Ireland has a constitutional presumption in favour of bail because, in the eyes of the law, a person is innocent until proven guilty. So judges who grant bail must give reasons for the decision. And they do.
So why is the Government proposing a law to state that judges must do what they’re already doing? For symbolic and political effect, partly. But it could well serve a useful purpose by helping us understand an opaque part of the legal system.
When someone commits a crime while on bail, it causes understandable concern in the community, and politicians often feel the heat.
Saying to judges they must put their reasons for granting bail in writing, as well as giving expression in law to what the Constitution already requires, formalises a process currently played out in rapid- fire bail hearings. It also makes the judiciary more accountable for its decisions.
Moreover, it plays well in the run-up to an election, particularly with the type of
voter who has a weakness for phrases such as “tough crackdown on crime” – a formulation used several times in the press release issued yesterday by the Department of Justice.
Unusually, the release also includes quotes from Taoiseach Enda Kenny, a sure sign the largest Government party sees it as an electoral winner.
The Irish Penal Reform Trust has long called for judges to give clear, comprehensive reasons for every decision to imprison. The Government has adapted the idea, but the effect could be the same: more transparency and, in time, data that reveals trends and patterns in an area where policymakers and the public currently rely largely on anecdotes and media accounts of high-profile cases.
The scheme of the bail Bill contains other changes. For example, it gives gardaí the power of arrest without a breach-of-bail warrant where officers believe it’s necessary to prevent absconding, harm or witness intimidation. The draft also gives the courts the power to ban an accused person from driving where he has been charged with a serious road-traffic offence.
The Bill will place extra requirements on the courts in considering bail applications. Among other things, they will have to take into account persistent serious offending by a bail applicant.
Finally, the draft takes another step towards bringing the victim into the heart of the process. If the Bill is enacted, the courts in some cases will hear evidence from the victim of an offence before a decision on bail is taken.
Behind the rhetoric, the Government’s proposals raise deeper questions. If it wants to keep more people in jail, where in a chronically overcrowded prison network is it proposing to put them? And how does this square with the shift to a mindset – designed for rehabilitation, not retribution – that sees jailing people as a last resort?