Vol. 438 No. 3
7 Miss Harney asked the Minister for Justice if the Government has any plans to amend or modify this country's law in relation to the provision of bail in view of reports that the Garda authorities believe that a majority of the major crimes being committed in the Dublin area are the work of around ten offenders who are repeatedly being allowed bail by the courts.
8 Mr. Lowry asked the Minister for Justice the proposals, if any, she has to deal with the abuse of the free availability of bail.
12 Mr. Hogan asked the Minister for Justice the proposals, if any, she has to deal with abuse of the free availability of bail.
26 Ms F. Fitzgerald asked the Minister for Justice the proposals, if any, she has to deal with the abuse of the free availability of bail.
35 Mr. L. Burke asked the Minister for Justice the proposals, if any, she has to deal with the abuse of the free availability of bail.
45 Mr. Barrett asked the Minister for Justice the proposals, if any, she has to deal with the abuse of the free availability of bail.
48 Mrs. Doyle asked the Minister for Justice the proposals, if any, she has to deal with the abuse of the free availability of bail.
51 Mr. J. Mitchell asked the Minister for Justice the proposals, if any, she has to deal with the abuse of the free availability of bail.
64 Mr. Browne (Carlow-Kilkenny) asked the Minister for Justice the proposals, if any, she has to deal with the abuse of the free availability of bail.
77 Mr. Durkan asked the Minister for Justice the most recent proposals, if any, she has in regard to the bail laws; and if she will make a statement on the matter.
I propose to take Questions Nos. 7, 8, 12, 26, 35, 45, 48, 51, 64 and 77 together. It may be helpful, a Cheann Comhairle, if initially I were to set out briefly the present understanding of the law in relation to the grounds on which bail may be refused.
Following the decision of the Supreme Court in the O'Callaghan case in 1966 bail may be refused only if the court is satisfied (a) that there is a danger that the accused will not attend court for trial, or (b) that the accused will attempt to pervert the course of justice by interfering with witnesses or jurors or destroying or concealing evidence. The likelihood that an accused might commit further offences while on bail is not a ground for refusing it.
The House may be interested to know that in a case in 1988 the Supreme Court was invited to reconsider its decision in the O'Callaghan case, particularly in the context of a submission to the effect that a decision to refuse bail on the basis of a likelihood of further offences being committed by an accused while on bail should be regarded as constitutionally permissible. The Supreme Court rejected that submission and reiterated its findings in the earlier case.
I accept there is legitimate and widespread public concern about aspects of the present situation in relation to bail and, indeed, I have made it clear publicly that I share that concern. However, it would not be conducive to a resolution of these difficulties to make exaggerated claims about the effect of our present bail laws on levels of crime or to ignore the complex nature of the issues which arise. In particular, I would have to reject as wide of the mark the reported contention in one of the questions to the effect that the bulk of major crime in the Dublin area can be attributed to a small number of offenders who are on bail.
The reality is that the situation in relation to offences committed while on bail was greatly improved by the Criminal Justice Act, 1984, which provided that a sentence of imprisonment for an offence committed while on bail must be consecutive on any sentence passed for other offences. Largely because of this the number of offences for which persons on bail were charged fell from approximately 8,300 in 1983 to approximately 2,800 in 1992.
Nevertheless, it remains the case that serious offenders facing the likelihood of a long period of imprisonment on other charges are tempted — and sometimes do — to use their time on bail to commit further offences. The Government regards that as being far from satisfactory and is determined that it should be addresed effectively.
Complex problems of both principle and practice have to be addressed in devising an appropriate approach to this matter. While there are clear disadvantages with the operation of our present bail laws, I am sure most Deputies would accept that it would be equally unsatisfactory, in terms of principle, to bring about a situation where, irrespective of the seriousness of offences likely to be committed, a general presumption would exist against the granting of bail. This could result in the highly undesirable situation where a large number of unconvicted persons, many of whom might subsequently be found not guilty, would be incarcerated. In this context, it is worth mentioning that other European countries are endeavouring to reduce the number of unconvicted persons in custody on the grounds of basic human rights.
Apart from considerations of principle, there are sizeable practical difficulties associated with the idea of changing the bail laws. It has been estimated, for example, that if a very stringent bail regime were put in place it could necessitate the provision of upwards of 600 additional prison places at a capital cost of approximately £80 million and annual running costs of £20 million. Even if half that number of additional places were required, the cost would still be quite significant.
In making these points about the complex issues which arise I am not, of course, to be taken as suggesting that the Government has a difficulty in principle with the need for changes in our bail laws or that it would be unwilling to provide the necessary resources to deal with the genuine difficulties to which the present situation gives rise. Far from it, but in the Government's view, it is important in looking at the question of bail to secure a degree of clarity and agreement as to what is actually required.
In this context, and following a review of the situation which I initiated in my Department because of my concern about the operation of our bail laws, last week — with Government approval — I requested the Attorney General to secure the advice of the Law Reform Commission on the options that may be open in order to bring about a change in the law on bail. Given the difficult issues involved, I believe the commission is uniquely well placed to provide the type of in-depth analysis and considered proposals for changes which are required. I am sure all Deputies will join with me in wishing the commission well in carrying out this challenging task.
I now call Deputy Durkan who has a question tabled on the subject.
I give way to my colleague, Deputy Gay Mitchell.
It was Deputy Harney's question.
There is a large number of questions from various Members from different parties in the House. I will be calling Deputy O'Donnell next.
There are nine questions tabled from Fine Gael Deputies out of a total of ten. I thank Deputy Durkan for giving way to me.
Which is proportionality, of course.
May I ask the Minister why it has been deemed necessary to refer this matter to the Law Reform Commission? Is she aware that Fine Gael has published a Bill on the matter and does she find the contents of that Bill unacceptable? If so, what particular sections of the Bill does she find unacceptable and would she be prepared to offer amendments to that Bill? Will she agree that 28 years after the O'Callaghan case, the law should be amended to allow judges to take what they consider to be a decision in the public interest? Furthermore, does the Minister consider that words used in the editorial of a recent Garda magazine — to the effect that the bail laws are absurd, that many people are availing of the opportunity of bail to build up a next egg for when they come out of prison——
This question is overlong.
I was hoping you might allow me bail, a Cheann Comhairle. Does the Minister consider that an exaggeration or a fair statement of the position?
I accept there is concern in the public mind, among the Garda, and among all the people dealing with this whole area in relation to criminals out on bail committing other offences. After the O'Callaghan case another case was taken to the Supreme Court to test the decision in the O'Callaghan case and the Supreme Court reaffirmed its decision.
In relation to the Fine Gael Bill and its aspects with which we have difficulty — I do not think it would be appropriate for me to go into them here today as that should be done more appropriately at a time when the Deputy might propose his Bill be taken in Private Members' time, when I shall be delighted to go into them in detail — the Deputy asked why it should be referred to the Law Reform Commission. I did so because I thought I had dealt quite comprehensively with the fact that the whole area of bail is very complex. The Government is not afraid to take a decision in relation to introducing an amendment which would tighten up the laws in relation to granting bail if that constitutes the best way forward. It is important to know exactly what we want to achieve, so that we can put a straightforward question to the people if that is what the Law Reform Commission recommends. Of course it may recommend changes in our existing criminal law. If it does, I will have no difficulty in tabling amendments to legislation it considers should be amended. In the meantime, I think Deputy Gay Mitchell agrees, I stress that this is a complex area. The Law Reform Commission is uniquely placed to make a very comprehensive recommendation to me and the Government.
All Members of the House recognise the complexities of the matter in principle and in practice. Will the Minister agree that the practical matters would fall into place if we could overcome the principle? I am glad the Law Reform Commission will examine the matter. However, since there has been such widespread evidence of abuse of the bail laws — and because there has been a change in the make-up of the Supreme Court — would it be worth framing a Bill the constitutionality of which could be tested by the Supreme Court?
We should be very careful as to what Bill or legislative provision we introduce if it is in danger of being found unconstitutional by the Supreme Court. Because of the complexities in the overall area of the granting of bail, I thought it was a better route to take. If we need to table amendments to our criminal legislation, I am prepared to do that. If the Law Reform Commission recommends a constitutional amendment, I am prepared to introduce it but it is uniquely placed to advise on this matter.
(Carlow-Kilkenny): In view of the fact that elections will be held next June, without rushing the Law Reform Commission — would it be possible to get its reports, prepare a Bill and, if necessary, hold a referendum on the issue?
Initially my view was that, if I had not referred the matter to the Law Reform Commission, perhaps June might be an appropriate time to at least consider holding a referendum on this issue. The difficulty is the framing of the question to be put to the people having regard to all the complexities in relation to granting bail. I have asked the Law Reform Commission to consider the matter. I have not imposed a time limit but I have stressed the urgency of the matter. I do not know if the Law Reform Commission will have made its recommendation in advance of the June elections but there will be plenty of other opportunities for us to put such an amendment to the people.
Will the Minister agree, notwithstanding the right of presumption of innocence until proven guilty, that the courts should have the right — where they feel there are reasonable grounds — to detain somebody without bail? Will she agree that the public and the Garda feel that the pendulum has swung too far in one direction and favours the criminal almost constantly? Will she request the Law Reform Commission to report urgently.
To give that facility to the courts would require amendments to Acts or a referendum. I am aware of the concern among the general public and the Garda in relation to this whole area. If it was within my power to change the manner in which we grant bail, the way in which the courts or judges view bail, I would do whatever was necessary, but it may well not be within my legislative powers to do so.
As regards the pendulum swinging too much in one direction, Deputy Gay Mitchell is well aware from discussions in this House on various Bills — there were many opportunities for such discussion over the past year, at Question Time also — that I am very concerned about victims of crime. I have taken a number of positive actions in the past 12 months to help swing the pendulum in favour of the victims, not least of which was the substantial increase to the Irish Association for Victim Support and the good work they do for victims.
With regard to requesting the Law Reform Commisison to hurry its report, I have no difficulty in stressing the urgency of this problem. Certainly it would suit me if its report and recommendation were issued quickly.
Has the Minister scrutinised the figures in relation to the number of incidents of a criminal nature committed by persons on bail and the number of repetitions of such incidents? Notwithstanding the right to presume innocence until proven guilty, given the information available from the Garda, will she agree there is a perception that they will be incapable of dealing with serious crime unless there is an immediate change in the bail laws?
I reject the Deputy's suggestion that the Garda will be incapable of dealing with serious crime unless there is a change in the bail laws. I have confidence in members of the Garda Síochána being able to deal with crime. I gave a figure which responds in some part to Deputy Durkan's supplementary in my original reply, which was that, as a result of the change in the Criminal Justice Act, 1984, the number of offences for which persons on bail were charged fell from approximately 8,300 in 1983 to approximately 2,800 in 1992. I do not have the figure in respect of repetitions the Deputy sought. I will communicate with him in relation to that later.
Will the Minister acknowledge that because of the length of time it has taken for the law in this area to be changed — in excess of 20 years — she should have moved her own Bill? Why did she decide to fall back on the Law Reform Commission? This is an area in which she should be brave. Is she afraid that legislation emanating from her Department will not withstand scrutiny?
I do not think Deputy Carey is serious when he accuses me of not being brave, my decisions over the past 12 months show a certain amount of bravery. I am not afraid to introduce a Bill on the basis that it might be found unconstitutional by the Supreme Court. We have to be conscious of that fact and it would be grossly irresponsible of me, as Minister for Justice, to bring forward legislation if I had a serious doubt as to its constitutionality. That would be a gross mishandling of my portfolio and a waste of Members' time. That is the reason I asked the Attorney General to request the Law Reform Commission to examine this complex area. It is important that the recommendations are fully thought out and are constitutional.
