General Scheme of Bail Bill 2015: Discussion

We are in public session. I ask everybody to turn off their mobile phones or put them on silent as they interfere with the sound system. I will start with my own.

The purpose of this part of the meeting is to engage with some of those who made written submissions to the committee on the general scheme of the bail Bill. We are joined by Ms Deirdre Duffy, deputy director of the Irish Council for Civil Liberties and Ms Grace Mulvey, a research and policy officer with the Irish Council for Civil Liberties. They are very welcome and I thank them for being here today. I also thank Ms Deirdre Malone, executive director of the Irish Penal Reform Trust.

I also welcome Ms Jane Mulcahy who is an independent research consultant and a member of the public rather than any organisation or group. The format of the meeting is that I will ask each witness to make an opening statement, which I ask them to keep to about five minutes. We will then have a question and answer session with members to tease out their main points.

I draw the attention of witnesses to the fact that by virtue of section 17(2)(l) of the Defamation Act 2009, you are protected by absolute privilege in respect of the evidence you are to give to the committee. However, if you are directed by the committee to cease giving evidence on a particular matter and you continue to so do, you are entitled thereafter only to a qualified privilege in respect of your evidence. You are directed that only evidence connected with the subject matter of these proceedings is to be given and you are asked to respect the parliamentary practice to the effect that, where possible, you 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.

Members should also be aware that under salient rulings of the Chair they should not comment on, criticise or make charges against a person outside the House or an official either by name or in such a way as to make him or her identifiable.

Ms Deirdre Duffy

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?

I thank Ms Duffy.

Ms Deirdre Malone

The IPRT very much welcomes the invitation of the committee to address it on the general scheme of the Bill. While the Bill is a largely welcome development, constituting a comprehensive restatement of the law on bail, it also provides an opportunity to revisit some aspects of the legislation that are problematic, in addition to flagging some concerns, especially about omissions in the Bill.

In the interest of keeping to time, which I know is very limited, I will not repeat the submission of my colleague from the ICCL. However, I can say without reservation that we endorse each of the recommendations she has made. I refer members to our written submission, which we stand over. It might be helpful to address the committee on the scale and impact of pre-trial detention and go into a little more detail on the case for bail supports and services. I will address electronic monitoring, which I believe has not been addressed elsewhere, and talk very briefly about mandatory sentencing, which finds a place within head 40 of the Bill.

There is no question but that pre-trial detention does have a place within the criminal justice system in ensuring that certain defendants will be brought to trial. However, overuse of pre-trial detention and its impact on liberty and the presumption of innocence are really significant. Pre-trial detention is expensive. When used excessively, it not only has an impact on individuals but also places a strain on prisons, which are already under strain, and diverts resources away from those who are already serving a sentence and the rehabilitation of the latter. Exposure to prison itself is damaging and makes people more likely to reoffend, not less likely. An accused person who is remanded in custody may find it more difficult to prepare his or her defence adequately. It is for all these very practical reasons, in addition to principled reasons, that the European Convention on Human Rights requires that pre-trial detention be used as a measure of last resort.

Given all the foregoing, it is really regrettable that the general scheme of the bail Bill does not include any statutory provision whatsoever for bail supports. Bail supports and services include supervised bail. I refer to mechanisms by which supports are made available for those placed on bail to ensure they turn up for appointments and for court and so some preliminary work can be done on any issues raised that relate to offending or alleged offending. An example would be working with factors such as addiction, which in some cases can be a contributing and significant factor when it relates to offending.

We have laid out in some detail the research from other jurisdictions, such as England, Wales, Australia and Canada. We have seen from it that the use of the supervised bail and other schemes has a number of outcomes. It creates positive changes in behaviour over time, including a desire to avoid trouble or jail, learn to deal with conflict and refrain from drinking or taking drugs. It results in court attendance of 80% to 90%. That means increased court efficiency. We know how overstretched our courts are at present. Punctual attendance is crucial and everybody has an interest therein. The schemes ensure this while managing risks in the community. Obviously, the schemes reduce the number of remands to custody. We should not leave out the fact that there are significant cost savings. In Scotland, for example, which is a very comparable jurisdiction in regard to criminal justice, research shows that offsetting the cost of supervised bail against the reduction in prison costs from reduced use of remand over a three-year period resulted in a net benefit of between £2 million and £13 million.

We recommend that the Bill include an evidence-based approach to provision of bail services and supports, obviously aimed at the prevention of offending on bail, ensuring appearance at court and reducing the number of remands to custody to the essential minimum.

With regard to the draft heads, we endorse the recommendation in both the ICCL's submission and our own on ensuring the period of remand remains at eight days and is not extended to 15. We encourage the introduction – in head 10, we suggest – of the no-real-prospect test. This is a test that was proposed by the Prison Reform Trust in the United Kingdom. Essentially, it means the addition of words such as, “or where there is no real prospect that the person who is making an application for bail will, even if convicted, be given a custodial sentence”. In those circumstances, it makes no sense, economic or social, to remand the person to custody.

We very much welcome the requirement to give reasons for bail decisions. Victims, criminal justice analysts and anybody working in the criminal justice system would welcome more accountability and transparency around all judicial decision-making.

It is really important to address the electronic monitoring issue in some detail. This relates to heads 18 and 19. There is legislative provision for electronic monitoring but it does not happen in practice and we very rarely see it being used. Where it is a genuine and well-resourced alternative to remanding somebody to prison while awaiting trial, particularly given the length of time we are talking about currently where trials are being listed in 2017 and there is an extremely long period of pre-trial detention, and where we have examined how it might work in the Irish system, it would be welcome. We know from research in the UK and the recently published recommendations of the Council of Europe that we cannot lump in electronic monitoring without considering a number of issues about the way it will work and how it will affect individuals. Proportionate and necessary use of electronic monitoring would be welcome but must be considered extensively.

Head 40 provides for mandatory consecutive sentences for certain specified bail offences. I think I can say there is consensus in this regard. The Law Reform Commission, the strategic review group on penal policy and my organisation have all come to the view that the impact of presumptive minimum mandatory sentences, prisoner numbers and questions as to the extent that those sentences have contributed to reducing crime are a concern. The strategic review group recommended that no further mandatory sentences or presumptive minimum sentences should be introduced. Going ahead with the bail Bill without looking at bail supports and services is akin to trying to solve a perceived illness without looking at the cheapest and most effective medicine. It simply does not make sense. I urge the committee to consider in more detail the research available and to examine the possibility of including a provision on that very socially and economically effective issue in the Bill.

Ms Jane Mulcahy

I thank the committee for the opportunity to draw attention to certain troubling aspects of the general scheme of the bail Bill 2015, which on the whole is to be welcomed for consolidating and restating existing law on bail matters. I will focus on notable omissions in part 1 of the proposed Bill and a number of legislative innovations of dubious value and necessity which may drive up the prison population if enthusiastically embraced by the Judiciary.

I will start by making a point about the language surrounding the discussion of bail. The language accompanying the unveiling of the Bill to new Garda graduates at Templemore in July 2015 was reminiscent of that used in advance of the 16th Amendment to the Constitution, the bail amendment. It was quite out of step with the recent progressive penal reform agenda pursued by this Government. One presumes this so-called crime control language was calculated to appeal to the law and order cohort of Fine Gael voters in the run-up to the election. The Minister for Justice and Equality, Deputy Frances Fitzgerald, stated that the Bill "will strengthen the law to protect the public against crimes committed by offenders out on bail”, while the Taoiseach added that, "This is the first comprehensive review of bail law since 1997 and demonstrates this Government's ongoing commitment to crack down on crime."

The main goal of the proposed legislation is to restate and consolidate existing Irish law in accordance with the Constitution and the jurisprudence of the European Court of Human Rights, while giving judges "better guidance" as to how they might "protect the public" in certain key areas. It is unfortunate that the Minister did not see fit to give the courts "better guidance" as to how they might also protect the rights of accused persons. There is currently no explicit presumption in favour of granting pre-trial bail to an adult in Ireland, nor is the presumption of innocence explicit in the Constitution or any statute. The European Court of Human Rights has stated that to justify the pre-trial detention of an accused person who is presumed innocent, there must be "a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty". That was in Kalashnikov v. Russia. The court also held that states should consider less intrusive measures than detention and must prove that a less intrusive alternative to detention would not meet the objection or objections to release pending trial. Under the European Convention on Human Rights, therefore, an accused should only be detained if one of the grounds in Article 5(1) applies and a condition of bail cannot mitigate the risk in question.

In terms of reflecting the jurisprudence of the European Court of Human Rights, the proposed Bill should contain a clear statutory articulation in part 1, recognising the presumption of innocence and the presumption in favour of release on bail. This would serve as an important reminder to judges and the prosecution when objecting to bail that people accused of criminal offences are innocent until proven guilty and should generally be released before trial, unless the evidence demonstrates that their remand in custody is necessary, proportionate and grounded in law. This means it should not be based on unlawful presumptions or vague, unsubstantiated statements by the prosecuting garda.

A general provision should be inserted into the Bill to the effect that "in every bail application, the court must consider whether a condition or conditions could be attached to bail which would be sufficient to meet the objection or objections raised under head 26 or 27 of this Bill". An additional provision should explicitly require that judges only impose such conditions as are strictly necessary and proportionate to meet the identified risk or risks to ensure an individualised approach is taken regarding the setting of conditions.

I will make a point on addiction to alcohol with respect to codifying section 2 of the Bail Act 1997. While addiction to controlled substances and alcohol certainly is a major factor in the offending behaviour of many people who come before the criminal courts, permitting judges to remand people with addiction issues in custody to prevent further offending on bail does little to address the complex underlying issues. In this regard, the justice committee’s recent consideration of Ireland's failed war on drugs is timely. Important lessons can be learned from the recent successes of the Portuguese decriminalisation strategy which has increased its focus on addiction as a public health issue rather than a social ill to be addressed primarily by recourse to the criminal courts. In the context of a revised bail scheme and any new approach to drugs policy, holistic supports should be funded, including Probation Service supervised hostels providing access to mental health and addiction treatment and other necessary interventions in order that people can address underlying problems.

As noted by the Strategic Review of Penal Policy, Irish penal policy has suffered from a failure to plan adequately for the future and to understand the consequences of changes in policy. The result has been an explosion in our prison population since the mid-1980s, with no evidence or suggestion that society has become correspondingly safer. It is highly likely that proposed stringent bail measures, such as those relating to domestic burglary and the so-called guidance given to judges regarding head 27 and how they may protect the public more generally have been conceived without adequate or any assessment having been undertaken to examine their potential impact on the already overburdened prison system or of the pressure that additional remands in custody will place on the investigating gardaí as well as the Director of Public Prosecutions to get the case ready for trial. As my colleague from the Irish Council for Civil Liberties stated, the legal right to a speedy trial is all the more important and pressing when the accused is in custody. Anyone who has any experience of the criminal justice system will attest that trials are anything but speedy at present, especially in the Circuit Court, where it can take upwards of a year and a half due to busy court lists and other inefficiencies. The situation will only worsen if substantially more people are remanded in pre-trial detention.

Perhaps the key question for the Minister, her officials and all Members of the Oireachtas at this juncture is to consider whether it is prudent, responsible and conducive to a safer society to remand more people in pre-trial custody, primarily to incapacitate them, if it would necessitate the emergency temporary release of convicted offenders to free up beds.

I thank the witnesses for their excellent and concise submissions. I agree entirely with the tone, as they have all taken a very similar approach. I share their welcome for this codifying Bill because we will see provisions relating to bail condensed in one place, which is very welcome.

However, I would also agree with Ms Duffy's points about the need to ensure adequate protection of the rights of due process for accused persons. This committee has contributed to the progressive agenda on penal reform, notably with our report on penal reform some years ago. We recommended that imprisonment be a sanction of last resort. We also recommended various ways of enhancing these community sanctions.

Some of the witnesses spoke about the right to bail. I welcome provisions 1 and 2 in head 10 where there is a clear presumption in favour of granting bail. It states that, "An applicant for bail shall be granted bail except where ... the court does not consider" and so on. Is there a way any of the witnesses would suggest to strengthen that language? I am conscious that we already have implicit, albeit not explicit, protection in the Constitution for the presumption of innocence. We have clear protections for the right to liberty, so is there a need to say more? Is that enough in head 10(2).

I have two specific questions for the Irish Penal Reform Trust, IPRT, and the Irish Council for Civil Liberties, ICCL, relating to some things that were said in the submissions. The IPRT made a strong case for bail supports and services, including some instructive figures on positive outcomes from elsewhere. Will Ms Malone elaborate a little more on the actual content of the sort of schemes she has talked about elsewhere, including the idea of supervised bail? The closest we have to that is curfews and the obligation to sign on daily at a Garda station. In a sense, if we have a tightly constructed set of conditions imposed on bail, it comes close to a sort of supervision, but what exactly does Ms Malone mean by "supervised bail"? Does she think that electronic monitoring can be part of that? In Denmark, we saw electronic monitoring used in a relatively progressive manner.

My other question is specifically for the ICCL. It is about the provision in head 28 that the complainant would give evidence. I agree with Ms Duffy that we need to look at that. Clearly there is a victim's rights element here too. Does Ms Duffy have any ideas on reform? Rather than ruling it out altogether, would there be merit in including provisions that are tighter, like the sort of victim impact statement we have after conviction, in order that there is a format for this evidence to be given? Head 29 refers to Garda evidence and currently gardaí give evidence about the impact on complainants. Should we build that into the legislation?

I note that in the post-conviction stage, and part 6 that deals with bail applications on appeal, there is provision for complainants to give evidence. I do not think anyone can object to the complainant giving evidence in the bail hearing after conviction. That seems to be entirely right.

Head 36 is about the power of the District Court to grant bail where a sentence is being appealed. That could have a significant impact in practice because many sentences of imprisonment are appealed from the District Court and bail is fairly routinely provided for in those cases. We could see quite an increase of people being detained in custody who are not being currently. That is one practical impact that this legislation could have.

Ms Deirdre Malone

I will deal with the question about bail supports and services. I have brought along a document on social research. It is a Scottish Government document about the use of supervised bail in Scotland which sets out that scheme in some detail. I am happy to leave that with the committee.

In short, concerning that scheme, the substantive difference is that it does not ask those on remand who perhaps had a chaotic lifestyle or an addiction simply to turn up at an office, sign something and go off again. It was a set of meetings with a tone similar to a meeting with a probation officer. If they were admitting the offence, and it may not be the case, they spoke about any issues within their lives that they felt had contributed to offending behaviour in this instance or that could contribute to further offending behaviour. They could be things like employment, bereavement, counselling, addiction or mental health. The idea was that it was a wrap-around service which dealt with people in their given situation at the time and ensured their time on remand was used in the best way possible to make certain they turned up for court. At the end of the day the justice system wants people to turn up for court in order that justice can be served, whether that results in an acquittal or a conviction.

The crucial thing was that they were looking not just at the symptoms and warehousing people until their cases came to court but also looking at what could be done in the interim, while respecting the presumption of innocence, to work with those people in their given situations to make the court system more effective. Ultimately, it would save money for the taxpayer because that is what all those things added up to. It is an attractive package because not only is it socially effective in dealing with the issue but also it addresses public concerns about people turning up and not offending when on bail. This is one example of many and I am happy to share the rest of the research with the committee. That was the qualitative difference between simply turning up to a police station and having an active engagement with something that was quite positive.

Ms Deirdre Duffy

I thank Senator Bacik for her questions. Head 28 concerns the complainant or the alleged victim giving information at the bail hearing. This raises a number of issues. First, we know there have been issues before the court around gardaí giving opinion evidence. The Irish Human Rights and Equality Commission and other bodes have raised problems around that procedure. It is important to note that a judge's role is to infer from facts. In the ideal world, therefore, all that would be put before a judge would be facts, by which the judge would then come to a decision on whether bail would be granted. It is complex and in certain situations opinion may be included. As Senator Bacik mentioned, however, this should be limited very much, if it is included at all.

I have serious concerns about the victims themselves because if they are going to give an opinion, does that mean they are open to cross-examination and a bail hearing around that opinion or belief? I do not necessarily know if we want a justice system where an alleged victim can be put in the box at a bail hearing and cross-examined about certain issues. That is another matter.

By and large, the ICCL is of the opinion that only gardaí should proffer that type of evidence. Victims have other ways to interact with the criminal justice process where their rights can be protected. I agree that if it were deemed that this would be necessary, if we could see circumstances where the wrong decision was being made by members of the Judiciary because they were not getting all the information and could only get the information from alleged victims, something could be included but it would need to be framed in much tighter language as a necessity.

Ms Jane Mulcahy

I want to add something to that point about complainant evidence. It is already being delivered in High Court bail hearings. Where there is a claim concerning potential witness intimidation, it is not uncommon for the victim to give evidence. There is jurisprudence saying this is the preferred approach. Where at all possible, rather than admitting hearsay evidence, it can be admitted but that is not the preference of the court. If it can be demonstrated that the victim is fearful for their life, the courts will admit hearsay evidence in that case to bolster the contention that further intimidation is likely under the O'Callaghan rules.

Senator Bacik asked about head 10 and the statement in subhead (2) that, "An applicant for bail shall be granted bail except where, having regard to the provisions of this Act, the court does not consider it to be a case in which bail should be allowed." In principle, there is nothing immediately wrong with the wording there except its place in the Act itself. That is a general, overarching provision. It should have a prime place in the general provisions in order that judges and the prosecution are under no illusion that bail should be the default position.

Unless the objections and the evidence supporting them are such that they support refusal of bail, then one does not necessarily need to phrase it in rights language, saying that the applicant has a right to bail but everyone should understand that bail is the default position.

Does Ms Malone wish to comment?

Ms Deirdre Malone

In relation to head 10, Senator Ivana Bacik asked about strengthening it. I suggest that at present it is framed in negative language. It might be helpful to go back to the language used in the jurisprudence of the ECHR where it is clear that there is a presumption and a belief that the State bears the burden of proof in showing that a less intrusive alternative to detention would not serve the respective purpose. It makes it very clear that unless a condition of bail could not mitigate the risk in question, it is only in those circumstances that it could remand. It is important that there is a clear and positive statement - I agree with Ms Mulcahy on that - obviously setting out that conditions can be imposed but remand should only be the case where those conditions cannot mitigate any risk that is present.

I call Deputy Mac Lochlainn.

Similar to Senator Ivana Bacik, I commend all the witnesses on their presentations. Even though I was late, I had the presentations with me to read. I agree with some of the analysis that we can have a panic reaction sometimes to waves of crime but that does not make for good law and we need to be thoughtful. Our committee has a strong track record in that regard, having compiled a report on penal reform. We put a great deal of work into its proposals, led by the chairman, and they have not been implemented but, hopefully, they will be implemented. In that light I am concerned about the witnesses' analysis because we have not addressed the penal reform deficits. The challenge for legislators and Government is to strike a balance between the sole rights of the individual and the concerns about protecting the public and, obviously, taking on board the victims' rights. For the benefit of the public listening, will the witnesses outline how they see that balance and their advice to legislators?

Who wants to take that question? I note Ms Malone is nodding. I will come back to Ms Duffy afterwards.

Ms Deirdre Malone

The legal test and the basic rules already in place require judges to make these decisions every day. They look at three things - if there is a belief or a fear that the person will interfere with the witness, if there is a belief or a fear that the person will interfere with the course of justice, and if there is a risk of serious offending if the person is released on bail. That is the starting point. Judges are faced with that decision on a daily basis and have to weigh up all the information before them and make what is a very difficult decision. There is no doubt and I do not think we would ever suggest that there is no place at all for pre-trial detention. Clearly, it is a very important tool available to the criminal justice system in order to ensure that those who have been charged with a crime appear before the court, give evidence, are tried and, ultimately, there is an outcome. The public has an interest in that regard. What we have to remember is that within that two very important things happen. First, there is identification of a risk, although it will not exist in every case, and if there is a risk how it can be addressed most effectively and, second, if there is a way in which we can ensure that the person returns to court, does not reoffend and engages with whatever he or she is supposed to engage with but is kept out of the prison environment. The issue is if there is a way of doing that and, if so, we have a duty to consider it. That means also protecting the public because remanding large numbers of people to prison does not make the problem go away. What it does is fill our prisons with remand prisoners who are the most transient prisoners. I checked the numbers today and six of our 14 prisons are overcrowded.

If the use of remand is increased without considering the impact that will have within our prisons, because what happens in our prisons affects what happens in our communities, we have to look at it in a joined-up way. We would never advocate abolition of pre-trial detention but we do advocate asking ourselves if it is necessary, if it is proportionate, if there a risk and, if so, if it can be mitigated. If not, it may be that pre-trial detention is the answer. It is a difficult task that judges face every day. Simplistic solutions such as making it mandatory to remand in certain circumstances are not the way. We have gone beyond that kind of simplistic debate and I hope there is a more nuanced debate which looks at all the solutions to this problem, including bail supports services and supervised bail.

Ms Duffy wants to contribute on that issue.

Ms Deirdre Duffy

We asked victims of crime what they want to see in the system. They want the right to information, the right to privacy, the right to participate in the process and protection from harm. There are many rights that they seek within the process. We do not believe those rights need to exist independently of fair trial rights; they can co-exist. In fact, there is not really a balance because every single participant within the criminal justice system should have respect for their particular rights. As Ms Deirdre Malone from the Irish Penal Reform Trust has mentioned, we would not advocate that there is no such thing as pre-trial detention in Ireland. Of course, people need to be held on remand. One of the main reasons they need to be held on remand is to protect witnesses and victims from further harm. As already pointed out, the way in which that is handled has to be set out in a framework that is in accordance with human rights principles. Again, I refer to articles 5 and 6 of the ECHR which set out the proportions and the public interest arguments that should surround a bail system. That is what we would advocate. Victims of crime speak about Garda resourcing, intelligence, feeling safe in their communities, and the right result coming out of a court case, not locking people up when they have not been proven to be guilty of any crime.

I call Ms Jane Mulcahy.

Ms Jane Mulcahy

I wish to speak about domestic burglary because the Bill has passed Second Stage and it causes me some concern. In his book The Culture of Control David Garland states that in recent years distinctive policies have been developed that aim to reduce fear levels rather than to reduce crime. I suggest that the burglary Bill is symptomatic of such a policy. It has been born out of the perception and the reality that burglary is a very intrusive crime that causes damage in individual's lives. In looking at the law, we have to see whether it will have the desired impact. Will it mean that people in rural Ireland will sleep safer in their beds at night if we introduce such a law? It is setting the definition of a prolific burglar at a very low level. A person who has one conviction and two pending charges is setting the bar truly at a very low level. If judges decide to adhere to this standard, it will, undoubtedly, have quite negative effects on our prison population. It will mean that more people will be remanded in custody and this will have a knock-on effect of undoing much of the good work that has been done recently by the Irish Prison Service to stem the use of temporary release as an emergency measure, a safety valve. If all manner of domestic burglars are being remanded in custody who otherwise, in previous times, would have been granted bail, there will be an impact. I question whether the impact assessment has been carried out but, if not, it should be, because there is a need to be able to demonstrate that society will, in fact, be safer; if it is not, it is just talk. It might appeal to voters at election time but really this is a serious issue that will have long-term consequences.

I reiterate the points about trying to deal with some of these problems at the front end by having some bail supports and ensuring that people turn up to trial. Some people have such chaotic lives that they do not remember that they are meant to turn up when their case is listed for mention. Wrap around supports can be of assistance. If they have nowhere to live, remembering to turn up to court is the least of their worries so anything that can be done to improve compliance with conditions should be done.

I also suggest that there is a tendency to have an over-use of too many conditions. Particularly for people at the lower end of the spectrum, we need an individualised approach.

Does Deputy Mac Lochlainn wish to respond?

Representatives from Muintir na Tíre appeared before this committee today. I am sure the witnesses are familiar with that organisation and its excellent work on the community alert and text alert schemes in rural areas and its initiatives in partnership with An Garda Síochána.

Muintir na Tíre welcomed the Criminal Justice (Burglary of Dwellings) Bill 2015. There are considerable sections within rural communities, and urban communities, which hold the view that if a person has one conviction and two charges pending then that is a significant threshold within which to suspect that person is a threat to the public and for him or her to be detained. I wonder if the role of electronic tagging could strike a balance between the analysis of the witnesses and that of the community leaders on recidivist offenders. I agree that a rational, evidence-based approach is needed when looking at penal reform but the public also needs reassurance that the State is serious in its efforts to tackle criminals. Confidence in the criminal justice system is undermined when statistics can show the number of times people commit offences while on bail. Reference was made to a number of other options, particularly from the Irish Penal Reform Trust. Could the witnesses clarify what options are available other than incarceration without conviction?

Ms Deirdre Malone

I believe it is crucial for An Garda Síochána to have sufficient staff numbers within the community, time and resources to monitor the bail conditions which are imposed currently. This is not happening at the moment because the Garda does not have any of those supports. I spoke with a local community in Athy about this. The first concern of the community was not about the bail laws but the fact that the local Garda station had been decimated and gardaí could no longer be seen on the beat. The community was also aware, and we know this from our own research, that where conditions are imposed that they may not be monitored. It is important that the Garda has the resources with which to monitor bail conditions, but those resources were slashed in the past. That situation seems to be turning around now, which is positive. Electronic tagging can be useful in appropriate cases. For example, if the purpose of an electronic tag is to provide an alternative to remanding a person or to ensure the person resides in a particular place or does not enter a particular place or is under curfew at certain time, these are less intrusive measures than losing one's liberty pending trial. While they are nonetheless an interference with a person's liberty, they may be necessary and proportionate in certain cases. This is why, when we saw the inclusion of electronic tagging, we stated in our submission that we always welcome alternatives to imprisonment as long as they are considered deeply, and that tagging may be an effective alternative to imprisonment. However, international research shows that the contributory causes of crime in a substantial number of cases such as shoplifting and burglary can often be symptomatic of a need or desire to feed an addiction, and this is reflected in the problems we see in our prison population. This cannot be ignored. There is almost a consensus among speakers at this committee on the need to decriminalise drug use and the need to look at addiction as a health issue rather than a criminal justice issue. This should never be considered as an excuse to allow people to enter other people's homes, but we have to deal with the cause of these events and not simply warehouse the symptoms of the events.

Ms Jane Mulcahy

I wish to comment with regard to burglary. In one of the recent press releases from the Minister, she said that 75% of all burglaries were committed by 25% of offenders. Tied on to this information was the argument about the roaming gangs and the highly organised criminal gangs. If better statistics were available in the State we might be able to unpack this data a little bit to see that in fact most burglaries are probably committed by people who have serious addictions, but I do not know what the precise percentage is. A more complete look at the underlying causes of crime is needed. One can remove people from circulation and incapacitate them, but it is deeply worrying to do this before trial when they are legally innocent. I cannot stress this enough. These people have not been convicted. It is one thing to talk about incapacitation if the people have already been convicted, but it is another thing if they have not been convicted.

I will now turn to the issue of bringing people to trial sooner. We see that the Garda will receive an extra €5 million to allow them to respond better to crime in rural areas, but will more money be made available to the courts to enable the court lists to speed up? These are all related issues. If a young person, for example, is on eight or ten conditions for over a year, the chance of non-compliance increases because that is a restriction of his or her liberty for a very long period. If a person is held in pre-trial detention, the impact on the person is much greater. That time cannot be given back. There is an omission in this Bill on the judicial convention of backdating of sentences. Where that has a statutory focus, then it should be in the Bill. Maximum time limits for remand should also be looked at. Welcome as it is, there are so many actual omissions in this Bill that it really needs a rethink to plug some of the gaps.

That is what this committee is doing today. I call on Deputy Finian McGrath.

I have just one question on the broader topic of bail and the rights of victims and broader society. My beef about the bail problem is when violent people with a history of violent crime are out on bail. This is a huge issue for me personally and of massive concern among the public. We do not get it. How do the witnesses respond to that?

Have the witnesses their own statistics on the number of crimes committed by people who are bail? Can they throw any light on that?

Ms Deirdre Duffy

In regard to serious offenders, there is provision in current Irish law whereby serious offenders can be denied bail.

Ms Deirdre Duffy

Can be, yes. I would like to connect the Deputy's question to the previous question. There is an existing framework around the determination of bail. In this scrutiny of the general scheme of the Bill we are looking at codification. There are some things which have changed but there are not huge, substantive changes. I am not referring to the Criminal Justice (Burglary of Dwellings) Bill 2015. This is only attaching a sticking plaster to the system of bail. We actually need to look at other issues. A judge can refuse bail to serious offenders; the seriousness of the offence is one of the conditions. We need an evidence base of statistics, as already referenced by the Chairman - maybe my colleagues have those statistics - with regard to why people are being granted bail and why they are being refused bail. One of the positives about this Bill is that in most instances there will have to be written decisions on the adjudication of bail.

I do not know if I am making the point absolutely clear. The Bill is about codifying existing provisions, and what I am trying to say is that this will not solve the big problems because it does not deal with the root causes. We are not looking at what has and has not worked - largely, what has not worked. We know things are not working because our remand centres are full, our prisons are overcrowded and, as previous speakers noted, we still have members of the community who do not feel safe.

To repeat what my colleagues said, we need to take a holistic, in-the-round view and connect this type of bail application to the investigation that preceded it, namely, what the Garda is doing and how the courts system is operating.

Ms Jane Mulcahy

On the issue of dangerousness, what should be happening in a bail application is that the prosecuting or investigating garda gives evidence from the PULSE system of any previous convictions or charges against the individual in question and a judge determines, on the basis of the evidence provided and possibly some engagement with the accused, whether there is a threat in cases in which the issue is one of dangerousness. If the person has a history of violent offending, that will be at the forefront of the judge's mind in making a decision, particularly in a section 2 bail objection, which relates to the likelihood of further offending. If there is a risk based on prior conduct of serious violent offending, the judges will very much take that into account. On the other hand, under the current law, the seriousness of an offence in and of itself is not a ground for refusing bail. For this reason, one will see people who are charged with murder being granted bail because it cannot be established on the evidence that there is a likelihood that the person will commit a similar type of act again. If the person has a very clean record, the risk may be low or may be met by setting conditions such as requiring a surety or the surrender of a passport. Whatever the risk that is identified, it must be grounded in evidence.

The job of the garda in any bail application is to bring to the court the relevant evidence. A court cannot possibly predict all types of behaviour. Many people will not have committed violent acts and one cannot hold everyone in pre-trial detention on the basis that he or she may, at some point down the road, do something that is out of character. That is the simple fact of the matter.

I accept and do not disagree with the point that the court's decision must always be grounded in evidence. My beef - and I represent the view of members of the public - is with the inconsistency that is sometimes evident in bail decisions. I will not identify particular cases but I have experience of cases in which non-violent persons were refused bail while extremely violent persons with bad records were granted bail. In such circumstances, people ask me what is going on in the justice system. My point, therefore, is the inconsistency in some of the decisions on bail. I understand that judges must make difficult decisions and people are human and will get things wrong. For example, someone who is perceived as not being violent may suddenly become violent. Those are facts of life. However, inconsistency is a regular feature of decisions on bail. Although I am a strong believer in civil liberties, members of the public also have rights and they frequently believe that victims have been ignored.

Ms Deirdre Malone

On the Deputy's final point, the Bill includes a welcome requirement that judges give written reasons for their decisions in bail applications. We wholeheartedly welcome that provision. As I recall - I do not have a copy of the heads in front of me - this will be done at the request of the prosecution or defence. It should be done as a matter of course. I cannot find any reason for not introducing a simple requirement that judges give written reasons for bail decisions in every case. Simply having a requirement to give a reason for a decision is an improving factor for everyone, regardless of the type of decision. It can only be of assistance to require reasons to be committed to paper in a clear and open manner. It should not be done solely at the request of the defence or prosecution. Victims, prosecutors, lawyers and everybody else will have an interest in understanding the reasons a decision was made in any given case.

The other point I would make regarding decision making in courts is that questions about consistency will always arise and the answer is to have transparency. Members of the public always welcome knowledge. Unfortunately, however, our perception of how the criminal justice system works is mainly derived from the media, and news values are not the same as justice values.

I agree.

Ms Deirdre Malone

The most serious offences are given most news coverage because they are the most interesting to the public. As a result, we all suffer from the perception that serious crime is increasing. Has anyone read a news story about the 40% decline in homicides recorded so far this year? I certainly have not read any such report. We are all getting our information from the media, which have very different values from those of data- and evidence-based criminal justice policy. That is what we should be interested in.

Ms Deirdre Duffy

I should clarify in response to Ms Mulcahy's contribution that serious crime is not of itself the reason a person would be denied bail. As we indicated, it is the totality of circumstances by which the judge makes a decision. I echo Ms Malone's comments that it is really about knowing the reasons bail is being refused or granted.

Deputy Finian McGrath raised some important points about the criminal justice system as a whole, particularly in terms of sentencing. We do not always know the reasons judges make decisions around sentencing and we do not have an integrated sentencing system or guidelines and principles for sentencing in this country. This is very frustrating for people involved in the process and members of the public who, as Ms Malone noted, largely pick up their information through the media. Having said that, we obviously do not want to interfere with the independence of the Judiciary. However, transparency, accountability and knowing the reasons judges make their decisions are key to this.

While I am very much in accord with the sentiments the witnesses have expressed, the bottom line, as far as I am concerned, is the issue of inconsistency. A young garda is dead, a woman is fighting for her life in Beaumont Hospital and a number of children are suffering as a result of the actions of a guy who was out in bail. I am sorry, but I do not get it.

Does Deputy Farrell wish to contribute?

I do not disagree with Deputy McGrath. It is interesting for observers such as myself to read about inconsistencies in the application of bail laws and in sentencing. I do not necessarily mean that I read about these cases in the tabloid newspapers.

It is incumbent on us to ensure the Bill is given a thorough hearing. Bail laws must strike a delicate balance between the rights of the citizenry and the civil rights of individuals who have committed crimes in terms of whether they are incarcerated or have to make good for their crime in some other form. In many cases, I do not have any difficulty with electronic tagging. This procedure should be funded to a much greater extent than at present, not only to free up space in the prisons. In that regard, I thank Ms Malone for pointing out that six of the 14 prisons in the State were overcrowded either last week or this week. Such statistics are not often placed in the public domain.

I represent north Dublin, and we all know that several years ago the State paid the Thornton Hall landowner €30 million for a farm worth €300,000. The State, via the Prison Service, has invested a substantial amount in that project, with no results. Significant investment is required in the prisons, including at least one prison in Dublin, to bring them up to a reasonable standard. This is clear from the level of overcrowding in the prisons. While tagging and better application of the bail laws will remove people from prisons and more gardaí will deter people from committing crimes and, I hope, reduce the overall number of individuals incarcerated in the prison system, at the same time, it is clear that we need at least one and possibly even two new prisons. I will leave it to the experts to make a determination on that issue.

Society has moved away from the "eye for an eye" view of crime, whereby a person who commits a crime should be locked up and the key possibly thrown away, depending on the severity of the crime.

We need to employ more innovative approaches and international best practice in terms of rehabilitating individuals within our prison service. That means treating them with dignity, giving them an outlet and ensuring, for example, that prisons are completely free from drugs. Let us suppose a person is addicted to drugs when going into the care of the Prison Service. We have read of cases over the years - I imagine the deputations have come across them too - of individuals who go into prison clean but come out addicted to drugs. In a societal sense, that is horrific. The State is effectively sponsoring that by locking them behind a wall and allowing such things to occur. I am firm in my view that we should have a zero-drugs policy in prisons. People should go in and come out clean. I do not care what the cost is in terms of the human cost or the addictive step-down that occurs. That is the nature of the incarceration as far as I am concerned.

I wanted to touch on some other things with regard to comments made by the deputation. I was rather confused by something Ms Malone mentioned. She referred to the lack of gardaí or the reduction in the number of gardaí in the context of a bail discussion. Why was that mentioned? Ms Malone can reply in a moment. I wish to ask some more questions and then the Chairman can wrap up.

Ms Mulcahy made a statement to the effect that there is not much empirical data on figures that are in the public domain relating to those who are committing burglaries. The Minister has made statements with regard to certain percentages on the matter. Anyway, Ms Mulcahy used the word "fact" and continued to the effect that most burglaries are carried out by those who suffer from addiction but yet she did not know. I do not believe it is possible to make a statement like that and use the word "fact" in the context of an Oireachtas hearing. It is essential, as Deputy Finian McGrath adequately outlined and as far as I am concerned, that the inconsistencies in the application of bail laws are addressed. Ms Malone - or perhaps Ms Duffy - was right to say that we do not read about the reduction in certain crime categories and that we only read about the salacious material that sells newspapers - let us be honest about it - or, in certain instances, the horrific crimes, such as the murder of an on-duty garda and such things. As a member of the Joint Committee on Justice, Defence and Equality, my view is that availability of training to members of the Judiciary is required in terms of the implementation of bail laws. I agree wholeheartedly with Ms Malone about the publication of decisions in writing. It should be an essential component of a functioning judicial service. There should be no question over whether it should be requested. It should be automatic. Ms Malone has my full support on that point.

I had another point that I was going to raise.

Does someone want to pick up on those points? I will come back to the Deputy if necessary. Ms Malone is nodding.

Ms Deirdre Malone

There was a question about the relevance of Garda resources and time. These are relevant in two respects. First, the presence of gardaí in the local community has been shown to have a preventative effect on crime. People feel safer and there is more of a sense the gardaí are present, aware and know what is going on in a given community. Community policing has always been a crucial part of any criminal justice system. The idea of the officer on the beat who everyone knows is important in an everyday sense.

It is also important in respect of monitoring bail conditions. My colleague will correct me if I am wrong, but, as I understand it, if a garda requests certain conditions, such as, for example, signing on in a police station, then that garda or her station is then tasked with monitoring the fact that a given person continues to sign on. That was the point I was making in respect of gardaí.

There was a comment about an extra prison. Thornton Hall was debated at length over number of months. Many research reports were produced and considerable debate on the question took place. The conclusion was that penal expansion does not assist communities in reducing crime. If that were the case, then crime rates in the United States, where there is mass incarceration, would be exemplary. We know that is not the case. In fact, it is far from it.

To be fair, I was actually referring to the humane treatment of prisoners in that context rather than as a deterrent to crime. I was actually talking about their human rights.

Ms Deirdre Malone

Then it was my misunderstanding.

The third point related to sentencing. I agree entirely with my colleague. When the public is getting information about particular sentences it is really the most lenient and the heaviest sentences which are reported. We know about an interesting project in the United Kingdom. Judges took the decision to publish all the facts of particular crimes for the public. Then they asked the public what sentences the public believed would be appropriate in given cases in the light of the public knowing all the facts of the cases. The overwhelming response was that the public agreed with the sentences in question or would have opted for more lenient sentences. It would be very interesting to do something similar in this country.

Ms Jane Mulcahy

I thank Deputy Farrell for drawing my attention to my careless language. It was harsh of me given that I am urging politicians to be careful about their language. I suppose what I meant is that I highly recommend that people spend some time at High Court bail list hearings to get a perspective on burglary. People would then see that on any given day most of the people being accused of burglary have addiction issues. One might come across an armed gang member from a highly mobile group. However, such examples capture media attention and hence political attention. That was really what I was trying to draw attention to. Unfortunately, because of the way we record statistics in this country, it is very difficult to get to the root of it and the accurate statistics. That is something for another day. Certainly, it would be better if we had more accurate statistics in this regard. For example, if we knew what percentage of accused people go on to receive a custodial sentence, it would be helpful. It would also be useful to know what percentage of people remanded in custody do not get convicted at all. They may have spent six, seven or eight months in pre-trial detention, with no compensation offered to them. That is six or seven months that they cannot get back.

Reference was made to inconsistencies in bail decisions. Obviously, it is of great concern to all of us when judges seem to get it wrong and release someone on bail. However, I reiterate that they are dependent on the information that is presented to them from the PULSE system and the Garda. The cannot predict all manner of human behaviour. When allegations of violent behaviour are put before them, there is not a judge in the country who will not take that seriously. They are quite risk averse and they know the way the media headlines will go if they get it wrong. On the other hand, there is considerable inconsistency at the lower end of the scale. We have seen women remanded in custody for failing to appear. They may have chaotic lives or they may have gone to see a child in care but a judge might throw the book at them and remand them in custody for a week. Is that an appropriate use of remand? These are major issues.

Ms Deirdre Duffy

Reference was made to the Garda and resources. I can confirm what Ms Malone said. The Garda is responsible for monitoring the conditions of bail. For example, if there is a condition that a person does not go near a certain house because he has been accused of a domestic violence incident, it will be the garda on the beat and at the local station who will monitor whether that is taking place. In this Bill, and under current law, members of the Garda can, of course, arrest someone if they believe the person is about to breach a condition of bail. That is a very important power for the Garda.

Am I correct in stating that Ms Duffy agrees with arrest without warrant for someone who breaches bail conditions?

Ms Deirdre Duffy

The Garda obviously needs to arrest a person if a bail condition is about to be breached in order to prevent a risk of serious reoffending or whatever it might be. Clearly, members of the Garda would need to have reasonable cause and evidence that something was about to be breached and it would need to be at a high threshold.

I agree. Ultimately, if someone is in breach of a court order, the Garda can arrest the person but clearly there must be evidence. That goes without saying. Reference was made to investment within the justice system.

It is very clear that having a fit for purpose computer system for An Garda Síochána is a clear imperative for presenting information in a courtroom. I have seen PULSE and it is archaic, old-fashioned, horrifically out of date and difficult to use. I have been given a couple of examples of it while visiting stations in my capacity as a Member of the Oireachtas. Modernising this system is an essential component of any functioning justice system. Much money has been put into it and €40 million has been identified as a required investment. Knowing how computer systems are developed, it will cost more to implement it nationally, but it will be money well spent, particularly if we have terminals in courtrooms where a member of An Garda Síochána can simply pull up information if required to do so.

One of the witnesses made a point on investment in the Judiciary. Not only do we have new courts, but yesterday six new judges were appointed. There is no question that addressing the deficiencies in the overall system is a priority now that we can afford to do so in a meaningful way. I certainly welcome the input of the Irish Council for Civil Liberties and I have read its report. I ask the witnesses to forgive me for missing their oral submissions, but I was Acting Chairman of the Dáil at the time. It is an interesting subject matter and I appreciate their contributions.

Ms Jane Mulcahy

I will make a small point on monitoring bail conditions. As I understand it, the prosecuting garda, or the garda who objects to bail in court, might ask for a plethora of bail conditions but there is a lack of clarity as to whether the individual member is then responsible for monitoring compliance. This is a factor, because if he or she is not, then who is? Certain conditions are easier than others to monitor, such as conditions to report and sign on at a Garda station, as it is easy enough to see whether someone is doing this. Monitoring the curfew condition is often used in the context of burglary, which is deemed to be night-time offending. If there is a lack of clarity as to who is monitoring these conditions, they may not be monitored at all. At the same time, they are there for the asking.

The point on funding the Judiciary was quite specific on funding additional courts for trials in the Circuit Court or ensuring the existing courts are open for business all day, because some of them are not. It is about using existing resources to the maximum to be as efficient as possible.

Do we know how many people are generally held on remand at any one time?

Ms Deirdre Malone

On average, it is 15%, which translates to between 500 and 600 people.

They are on remand?

Ms Deirdre Malone

Yes. This is from a population of 3,700 people.

Are they actually incarcerated in a prison?

Ms Deirdre Malone


How many people are on bail at any one time?

Ms Deirdre Malone

I do not think I have these figures but I can certainly find out for the committee.

Ms Jane Mulcahy

Most people get station bail from the Garda. This is a statistic, but we do not know the percentage. We do know a majority gets it from the Garda.

Ms Deirdre Malone

The fact we cannot answer these very simple questions underlines yet again that the lack of data on criminal justice and the consequent inability to discuss these issues with any clarity or agreement on data will always be an obstacle in any criminal justice debate. We urge the committee to consider a debate on this issue.

We made a recommendation to have a criminal justice inspectorate, as exists in Northern Ireland, to range across the entire criminal justice area and report on it.

I thank the witnesses for their submissions, interacting with the committee and being here. With their permission, we will send the transcript and submissions to the Department, perhaps along with some comments. Tomorrow at 9.45 a.m. we will launch our report on drugs. In the past we have reviewed penal reform and the community courts. The committee has done much work in these areas.

At the end of the day, there is a major groundswell of fear of crime in the community. This morning, we had a debate with Muintir na Tíre. People speak about going to bed with firearms. Public meetings are being held and people are genuinely afraid because of what they have seen reported. This must be addressed in myriad ways. This morning, Muintir na Tíre made a very good presentation on how to do this in a positive way.

The joint committee adjourned at 3.55 p.m. until 2 p.m. on Wednesday, 11 November 2015.