Bail reform mooted

As is reported today in the Irish Times, the Minister for Justice Dermot Ahern is currently considering reform of the bail laws. Work is beginning on a new Bill and legal advice sought regarding the possible refusal of bail to an individual who may commit any offence while on bail, rather applying to the commission of serious offences as is currently the situation under the Bail Act 1997. Consideration is also being given to the proposal that courts should consider the need to protect the public and the safety of an individual when deciding whether bail should be refused.

While the entitlement to bail is not a constitutional right, it represents “a recognition by the Courts that a person presumed to be innocent shall not have his liberty interfered with unnecessarily pending his trial on a criminal charge” (In Re Criminal Law (Jurisdiction) Bill 1975 [1977] IR 129). The proposed amendments signify a further shift from liberal due process norms which centre on equality, liberty and the presumption of innocence, to a criminal justice model which places more focuses on a nebulous conception of the public and its needs. Indeed, it is arguable that the latter proposal is mere windowing dressing in a bid to be seen a cognisant of community “interests”/ “rights”, given that under the common law bail’s objective encompass “preventing the evasion of justice, either by the accused absconding; by the accused interfering with witnesses; or by the accused destroying, concealing or otherwise interfering with physical evidence” (People (DPP) v Ryan [1989] IR 399 ) which seems to include matters of individual/public safety.

The refusal of bail on the basis of possible future offending essentially allows the court to affect an individual’s liberty due to his character and past record, rather than on a legal finding of guilt. In a liberal democracy that purports to value due process norms and principles, only the evasion of justice itself, rather than the possibility of a further offence being committed, should merit the restriction of the presumption of innocence. This sees the integrity of the trial process as more important than public protection, an unpopular sentiment in political discourse.

In addition to rights-based concerns, empirical evidence suggests that the commission of offences while on bail is not determined by the legal regime in place, thus undermining the need for future legal amendment. Indeed, although the number of offences committed by persons on bail decreased in the years immediately following the Bail Referendum (which first allowed refusal on preventative grounds for serious offences), the implementing 1997 Act did not come into effect until 15 May 2000. Thus, it seems that the decrease was affected by matters independent of the law reform, paralleling the diminishing crime rate in general at that time.