do not really have any questions, I just want to thank our guests for their clear and precise presentations.

I thank our guests for attending and for making such interesting points. I hope they have put Deputy O'Callaghan's Bill into oblivion. In fairness to the Deputy, he stated at last week's meeting that "sentencing is an extremely complicated area and politicians sometimes try to simplify it by introducing legislation". The Deputy's words should be remembered. He is not all bad.

I do not really have any questions for our guests because they have addressed all of the issues I wished to raise. They have given us their take on the matter and what they said makes sense. There is a lack of joined-up thinking on the part of the Government. As Ms Malone pointed out, the State is failing people. Many of them end up in prison and some commit suicide. We have legislation that is not being applied. People think that we do not have good building regulations in Ireland because there has been so much bad construction work uncovered but we actually have world-class building regulations in this country. The problem is that the implementation of those regulations is not supervised so we end up with bad buildings.

Prison does not work and the fact that the numbers being imprisoned are increasing means that something is wrong. Rehabilitation does not seem to be a feature, even though it is supposed to be part of the prison regime. Deputy Clare Daly and I having been visiting prisons regularly for years and have seen that they do not do what they are supposed to do. Prisons are supposed to educate prisoners so that they will not reoffend and will become fit members of society on release. If prisoners come out of prison and reoffend, then obviously imprisonment is not working. We know that prisons do not work and yet we continue to fill them with people, often as a knee-jerk response to different issues. What should the Government do to address the fact that prison does not work, apart from not failing people in the first instance? Do our guests agree that we have a very black and white approach to dealing with crime?

I will invite our guests to comment, starting with Ms Deane. I will then invite Deputy O'Callaghan to make a concluding contribution.

Ms Joan Deane

Deputy Wallace has said that the solution is very black and white. We have crime and we have punishment. I do not know what other punishment there can be for serious crime apart from prison. I would not be an advocate of the death sentence so I see prison as the only answer and that is certainly black and white. We need to study this more. The studies conducted by Dr. Rogan and her team and the work done by Ms Malone are very important. Advocacy is also important but, ultimately, we must acknowledge that we have a problem. I agree with Deputy Wallace that Deputy O'Callaghan's Bill will not do anything to address the serious issues regarding homicide and breaches of bail. We need to be looking seriously at how we apply existing legislation. Perhaps it is a Garda resource issue; I am not sure. While we are examining why things are happening in the way that they are, we must also look at the fact that they are happening and deal with that at a very practical level.

Ms Deirdre Malone

The Deputy asked what we can do if prison does not work and several PhDs would probably be required to answer that question. Reference was made to the extreme ends of the spectrum and reports of extremely heavy sentences being handed down at one end and of extreme leniency at the other end. It is a difficulty when we are informing ourselves through media reporting because media values are not the same as criminal justice values. In that context, it is very important that we all have access to both detailed data and detailed analysis of that data. We must look at evidence based policy that has been successful elsewhere. We must consider the effectiveness of interventions like community service orders where appropriate. Such orders are not appropriate in the context of serious offending but the vast majority of crime is not at the most serious end of the spectrum. Unfortunately, however, our debates are always framed around the most serious end. It is important to recognise the gradation of offending that happens.

Intervening at the earliest point and providing resources in the context of social structures and systems can work to prevent offending. Furthermore, where offending is related to issues such as addiction, mental ill health, homelessness, poverty or domestic violence, the response must deal with those underlying issues and not just with the symptoms. A whole-of-Government approach is required, as are more data and resources. We also need more supports and services for victims and their families. The rights of both do not have to be in opposition. In many cases, it is about ensuring that everyone who has a role in the system is being supported to take part in that system.

Ms Fíona Ní Chinnéide

I echo everything that Ms Malone stated. It is about implementation of existing policy. We have the 2013 Oireachtas committee report on penal reform, the 2018 report on penal reform and sentencing by this committee and also the strategic review of penal policy. If resources were put into the implementation of recommendations around what will work, arrived at through engaged dialogue, we would already be ahead.

Ms Michelle Martyn

There is a lot of work being done in respect of adverse childhood experiences. We are looking at the over-representation of children in care in the criminal justice system. We are also looking at residential care policies, policing and trauma informed approaches to same, as well as at the number of people with severe mental illness in the prison system. In terms of services in a therapeutic environment, there are not enough spaces in the Central Mental Hospital and even when the new hospital is built, there will not be enough beds. An holistic approach is needed that takes into account all of the issues that affect the prison population.

Dr. Mary Rogan

I will conclude with some reflections on the penal policy making process as a whole. Based on our history and the experience of other countries, when the criminal justice policy-making discussion relates to what legislation can do and is focused on what can be achieved through legislative means, we tend to see prison populations rising. We saw that happening here in the mid-1990s and the mid-2000s. It is for the Oireachtas to decide if those approaches have been successful to date. If they had been successful, would we be in this position?

We must change our approach to policy-making. We must have proper, robust, evidence-based discussions on the current position, what is likely to work, what works elsewhere and the international experience in this area. It is noteworthy that this committee's report advocated an approach to policy-making that is more informed. Also noteworthy is the penal policy review group's recommendation that we put a consultative council in place to determine where changes are needed, assess the information we have on what is going on, look at what is going on elsewhere and make proposals for reform. It would have been very valuable to put this Bill before a group such as that. This process has been very valuable and if we see more of that kind of approach to policy-making, we might get closer to being able to provide real and effective answers to the problems that we all want to address.

Just before asking Deputy O'Callaghan to make his concluding remarks, I must stress that the committee members absolutely identify with the motivation behind the work he has done on this Bill. He deserves great credit for that work. We are all very conscious of the fact that countless people have been let down by the failures of either some in the system or by a failure of and by the system. All of that has been reflected very well during today's meeting. I thank our guests for referring to our report on penal reform and sentencing, in which we invested quite a lot of time. The critical element, as pointed out by Ms Ní Chinnéide, is implementation.

I am sure each of us would react to that by stating, "Would that we had the opportunity." Unfortunately, we only have the power of recommendation and cannot direct.

I thank our guests for attending, for their submissions and for the efforts they have made in this area. I listened very carefully and, while I disagree with some parts of what was said, I will take them on board, as I will the comments of my colleagues.

I am slightly concerned that we got into a broader discussion about penal policy, rather than the specifics of the Bill, and this is something that tends to happen when a group of politicians comes together. The specifics of the Bill are designed to deal with an issue that everyone recognises is a problem, namely, that people out on bail are committing serious offences. We need to determine what can be done in respect of that. I am absolutely certain that there is no single solution to it and I do not suggest that this legislation is the solution at all. I am also concerned that the Bill was reflected on as being the solution to other problems. It is not. It seeks to deal with the significant, specific issue in our society in which people on bail commit serious offences.

I identified politicians as being different from other people because we have been in rooms with families whose sons or daughters have been subjected to very serious crimes, including murder and rape, committed by people out on bail. They ask what we, as legislators, are doing about this and I reply to the effect that we changed the law after a constitutional referendum in 1996, when 75% of the population voted in favour. We can see from the statistics, however, that the legislation in question is not working. Legislation is not the only solution but it is part of it. We are only legislators and we can only make law so we need to look at where we can make the law better.

I value the work done by the IPRT and I was at the recent launch of the report on the prison system, though I did not see Deputy Wallace there. It is a fantastic report and I commend the organisation on the work it does in respect of prisoners' rights. As Ms Malone said, however, these are not incompatible things. We should reduce the numbers in our prisons and we should promote and protect prisoners' rights but there are extremely violent men in our society who attack women, commit assaults on other men and have murdered people. We cannot say we just need to broaden resources or that legislation is not the answer. Legislation is the only answer we have in our toolbox. We need to recognise that there is an issue and I do not believe the legislation is unconstitutional. We put a provision into the Constitution to allow a court to refuse bail where it is reasonably considered necessary to prevent the commission of a serious offence by the person involved. If a court believes that a person before it who is applying for bail is reasonably likely to commit a serious offence, it should refuse bail. We should state that. I used the term "mandatory" but this does not remove judicial discretion as the judge has to assess whether there is a likelihood of a person committing an offence. If a judge believes that an individual before him or her is going to commit a serious offence, he or she should refuse bail. I do not think it will have the effect of creating chaos on prison landings. We need to recognise that a small number of men are involved in serious repeated offences, something we have seen recently in some court decisions, and we, as legislators, we, as legislators, need to take steps to deal with it.

It is right to say that electronic monitoring is on the Statute Book since 2007. However, the relevant legislative provision has not yet been commenced in respect of bail. We do not want to put people in prison unnecessarily but this is a means of keeping people out of prison. It is a means of monitoring people for the purposes of bail by identifying where they are. It will not stop the commission of an offence but it will assist the court and gardaí in detecting whether or not the individual was involved in the commission of an offence, and it will act as a serious deterrent. Carrying on the way we are doing is not a solution.

This is not the last we will hear of the matter. On behalf of the Joint Committee on Justice and Equality, I thank our guests for taking the time to be with us this morning, for their very instructive submissions, which we received in advance, and for their elucidation of the issues. It has been very helpful. I thank Ms Deane and everybody at AdVIC, Ms Malone, Ms Ní Chinnéide, Ms Martyn from the IPRT and Dr. Rogan from Trinity College Dublin.

The joint committee adjourned at 12.55 p.m. until 9 a.m. on Wednesday, 12 December 2018.