Dáil Éireann Debate, Tuesday - 8 February 2022
556. Deputy Jim O'Callaghan asked the Minister for Justice if she will consider amending the bail laws in order that there will be a presumption against the grant of bail for a person accused of violent assault who already has convictions for violent assault in order to strengthen the protection of women from violent assaults; and if she will make a statement on the matter. [5914/22]
View answerAs the Deputy is aware, the decision to grant bail in a particular case is a matter for the presiding Judge, who is independent in the exercise of his or her judicial functions.
There is also a constitutional presumption in favour of the granting of bail as, under Irish Law, a person is presumed innocent until proven guilty. The presumption that a person is innocent until proven guilty has traditionally been considered by the courts to prohibit pre-trial detention except where it appeared that the accused person, if released on bail, was likely to evade justice by absconding or interfering with witnesses or evidence.
In the light of concerns at the increase in the incidence of offences committed while on bail, a referendum took place in 1996 on a proposed amendment to the Constitution to allow the courts to refuse bail where there are grounds for believing that the accused will commit serious offences while on bail. The referendum was passed and section 2 of the Bail Act 1997 gave effect to this constitutional amendment which permits the courts to refuse bail to a person charged with a serious offence where refusal of bail is reasonably considered necessary to prevent the commission of a serious offence by that person.
The Criminal Justice (Burglary of Dwellings) Act 2015 and the Criminal Justice Act 2017 amended the Bail Act 1997 to make further provision in respect of the criteria to be considered in refusing bail.
The 2017 Act strengthened the operation of the bail system with the aim of making the law as effective as possible in protecting the public against crimes committed by persons on bail. Under the Act, the Court is required to have regard to persistent serious offending by an applicant for bail and the nature and seriousness of any danger presented by the granting of bail to a person charged with an offence that carries a penalty of 10 years’ imprisonment or more. It is also open to judges to refuse bail for a serious offence where that is reasonably considered necessary to prevent the commission of a serious offence.
Where an accused person is granted bail, the 2017 Act provides for stricter bail terms for repeat serious offenders, including the use of curfews and strengthens Garda powers to deal with breaches of bail. If an individual fails to comply with any of the bail conditions, the judge will issue a bench warrant. This gives An Garda Síochána power to arrest and bring the person before the court to answer all charges relating to the bail. In the event of a breach of High Court bail, an application is made to the High Court for a warrant and once arrested the defendant must be brought before the High Court as soon as practicable for a revocation hearing. A breach of bail may also result in an additional charge. The judge may also make an order and/or surety for ‘forfeiture and estreatment’ of the bail money.
Separately, I am working to strengthen the legislation in place to combat violence against women and before Easter, I will publish a Bill which will include new criminal offences for stalking and for non-fatal strangulation. While the act of stalking itself is already covered by existing law, I will propose changes to make the law clearer and stronger:
- Explicitly reference stalking as a criminal offence
- Make it clear that stalking includes watching or following a victim, even where they are not aware of being watched or followed.
- Make it clear that impersonating the victim, and then communicating with a third party, is illegal
- Update the law to ensure that it covers all forms of modern communications
Furthermore, while non-fatal strangulation is already an offence prosecutable under the Non-Fatal Offences Against the Person Act 1997, I believe that creating a new offence should encourage victims to come forward and report what has happened to them. It has been shown that this crime can be an indication of future, lethal violence and is a risk factor for homicides against women in the home.
In the summer, I will publish a new Hate Crime Bill which will introduce new, specific aggravated offences with enhanced penalties for crimes motivated by prejudice against certain characteristics, including gender. This will mean that certain types of crimes can be prosecuted as hate crimes where they are motivated by misogyny.
For other crimes, where there isn’t a dedicated hate-aggravated offence, the new legislation will require the court to take misogyny into account where there is evidence that this was the motivation, to reflect that fact in the sentence, and to reflect the fact that the crime was aggravated by this form of prejudice in the formal record.
Before the end of September, I will publish a new Sexual Offences Bill, which will introduce important changes including:
- Extending victim anonymity to further categories of victims
- Repealing provisions for sentences to be delivered in public
- Legal representation for victims
I will also seek to enact the Sex Offenders Bill within months which will strengthen the management and monitoring of sex offenders in the community.
Finally, I will shortly sign an order to bring into operation the Criminal Procedure Act 2021. This Act provides for the use of preliminary trial hearings which will significantly improve the trial process for victims of sexual offences, including by reducing delay and disruption that might re-traumatise victims.
