I thank the Chairman and committee for inviting the Irish Council for Civil Liberties to speak with them today. We are happy to be here to discuss the general scheme of the bail Bill, which concerns the State's use of pre-trial detention. That involves the holding of people in prisons before their guilt or innocence in regard to a particular offence has been determined. This, as members will know, is the holding of people on remand.
Members will also know that people who are charged with a crime are entitled to that most fundamental of rights enshrined in law throughout the centuries, that is, the presumption of innocence. Having said that, there are accepted reasons the State can restrict a person's liberty in circumstances where he or she has been charged with an offence. The O'Callaghan principles in section 2 of the Bail Act 1997 have, up to now, provided the main legal basis in Irish law regarding the provision of bail. These reasons include the risk of flight, the seriousness of the offence, the likelihood of reoffending and likely interference with witnesses or jurors., among a number of other matters. A delicate balancing act is employed by judges in determining whether to grant bail, and the seriousness of the decision in granting or refusing a bail application must not be underestimated.
Before I talk about specifics, I would like to highlight three key issues around the bail or remand system in Ireland. First, there is no maximum for remand duration in Ireland, unlike best practice in other European countries. Second, in regard to people being held on remand in Irish prisons, the Irish High Court has criticised the conditions in Irish prisons in the Kinsella case in 2011.
Third, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment has recommended to Ireland, in the context of bail provision and remanding in custody, that it continue to pursue "vigorously multi-faceted policies designed to put an end to overcrowding in prisons”. Under international human rights law, bail refusals should be exceptional and justified in the circumstances of specific cases.
The application of bail laws is protected so fervently under international human rights standards because taking away a person's liberty before he or she has been convicted of a criminal offence can, as one can imagine, have serious and significant ramifications for a person’s right to privacy, family rights and right to a livelihood. The consequences of remand will reverberate throughout a person’s life and, most likely, stay with him or her forever.
International research shows that ethnic and religious minorities, foreigners, people suffering from mental illness and people with an intellectual disability tend to face a disproportionate risk of being held in pre-trial detention. We are talking about the most vulnerable of the vulnerable.
Let me give some specifics on the general scheme. The possibility of a speedy trial is one of the key factors in the O'Callaghan principles. Members will be aware that we struggle in Ireland in terms of the length of time one must wait for a trial. In 2008, we were found to be in violation of the European Convention on Human Rights in the case of McFarlane v. Ireland. This has been omitted from head 26 of the Bill. We strongly urge the committee to recommend that head 26 of the general scheme be amended to include all of the O’Callaghan principles, particularly with a view to considering the possibility of a speedy trial in determining the granting or refusal of bail.
The ICCL is a member of the Victims Rights Alliance. We work to protect and secure the rights of crime victims in the criminal justice process in the State. We welcome the efforts in head 26 to afford additional protections to victims and their family members by guarding against interference with witnesses. However, we are concerned over the possibility, as set out in the general scheme, that a complainant, or alleged victim, may be able to give subjective information about the likelihood of interference by an alleged offender, or somebody who has not been convicted of anything. Victims should have the right to participate effectively in a criminal process. However, we suggest that the proffering of evidence as to the suitability of a person for bail, or not, should remain within the realm of the Garda.
Head 27 of the general scheme restates section 2 of the Bail Act 1997. I refer to the refusal of bail to prevent the commission of a serious offence. It includes a restatement of various factors that the court should take into account, such as the addiction of a person to a controlled drug. Under the general scheme, this has been extended to include intoxicating liquor. We urge the committee to ask the Minister to take steps to make progress on the use of alternatives to pre-trial detention, particularly where a person is an addict or suffers from another vulnerability, such as homelessness. In addition, the establishment of bail supports and services in the community would be a more effective way to treat lower-level offending than excessive periods in pre-trial detention. This has been proven in research, which I know my colleagues will talk about. This is missing from the Minister’s proposals. Evidence shows that alleged offending by vulnerable accused persons tends to face a disproportionate chance of pre-trial detention.
The trend across democratic countries is to explore alternatives to pre-trial detention, and not to increase it, for the very reasons I outlined at the beginning of my statement. I wish to conclude by urging members to ask the Minister what she intends to do to have a concrete impact on the integrity of the bail system. It is welcome that various items of legislation are being codified in the general scheme but the additional factors therein do not address the key issues. This is a piecemeal approach. The key issues concern how the excessive periods waiting for trial are being addressed and the Government's alternatives to pre-trial detention given the current state of the Irish prison system. We have to operate in the reality of the system as it exists and how we wish it to be in the future. Finally, what types of bail supports will the Minister put in place to assist repeat offenders, particularly those in more vulnerable categories?