Bail reform will affect only marginal cases

WITH the publication by the Government of the draft legislation on bail, parameters of the legal regime which will shortly be…

WITH the publication by the Government of the draft legislation on bail, parameters of the legal regime which will shortly be in force (assuming the November referendum is duly passed) are becoming clearer.

In essence, the courts will now be given powers to refuse bail in respect of persons charged with "serious offences" where it is "reasonably considered necessary, to prevent the commission of a serious offence by that person."

To this end the courts will be expressly empowered to have regard to matters such as the nature and seriousness of the offence; previous convictions while on bail; other previous convictions; other pending offences; the "nature and strength of the evidence in support of the charge"; and whether the accused has a substance addiction.

Other provisions provide that, inter alia, the press may not report evidence of an accused person's past criminal record where this has been given in the course of a bail application and, most importantly, also gives the courts express powers to review the refusal of bail if the accused is in custody for more than four months after the initial refusal of bail.

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Finally, a key sub section states: "In considering whether refusal of bail is reasonably necessary to prevent the commission of a specific offence it shall not be necessary that the commission of a specific offence is apprehended."

IN a previous article for this newspaper I expressed the view that the real difficulty with the present bail laws was that on perhaps too many occasions the rules laid down by the Supreme Court in the celebrated O'Callaghan case (1966) were not being properly applied.

I also expressed the view that the proposed constitutional amendment would make no great difference to the present law, save perhaps in marginal cases, and nothing in the new draft legislation has caused me to alter my views.

To deal, therefore, with the first argument that the change is unnecessary and that the present difficulties stem from the misapplication of the Supreme Court's decision.

It suffices to note that of the seven criteria actually specified by the new draft law which the courts will be required to take into account, all but one of them - whether the accused has a substance abuse were already incorporated into the O'Callaghan rules.

These expressly permitted the courts (albeit in a slightly different context) to have regard to factors such as the gravity of the charge, the strength of the evidence, past criminal record and the consequent likelihood of a lengthy sentence.

And to illustrate the "misapplication" argument, one need look no further than one notable recent case in which the High Court granted bail to an accused person who had a previous serious criminal record and who had also escaped from lawful custody.

Even though there was an apparent discordance between the O'Callaghan rules and its application to the facts of this particular case, it does not appear that this decision of the High Court to grant bail in this case was ever appealed to the Supreme Court.

It is true, of course, that this may be regarded as the isolated exception which proves the rule, but nonetheless this case, taken together with some other contemporary instances, tends to demonstrate the unduly liberal application of the O'Callaghan principles in some of the recent case law.

IT is no wonder that some of these decisions have given rise to public unease. It might be however, that the better remedy lay in appealing these decisions (and thus ensuring the proper application of the O'Callaghan rules) than seeking to undermine one of the cornerstones of the guarantee of personal liberty, as provided for by the Constitution, by a constitutional amendment deliberately calculated and presented in order to appeal to a craven populist sentiment.

The unsatisfactory nature of the proposed legislation is further illustrated by two other features. The draft section 3 (2) expressly precludes the press from reporting the fact that an accused has a past criminal record if this evidence is given in the course of the bail application.

While this provision may be regarded as a benevolent attempt to protect an accused from possible future prejudice, it will almost certainly lead to peculiar results, especially if the general public is thereby in effect to be denied crucial knowledge as to why bail was refused in a particular case.

Suppose, for example, that in an extradition case the accused is wanted to serve out a sentence for murder in a foreign jurisdiction. It not be remarkable if, on a application brought by the be the press were no longer to be free to report the key facts of this namely, that the accused has been previously convicted of murder and that he is now wanted in the requesting state to serve out his sentence?

The second unsatisfactory feature is that the prosecution is to be excused - conveniently enough, it might be thought - from the tedious need to indicate which specific offence the accused might commit in the future if bail were otherwise denied to him.

This in practice will tend to mean one of two things - either the courts will be forced to rely on vague generalisations and hearsay assertions of Garda witnesses, or the section, and the supporting constitutional amendment, will prove to be unworkable in practice.

It is salutary to reflect that (with the possible exception of the special position of abortion) this is the first amendment presented to the people which would significantly curb a personal constitutional right upheld by the Supreme Court.

Earlier this summer the Constitution Review Group (of which this writer was a member) presented the Government with proposals which, if implemented, would ensure that Ireland had a "state of the art" Constitution which further strengthened individual constitutional rights while incorporating, safeguards to protect the community.

It is accordingly disappointing to see that the Government proposes by its amendment to restrict such rights, especially when such gains as there are likely to be will be more illusory than real and will, in any event, only affect a marginal number of cases. There is another, and far less intrusive, alternative on offer.