Our bail laws have been the subject of legitimate public concern for many years. The Minister for Justice, since taking office, made it clear she regarded changes in our bail laws as a priority and this Government has taken decisive action on the matter.
This Bill is clearly one of the most important anti-crime measures introduced since the foundation of the State. The opportunity has been taken not just to give effect to the Amendment of the Constitution Bill which was passed last November, but to strengthen our bail laws generally. This represents a fundamental rebalancing of our criminal justice system in favour of the victims of crime and the law abiding members of society generally.
The issue of bail has been discussed on a number of occasions in this House, most recently when the Amendment of the Constitution Bill was debated last year. It is only right to record the very valuable contributions made by many Members of this House to the debate on this issue and I look forward to hearing their views this afternoon.
In line with the constitutional amendment, the legislation will allow a court to refuse bail to a person charged with a serious offence where it is reasonably considered necessary to prevent the commission of a serious offence by that person. The Bill also contains new provisions relating to amounts of cash or equivalent securities which must be lodged as part of bail; attaching conditions to bail, including conditions relating to good behaviour, and allowing forfeiture of bail where the conditions are breached; and tightening up the provisions of the Criminal Justice Act, 1984.
It is important that this Bill should be seen in the context of the unparalleled programme of criminal law reform which has been undertaken, with the co-operation of this House, by this Government. It would be appropriate to remind the House of what has been produced as part of that programme. It is fair to say that for the two and a half year period involved an unprecedented number of major changes have been made to our criminal law, which have been broadly welcomed by the public. These include the Criminal Law (Incest Proceedings) Act, 1995, and the Courts and Court Officers Act, 1996.
They also include the Criminal Justice (Drug Trafficking) Act, 1996, which applies to drug trafficking offences and includes provisions allowing for detention for up to seven days of suspected persons; the issue of search warrants by superintendents in circumstances of urgency; and restrictions on the right to silence. The Sixteenth Amendment of the Constitution Act, 1996, amended the Constitution in relation to bail and paved the way for this Bill.
The Criminal Justice (Miscellaneous Provisions) Act, 1997, will also speed up aspects of court procedure in criminal matters. It makes general provision, for the first time, for the issue of search warrants in relation to the commission of serious offences such as murder or rape and extends the application of certain other Garda powers. It also allows for wider use by the Garda of "stinger devices" to stop stolen cars or cars that have been involved in crime.
The Criminal Law Act, which was signed by the President yesterday, restates and clarifies the existing law relating to arrest without warrant in relation to serious crimes —"arrestable offences"— and in relation to Garda powers to enter and search premises to effect an arrest. The Children Bill, which I brought before the other House, provides protection for children against abuse and will include provisions to outlaw all forms of child pornography and trafficking in children for the purpose of sexual exploitation.
The Offences against the Person Bill, will provide a range of new offences to combat the distressing and relatively recent problem of criminal conduct involving syringes and blood. The penalties provided range from five years to life imprisonment. The Bill also provides for a new offence of harassment aimed at "stalking"; a new offence of abduction out of the State of a child by a parent in a "tug-of-love" situation; and a new offence of endangerment to deal with conduct which creates a substantial risk of death or serious harm to another.
The Minister for Justice also brought into operation the anti-money laundering provisions of the Criminal Justice Act, 1994, as well as making regulations under that Act dealing with the seizure of imports or exports of cash associated with drug trafficking. This Act required the actions which the Minister for Justice took to make it an effective crime fighting initiative.
We also received approval from the other House for the terms of three important international conventions dealing with international co-operation on crime — the European Convention on Mutual Assistance in Criminal Matters and the Additional Protocol to the Convention; the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances and the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. These conventions, which have now been ratified by Ireland, are very important measures which are enabling Ireland to co-operate extensively with other countries in the fight against drugs and other serious crime. There is already evidence of the success of this co-operation.
In addition, the Criminal Assets Bureau Act, 1996, establishing the bureau, and the Disclosure of Certain Information for Taxation and Other Purposes Act, 1996, allowing the exchange of information between various agencies, were introduced by the Government. The Proceeds of Crime Act, 1996, allowing for the freezing of the assets of criminals, and the Sexual Offences (Jurisdiction) Act, 1996, dealing with child sex tourism, were accepted subject to extensive amendment by the Government.
Last week the Government published the Licensing (Combating Drug Abuse) Bill. This legislation will deal with the problem of drug abuse in public houses, dance halls and other places of entertainment. It will also give additional powers to the Garda Síochána to prevent unlicensed dances, such as "raves", where it is suspected there will be drug abuse. The Government looks forward to continuing this major programme of criminal law reform, and the measures being worked on at the moment include Bills on fraud offences, criminal insanity, indexation of fines, attachment of earnings and Europol.
Any fair-minded observer would recognise that the Government's determination to take whatever measures open to it to tackle the problem of crime is evidenced by that legislative track record. This is especially the case with the legislation before the House today. However, legislation alone is only part of the answer. A host of other anti-crime measures have been taken, and it is especially relevant to mention that this Bill has been brought forward against the background of an unprecedented prison building programme designed to provide an additional 800 prison places, including a remand centre for 400 at Wheatfield.
Turning to the details of the Bill, the earlier parts largely follow the outline legislation which the Government published in the context of the referendum last November. Section 1 provides for certain necessary definitions. The most important of these is the definition of a "serious offence". The approach which we have taken to the question of defining "serious" in this context is to schedule certain offences to which the new regime will apply and to set a minimum term of imprisonment above which offences are to be regarded as serious. For this purpose a term of imprisonment of five years or greater is considered appropriate. To decide on the offences to be scheduled involved an examination of existing criminal law, but recognising that certain offences which carry a penalty of five years or more are either archaic or not ones where the question of re-offending is likely to be relevant, not all offences carrying such a penalty have been included.
The Schedule, therefore, sets out the range of offences to which the definition of a serious offence applies, subject to the five years threshold which I have mentioned. The offences covered include the common law offences of murder, manslaughter, assault occasioning actual bodily harm, kidnapping, false imprisonment and rape. A number of statutory offences are also included — for example, various offences against the person, sexual offences, offences concerning explosives and firearms, robbery and burglary, road traffic offences, offences concerning hijackings of vehicles, forgery offences, offences against the State, drugs offences and public order offences.
An argument may be made that in the case of some scheduled offences which carry a potential penalty of five years or more, the actual crimes involved in particular cases might be relatively minor. This issue would appear to be inherent in any approach taken to the question of defining a serious offence. It would obviously be difficult to attempt to determine this by, for example, setting a value in relation to goods stolen. The circumstances surrounding a robbery can vary greatly. For example, the theft of someone's old-age pension may not involve a large amount of money but could have devastating consequences. The alternative approach — and the one which has been taken in the Bill — is to specify criteria, as set out in section 2, which will in practice allow the courts to take into account the fact that an offence may be a relatively minor one of its kind.
Section 2 provides, in accordance with the authority granted by the Sixteenth Amendment of the Constitution, the new ground on which bail may be refused, namely, where it is reasonably considered necessary to prevent the commission of a serious offence by a person charged with a serious offence. The section then specifies the criteria to which the courts are to have regard in making their decision. These are the nature and degree of seriousness of the offence in respect of which the accused person is charged and the sentence likely to be imposed on conviction; the nature and degree of seriousness of the offence apprehended and the sentence likely to be imposed on conviction; the nature and strength of the evidence in support of the current charge; any conviction of the accused person in respect of an offence committed while he or she was on bail on a previous occasion; any previous conviction of the accused person, including a conviction which is under appeal, and any other offence in respect of which the accused person is charged and is awaiting trial.
Having taken into account one or more of these matters the court may then have regard to the fact that the accused is addicted to drugs. This would be especially relevant in some cases in assessing the probability of offending if released on bail. However, in doing this we are not trying to criminalise drug addiction. This fact can only be taken into account by the court where it is relevant to the question of whether a serious offence will be committed and after the court has taken into account one or more of the other matters. Let me stress that there is no question 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 should also point out that, under section 2, the court does not have to be satisfied that any specific offence is likely to be committed by the accused. If it was otherwise, an unreasonable burden of proof would be placed on the prosecution and the impact of the proposed change would be considerably weakened.
Given that the Bill sets out a new ground on which the courts may refuse bail and recognising the need to ensure the speedy processing of trials of those who are remanded in custody, section 3 provides for the review of a refusal of a bail application if the trial has not commenced within four months of the initial refusal. This is an important provision. While it has always been the practice to give priority to trials of accused persons remanded in custody, this provision will highlight the necessity for all concerned in the prosecution of offences to treat these cases as priority cases and avoid as much as possible a situation of an accused spending a long period in prison on remand. If the trial for the offence has not commenced within four months of the refusal, the accused may renew his or her application for bail, citing delay by the prosecution in proceeding with the trial. The court may then, if it is satisfied that the interests of justice require it, release the person on bail. It should be noted, however, that this does not automatically entitle the accused to bail. Rather, the prosecution must demonstrate to the satisfaction of the court that the delay is not unreasonable but is due, for example, to the complexity of the particular case.
It will be evident that the provisions of section 2 clearly contemplate the hearing of evidence concerning an accused's previous criminal history in appropriate cases. This obviously gives rise to concerns about possible prejudice to a fair trial of the accused. To reduce the possibility of prejudice, section 4 provides that where a court is hearing an application for bail the previous criminal record of the accused cannot be referred to in a manner which may prejudice a fair trial subsequently. To prevent possible prejudice the court will have power to direct that the bail application be held in camera, or to exclude members of the public other than officers of the court, persons directly concerned in the proceedings, bona fide representatives of the press, or any other person whom the court permits to remain. The publication or broadcast of any information concerning the criminal record of the accused which was referred to during the bail application will be prohibited. Anyone found guilty of breaching this prohibition could face a potential fine of up to £10,000, or imprisonment for up to three years, or both.
I turn now to section 5. Under section 22 of the Criminal Procedure Act, 1967, an accused may be released on bail on his or her entering into a recognisance with or without sureties. There is no requirement in the Act that the accused person or his or her sureties must, prior to being released on bail, pay any money into court. In practice in the majority of cases no money is paid into court — the accused is released on the promise that the bail money will be paid in the event of the accused's failure to answer bail. There has been much criticism of the apparently small amounts of bail money which are estreated where an accused has failed to turn up for trial. This is accounted for to some extent by the fact that the estreatment process is seen as too cumbersome and lengthy to justify the resources required to pursue those who have not turned up for trial.
This is a matter of great concern which we are determined to remedy. To that end section 5 will oblige an accused and any sureties to pay into court at least one third of the amount fixed by the court before the accused is freed on bail. The fact that some of the bail money has been paid into court will have a number of beneficial consequences. It will mean that at least some bail money is available for forfeiture or estreatment in all cases where there is default. Furthermore, where the court insists on prior payment into court, it has proven to be a great incentive for the accused to appear in accordance with the recognisance to secure the return of the money.
One third represents a reasonable minimum proportion. The court will have the option to accept from an accused or a surety, as security in lieu of the payment into court of the specified amount in cash, any instrument other than title deeds to land which is evidence of title to property. Where it accepts as security a bank, building society, credit union or post office deposit book, it will make an order directing the relevant institution not to permit the balance in the account to be reduced below either an amount equal to that required to be paid into court or the current balance, whichever is the lesser.
Under section 23 of the Criminal Procedure Act, 1967, a person's release on bail is conditioned for his or her appearance before the court at the end of the period of remand. That Act is silent on the question of imposing other conditions on an accused before granting bail. However, the courts in practice attach conditions to the granting of bail in many cases. Such conditions frequently include a requirement to report to the Garda at stated intervals or the surrender of a passport. Section 6 of the Bill will oblige the court to attach standard conditions requiring the accused to refrain from committing any offence and to be of good behaviour while on bail.
In addition, the recognisance may also be subject to any other conditions which the court considers appropriate, including conditions requiring the accused to reside or remain in a particular district or place in the State; to report to a specific Garda station at specified intervals; to surrender his or her passport or other travel document in his or her possession; where the accused has no passport or travel document to refrain from applying for one; to refrain from attending any places and from having any contact with any person or persons which the court specifies. These optional conditions can be varied on the application of the accused in cases where the court considers it appropriate.
Recognising the legitimate interest of any person who acts as surety in preventing the estreatment of the recognisance or the forfeiture of the amount paid into court, provision is made in the Bill permitting the surety to return to court for the issue of a warrant for the arrest of the accused where it is feared that he or she is about to contravene any of the bail conditions. Such an application may be aimed at preventing the estreatment or forfeiture which would arise if the accused breaches a condition. A member of the Garda will also be empowered to apply to court for a warrant of arrest where it is feared that the accused is about to contravene any of the conditions of his or her bail. A person arrested on foot of such a warrant must as soon as practicable be brought before the court which made the order directing that the recognisance be entered into. The court may then either commit him or her to prison, pending trial or until a fresh recognisance is entered into or further remand of him or her.
It is important that any person who puts himself or herself forward as a surety is in a position to meet the financial commitment involved and that proposed sureties are suitable persons to act as surety. To this end section 7 provides that the court which is considering a bail application which requires independent sureties will be required to satisfy itself concerning the proposed surety's financial resources, character, any previous convictions and his or her relationship to the accused. This will also ensure to the greatest possible extent that the proposed surety is not only a reliable person, but also one who can be expected to have sufficient influence with the accused such that the latter will be likely to comply with the conditions of his or her bail.
Section 8 of the Bill will permit the Garda to continue to release on bail persons who have been arrested on foot of a court warrant. It will substitute a new section for section 30 of the Criminal Procedure Act, 1967. The new section takes account of the changes being made in procedures as a result of the provisions of section 5, concerning the payment of moneys into court, and section 6, concerning the conditions to be attached to the granting of bail. Section 8 provides that in cases where a court issues a warrant for the arrest of a person, and the warrant contains an endorsement that he or she be permitted bail by the Garda, the recognisance will be conditioned for the accused's appearance in court as specified and the payment of the specified amount by the accused and his or her sureties as well as the conditions with which he or she must comply. Only then will the person be released on bail.
The present procedures for the estreatment of recognisances are seen by many as cumbersome. This point is also made in the Law Reform Commission report on the law of bail. It stated that in a significant number of cases judges appear reluctant to order estreatment for a variety of reasons. Furthermore, when estreatment of the money promised by sureties is pursued, sureties have been imaginative at explaining away the absence of funds when called upon at estreatment hearings to fulfil their promise. Clearly, the system is open to abuse and liable to be treated in a cavalier fashion by those whose only interest is to frustrate the effective operation of the law. Section 9 proposes to simplify and streamline the estreatment procedure by providing in cases where an accused breaches a condition of his or her recognisance, and where the court issues a warrant for that person's arrest, that it will at the same time order the estreatment of the recognisance and forfeiture of the amount paid into court. This will allow the immediate estreatment of the monies already paid into court, and the liability to estreatment or forfeiture of the balance of the recognisances entered into will remain. The onus will then shift onto the accused or the surety to demonstrate to the court that circumstances exist which require it to vary or discharge the order for estreatment and forfeiture. This is a reasonable way of approaching the matter.
Section 9 will also permit the Garda to seek a warrant for the arrest of an accused in circumstances where it believes that an accused has contravened a condition of his or her recognisance. Section 13 of the Criminal Justice Act, 1984, gives the Garda this power where an accused has failed to turn up for trial. Where a warrant is issued in such a case for contravening a condition of the recognisance, the accused and his or her sureties will remain bound by their recognisances and any money paid into court will not be released until proceedings in connection with the alleged breach are concluded.
The matter of consecutive sentences under the Criminal Justice Act, 1984, has been the subject of much discussion. The Law Reform Commission report stated that the view might be taken that section 11 of the Act, which deals with consecutive sentences for offences committed while on bail, has been deprived of some of its deterrent power because of the courts' interpretation of it to permit them to suspend sentences and their view that while each sentence must be proportionate to the offence, the overall sentence must be proportionate in its totality. We need to send a clear message to those who commit crimes while on bail that the fundamental breach of trust which this represents will not be tolerated and that anyone found guilty of such a breach should know that they will be liable to suffer additional penalties.
The purpose of section 10 is to strengthen the provisions of the Criminal Justice Act, 1984, in relation to the imposition of consecutive sentences for offences committed by a person while he or she is on bail. It proposes to do this by amending the 1984 Act to provide generally that where a consecutive sentence is passed following conviction for an offence committed while on bail, the total sentence to be imposed should generally be greater than would otherwise be imposed and that the commission of an offence while on bail should be considered as an aggravating factor warranting the longer sentence.
Sections 11 and 12 of the Bill deal, respectively, with the removal of references to Peace Commissioners from those sections of Part III of the Criminal Procedure Act, 1967, dealing with the grant of bail, and the repeal of sections 27, 30 and 33 of the 1967 Act consequent on the changes being made in the present Bill. The removal of references to Peace Commissioners arises from court decisions which held that Peace Commissioners do not have power to grant bail.
Section 13 is a standard provision giving the short title of the Act and providing for the bringing into operation of the provisions of the Act by order made by the Minister for Justice. As I indicated earlier, this Bill has been introduced against the background of the major prison building programme designed to provide an additional 800 prison places.
Part of the Bill gives effect to the will of the people which was so clearly expressed in the referendum last November. I believe that the other measures contained in the Bill will also receive widespread public support.
It is some 32 years since the judgment in the O'Callaghan case which restricted the grounds on which bail could be refused. At long last, and with the approval of the people, secured in the referendum last November, this issue is being addressed effectively. I commend the Bill to the House.
