BAIL LAWS

Background

• Bail is when an accused person is released from custody because of a bond or promise made either by the accused or by another person (often referred to as a "surety") to guarantee that they will appear in court for their trial.

• Note that Bail is based on the principle that the accused is presumed innocent until proved guilty. Any changes in the Bail laws as they currently stand should be considered in the light of this well established legal principle.

• If the accused is granted bail in the District Court they (or their surety) must pay into court at least one-third of the amount of money promised in the bail bond. This money will be returned to them if they appear in court as promised.

• Note the Director of Public Prosecutions can appeal the decision to grant the accused bail or the conditions of their bail to the High Court. Unfortunately this does not happen often enough.

Bail in Practice
The District Court cannot grant bail where an accused is charged with the following:

• Murder
• Attempted Murder
• Conspiracy to Murder
• Treason
• War Crimes
• Piracy
• Genocide
• Certain offences under the Offences Against The State Act, 1939 & The Official Secrets Act, 1963

The first three are clearly of particular concern.

Note however that anyone charged with any of the above offences can still apply to the High Court for a Bail order.

How the Courts decide

• The granting of bail will depend on a number of factors and the Court will consider any or all of these when making their decision:

• Was the accused “caught in the act”?
• The accused’s “character” and evidence of any previous criminal record.
• Whether they have family in the area, employment etc.
• Are they likely to abscond?
• If the offence is “serious” (i.e. one that may attract a five year sentence or more) is the accused likely to commit another serious offence while on Bail?
• The likely sentence if convicted
• Will the accused interfere with witnesses or jurors?
• Have they breached Bail before?
• Whether they will keep to certain Bail conditions that may be applied (handing in passport etc.)
• The strength of the evidence against them
• Whether the Gardai object to them being granted bail

Note that where an application for Bail is made by someone charged with a serious offence, a court may refuse the application. These grounds for refusal are set out in Section 2 of the Bail Act, 1997 and the courts may refuse the application where it is considered necessary to prevent the person committing of a serious offence while on Bail.
The Problems

• On the face of it many of the above considerations look reasonable and sensible – and many are.

• However a number of matters need to be thoroughly reviewed when it comes to unlawful killings.

• For example, what possible relevance has an accused’s “character” to this matter? Evidence of previous “good character” is irrelevant. The accused has been charged with an unlawful killing and this crime is so serious that they should never be granted Bail out of respect to the victim, the victim’s family and society.

• In the same way, what possible relevance has an accused’s “roots” in the community? From the perspective of the court, if they have roots then they are less likely to abscond.

• This is not the point. It is not just about the likelihood of their absconding. It is about justice been done and been seen to be done. An unlawful killing is too serious a matter to be somehow diluted by the fact that the accused might have a job, or a few children, or a house. This is irrelevant to Irish people and misses the point of a fair criminal justice system for all.

• Note, often an accused will live close to the family of the victim while they are on bail. As the accused may be on bail for months or even years, an impossible situation is then created for the family of the victim in the locality. Bail conditions are not rigorously monitored and so intimidation is rife.

Proposals

• We propose a root and branch review/debate on Bail laws and practices, particularly, though not exclusively, as they relate to those accused of unlawful killings.

• We propose a national conversation on same culminating in amending legislation which will ensure that Bail will no longer be granted where an unlawful killing has occurred.

• We further propose that a person convicted of or pleading guilty to any unlawful killing should not be released on bail while awaiting sentencing.

• We call for High Court judges’ discretion to be removed with regard to whether Bail is or is not awarded where an unlawful killing has occurred. Bail must never be granted in this instance.

• We further call for amending legislation to ensure that where Gardai object to Bail for all violent offences, that this should be the judge’s sole determining criteria in deciding whether Bail should be granted.

• Furthermore, those previously convicted of any serious offence(s) should not be able to apply for bail under any circumstances when they have been accused of a newer serious offence.

• When considering a bail application the court must be obliged to consider that the applicant may live in the area of the victim’s family. If this is the case AdVIC is calling for the court to refuse bail on the grounds of the potential fear and intimidation that will often result for relatives and friends of the victim.

• Under the law as it currently stands those who breach a bail bond or a condition of a bail warrant will have committed an offence under s.13 of the criminal Justice Act 1984 resulting in a maximum penalty of 12 months imprisonment and/or a €1,270 fine. We do not regard this as a significant deterrent and recommend that the word “maximum” is deleted and in its place is inserted the word “minimum.”

• We call for legislation to be enacted to reflect that a crime committed while an accused is on bail is automatically regarded as a “serious offence” regardless of the nature of the crime. This new offence must never then be considered as a crime that can be punished concurrently with the original crime, rather consecutively to it. Furthermore as the serious offence was committed on bail AdVIC calls for this to be reflected as a longer term when sentencing.

• We propose nothing more than fairness for offender, victims and their families alike. Appropriate legislative intervention with regard to Bail laws will achieve a recalibration of justice in Ireland for all those affected by unlawful killings and other violent offences and for Irish society as a whole.