Check against delivery
(Changed from the Bail (Amendment) Bill 2016)
Frances Fitzgerald TD
Tánaiste and Minister for Justice and Equality
30 May 2017
A Cathaoirleach / Leas Cathaoirleach,
I move that the Bill be read a second time.
I am very pleased to present this Bill to the House.
The purpose of this Bill is to strengthen our bail system to make the law as effective as possible in protecting the public against crimes committed by persons on bail while also safeguarding the rights of the individual.
The Programme for Government commits to the preparation and fast-tracking of legislation aimed at:
· providing for stricter bail terms for repeat serious offenders;
· strengthening Garda powers to deal with breaches of bail;
· increasing the use of curfews; and
· introducing electronic tagging for those on bail where requested by Gardaí.
There are important objectives which I believe should command support in this House, which will increase protection for the public and victims of crime, but which can be achieved while also respecting the rights of those facing criminal charges.
The scope of the Bill was expanded during its passage through Dáil Éireann to allow a number of other important amendments to be made in the Bill. This necessitated a change in the title of the Bill from the Bail (Amendment) Bill to the Criminal Justice Bill, but it remains for the most part a Bail Bill and I would like to focus initially on those aspects of the Bill.
The presumption of innocence is a fundamental principle of our criminal justice system. Flowing from that principle, every accused person has the right to liberty until and unless he or she is convicted of an offence. This right is guaranteed by our Constitution and by the European Convention on Human Rights.
But rights are not absolute and they do not exist in isolation.
The State has a right and a duty to protect individuals from those who have no respect for law or justice. Our constitution recognises the need to balance the right of an accused to liberty with the rights of individuals to be protected from serious crime. It allow the courts to refuse bail to a person charged with a serious offence where it is necessary to prevent the commission of another serious offence by that person.
The existing Bail Act 1997 implements this constitutional provision. However the Bill before the house today is a timely strengthening of our bail laws.
The Bill forms part of a wider programme of criminal law reform which includes the recent legislation providing for consecutive sentences for repeat burglaries, and the Victims of Crime Bill currently before the Dáil.
Let me turn to the provisions of the Bill and outline what is proposed.
I will begin with the new provisions added to the Bill as it passed through the other House.
Sections 2, 4, 11 and 12 of the Bill were all inserted at Committee Stage in Dáil Éireann and are all related so I will deal with these together. These amendments are technical in nature and, in general terms, are designed to preserve the legislative intent in provisions enacted in 2011 and 2014 and to address an anomaly that has arisen around commencement of the provisions in question. There is nothing new being provided for here, merely technical drafting adjustments to ensure that the legislation concerned can be operated as originally intended.
Section 5A of the Criminal Justice Act 1984 concerns the well-established right of a person in Garda custody to access legal advice and is aimed at clarifying the circumstances in which questioning may proceed notwithstanding that a suspect has not yet had an opportunity to consult with a solicitor. The amendments in question are essentially concerned with the application of section 5A to the detention provisions of three statutes: the Offences Against the State Act 1939, the Criminal Justice (Drug Trafficking) Act 1996 and the Criminal Justice Act 2007.
Difficulties have arisen from the fact that both the Criminal Justice Act 2011 and the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 amend the same provisions of the three statutes in question and while the amendments contained in the 2014 DNA Act have already been commenced, those of the 2011 Act have not. The fact that the provisions of the 2011 Act would be commenced after those of the 2014 Act has given rise to uncertainty as to what the final outcome of the amended detention provisions will be.
The amendments in sections 2, 4, 11 and 12 introduce new provisions for the application of section 5A to the detention provisions of the three statutes in question and repeal the application provisions of the 2011 Act to resolve the issue.
Section 3, which was also inserted at Committee Stage in the Lower House, amends the Criminal Justice (Public Order) Act 1994 in order to give the Garda Síochána the statutory power to detain intoxicated persons who have been arrested for a public order offence. To date the Gardaí have relied on a presumed common law duty of care to intoxicated persons to justify such detention but this is an unsatisfactory situation and should be placed on a statutory footing.
The new provision allows the Garda Síochána to detain intoxicated persons who have been arrested for an offence under the 1994 Public Order Act and who, but for this new provision, would be released. Such persons can be detained for a period not exceeding 6 hours where the member in charge of the Garda station in which they are in custody is of the opinion that they are intoxicated to such an extent as to be considered a danger to themselves or others, if released. The provision also allows release prior to the expiration of the 6-hour detention period. This will ensure that a person is released once he is no longer considered a danger to himself or others. A similar provision is contained in section 16 of the Road Traffic Act 2010.
I should stress that the provision concerns dangerously intoxicated persons, persons who have been arrested for breaches of public order and who, but for this new provision, would normally be released. I should add that the definition of “intoxicated” in the 1994 Act is not limited to intoxication due to alcohol consumption but is defined in the Act as including drugs, solvents or other substances or a combination of substances.
I would also mention that where a person is detained under this provision, the 1987 Custody Regulations will apply, as will further provisions of the 2001 Children Act in the case of children. The Custody Regulations provide that an arrested person is entitled to consult a solicitor and to have notification of their custody sent to another person. The Regulations also allows the member in charge to seek medical treatment for the detained person where necessary. These are appropriate additional safeguards in relation to the detention of intoxicated persons.
I return now to the bail provisions. Section 5 expands the factors which a court may take into account in refusing bail where this is reasonably considered necessary to prevent the commission of a serious offence by the person. Section 5 specifically provides that a court may take into account the extent to which the number and frequency of any previous convictions of the accused person for serious offences indicate persistent serious offending by the accused. It also enables a court to take into account the nature and likelihood of any danger to the life or personal safety of any person or danger to the community that may be presented by the release on bail of a person charged with an offence punishable by 10 years’ imprisonment or more - in other words a very serious offence. The decision to refuse bail will of course always be a matter for the court. These additional factors which the court may take into account will, however, constitute significantly strengthened guidance from the legislature on the factors relevant to decisions on the granting or refusal of bail.
Section 6 of the Bill expands the number of conditions which may be set by a court in granting bail. A court has general discretion to attach conditions to bail. Section 6 of the Bail Act 1997 also lists specific conditions which may be imposed, such as a requirement to reside in a particular place, report to a Garda station or refrain from going to certain places or having contact with certain people. Three new specific conditions are being added to this list by this Bill, namely:
· to refrain from direct or indirect contact with the victim of the alleged offence or any member of his or her family;
· to refrain from driving a vehicle where the person is charged with a serious driving offence; and
· to observe a night-time curfew, whereby the person on bail could be required to stay in a specified place between 9 o’clock each night and 6 o’clock the following morning.
Section 6 of the Bill also provides for the arrest without warrant of a person on bail in carefully defined circumstances which respect the constitutional rights of persons facing criminal charges. Gardaí already have a power to arrest a person on bail who is about to contravene a condition of bail, but only on a warrant of arrest issued by the court. Section 6 contains a limited but important power of arrest without warrant of a person on bail who has breached, is in the act of breaching or is about to breach, a condition of his or her bail and the immediate arrest is necessary to prevent harm to, or interference with the victim, another witness or another person that the court has specifically tried to protect.
Section 7 deals with electronic monitoring. The Bail Act 1997 was amended in 2007 to permit a court granting bail to make it a condition of bail that the person’s movements are monitored electronically. This provision has not been brought into force, largely because of concerns over how best to operate a system of electronic monitoring in a way that is sustainable and targeted. Section 7 therefore amends the existing uncommenced provision by linking electronic monitoring to an application by the prosecution. The objective is to ensure as far as possible that electronic monitoring is used in bail cases on a consistent and sustainable basis, and that it is focussed on those cases where it will prove most effective. In this regard I should say that, in parallel with the passage of this Bill, a working group has been established to identify how best this provision might be operated, including the categories of offences or offenders most suitable for electronic monitoring and the making of contractual arrangements for the provision of the service.
Section 8 introduces an important new provision as regards the evidence which a court may hear when deciding on an application for bail. It will enable a court to hear evidence from the victim as to the likelihood of direct, indirect or attempted interference by the accused with the victim or a member of the victim’s family. Evidence may also be heard as to the nature and seriousness of any danger to any person that may be presented by the release of the accused on bail. The section also provides that, where the victim is a child under 14 or a person with a mental disorder, such evidence may be given on the victim’s behalf by a parent or guardian or a family member.
Section 9 of the Bill requires a court to give reasons for its decision to grant or refuse bail or to impose conditions of bail. The objective of this provision is to promote the greatest possible transparency in the hearing of bail applications, and the greatest possible understanding of decisions of court.
Finally, section 10 inserts a new section into the Bill to add two additional offences to the Schedule to the Bail Act 1997. The Schedule to the Bail Act sets out the list of offences which, if punishable by a term of imprisonment of 5 years or more, are considered ‘serious offences’ for the purposes of a bail application.
The two offences which will be added to the Schedule by this amendment were both inserted into section 106 of the Road Traffic Act 1961 by section 17 of the Road Traffic Act 2014. They are effectively “hit and run” offences.
The offences target individuals who seek to avoid sanction by leaving the scene of a road accident having killed or injured an individual. A person guilty of such an offence is liable, under the Road Traffic Act, to a fine or to imprisonment of up to 7 years in the case of injury and up to 10 years in the case of the death of a person. These are a very serious offences and, as such, are appropriate for inclusion in the Schedule to the Bail Act.
A Cathaoirleach, these are clear and focussed provisions which will enhance the powers of courts in deciding whether to grant bail, and which will improve the legitimate control which courts may exercise over those who are granted bail. They will enhance the protection of victims of crime and those at risk of crime, while respecting the rights of those accused of crime. They strike the right balance in improving the law on bail, and I believe they should enjoy support right across this House.
I very much look forward to listening to the views and comments of everyone taking part in this debate on these important reforms.