Bail (Amendment) Bill 2016: Committee Stage

That concludes our address of the Courts (No. 2) Bill. We will now move on to the Bail (Amendment) Bill 2016. I will give the Minister of State a moment to get his paperwork sorted. I thank the departmental officials who assisted with our consideration of the Courts (No. 2) Bill and welcome the new officials who will assist with the Bail (Amendment) Bill 2016.

Members will know that at yesterday's meeting I advised that a motion was before the Dáil relating to this legislation and it should be noted that the motion was passed in the Dáil last night. I understand that some members raised matters pertaining to same. However, I do not think I need to read into the record for a second time the text of the motion. I advised members of it yesterday and it was passed by the Dáil last night. We will now turn to our Committee Stage consideration of the legislation. I invite the Minister of State, Deputy Stanton, to make his opening remarks at this point.

I thank the committee for facilitating this session today. We are inserting four new sections into the Bill, all of which are technical in nature. The amendments concern the application of section 5A - questioning of persons detained under section 4 not generally permitted pending access to legal advice - of the Criminal Justice Act 1984, as inserted by section 9(a) of the Criminal Justice Act 2011 to the detention provisions of three statutes, namely the Offences Against the State Act 1939, the Criminal Justice (Drug Trafficking) Act 1996 and the Criminal Justice Act 2007. Section 5A concerns the well-established right of a person in Garda custody to access legal advice and is aimed at clarifying the circumstances in which questioning may proceed, notwithstanding that a suspect has not yet had an opportunity to consult a solicitor. It is an established policy principle that the relevant provisions of the 1984 Act relating to detentions made under section 4 of that Act should also apply to detentions made under the aforementioned three criminal justice statutes. Sections 9(b), 13 and 14 of the Criminal Justice Act 2011 apply the new section 5A of the 1984 Act to the statutes in question. However, difficulties have arisen from the fact that both the Criminal Justice Act 2011 and the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 amend the same provisions of the three statutes in question and while the amendments contained in the 2014 Act have already been commenced, those of the 2011 Act have not. The fact that the provisions of the 2011 Act will be commenced after those of the 2014 Act has given rise to uncertainty as to what the final outcome of the amended detention provisions will be. The Office of the Attorney General has advised that the most prudent way to clarify the matter is to draw up new provisions providing for the application of section 5A to the detention provisions of the three statutes in question and to repeal the application of the provisions of the 2011 Act. That is what these amendments effectively achieve.

We began with a bail Bill but because we are making changes to it which are outside of bail law, we had to pass a motion in the Dáil last night to allow this to happen. Normally, we would just introduce Government amendments on Committee Stage and present them here but we had to make these changes by way of a motion in the Dáil, which is quite unusual. It also means that we are widening the scope of the Bill and changing its Title. That is why the motion, which was technical in nature, had to be dealt with last night. Normally we would just bring the amendments to this committee and present them but we could not do so in this instance. I thank the members for their indulgence in that regard.

Does any member wish to comment on that matter before we proceed with dealing with the nuts and bolts of the legislation?

I am sorry if I sound like a broken record but Deputy Jonathan O'Brien and I were in the Dáil last night and commented on the fact that it is unsatisfactory that we were coming in here, planning to deal with amendments to the Bail (Amendment) Bill having been given very short notice that we would have to deal with amendments to the Criminal Justice (Public Order) Act and the Criminal Justice (Drug Trafficking) Act. In effect, we are being asked to put together a criminal justice Bill as opposed to a Bail (Amendment) Bill and we could have done with more time in respect of that. We will deal with it today and we did not oppose the motion in the Dáil last night, although we could have done. That said, there are significant changes being proposed here and we could do with more time. We will proceed with the legislation in any event but I just wanted to record my slight dissatisfaction with the situation.

I thank Deputy O'Callaghan. We will now proceed. There are no amendments to section 1.

Section 1 agreed to.

We will now move on to amendments Nos 1, 3, 13 and 14 which are grouped together.

I move amendment No.1:

In page 3, between lines 9 and 10, to insert the following:

“Amendment of Criminal Justice Act 1984

2. Section 9 of the Criminal Justice Act 1984 is amended in subsection (1) by the substitution of “Sections 5, 5A, 6A” for “Sections 5, 6A”.”.

I have already spoken to these amendments. As I said already, these amendments insert four new sections into the Bill and are technical in nature. I dealt with them in my opening remarks, which I can repeat now if necessary.

No, we have noted that. I was just affording the Minister of State the opportunity to add to those remarks if he so wished. Does any member of the committee wish to comment on these amendments? No. I will not labour the point.

Amendment agreed to.

Amendment No. 2 also proposes to insert a new section.

I move amendment No. 2:

In page 3, between lines 9 and 10, to insert the following:

“Amendment of Criminal Justice (Public Order) Act 1994

3. The Criminal Justice (Public Order) Act 1994 is amended by the insertion of the following after section 4:

“4A. (1) (a) Where a person—

(i) is in custody in a Garda Síochána station having been arrested under section 24 or for the offence at common law of breach of the peace, and

(ii) is, but for this section, to be released from custody,

he or she may, if the member of the Garda Síochána for the time being in charge of the Garda Síochána station is of opinion that the person is intoxicated to such an extent as would give rise to a reasonable apprehension that the person might endanger himself or herself or other persons, be detained in custody for such period, not exceeding 6 hours from the time of his or her arrest, as the member of the Garda Síochána so in charge remains of that opinion.

(2) Where the member of the Garda Síochána for the time being in charge of the Garda Síochána station is of opinion that the person detained under subsection (1) is under the age of 18 years, the member shall, upon the attendance at the station of a parent or guardian of the person or of a person reasonably named by the person so detained, release the person into the custody of the parent or guardian or the person reasonably named, unless the member is of opinion that the person continues to be intoxicated to such an extent that, if so released, he or she will continue to give rise to a reasonable apprehension that he or she might endanger himself or herself or other persons.

(3) Nothing in this section shall affect the operation of section 15 of the Criminal Justice Act 1951 (Proceedings on arrest) or section 53 of the Children Act 2001 (Duty of Garda Síochána in relation to certain under-age children).

(4) In this section ‘intoxication’ has the same meaning as it has in section 4.”.”.

This amendment inserts a new section 3 into the Bill which will insert a new section 4A into the Criminal Justice (Public Order) Act 1994. The new provision concerns detention of intoxicated persons in Garda stations in circumstances where those persons, if released, would be a danger to themselves or others. It allows An Garda Síochána to detain intoxicated persons who have been arrested for public order offences under the Criminal Justice (Public Order) Act and who, but for this new provision, would be released. Such persons can be detained for a period not exceeding six hours, where the member in charge of the Garda station in which the persons are in custody is of the opinion that they are intoxicated to such an extent as to be considered a danger to themselves or to other persons if released. The provision also allows release prior to the expiration of the six hour detention period. To date, An Garda Síochána has relied on a presumed common law duty of care to intoxicated persons to justify such detention. However, this practice has no statutory basis and this amendment to the Criminal Justice (Public Order) Act will provide for such a statutory basis.

I seek some clarification on this amendment. Currently, there is a common law presumption of a duty of care. If it is the opinion of the garda in charge of a station that individuals would be a danger to themselves or to other members of the public if released, they can be held. Is there a time limit on that at present? We are proposing to insert a time limit but does one exist at the moment?

At the moment, no. It is proposed to include six hours, but the person can be released earlier if the person in charge at the Garda station believes they are no longer a danger to themselves or to others.

Currently, one could be held for longer than six hours subject to the opinion of the garda.

That is true. As I understand it, there is no limit.

How did we come up with a period of six hours?

There is a similar provision in the Road Traffic Acts.

Deputy Daly is next and then Deputy O'Callaghan.

This might be a really stupid question but currently under the legislation, is a test done or what is the basis on which a garda can decide whether somebody is intoxicated?

The member in charge at the station has to make a call on that. It is their opinion. We are talking about somebody who is dangerously intoxicated and who would be a danger to themselves or to others if they were released. These are people who probably are not even aware where they are or what they are doing so for their own safety and for the safety of others, they can be looked after in the Garda station until, to put it bluntly, they sober up. The six hours is the maximum period but they can be released earlier if necessary.

The problem is that all these discussions are taking place against the backdrop of a massive lack of confidence in An Garda Síochána and members' discretionary powers. That makes it difficult. I was arrested under suspicion of drink driving a number of years ago. I was not and was well under the limit but when I was leaving the station the sergeant told me to come back when I was sober. What is to say under other circumstances the sergeant could say, "You are a danger to yourself and others"? It is probably an extreme example but it relates to the lack of confidence in the Garda in terms of this discretion.

Up to now, apprehension and detention by the Garda has been dealt with through the common law. The common law is a very vague animal and the public cannot really point to any section in an Act and state that is where the power comes from. It is beneficial, therefore, to have it on a statutory basis to protect the gardaí and the individuals concerned so that there is a legal basis upon which the gardaí detain people. From my assessment of it, to date it has been dealt with responsibly by the gardaí. Unfortunately, people get extremely drunk. They can be a danger to themselves and to others. It would be interesting if we did an assessment of the convictions before our courts to see the correlation between convictions and people who have a lot of drink taken. It is extraordinarily high. It is worthwhile putting this on a statutory basis.

In terms of the definition, I note that subsection (4) states: "In this section ‘intoxication’ has the same meaning as it has in section 4.”. I think that should be "intoxicated" as opposed to "intoxication".

On the reason for the six hours, that is based on an assessment as to how long it takes to sober up or for somebody to ensure they are no longer a danger to themselves but we cannot ignore the fact that there are circumstances where people are extremely drunk, they have not committed any criminal offence but there is a serious prospect that if they are allowed to continue as they are they will damage themselves or someone else.

Deputy O'Brien indicated that he wanted to make a supplementary comment.

I would prefer to let Deputy Brophy speak first.

Deputy Chambers is before Deputy Brophy.

I agree it is right to put this on a statutory basis but I also believe that if someone is in that state they are close to the point of alcohol poisoning and we need to be careful that we are not just confining people to a cell when there is the potential for a serious health outcome for them. Is there any legislative measure that requires the gardaí to put them into a health care setting? That would be a concern for me. If we are putting a statutory timeline on a potential case of alcohol poisoning, that could have an adverse effect in the context of their future well-being. If someone is in that mental state, they are potentially close to developing alcohol poisoning. We need to be careful that we are not simply confining them to four walls but that a health care intervention takes place and that that could be incorporated within the law.

I will take these contributions together and invite the Minister of State to respond. I call Deputy Brophy.

I seek clarification. I presume what is taking place is a legislative underpinning of what would be normal practice by An Garda Síochána and, I presume, fairly standard practice on busy weekends in urban stations throughout the country. I welcome it because I believe this legislative underpinning is the right way to go. It is more a reflection of our modern society and, unfortunately, the way in which alcohol is consumed. The Minister of State might clarify that.

I am not in favour of holding anyone longer than they need to be held but I refer again to the six hours. This is my opinion, just as it will be the opinion of the garda in charge of the station. I do not know how long it would take someone who is intoxicated to the point where they are a danger to themselves or anyone else to sober up. I do not drink so I do not know how long it takes for somebody to reach a state where they are not a danger to themselves. The Minister is saying it is six hours. Can somebody tell me whether it takes six hours or longer for somebody to sober up?

Deputy O'Brien should not put his colleagues on the spot.

I am not, but-----

It can take longer for certain individuals to sober up.

-----my only concern is that we are not putting on a statutory footing that someone cannot be held longer than six hours so if they were still a danger to themselves after six hours, there is an obligation for them to be released. I am concerned about that because if somebody is still a danger to themselves after six hours, they can continue to be held until such time they are no longer a danger. However, under this new provision, even if someone is still a danger to themselves after six hours they are going out the door.

One can be detained again.

That is the clarification I seek.

We will ask the Minister to respond. He might take the questions together, please.

The Minister might tell us how long it takes to sober up.

I am a bit like Deputy O'Brien; I do not imbibe too often.

He does not at all.

I know. To respond to Deputy Chambers's question, the position is that there are custody regulations in place and they allow the member in charge to seek medical treatment, where necessary. If the member in charge believes that somebody is at risk from the point of view of health or worse, they can and have to get medical attention.

On the six hours issue, we had to strike a balance between what is reasonable detention and a person's freedom. People should not be held but if somebody who is dangerously intoxicated was allowed to leave a Garda station and they got hurt, hurt somebody else or were killed, questions would be asked as to why they were released when they did not know what they were doing. That is the purpose of this provision. As Deputy O'Callaghan said, the common law is a very vague animal and we want to make it clear under statute, and it is a maximum amount of time. I believe that if somebody was that dangerously intoxicated initially, the member in charge would seek medical advice. There are custody regulations in place to govern this area and they have to be followed but seeking medical advice is part of that.

What if somebody is still dangerously intoxicated after six hours?

It is working well currently under the Road Traffic Act. It will have to be monitored but the experience and the advice is that it is working well under the other laws and we want to bring it under this one.

Is there a particular point the Minister has made that anyone would like to further explore? No.

Amendment agreed to.

Amendment No. 3 has already been discussed with amendment No. 1. We will not take any further contributions. This amendment also introduces a new section.

I move amendment No. 3

In page 3, between lines 9 and 10, to insert the following:

“Amendment of Criminal Justice (Drug Trafficking) Act 1996

4. Section 5 of the Criminal Justice (Drug Trafficking) Act 1996 is amended in subsection (1) by the substitution of “Sections 5, 5A, 6A” for “Sections 5, 6A”.”.

Amendment agreed to.
Section 2 agreed to.

I move amendment No. 4:

In page 4, between lines 12 and 13, to insert the following:

“(a) in subsection 1(b) by the substitution of “considers necessary and proportionate” for “considers appropriate”,”.

This amendment might seem like a small change but it feeds into the discussions we have been having on penal policy regarding how justice committees are taking quite progressive stances on these issues, but that needs to be reflected by legislation. The amendment is changing the 1997 Act with the effect that when a judge is deciding to impose conditions on bail, those conditions have to be "necessary and proportionate". The Act says "appropriate". That might seem like a small change. The decision to grant or refuse bail is an incredibly serious one. We have to be very careful in legislating in this area. We have to take into account the costs of the decision. There are substantial economic and social costs of using prison for remand as an alternative to bail. When breaching one's conditions of bail is likely to result in a penal sentence, that has implications which need to be taken into account. We must also bear in mind that the person has not been convicted.

Remand is disproportionately used against women. The most up-to-date statistics were for 2013. They showed that 13% of the male prison population were on remand compared with 20% of female prisoners. The impact of women getting a custodial sentence, which we have explored over recent weeks in our consultation on penal policy, is that even a few weeks on remand could result in a woman losing her accommodation, custody of her children or whatever. It is incredibly disruptive. We have to be careful about the conditions imposed by the court and that they are such that the person has a decent chance of complying with them. Otherwise, they could end up in prison.

The problem with "appropriate" is that it can vary from court to court depending on the judge. It is quite vague. The Irish Penal Reform Trust, IPRT, has said that where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty is satisfied. Therefore, "necessary and proportionate" will be a greater guiding tool for the Judiciary than "appropriate".

I thank Deputy Daly for proposing the amendment. She has put a lot of thought into it. I appreciate the aim of the proposal but I am concerned it may have unintended consequences. We may have to tease it out a bit more.

The amendment would replace the requirement in section 6(1)(b) of the Bail Act that bail conditions be considered "appropriate" with a requirement they be considered "necessary and proportionate". There is already a well-established principle that any restriction of a person's constitutional rights must be proportionate to the objective and impair those rights as little as possible. That is a constitutional provision. On one reading, it may be argued that the amendment is unnecessary as the current provision already meets the objective.

The Deputy has proposed the amendment with a view to limiting the conditions which may be imposed. It is possible that the inclusion of the word "necessary" would have this effect in some circumstances. It is important to consider carefully the implications of this. It may have the effect of preventing the imposition of the new condition in section 3 of the Bill restricting contact between the accused and the victim or his or her family. Therefore, while I do not have a difficulty with the Deputy's objective in this amendment, the effect of the change in wording requires further consideration to determine its precise implications. For that reason, I cannot accept the Deputy's amendment at this time.

We will be prepared to look at it on Report Stage but it requires further consideration. There may be unintended consequences which could cause more harm than good.

That is a helpful addendum.

I am happy to go along with Deputy Daly's proposal although perhaps it requires further consideration. Section 6(1)(b) says: "the recognisance may be subject to such conditions as the court considers appropriate having regard to the circumstances of the case". The proposal is that we would change the word "appropriate" and put in the words "necessary and proportionate". I do not think there is a huge difference but I would be prepared to look at it.

My only concern is that I want the addition of subparagraphs (vi), (vii) and (viii), which are in the Bill before us, to section 6(1)(b) of the Bail Act. I do not think this amendment would deal with those subparagraphs but I was slightly concerned that the amendment, in stating “in subsection 1(b) by the substitution of “considers necessary and proportionate” for “considers appropriate”,” is an amendment to the substance of the Act of 1997 as opposed to what is relevant here when one looks at section 3 of the Bill. I am slightly confused by that and want to be certain what the consequences of that would be.

Even after our discussion, I am not clear what the consequences may be, unintended or otherwise. It is not only about limiting the conditions but also about making sure they are not unreasonable and that people will be able to comply with them. It has to be seen in the context of later amendments which raise the issue of bail supports. Bail supports have been demonstrated to have the greatest impact on whether people can comply and keeping people out of prison on remand. If the Minister of State would clarify it for Report Stage I am happy to re-enter it at that stage if necessary.

The Deputy will have that opportunity.

What do I have to do to have the right to bring it back on Report Stage?

The Deputy may withdraw the amendment or she can press it.

If I press it now and do not push it to a vote, it can still be re-entered. I will do that.

Amendment put and declared lost.

Is that a vote?

I do not understand that.

My understanding is that I am obliged to indicate that the amendment is lost. Tá sé caillte. At that point, the Deputy has the entitlement to call a vote but she does not have to do so. That was what I indicated at the outset. The Deputy has the opportunity to re-table the amendment on Report Stage.

No, I will call a vote. I am not really sure what is happening from a procedural point of view.

Amendment put.

Under Standing Orders, we are obliged to wait eight minutes or until full membership is present before proceeding to take the division.

Deputy Farrell has sent a written apology since the commencement of the meeting indicating he is not in a position to attend. That would leave six members and we are all present. Given the non-attendance of one member, are we in a position to proceed? I understand he could send a substitute so we must wait eight minutes. This is an educational process.

Amendment put:
The Committee divided: Tá, 5; Níl, 2.

  • Chambers, Jack.
  • Daly, Clare.
  • O'Callaghan, Jim.
  • Ó Caoláin, Caoimhghín.
  • Wallace, Mick.


  • Brophy, Colm.
  • Stanton, David.
Amendment declared carried.

I move amendment No. 5:

In page 4, to delete lines 31 to 39, and in page 5, to delete lines 1 to 7.

This amendment seeks to remove the new subsection (10) of section 6 of the Act, which the Government seeks to introduce to provide for a new power of arrest without warrant by gardaí for breach of bail conditions with the qualifier that the garda must consider the arrest necessary to prevent harm to, interference with or intimidation of an alleged victim or witness or other persons as the court may specify. The problem is that extending Garda powers to arrest without warrant in the absence of the provision for bail supports and services is what the Irish Penal Reform Trust, IPRT, calls a short-term and simplistic solution to what is a complex problem.

The particular concern I have about the new subsection (10) relates to a situation in which a garda might think that the person is about to breach his or her bail conditions. The garda might anticipate that the person is going to do it, but the person will not actually have done anything. It is a future crime for which we are allowing an arrest without warrant. I know that it is qualified under the circumstances, but giving the power of arrest without warrant for something that has not happened is very dangerous. This is something that has potential for a lot of abuse. I would be concerned about it in that regard.

Gardaí already have the power to arrest people without a warrant if they have committed crimes or if they are attempting to do so. We have already covered circumstances such as if a person on bail physically assaults somebody, tries to physically assault somebody or roughs somebody up. What the new subsection does is give gardaí the power to arrest somebody without warrant. For example, if a person went into a pub that he or she should not have been in and the person who was the alleged victim of the crime happens to be there as well, those circumstances could result in an arrest. I am of the view that a breach of bail conditions should be dealt with in the usual way. It is a little bit dangerous that we are giving gardaí a sort of carte blanche to go around arresting people because they think something is about to happen. That could be dangerous and it requires a few safeguards. That is the thinking behind the amendment.

I have listened carefully to what Deputy Clare Daly has said. The Deputy is proposing the deletion of the new Garda power of arrest, that will be inserted by section 3 of the Bill into section 6 of the Bail Act 1997. The provision would allow a member of the Garda Síochána to arrest, without warrant, a person who has been released on bail where the member reasonably suspects that the person has breached, is in the act of breaching or is about to breach a condition of his or her bail and the immediate arrest is necessary to prevent harm to or interference with the victim, another witness or another person that the court is specifically trying to protect. We are talking about protecting victims here as well. Let us not forget that. The power of arrest provided in this provision has been very carefully considered and is very limited in nature. There must be an imminent risk of harm or intimidation to the victim, witness or other identified person. The provision is reasonable and is necessary to allow a member of the Garda to intervene in such circumstances. Therefore, I cannot accept the Deputy's amendment at this time.

I also will not be supporting the amendment for the following reasons. A person accused of sexual assault or rape can apply for and be granted bail. One of the conditions of bail set by a judge is that the person must stay away from the complainant in the sexual assault or rape case. If the individual who is accused then turns up near the house of or in the vicinity of the area in which the complainant lives, that is a breach of the bail conditions. From the point of view of the complainant, it is very unsatisfactory that she - most likely - must wait for the DPP to go back to court to apply for a change of bail conditions. It is reasonable that gardaí be given the power to arrest an individual who is in breach of a bail condition.

Deputy Clare Daly said that it is about gardaí having a power to prevent an offence or something that is about to happen. However, it is not simply that. If we look at the new subsection 10(a)(i), (ii) and (iii), it is clear that subparagraphs (ii) and (iii) go beyond that. Deputy Clare Daly is right when she says that the subsection will give the power to gardaí to arrest a person if they believe that he or she is about to contravene any of the conditions of the recognisance. It then goes on to state that it also covers cases where the person is in the act of contravening any of the conditions or where the person has contravened any of the conditions. This is an important protection which will ensure that bail conditions are taken seriously. People obviously have an entitlement to bail. However, there are various factors that are weighed up. If conditions are set for a person in order to be granted bail, that individual must comply with those conditions. If the conditions are breached to such an extent that the person is contravening them, gardaí should be given the power of arrest in respect of that.

I support what Deputy O'Callaghan said. Obviously, everything involves a balancing of rights. In this particular instance where we have so much experience of this, the particular power being granted to An Garda Síochána is absolutely proportionate and right.

Does any other member wish to contribute? Does Deputy Clare Daly wish to offer any further comment?

I will have a look at it again. I think gardaí do have powers of arrest. However, it is the power without warrant that we are talking about here. The provision is too broad. There are already provisions in place for dealing with people who break their bail conditions. All I am saying is that that should apply. I am happy to withdraw the amendment for now. We can come back to it and I will reserve the right to look at it for Report Stage.

Amendment No. 5 is being withdrawn. As the Deputy has rightly indicated, she can of course reintroduce it on Report Stage if that is her decision.

Amendment, by leave, withdrawn.
Section 3, as amended, agreed to.
Section 4 agreed to.

Amendments Nos. 6 and 7 are grouped. We will take them together. They are both in the name of Deputy Clare Daly and they both involve the insertion of new sections. I invite the Deputy to speak to the amendments.

I move amendment No. 6:

In page 5, between lines 12 and 13, to insert the following:

“5. Section 6B of the Act of 1997 is amended by the insertion of the following subsections after subsection (1):

“(1A) In imposing the conditions in subparagraphs (i) to (iii) of section 6B the Court shall have regard to the following:

(a) that the type and modalities of tagging are proportionate to the offences alleged in terms of duration and intrusiveness;

(b) the age, disability or other relevant personal circumstances of the person upon whom the conditions are imposed;

(c) that the person upon whom the conditions are imposed shall not be confined solely to a place of residence for so long as those conditions are imposed.

(1B) All data gathered as result of the imposition of the conditions in subparagraphs (i) to (iii) of section 6B shall be gathered, stored and processed in compliance with the Data Protection Acts and shall not be used for any purpose other than the following:

(a) monitoring of compliance with conditions imposed under subparagraphs (i) and (iv) of section 6(1)(b) while those conditions are imposed;

(b) implementing the relevant provisions of section 6C.”.”.

I will speak to these amendments briefly. Amendments Nos. 6 and 7 relate to electronic monitoring. The Bill amends section 6B such that the imposition of electronic monitoring can be at the behest of the prosecutor. Under the Bill, electronic monitoring may be imposed on individuals charged with serious offences and those appealing sentences of imprisonment imposed by the District Court. What these amendments seek to do is put in place a few rules, guidelines or safeguards - call them what you will - in respect of the use of electronic monitoring. I accept that electronic monitoring can be a useful tool in the criminal justice system. We know that in countries such Denmark, for example, 60% of all custodial sentences under six months are converted to electronic monitoring and intense supervision. In Belgium, any prison sentence of less that three years is automatically commuted to electronic tagging. This is a mechanism that is used. However, we have to be careful when making electronic monitoring a condition of bail that the necessary safeguards are in place. That is the aim behind these amendments. They are trying to beef up the safeguards.

Electronic monitoring applies in two scenarios, namely, in respect of the commission of a serious offence or for people appealing prison sentences handed down by the District Court. I think we have to tighten up matters in respect of the duration. If we do not, delays in the system could mean people being tagged for a long time. We have to take into account, as the amendment does, the person's age, disability and other relevant personal circumstances when electronic monitoring is being imposed. We do not want somebody effectively imprisoned in their own home with impacts on mental health, etc., particularly if the person is vulnerable, has addiction problems or whatever.

One of the key issues highlighted in these amendments is data protection. I am sure the Minister will say that the data is protected and that there is nothing to worry about. However, I am of the view that we need explicit safeguards in this Bill involving the data that will be collected through monitoring. We know that data is big business. We have to make specific provision for that in the Bill. This data is essentially being collected and monitored without somebody's willing consent. It leaves the door open for that information, and the entire activity of monitoring, to be profited from.

The goal of the amendments is that any monitoring of tagging should be done by the State or by a not-for-profit company. Monitoring should not be something which people might profit from. I am trying to leave no gaps in that. In Germany, there is a state agency that monitors this area. That agency includes social workers and support staff. That is the direction in which it is going. If we are moving towards a system whereby we are using electronic monitoring a lot more, then the protections to which I refer should be put in place.

If the alarm on the monitor were to go off, it is not the case that the Garda would be called immediately. A support staff member, a social worker, could be called to assist the person. If we were to have such a system, it is much more likely that the conditions would not be breached and it would help the person concerned to avoid a custodial sentence and address his or her offending in the community in which he or she lives. We do not want to have a scenario like the one in parts of England in which police officers are on patrol accompanied by a G4S security van. The purpose of the amendments is to eliminate that use. They would provide safeguards in the use of electronic monitoring.

I thank the Deputy for proposing the amendments, both of which relate to the electronic monitoring provisions contained in the Bail Act 1997. As the Tánaiste outlined to the House on a number of occasions, electronic monitoring has its limitations, but as the Deputy pointed out, it has the potential to be effective when applied in certain circumstances. That is the basis for the amendment to section 4 of the Bill which provides that electronic monitoring can only be imposed on the application of the prosecutor in order that it can be limited to those cases in which it is most likely to be effective. The Deputy's amendments, if I understand them correctly, also seek to ensure the use of electronic monitoring would be restricted to the most suitable cases.

Amendment No. 6 would insert two new subsections into section 6B of the Bail Act 1997 which deals with the electronic monitoring of certain persons admitted to bail. The new subsection (1A) would set out conditions to which the court would have to have regard in imposing a condition requiring electronic monitoring, including that the type and modalities of the tagging be proportionate to the age, disability and personal circumstances of the person concerned and that he or she not be confined solely to the place of residence. The new subsection (1B) would require data to be collected in compliance with the Data Protection Acts and the data not to be used for any other purpose. The amendments appear to be unnecessary, given the safeguards already provided in the existing provisions of the Bail Act which requires a person subject to electronic monitoring to consent to it and that the provisions do not apply to under-18s and only apply in the case of serious offences. It is not possible to restrict the movements of a person on bail to such an extent that he or she must remain in any specific place or residence at all times and the provisions are already subject, as the Deputy pointed out, to the provisions of the Data Protection Acts.

Amendment No. 7 would amend section 6D - arrangements for electronic monitoring - of the Bail Act 1997 to restrict the provision of electronic monitoring services to non-commercial or not-for-profit providers. This would prevent current arrangements used for electronic monitoring by the Irish Prison Service and restrict the possible options for providing for electronic monitoring. I do not share the Deputy's concerns that a commercial operator could not appropriately and effectively provide the electronic monitoring service. Such a provider would be bound to operate the service in accordance with the statutory provisions and the contractual obligations imposed by the State. Limiting the provision to non-commercial operators would restrict the available operators and possibly lead to circumstances in which electronic monitoring services could not be implemented in some locations, or not at all. It would also be likely to increase costs. For that reason, I cannot accept the Deputy's amendments.

The words "electronic monitoring" sound very negative, but we have to consider how such a provision is imposed. People are arrested and charged with serious offences. They then look to be released on bail. The likelihood is that they will not be granted bail and that they will be remanded in custody until such time as their trial is held. That is an option to be avoided, but they have to consent to use of the provision. The advantage of electronic monitoring is that they will not be remanded in custody and will be released, but conditions will be imposed, one of which will be that they will be monitored in order that their movements will be taken into account. It is important in the first instance that people will have to consent to this.

I note what Deputy Clare Daly is seeking to do in amendment No. 6, but I would have thought courts took all of those factors into account. It is proposed that the type and modalities of tagging be proportionate to the offences alleged in terms of their duration and intrusiveness, but electronic monitoring will only be used in the case of serious offences. I would have thought every court took into account the age of an individual. The important point is that this provision will only apply and continue until the trial takes place. We should get criminal trials up and running within one year, but if the option was to remand someone in custody or to use electronic monitoring, it would be a way of ensuring people were not incarcerated at a time when they had not yet been convicted. Therefore, I cannot support the amendment.

On amendment No. 7, I recognise Deputy Clare Daly's concern. In other countries, particularly in America, the incarceration process has become a business and it is creeping into Britain. The last thing we want is to have an expert private company responsible for monitoring and extending its control into prisons. Currently, monitoring is carried out by private enterprises. If we were to let the State run the system, how effective would it be? It requires a degree of technical sophistication, I would be concerned, if amendment No. 7 was to be accepted, that it would have the effect of preventing the current system of monitoring from operating.

I support amendment No. 6, taking into account what Deputy Jim O'Callaghan and the Minister of State said, that the courts should already be taking all of the issues mentioned into consideration. We should ensure there is no doubt that they will take them into consideration by placing the provision on a statutory footing. I imagine most courts do take into account issues such as the mental health, disability and age of an alleged offender, but I do not see any reason we cannot ensure they must take them into account by enshrining it in legislation.

I have some concerns about amendment No. 7. We should be moving towards a position where the service will be provided by not-for-profit businesses, but if the amendment were to be accepted, it would create problems for the holders of contracts already in place for the electronic tagging of individuals. We are, however, supportive of amendment No. 6.

I oppose the amendment for a very simple reason. I have regard for the courts and their ability to make the necessary safeguards in place work. The issue can be approached from an ideological basis of not wanting to believe the courts will enforce someone's necessary rights and entitlements. As things stand, many people say there is a lack of rights for victims and those affected by serious crime. The provision is sufficiently restrictive. It deals with serious crimes only and where someone applies for bail. I have no problem with a commercial company providing a service for the State in a good and cost-effective way. It is up to the State to regulate to ensure it is delivered in compliance with the laws of the land, including on data protection and so on. That can be accommodated. It would be wrong to prohibit a commercial company from providing a service for the State in a regulated and proper way on a value for money basis. I will be opposing that amendment also.

Does the Minister of State wish to add a comment before I go back to Deputy Clare Daly?

As colleagues have said, this is something that will only be granted on application by the prosecution. That will enable it to be managed and controlled. I do not believe it will be widely used; rather, it will only be used in the case of serious crimes. As Deputy Jim O'Callaghan said, it is an alternative to incarceration. I have seen the system in operation in other jurisdictions and it does require a high level of sophistication to monitor and track individuals. We have to be careful that what is in place will continue and that what we will put in place will actually work properly. We also have to trust the courts which will make the decision on the conditions of bail.

If the prosecution applies for it, the courts will have to decide whether it is suitable or not in the circumstances. The judges know a lot more than anyone else because they have access to all the information and that is the basis on which they make their decisions. We had better trust the courts to do their job. In addition, the Deputy should bear in mind that the measure is restricted. It does not apply to everybody. It will be a condition of bail and only on application of the prosecution.

The objection to amendment No. 6 is that the situation is provided for, but if that is the case then I do not have any problem in seeing why it cannot be spelled out in legislation. While one would assume the courts would take such considerations into account there is no guarantee and a legislative foundation for that would not be any harm. Data protection is particularly important in this day and age and if provision is already made then why not seal the deal and leave no room for doubt by including it? I take note of the views of members. We can withdraw the amendment and consider tabling it again on Report Stage.

In terms of the private company, I question the privatisation of the criminal justice system. I do not have a problem in principle with electronic monitoring. The idea that it would be in operation as an alternative to a custodial sentence is economically efficient, it is efficient for society and it leaves the person in the community. The issue is how we view that and what supports are available. The German model is composed of civil servants, social workers and support staff and their response when the alarm goes off is to intervene with the person; it is not to haul them in or put a black mark against him or her. The intention is to try to de-escalate the situation. The various agencies decide whether to send out a social worker. They operate on a 24-7 basis and each shift has a social worker to go out and intervene and it is up to them to decide when they intervene with a person whether the police should be contacted. In fact, police contact only happens in approximately 5% of cases. That has meant people have been less likely to breach their bail conditions and less likely to go on and receive a custodial sentence later because they are given an opportunity to address the issues. The idea that one would have a company profiting from a vital public service is an ideological debate we could have in every arena but we will withdraw the amendment today and consider returning to it later.

Amendment, by leave, withdrawn.
Amendment No. 7 not moved.

I move amendment No. 8:

In page 5, between lines 12 and 13, to insert the following:

“Amendment of Act of 1997

5. The Act of 1997 is amended by the insertion of the following new section after section 11:

“12. The Minister shall, within 12 months of the enactment of this Act, lay before the Oireachtas a review of bail supports available in the State, to include but not limited to bail information schemes, bail support/supervision schemes, remand fostering, and bail hostels, and the Minister shall make costed recommendations to Government regarding improvements in the provision of such supports in the State with a view to reducing both custodial remand orders and breaches of bail conditions.”.”.

This is an integral part of the debate. In the context of reviewing bail the issue of bail supports is key. All international studies vindicate that position. If one supports people to comply with their conditions there are fewer breaches of conditions and it is better for everybody. The amendment requires the Minister to review the bail supports within 12 months of the enactment of the Bill. The amendment lists the types of bail support that could be provided. The amendment also seeks that the Minister would make costed recommendations to Government regarding improvements in the provision of such supports in order to reduce both custodial remand orders and breaches of bail conditions.

The reason I included that is because it is as far as I can go as an Opposition Deputy in terms of making changes to bail supports that I believe are necessary. I will not repeat them but studies from every jurisdiction indicate there is a huge cost saving if one puts the supports in place. At the moment, the State is spending more than €100,000 per day having people on remand in prisons. The alternative is to have them out on bail and supported and it is far cheaper for society as a whole. It allows the person to remain within the community, address his or her offending behaviour and enhances improvement. If one supports somebody, the chances of him or her turning up in court are improved, which improves the efficiency of the courts.

The amendment provides for the Minister to carry out a review rather than leaving it to chance. I could make many points about women offenders in particular and why we need the measures to be put in place. I am not in government so I cannot secure the measures. The best I can do is put a requirement in the legislation that the supports would be provided. There have been incredible results from other jurisdictions. Schemes in England and Wales found that where supports were provided, young people attended all court hearings in 94% of programmes and in Canada more than 81% of people who were on the programmes attended their court cases. Bail breaches for women who got supports in Glasgow and other places were reduced. We know that women in particular who end up in the criminal justice system are themselves generally the victims of crime such as sexual abuse and violence. Getting the supports for those underlying issues is key in the women avoiding custodial sentences and being able to rebuild their lives and address their offending behaviour. I believe such an approach is a winner in terms of cost.

I listened very carefully to what Deputy Daly had to say. The Deputy's amendment seeks to oblige the Minister for Justice and Equality to undertake a review of bail supports available and to make costed recommendations to Government with regard to improving the provision of such services. I am sure the Deputy is aware that there are no specific bail support schemes for adults, such as those outlined in her amendment, currently operating in the State. They do not exist.

Having listened to what Deputy Daly said, I believe she has made some interesting points. Perhaps it is something the committee might consider reporting on at some stage. That might be helpful. I will consider bail supports with respect to restorative justice and penal reform but at the moment such measures do not exist for adults.

I am advised that there are arrangements in place to assist persons with particular needs who may come before the courts. In that regard I am advised that psychiatric reports may be provided for the courts which can, in particular, aid the courts in diverting people with mental illness away from prison. In certain cases, the court may adjourn to allow the person to access appropriate treatment and bail may be granted on that basis.

Bail support schemes are more commonly considered in relation to young offenders. In that regard, I understand that a bail supervision scheme has been introduced and is being rolled out on a pilot basis in the Dublin area. This initiative operates under the aegis of my colleague, the Minister for Children and Youth Affairs. The intention is to roll it out nationally in time.

That said, there are no bail schemes for adults, such as those outlined, currently in place and the Government has no plans to introduce any new measures in this area but I am interested in what the Deputy said and it should be explored further. In addition, it is not appropriate to provide in statute that the Minister should make any particular recommendations to Government. For those reasons I cannot accept the Deputy's amendment but she has raised some interesting topics I feel we could explore further down the line.

It is my understanding that every piece of legislation enacted has a statutory review after two years. The Act will be reviewed within 24 months and it would not be beyond the scope of the Minister to look at the provision of bail supports for adults as part of the review. I know the supports do not currently exist but we will be looking at the Act as a whole, which concerns the provision of bail, and part of the review could include the possibility of the introduction of bail supports for adults. The statutory review exists and must be carried out within two years. Perhaps the Minister of State would confirm whether my understanding of the statutory review process is correct. If it is, we could address the issue through that process.

In respect of Deputy Jonathan O'Brien's point, there is a requirement that there be a report on the operation of every item of legislation within 12 months. That is there in any event. In this instance, there are no bail supports available so we cannot report on something that does not exist. Bearing in mind interesting points the Deputy raised, perhaps the committee might be interested in exploring the matter further and coming back to us with some proposals. I will talk to the Tánaiste about having a look at it as well but we cannot report on something that is not actually happening. We cannot accept the amendments as they stand because there are no bail schemes for adults.

We are preparing a report on penal reform. Perhaps, as the Minister of State suggested, this could be reflected in the final draft of same. It is something to consider.

It can be included in that. Obviously, one cannot review nothing. That is a pretty serious indictment of our system. One does not need to be a rocket scientist to know that this is the key way to ensure that bail conditions are adhered to and it works particularly well with vulnerable groups. We have the children and young people's part, which is key, but those with chaotic lifestyles or drug addictions find it difficult to comply with the conditions. If they get the intervention early on, all of the evidence shows that court appearances and adherence skyrocket. As a result, what is proposed is an attempt to build this in because the normal statutory review after 12 or 24 months would not provide for a review of bail supports or an examination of that area. I will look at the next stage. I note what has been said and I am glad that it is deemed worthy of further consideration but I would still like to see something in this. We would not call it a review but it would be an examination of the types of supports or something like that. Other than that, we are not looking comprehensively at bail. I accept the point that "review" is the wrong word in the context of the lack of adult services and that we might look at rewording it on Report Stage.

Is the Deputy withdrawing the amendment?

I will withdraw it on that basis but I will submit a rewording. The Minister of State might like to put in something himself because it is not specifically provided for in the Bill. We need to reach a position where we cannot talk about bail without bail supports.

The Deputy has made a very clear point.

Amendment, by leave, withdrawn.
Section 5 agreed to.

Amendments Nos. 9 to 11, inclusive, are related and may be discussed together.

I move amendment No. 9:

In page 7, line 4, after "reasons" to insert "in writing".

These amendments provide that a judge must give his or her reasons in writing for decisions to grant or refuse bail. The reason they should be in writing relates to transparency. It promotes public confidence in the system. In some instances, it would give victims a greater understanding of why a judge reached a decision and would help to promote consistency in decision-making. If we want to develop our data and understand better the current use of bail, this would help research in that regard. I do not think it is unreasonable.

I thank the Deputy for tabling these amendments and for the work and thinking she has put into them. As she outlined, the purpose of amendments Nos. 9 and 10 is to require that the reasons given by a court for granting or refusing bail and for imposing any bail conditions under section 6 be in writing. I understand the Deputy’s reasons for wanting to include such a requirement. She has outlined them. The purpose of section 6 is to improve the information provided by the courts in bail hearings. However, the effect would be to require that a written decision be given in respect of all bail hearings. As the Deputy is no doubt aware, most bail hearings take place in the District Court. Written decisions are not the norm in the District Court and the volume of work involved in implementing the Deputy's proposal could be considerable. It would have cost implications and, more importantly, could entail delays in the processing of cases before the court. It is also worth noting that all District Court proceedings are recorded on the digital audio recording system so in circumstances where clarification of the reasons given is required or is in dispute, the record of proceedings will be there. At the very minimum, consultation with the Courts Service of Ireland and the Judiciary would be required to identify any issues and to assess the cost and other implications before such a proposal could be included in the Bill. For these reasons, I cannot accept the amendments at this time.

Do any other Deputies wish to comment?

I would like to provide a practical assessment of it. A bail list appears approximately twice a week in the High Court. Yesterday, the bail list in Cloverhill contained 22 applications. If we just limit it to the High Court, that is dealt with on Mondays. They are dealt with promptly and fairly and the judges have an understanding of what the law is, as do the practitioners. If there was a requirement for a written judgment in respect of all of them, it would slow the process down considerably. To deliver 22 written judgments in respect of the applications yesterday would mean that those applications could not be concluded or ruled on until such time as the written decision was given. I understand the purpose behind amendment No. 9. I think there is a recognition among criminal law practitioners as to what is the law in respect of the area of bail and the grounds upon which it will be granted. There have been decisions in the High Court in respect of that. However, if it is to be the case that there must be a written decision relating to every application, it will slow the entire process down and will probably be contrary to the interests of individuals applying for bail because at the time they apply for bail, they are in custody and it will take longer for them to be granted bail.

I would make the same point. While recognising what Deputy Clare Daly is attempting to achieve, I think the process would be unrealistic. It would be so cumbersome in nature that, effectively, it would be a case of justice forgone for many people because of the time delay in trying to implement a system that would probably be unworkable. I can see the thinking behind it. I just do not think it is a practical solution.

I note that amendment No. 11 is also being discussed. Does the Chairman wish me to comment on that before we proceed?

Could the Minister of State comment on amendments Nos. 9, 10 and 11?

I did not comment on amendment No. 11 earlier.

They are all the same.

There might be something a bit different in amendment No. 11

We will hear from the Minister of State in respect of amendment No. 11.

Amendment No. 11 would replace the reference to "any conditions" with the words "each condition" in section 6. It would appear that the aim of the amendment is to ensure that separate reasons would have to be given for each condition rather than giving reasons for the imposition of conditions generally. However, in the context in which it is used here, I am of the opinion that the meaning is the same and that the word "any" also takes account of circumstances in which no conditions beyond those that are mandatory are imposed. I do not consider that the amendment would have any material effect on the provision and the wording used is that considered most appropriate by the Office of the Parliamentary Counsel. I am, however, happy to have my officials consult the Parliamentary Counsel on the alternate wording if the Deputy wishes and if she wants to revisit the matter on Report Stage.

Does Deputy Daly wish to respond?

The arguments put forward by the Minister of State and the other Deputies are pretty compelling in terms of the practicalities in an overall sense and how this, as put forward, would be unworkable. I accept that. Having accepted that, there are issues in respect of the rights of the person involved - or even the victim - and his or her ability to access the thinking of the judge in that scenario and in the context of openness regarding getting the reasons behind a judgment in writing. There is also an issue in respect of the lack of availability of digital recordings and people's difficulty in accessing information from the courts in that regard. Perhaps that is a slightly separate issue. The other issue that feeds into it is the lack of data relating to this matter. We do not really have any research into the thinking behind it. I note the point made by Deputy O'Callaghan. People in the profession either know or have a fair idea of what is involved but there is no data in respect of the breaching of conditions and how often this occurs or with regard to research, accountability and monitoring what is happening.

Is there a gap? What is and is not working? It is partly in that vein that we put forward for inclusion the words "in writing", but I accept all of the points made about the practicalities.

Amendment, by leave, withdrawn.
Amendments Nos. 10 and 11 not moved.
Section 6 agreed to.

I move amendment No. 12:

In page 7, between lines 7 and 8, to insert the following:

Amendment of Schedule to Act of 1997

7. The Schedule to the Act of 1997 is amended, in paragraph 19, by the substitution of the following for subparagraph (b):

“(b) section 106 (duties on occurrence of accident);

(c) section 112 (towing vehicle without authority).”.”.

The amendment inserts a new section into the Bill to add two additional offences to the Schedule to the Bail Act 1997. The Schedule to the Bail Act 1997 sets out the list of offences which, if punishable by terms of imprisonment of five years or more, are considered to be serious offences for the purposes of a bail application. The two offences which will be added to the Schedule by the amendment were both inserted into section 106 of the Road Traffic Act 1961 by section 17 of the Road Traffic Act 2014. They are effectively hit and run offences. They target individuals who seek to avoid sanction by leaving the scene of a road accident having killed or injured an individual. A person guilty of such an offence is liable under the Road Traffic Act to a fine or a term of imprisonment of up to seven years in the case of injury and ten years in the case of the death of a person. These are very serious offences and, as such, appropriate for inclusion in the Schedule to the Bail Act.

Amendment agreed to.

Amendment No.13 has already been discussed with amendments Nos. 1, 3 and 14.

I move amendment No. 13:

In page 7, between lines 7 and 8, to insert the following:

“Amendment of Criminal Justice Act 2007

8. Section 52 of the Criminal Justice Act 2007 is amended in subsection (1) by the substitution of “Sections 5, 5A, 6A” for “Sections 5, 6A”.”.

Amendment agreed to.

I move amendment No. 14:

In page 7, between lines 7 and 8, to insert the following:

“Amendment of Criminal Justice Act 2011

9. Sections 9(b), 13 and 14 of the Criminal Justice Act 2011 are repealed.”.

Amendment agreed to.

Amendment No. 15 relates to section 7, while amendment No. 16 is to the Title of the Bill. I invite the Minister of State to address both of them together.

I move amendment No. 15:

In page 7, line 9, to delete “This Act may be cited as the Bail (Amendment) Act 2016.” and substitute “This Act may be cited as the Criminal Justice Act 2017.”.

Amendment No. 15 amends the Short Title of the Bail (Amendment) Bill 2016 in order that it will read the Criminal Justice Act 2017. This change is necessary as a consequence of including the new sections in the Bill to provide for the detention of intoxicated persons in Garda stations and technical amendments concerning the application of section 5 of the Criminal Justice Act 1984 to other Acts. The new sections will broaden the scope of the Bill beyond bail and, as such, it is no longer appropriate for it to be referred to as the Bail (Amendment) Bill.

Amendment No. 16 amends the Long Title for the same reasons. It references the Criminal Justice Act 1984, the Criminal Justice (Public Order) Act 1994, the Criminal Justice (Drug Trafficking) Act 1996, the Criminal Justice Act 2007 and the Criminal Justice Act 2011.

Amendment agreed to.
Section 7, as amended, agreed to.

I move and amendment No. 16:

In page 3, to delete lines 5 and 6 and substitute the following:

“An Act to amend certain enactments, including the Criminal Justice Act 1984, the Criminal Justice (Public Order) Act 1994, the Criminal Justice (Drug Trafficking) Act 1996, the Bail Act 1997, the Criminal Justice Act 2007 and the Criminal Justice Act 2011 and to provide for related matters.”.

Amendment agreed to.
Title, as amended, agreed to.
Bill reported with amendments.

I thank the Minister of State and his officials for attending. We have completed both Bills, as required.

I thank the Chairman and members for their discussion of and constructive approach to the Bill, in spite of the fact that one of the amendments with which I did not agree went through, but that is fine. Perhaps we might discuss it again at a later stage. The discussion of the amendments was very productive, positive and interesting.

The passage of the amendment puts the onus and responsibility on the Minister of State's shoulders to establish the change and its durability. Deputy Clare Daly looks exceedingly pleased.