The Bill proposes to amend the Constitution through inserting a new Article 40.4.7., which will state:
Provision may be made by law for the refusal of bail by a court to a person charged with a serious offence where it is reasonably considered necessary to prevent the commission of a serious offence by that person.
Since I became Minister for Justice I have made clear my belief that changes need to be made to our bail regime to tilt the balance in favour of the victims of crime and the protection of the community generally. If the amendment is passed by the people, as I believe it will be, it will do just that.
No Government lightly brings forward a proposal to amend the Constitution but it is the strongly held view of this Government that, in the public interest, changes need to be made to our bail laws and that the effective way of making those changes requires an amendment to the Constitution. While conventional wisdom suggests that the amendment which we are now proposing has the support of a large majority of the people, I would nevertheless appeal to people to follow the public debate which will continue over the next few weeks as to whether this fundamental change should be made to their Constitution.
The amendment which is being proposed is relatively straightforward. There are no great complexities of law involved nor sophisticated technicalities at issue. What people are being asked is whether they agree with the idea that it should be possible to introduce laws which would allow a court to refuse bail to a person charged with a serious offence if it is reasonably considered necessary to prevent the commission of a serious offence by that person.
As the House will be aware the amendment arises against the background of the Supreme Court decision in the O'Callaghan case in 1965. Following that decision bail can be refused by our courts on two grounds only, the likelihood that an accused will not turn up for trial or will interfere with witnesses or evidence. This means that it is not open to our courts at present, when considering a bail application, to take into account the question of a person committing serious offences if released on bail even where, for example, the accused has a long track record of being involved in serious crime while on bail on previous occasions. If people believe that is wrong, then the only way to change it is by amending the Constitution along the lines proposed.
Since the amendment was published groups which are opposed to it have put forward a number of criticisms and I believe it is important that I should address these issues head on in the course of my contribution. First, it is argued that changes can be made to our existing law which would deal with the problem of offending on bail without the need for an amendment of the Constitution. The Government accepts that some worthwhile reforms of our bail laws can be made without an amendment to the Constitution and I am preparing legislation to this end.
The main purpose of the legislation is to make changes in three areas. At present bail is often granted on the promise by someone to pay money if the accused fails to turn up for trial -at that stage no money changes hands. The new legislation will provide that, generally, some cash or equivalent of cash must be put up as part of bail. The proposed legislation will also allow a condition to be attached to bail that an accused is of good behaviour and bail money can be forfeited if an offence is committed while on bail.
Further, the legislation will strengthen the provisions of the Criminal Justice Act, 1984, relating to the imposition of consecutive sentences for offences committed on bail to ensure that, as far as possible, an offender is always worse off in terms of penalty where an offence is committed on bail. However, while these changes are worthwhile they cannot ensure that offences will not be committed on bail. They do not, and cannot, address the central issue: should a court be allowed in certain circumstances to take into account the question of someone committing a serious offence if granted bail?
Another suggestion has been made that providing for speedier trials would do away with the need for the bail referendum. A wide range of measures have been taken to ensure speedier trials. These include the appointment of additional judges, extended sittings in the courts, and, perhaps most fundamentally, the establishment of the Working Group on the Courts Commission which is involved in a radical overhaul of the operation of the courts. I should mention also that last week I announced the establishment of an advisory group on criminal law and procedure which will also have a useful role to play in this regard.
However, the reality is that despite all the improvements which are being brought about there will always be some lapse of time between a person being charged with an offence and the trial taking place — not least so as to give the accused an opportunity to prepare a defence. Again, the provision of speedier trials does not, and cannot, address the central issue: should a court be allowed in certain circumstances to take into account the question of someone committing a serious offence if granted bail. It is worth putting on record the fact that traditionally the courts give priority to hearing cases where the accused has been remanded in custody. Recently I spoke with the President of the District Court about this issue. He again assured me that the courts are giving priority to cases where the accused has been remanded in custody.
Opponents of the amendment have also suggested that our prisons will not be able to cope with the extra numbers of prisoners who will have to be accommodated on remand. This seems to me to overlook entirely that the changes we propose in our bail laws are being brought forward against a background of a major programme of prison building which will involve the provision of about 800 extra places, an unprecedented increase of about one-third on our existing accommodation.
It would be fair to describe the criticisms I have mentioned as being to some extent tactical in nature rather than going to the heart of the issue. Opponents of the amendment believe that, as a matter of principle, it is wrong to deprive someone of their liberty without that person having been convicted. It legitimate to argue in favour of that principle but the question which arises is whether, given the modern realities of crime, we can afford to make that principle absolute or should it be modified in the interest of providing an appropriate balance in our law?
Treating the principle as an absolute means that there would be no circumstances in which a person is deprived of his or her liberty on remand, no matter how strong the evidence that an offence will be committed by that person if granted bail. In fact, under the law as it stands at present the courts are allowed to detain a person in custody pending trial on the basis of taking a view of the accused's likely behaviour if released. This arises where a court has to take a view as to whether the current grounds for refusing bail apply — the likelihood that an accused will fail to turn up for trial or interfere with witnesses or evidence. So the concept of taking a view as to someone's future behaviour in deciding whether bail should be granted is not, despite what some opponents say, entirely new. What is at issue in the amendment is whether the question of offending if granted bail should also be a matter which can be taken into account by the court. There are two current reasons that can be considered for refusing bail. The amendment, if passed, will add a further ground for consideration.
It is argued that the proposed amendment flies in the face of the presumption of innocence but it is worth making the point that the fact that bail has been refused has no relevance to the trial of an offence where the full presumption of innocence continues to apply. The reality is that our bail laws are regarded as very liberal compared to those which apply in other jurisdictions. In its report on the law on bail, the Law Reform Commission examined the position in many other jurisdictions and found that all allowed the question of offending on bail to be taken into account by the courts in deciding whether to refuse bail. It is not a sustainable proposition to argue that our crime problems are so uniquely different to those in other jurisdictions that we need not arm ourselves with provisions in our law to prevent offending while on bail which are readily available in other countries.
Obviously a balance has to be struck in relation to our bail laws between the rights of the accused and the rights of the community. The present proposals represent a measured way of retilting the present balance in favour of the victims and potential victims of crime and the community generally while building in necessary safeguards. What is at issue in passing this legislation is to allow the people to express a view in the light of their knowledge of the modern realities of crime, and, unfortunately in too many cases their experience of those realities, and to decide whether we, as a society, can afford to have the liberal bail laws which we have at present. What is simply at issue is giving the people an opportunity of having their say as to how one particular aspect of our crime problem should be tackled.
Much consideration went into the task of devising a suitable amendment to the Constitution. On the one hand we did not want to bring about a situation where people would be refused bail for relatively trivial offences. On the other hand we wanted to produce a wording that would make a genuine difference in practice in relation to the bail regime where serious offences were at issue. We finally settled on a proposed wording which we believe strikes this balance and has two practical advantages. First, it is relatively straightforward and will be easily understood. Second, and in the longer term, it has the advantage that it is based on the relevant part of the European Convention on Human Rights. Article 5(1) of the convention allows for the deprivation of liberty "... . when it is reasonably considered necessary to prevent a person committing an offence".
The House will be aware that the Government has made available an outline of the main provisions of bail legislation which it would propose to introduce should the Constitution be amended. The Government believes that these proposals should help inform public debate on the proposed amendment of the Constitution. The outline legislation sets out the serious offences to which the new bail regime would apply and the criteria to which the courts would have regard in considering whether the refusal of bail to a person charged with a serious offence is reasonably considered necessary to prevent the commission of a serious offence by that person.
A dual approach is taken to specifying the offences to which the new bail regime can apply. First, a "serious offence" is defined as an offence carrying a maximum penalty of five years imprisonment or more. Second, a Schedule is included setting out the wide range of offences covered by the legislation. This approach means that, while all offences to which the legislation will apply must carry a maximum penalty of five years or more, not all such offences will be covered by the legislation — primarily on the grounds that some of the offences in our current law carrying such a penalty are archaic or unlikely to be ones where the questtion of reoffending is relevant. It is not, therefore, automatically an offence that carries a maximum penalty of five years that would be included in this; they would also have to be included in the Schedule.
Refusal of bail will not apply automatically in respect of any specific offence or category of offence. I want this to be clear to those, especially those outside the House, who are concerned that everybody is going to be refused bail as a result of this amendment to the Constitution being passed. It is not going to be refused automatically.
Refusal of bail in relation to any specific offence is a matter for the courts to decide in the light of the criteria set out in the legislation. The outline legislation sets out seven matters to be taken into account by the courts, where appropriate, in deciding whether it is reasonably considered necessary to refuse bail to prevent the commission of a serious offence. These include first, the nature and degree of seriousness of the offence in respect of which the accused person is charged and the potential penalty; second, the nature and degree of seriousness of the offence apprehended and the potential penalty; third, the conviction of the accused person in respect of an offence committed while on bail on a previous occasion; fourth, any previous conviction of the accused person including a conviction under appeal; fifth, any other offence in respect of which the accused person is charged and is awaiting trial; sixth, the nature and strength of the evidence in support of the charge and, seventh, whether the accused has a substance addiction.
It is important to note that the outline legislation provides that in determining whether refusal of bail is reasonably considered necessary to prevent the commission of a serious offence it shall not be necessary that the commission of a specific offence is apprehended. To have to prove that a specific offence would be at issue if bail were to be granted would be likely in practice to impose a standard of proof which could rarely, if ever, be met. The specific provision which I have mentioned will ensure that the new bail regime will be workable and effective.
Since the outline legislation was made available some public comment has focused on the reference it contains to an accused having a substance addiction. It has been suggested that the fact that someone has a substance addiction would in itself represent a ground for the refusal of bail. I am glad to have this opportunity to make it clear that those concerns are misplaced and are not based on a full reading of the proposals in the outline legislation.
Under the proposed constitutional amendment one test applies to bail being refused and that is if the refusal is reasonably considered necessary to prevent the commission of a serious offence. That test is repeated in the outline legislation which also sets out the criteria to which the courts should have regard in applying the test. One of the criteria relates to an accused having a substance addiction. However, the question is only relevant in the context of deciding whether refusal of bail is necessary to prevent the commission of a serious offence and it must be considered against the background of the other criteria which relate mainly to an accused's criminal record. There is no question, therefore, of a person with a substance addiction, who does not represent a threat to the community, being refused bail on the grounds of substance addiction alone. I am glad to have this opportunity to explain this point fully because people may have misunderstood it.
The outline legislation provides for a review of bail applications if the trial has not commenced within four months of the initial refusal of a bail application. While the granting of bail would not be automatic in such circumstances, the court is to have regard to any undue delay on the part of the prosecution in bringing the case to trial and to order the release on bail of the accused if satisfied that the interests of justice require it. This point has not been fully understood by people who oppose the Bill and who say that people may spend 18 months or two years in jail. In other jurisdictions with similar regimes, people spend such lengths of time in prison. However, the Government has included a safeguard that, if hearings have not commenced after four months, cases will be reviewed.
The issue of bail has been discussed in the House on numerous occasions in recent years. Some Members have expressed frustration at what they regard as delays in dealing with changes in our bail laws. However, all Governments over the past 30 years have grappled with this issue, but this is the first one which has succeeded in grasping the nettle and bringing forward comprehensive, considered and practical proposals which should deal with the issue once and for all. Oppositions brought forward proposals but they did not implement them while they were in Government.
I am sure it will be possible for all sides to put aside political differences and not detract from the message which most Members wish to go from the House that this is a necessary change to the Constitution which will help in the fight against crime. If some Senators are reluctant to support the proposed amendment, I remind them that the only issue which arises in passing this Bill is allowing the people to have their say on whether the proposed amendment should be enshrined in the Constitution.
The Government is anxious that the public debate on this issue should be as fully informed as possible. In this context I am sure Members of the House welcome the decision to establish an ad hoc commission for the purpose of supervising the production and publication of an information statement setting out concisely the case for and against the proposed constitutional amendment. The Ombudsman, the Clerk of the Dáil and the Clerk of the Seanad will be the distinguished members of the commission.
Amending our bail laws is not a panacea for dealing with all our crime problems. However, the referendum provides a practical opportunity for people who are understandably concerned about crime to use their democratic franchise to make a difference for the better to the quality of life in our society. I commend the Bill, ultimately to the people, but, for now, to the House.