The Fianna Fáil Bill to reform our bail laws is a timid effort. It does not in any way provide for the major strengthening of the law, a move that is absolutely necessary. It merely seeks to put on a statutory basis the conditions which a court may attach to the granting of bail and to provide a procedure whereby bail money would be forfeited in the event of any of the conditions being breached. To a large extent therefore the Bill only provides statutorily for what is already happening in our courts where judges have for many years used their common law powers to attach conditions to the granting of bail.
A much together approach to criminals is necessary. It must be noted and recorded that our system of granting bail is one of the most liberal in the world. It is clear that for years organised gangsters and notorious recidivists have had little difficulty in getting bail and, in turn, abusing it. For the most serious of offences, such as rape and bank robbery, there is a little ground in our law for objecting to bail even if prosecutors know that an accused is likely to reoffend. The notorious Leixlip case some years ago which involved a running gun battle with the Garda Síochána by criminals on bail was a case in point.
For almost 30 years we have had to stomach the effects of the 1966 O'Callaghan decision in the Supreme Court. It should be remembered that there was another decision in the High Court where Judge Murnaghan had decided in the O'Callaghan case that there were 11 different grounds which could and should be taken into account by the court in deciding on bail. These included the seriousness of the charge, the nature of the evidence in support of the charge, the likely sentence, the likelihood of the commission of further offences by the accused, the possibility of the disposal while on bail of illegally acquired property, the possibility of interferences with witnesses and jurors, the prisoner's failure to answer to bail on a previous occasion and the fact that the prisoner was caught red-handed. It is worth remembering that the accused in the O'Callaghan case had committed the offence while on bail. Despite this, on appeal the Supreme Court reversed the decision of Judge Murnaghan and decided that it was unconstitutional to refuse bail except on the basis of a danger that the accused would not attend court for trial or that he would interfere with witnesses. All other grounds of refusal were found to be unconstitutional.
For many years I have advocated a constitutional amendment to restore full discretion to the courts so that the various grounds of refusal laid down by Judge Murnaghan could once again be available to judges.
The statutory approach has already been tried. When Fine Gael was last in power it introduced the Criminal Justice Act, 1984 which provided for mandatory consecutive sentences for offences committed while on bail. For some time it seemed to have a major effect. The number of persons charged with criminal offences while on bail fell dramatically for a number of years from about 8,000 prior to 1984 to 2,500.
Two problems however emerged. An analysis of those charged clearly showed that the provision for consecutive sentences in the 1984 Act had a deterrent effect on those involved in petty crime. However, it had little or no impact on those involved in organised and serious crime. It would appear that organised criminals who know they are going to jail on one serious offence have no compunction about committing other crimes because they are aware they will only serve a certain period in our overcrowded prisons.
The second major problem is that the number of offences committed by those on bail has again increased dramatically. I mentioned that the figure fell from approximately 8,000 to 2,500 per year but last year it jumped dramatically to 4,500. It is clear that a radical approach is now necessary and this approach must give top priority to the victims of crime.
I am not in favour of a return to the gruesome punishments of the past which involved people being hanged, drawn and quartered, transported or physically abused. Neither am I in favour of the sharia laws of the Islamic fundamentalists which involve beheadings, amputations and other physical assaults. To some extent the restoration of the chain gangs in Alabama is part of this dehumanising approach to criminals but I am in favour of protecting the innocent victims of crime to the greatest extent possible.
There are those who will argue that it is totally wrong to detain an unconvicted person in custody. That is poppycock and nonsense. Everybody will accept, including the Supreme Court, that it is proper to detain an unconvicted person in custody if there is a danger that that person will not attend for his own trial. From every point of view it is even more proper and should be constitutional to give the courts discretion to detain in custody somebody who on past record is likely, before trial, to commit further offences. It is proper at the discretion of the court to detain in custody pending trial somebody who has been caught red-handed. It is proper, in the interests of society as a whole, that somebody in that situation who may have been involved in some heinous crime of murder, rape or bank robbery and against whom the evidence is overwhelming should be deprived of his liberty pending trial rather than giving him the opportunity of killing, raping or robbing some other innocent victim. If we look at the issue in that light we should consider whether the real crime is to release such offenders back into society on bail where they can commit further such offences with impunity.
Overall my view on the Fianna Fáil Bill is clear. It is a well meaning but half-hearted effort which will bring no solace to any victim or any improvement of consequence in the current situation. What is needed is a constitutional amendment to restore full discretion to the courts. I have made this demand for years and now repeat it. I am asking the Minister to urge the Law Reform Commission to give this issue top priority and produce its report with the minimum of delay. I am aware of the value of its reports. It traces the background to an issue and examines the position in other countries. I have no doubt that its report will be of great assistance to those of us who are concerned with the matter in question.
It seems that we may have a constitutional amendment on divorce next November. Our objective should be to ensure that we have an amendment on bail on the same date. It is only by restoring full discretion to the courts by way of such constitutional amendment that we can begin to resolve the problem.