Ignoring the Presumption of Innocence: A Critical Analysis of Bail Law in Ireland

• Author: Niall J. O' Connor
• Position: BCL (Clinical) IV Candidate. I am grateful to the people at KOD Lyons for teaching me about this subject. I would also like to thank Alice Harrison BL and the reviewers for their valuable insight and advice
• Pages: 65-83

(2018) 17 COLR 65

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IGNORING THE PRESUMPTION OF INNOCENCE: A CRITICAL ANALYSIS OF

BAIL LAW IN IRELAND

Niall J O’Connor*

A INTRODUCTION

In modern times, the policy of being ‘tough on crime’ by imposing harsher sentences has been

an effective way to garner votes in a democratic society despite the absence of evidence to

suggest that such a policy has a positive impact on the level of crime.

1

An issue that has gained

much publicity in this area recently is the level of offences committed by individuals released

on bail, particularly since the 1996 referendum which allowed an accused to be imprisoned on

the basis of crimes he or she is yet to commit.

2

More than 250,000 crimes were committed by

individuals remanded on bail in the last ten years

3

and over the last five years the rates of

crimes being committed by individuals on bail has grown steadily, from 9% in 2011 to 13% in

2016.

4

These types of statistics have prompted the current Government, led by the former

Tánaiste Frances Fitzgerald to bring in new laws to strengthen the bail system.

5

The level of

crime being committed by individuals on bail signifies that a change is needed in the area.

Bail refers to the release of an accused person after they are charged, but before any possible

conviction, on the grounds that he or she will surrender to custody or court at appointed times.

6

The issue of bail and remand, although not having a direct bearing on the guilt or innocence of

an accused, is a crucial aspect of our criminal justice system. It is clear that the threat to a

person’s liberty is an important issue. In addition to this, the penal system almost always has a

* BCL (Clinical) IV Candidate. I am grateful to the people at KOD Lyons for teaching m e about this subject. I

would also like to thank Alice Harrison BL and the reviewers for their valuable insight and advice.

1

Tim Newburn, Criminology (3rd edn, Routledge 2017) 115.

2

Paul O’Mahony, ‘The Constitution and Criminal Justice’ in Paul O’Mahony (ed) Criminal Justice in Ireland

(Institute of Public Administration 2002) 86.

3

Darragh Peter Murphy, ‘People out on Bail Committed over 250,000 Crimes in the past 10 Years’ (The Journal,

14 July 2016) Jul2016/> accessed 4 March 2018.

4

Seán MacCárthaigh, ‘One In Eight Crimes Last Year Carried Out By People On Bail’ (Irish Examiner, 24 April

2017) in-eight-crimes-last-year-carried-out-by-people-on-bail-

448549.html> accessed 4 March 2018.

5

‘Minister says Electronic Tagging Will Strengthen Bail System’ (RTÉ, 6 December 2016)

> accessed 4 March 2018 .

6

Liz Campbell, Catherine O’Sullivan and Shane Kilcommins, Crimina l Law in Ireland (Clarus Press 2010)

[14-01].

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detrimental effect on individuals who are committed to it and the difficulties the penal system

creates for a defendant preparing his or her case.

7

A further issue in relation to making

decisions in bail cases is the balancing of the rights of the accused with those of the community

in general and the efficiency of the criminal justice system.

8

In light of the movement in recent times in this area, this article will set out the law in relation

to bail in Ireland, the effect of pre-trial detention and whether it is useful in reducing crime

overall and what options the courts and legislature have in terms of improving the current

situation. This article contends that the period between being charged with a crime and going

to trial is a crucial period in the accused’s life which could be used in a more positive way than

is the case currently. It is the contention of this author that too many individuals are being

remanded in custody because of overly stringent legislation, which enables the courts to

embark on an unnecessarily strict approach. The accused would also benefit more, from a

rehabilitative point of view, from being in the community and therefore, society as a whole is

less likely to be plagued by a cycle of re-offending by the accused in the future.

B EFFECTIVENESS OF PRE-TRIAL DETENTION

This section will consider available statistics on bail and remand in Ireland and England and

will examine some of the effects that incarceration has on remand prisoners and on society.

Bail is seen as an effective preventative measure because when a person is in custody they

cannot harm the population and they will not evade justice. However, much of the academic

commentary on criminology refutes the idea that prisons contribute to harm reduction.

9

The

continued widespread use of pre-trial detention is rationalised by Pettit by reference to

MacDonagh’s idea of the ‘scandal machine’.

10

This ‘machine’, which MacDonagh attributes

to systemic pressures rather than a specific ideology, consists of three parts. The first is

discovery of a scandal, the second is the public outrage in response to the scandal and the third

is a requirement on politicians to react to the scandal.

11

This certainly seems to apply to the

7

State (DPP) v Ryan [1989] IR 399 (SC) 407.

8

Campbell (n 6) [14-02].

9

Philip Pettit, ‘Prisons, Politicians and Democracy’ in O’Mahony (n 2) 232.

10

ibid 233.

11

ibid.