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CHECK AGAINST DELIVERY

Minister Flanagan’s Statement on Bail (Amendment) Bill 2017

Dáil Éireann

27 June 2018


A Cheann Comhairle,

I thank Deputy O’Callaghan for his work on this Bill.

I agree with much of what the Deputy has said. The number of offences committed by persons on bail is deeply disturbing. A crime committed by someone on bail is particularly troubling as there is an inevitable sense that it could have, or even should have, been prevented. I can assure the Deputy, and this House, that the Government is committed to tackling this issue.

When we talk about bail we must of course, remember that an accused person enjoys a presumption of innocence in relation to the charge on which he or she is applying for bail. This has been frequently emphasised by the Supreme Court and the European Court of Human Rights. The fact that the accused has previous convictions may be a factor which the court can take into account but the accused cannot be doubly punished for those convictions.

I know that the Deputy is aware of the constitutional limits to refusal of bail and I have no doubt that he will have crafted his proposals with this in mind. I am advised, however, that the proposals in this Bill are inconsistent with the Constitution and the European Convention on Human Rights.

The decision whether or not to grant bail, is a judicial rather than an executive power. In introducing this Bill last December, Deputy O’Callaghan rightly asserted that his proposals do not remove consideration of the issue of bail from the court. However, the provisions in section 2(a) oblige the court to refuse bail if it “is satisfied that such refusal is reasonably considered necessary to prevent the commission of a serious offence by that person”. This precludes the court from considering other factors which have traditionally been deemed to be relevant in bail applications such as the length of time to trial or the personal circumstances of the accused, including serious illness or disability.

The Supreme Court has previously stated that precluding the court from considering such factors would not be consistent with the right to personal liberty acknowledged in Article 40 of the Constitution or with Articles 5 and 6(1) of the ECHR.

Section 2(b) contains a similar provision targeted specifically at persons accused of burglary of a dwelling. As section 2(a) covers all offences, including burglary, I am not sure that this subsection provides anything additional. In any event, the same constitutional issues arise in respect of this subsection as arise in respect of subsection 2(a). I do not believe that it is constitutionally sound.

Section 2(c) of the Bill lowers the threshold for what may be considered evidence that the person is likely to commit another burglary of a dwelling. The threshold is reduced from three prior convictions or pending charges, to just one prior conviction for a burglary of a dwelling.

There is strong likelihood that this lower threshold would not meet the constitutional or ECHR requirement for proportionality. ECHR case law is clear that the risk of re-offending can only justify pre-trial detention if there is actual evidence of definite risk of reoffending available and the mere fact of having committed an offence is not sufficient reason for ordering pre-trial detention. It is difficult to see how a provision requiring the court to accept a single prior offence as evidence of future offending could be acceptable in light of ECHR case law.
Section 3 of the Bill would require a court to impose electronic monitoring on any accused person admitted to bail in respect of a charge of burglary of a dwelling who also has one prior conviction for a burglary of a dwelling. I also have concerns as to the constitutionality of this provision.

In balancing the accused’s right to liberty with the rights of the public, the court is obliged to impose conditions that impinge on the accused person’s rights as little as possible in order to achieve the desired aim. If the imposition of electronic monitoring is mandatory, then the court would be precluded from considering alternatives that may achieve the desired outcome in a less restrictive manner. It is likely that this provision would breach the test of proportionality in individual cases.

I have other concerns in relation to the electronic monitoring proposals. It is the Government’s view that electronic monitoring has a valuable role to play in monitoring bail conditions but it must be targeted at those cases where it is most likely to be effective. The mandatory use of electronic monitoring, as proposed by section 3 of this Bill, would reverse the approach taken in the Criminal Justice Act last year. It is also in breach of Council of Europe Guidelines on the use of electronic monitoring.

The provision also contains a number of technical flaws. It fails to provide for any of the safeguards and consequential provisions necessary to operate an electronic monitoring scheme. No provision is made for an authorised person to monitor the person’s movements, no provision is made for an application to vary or revoke an order, there is no requirement for the person’s consent and no restriction on applying the provision to children. I do, however, acknowledge that these technical issues could readily be addressed by way of amendment.

I do not intend to minimise the issue of offences committed on bail but I do need to state that we already have a robust system of bail laws. Last year the Government further strengthened that system with the introduction of the Criminal Justice Act 2017. This is an important piece of legislation, which strengthens the powers of the Courts and of the Gardaí in dealing with persistent serious offenders and persons on bail who pose an ongoing threat to the public. The Act places a greater emphasis on the rights and the safety of victims, and of the public, in bail decisions, while continuing to safeguard the rights of the accused. It provides increased guidance for the courts and greater transparency in the bail process.

The Act also provides that electronic monitoring may be imposed as a bail condition if the prosecution applies to the court for such a condition. Extensive preparations are underway to ensure these provisions can be implemented and more importantly, to ensure they can be effective. The report of an inter-agency Working Group, established to examine the issues, has been submitted to the Management Board of my Department and is under consideration.

The Criminal Justice Act 2017 was enacted just one year ago this week and is in force for only 10 months. The impact of the new provisions is not yet reflected in annual crime statistics. It is too early to assess whether or not these changes are having the desired effect. I am very open to revisiting the bail laws if the changes introduced last year are shown to be insufficient but I don’t wish to engage in change for the sake of the change. It is important to await the evidence and take the time to evaluate the effect of the Criminal Justice Act 2017 before we introduce further changes to the law.

I do not intend to give the impression that we should do nothing to address the issue of offending on bail while we evaluate the recent legislative changes. On the contrary, there are many other ways in which the Government is targeting offending behavior, which in turn impacts on offences committed on bail. I want to highlight the area of burglaries, as this type of offending has a high recidivism rate and is a key concern for members of the public.

Operation Thor is a concrete example of how the Government’s investment in Garda resources, including an overtime allocation of almost €100 million announced in Budget 2018, has impacted on crime. There were 43% less burglaries of homes reported in March 2018 compared to October 2017, following the implementation of the Winter Phase of Operation Thor, which involved the undertaking of targeted enforcement and preventative activity, designed to prevent potential burglars from exploiting the reduced hours of daylight. A significant drop in burglary offences committed by persons on bail has also been reported since the launch of Operation Thor.

In addition, the Court of Appeal has recently published sentencing guidelines for burglary at the request of the DPP who appealed several sentences arguing undue leniency. The lower Courts now have a clear set of principles to follow when sentencing for burglary offences. While I acknowledge the independence of the Courts, I believe this is an important development and will, over time impact on the number of such offences committed by persons on bail.

To conclude, the Government’s difficulties with this Bill relate primarily to its constitutionality. I believe the main provisions of the Bill are inconsistent with the Constitution and the ECHR. As the constitutional difficulties relate to the essential aim of the provisions – obliging the court to refuse bail under certain conditions – it would not appear that any amendment could make the provisions constitutional without undermining that aim.

The constitutional risks are particularly problematic because the Bill replaces the existing section 2 of the Bail Act 1997 with the new provision. Consequently, if the provisions were enacted and subsequently struck down by the courts as unconstitutional, the courts would have no power to refuse bail to prevent the commission of a serious offence. This would pose a significant risk to the State’s bail laws.

For these reasons, I intend to oppose the Bill.