IPRT - Irish Penal Reform Trust

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Bail (Amendment) Bill 2016

8th December 2016

Tánaiste Frances Fitzgerald brought the Bail (Amendment) Bill 2016 to cabinet on 6th December 2016.

An article in The Irish Times by Fiach Kelly “Courts to be allowed refuse bail on greater number of grounds under proposed Bill” reports that under the Bill, courts will be able to refuse bail on a greater number of grounds, and will be able to attach greater conditions to those released on bail.

According to the Irish Times report, a court will be able to hear evidence of the victim on the likelihood of the accused interfering with the victim or a family member, and it will be easier for courts to attach electronic monitoring devices to those released on bail. According to the Department of Justice, cited in the article, “This Bill will amend that provision by making it subject to an application by the prosecution, so making it manageable and controllable”. Courts will also be required to give reasons when bail is refused in order to “promote openness and transparency in bail decisions and assisting in a better understanding of the bail process”, according to the article.

IPRT welcomes increased openness and transparency around bail decisions. However, IPRT cautions against possible over-use of bail conditions, particularly if they not relevant to the circumstances or risk of offending by the accused. Research conducted on Pre-Trial Detention in Ireland by IPRT, published in April 2016, found “both an over-use of conditions and inadequate monitoring of compliance with bail conditions”, including that:

People charged with offences at the lower end of the offending scale were routinely granted bail subject to multiple onerous conditions. Granting bail with multiple onerous conditions will in some cases have significant implications and in some cases will constitute an interference with liberty. Since people subject to pre-trial bail conditions have not yet been convicted of the offence with which they are charged, such infringements on their personal liberty can only be justified if necessary, proportionate and lawful.

Therefore, IPRT strongly recommends that the Bail (Amendment) Bill 2016 includes provision of bail services and supports aimed at - the prevention of offending on bail, ensuring appearance at court, and reducing remands to custody to the essential minimum.

As regards electronic monitoring, in the IPRT Preliminary Submission on General Scheme of the Bail Bill August 2015, IPRT recommends that any proposed scheme for pre-trial electronic tagging be reviewed for compliance with Council of Europe Recommendation CM/Rec (2014) 4 before being introduced into legislation. IPRT is also concerned that while electronic monitoring can be an alternative to remand, it shouldn’t be used to ‘widen the net’: electronic monitoring should be a genuine alternative to pre-trial detention, and it should not become a widely imposed condition of bail.

Moreover, electronic monitoring doesn't replace supports in the community – such as intensive case management, supervised bail support schemes, and mentoring. The most effective way to improve compliance with bail conditions, particularly where the accused person has a chaotic life and complex personal challenges, lies in the provision of bail supports and services that allow the accused to remain within their community and address offending-related behaviour in a familiar environment.

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