Abstract
This chapter explores the use of criminal record information in bail decisions. Particular emphasis is placed upon examining the changes made by the Bail Acts 1997 and 2007 and the implications of these changes. Traditionally, bail was a common law issue and factors relevant to granting or refusing bail was a matter for the judiciary. The impact of the legislation under discussion has been to change this, with criminal record becoming a prominent express factor to be considered in bail hearings.
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Notes
- 1.
These rights are protected under Article 38 and Article 40 of the Irish Constitution.
- 2.
The right to presumption of innocence is not expressly stated in the Constitution, but is derived from the express right to a fair trial in due course of law under Article 38. See O’Leary v. Attorney General [1995] 1 I.R. 254 and POC v Director of Public Prosecutions [2000] 3 I.R. 87.
- 3.
The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) article 5(3) requires that a person charged with an offence must be released pending trial unless the State can show that there are relevant and sufficient reasons to justify detention. Note however that The European Convention on Human Rights (ECHR) article 5(1) allows for the deprivation of liberty “when considered necessary to prevent the person committing an offence.”
- 4.
People (AG) v O’Callaghan [1966] I.R. 501.
- 5.
Ryan v DPP [1989] I.R. 399.
- 6.
Ashworth has argued, however, that even the refusal of bail on the grounds that the suspect might evade justice can still be interpreted as preventative. The law aims to prevent the suspect from doing something illegal, whether that be jumping bail or committing some other offence (Ashworth 1994).
- 7.
The offence of conspiracy is an agreement between two or more persons to commit an unlawful act. To establish the offence however, there must be some evidence of progression towards committing the act of crime. Conspiracy to murder, for example, requires some agreement between individuals to commit the act of murder; the agreement is the progression towards committing the act itself.
- 8.
Once a crime has been committed the legal process begins and the aim is either to set free innocent individuals or punish those who have been found guilty in a court of law. Prevention can be traced to community-based measures such as lighting in dark corners, CCTV, locking access to certain areas. Regulatory measures, however, can be evidenced within the criminal justice system itself (e.g. Anti-Social Behaviour Orders, requirements for offenders to sign on in Garda stations, conditions imposed by a court granting bail).
- 9.
The Supreme Court in US v Salerno (1987) 481 U.S. 739, considered pretrial detention to prevent the commission of an offence to be regulatory rather than punitive.
- 10.
Tribe observes that determination of whether the accused will abscond or interfere with the trial process does not involve any assumptions of guilt. The purpose is to ensure his appearance at trial and so does not reflect negatively on the presumption of innocence (Tribe 1970, p. 404).
- 11.
This crime package included the significant Criminal Justice (Drug Trafficking) Act 1996 which extends the period of detention for questioning suspects in relation to drug offences and allows inferences to be drawn from silence.
- 12.
The European Court of Human Rights has validated this reason for refusing bail in a number of cases: see, for example, Matznetter (1969) 1 E.H.R.R. 198; Toth v Austria (1991) 14 E.H.R.R. 551. Note also the case of Clooth v Belgium (1991) 14 E.H.R.R. 717, where the European Court determined that although pretrial detention was permitted to prevent reoffending, it was necessary that the danger be a plausible one and appropriate in light of the accused’s history and personality. In this case, the accused’s prior convictions (for theft and desertion) were not comparable to the present charges (arson and murder), and so after a certain point this ground ceased to be a justification for the continued detention of the individual.
- 13.
The introduction of this new legislation was not uncontroversial. The ‘For’ camp argued greater public protection and considered the legislation to be a “reasonable measure” in line with article 5 (1) of the ECHR . In the ‘Against’ camp arguments circled around the importance of fundamental rights and principles and the great threat which this form of preventative detention would pose upon such principles. Arguments against also focused upon the standard of proof which would apply and it is worth noting that the dangers which were anticipated have been realised as there is not yet an established standard of proof regarding the evidence which is given in bail hearings or regarding the factors which can be considered in refusing bail. If any standard is applied, it seems to be the balance of probabilities standard rather than the criminal standard of beyond reasonable doubt. See Walsh J’s comments in People (AG) v O’Callaghan [1966] I.R. 501 and Keane J’s comments in McGinley v DPP [1998] 2 I.R. 408.
- 14.
The Act can be seen to follow the route taken in other jurisdictions. In England and Wales, the Bail Act 1976 permits the refusal of bail if there are substantial grounds for believing that the accused would commit an offence, while a similar provision exists in the US under the Bail Reform Act 1984.
- 15.
The most recent amendment is under s.50 of the Criminal Law (Sexual Offences) Act 2017.
- 16.
The offences include: Murder, manslaughter, sexual offences, traffic offences, most offences under the Non-Fatal Offences Against the Person Act 1997, firearms offences, organised crime offences (inserted by s.79 of the Criminal Justice Act 2007, and s.15 of the Criminal Justice [Amendment] Act 2009), offences under the Criminal Justice Theft and Fraud Act 2001, drug trafficking offences, any offence under the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010 (s.113), offences relating to psychoactive substances under the Criminal Justice (Psychoactive Substances) Act 2010, an offence under s.2, 3, or 4 of the Criminal Justice (Female Genital Mutilation) Act 2012.
- 17.
McDonagh v Governor of Cloverhill Prison [2005] 1 I.L.R.M. 340.
- 18.
Both Walsh J in People (AG) v O’Callaghan [1966] I.R. 501 and Keane J in McGinley v DPP [1998] 2 I.R. 408 refer to the balance of probability standard. The implications for accused persons are that the full benefit of due process rights pertaining to them pretrial are diminished.
- 19.
These comments were made in a speech by the Minister in Limerick in September 2006.
- 20.
Subsection 9 makes clear that this section does not apply to those under the age of 18 years.
- 21.
The Criminal Justice (Victims of Crime) Act 2017 has recently been enacted in order to honour Ireland’s commitments under the EU Victims’ Directive (Directive 2012/29/EU).
- 22.
DPP v Corbally [2001] 1 IR 180.
- 23.
DPP v Maguire [2005] 1 ILRM 52.
- 24.
This was so even though the rights of the individual appealing conviction are not quite the same as when they were charged to begin with. The presumption of innocence has been rebutted by the guilty verdict.
- 25.
Both types are allowed, as exceptions to the general rule that opinion evidence is inadmissible.
- 26.
The key conditions of bail are entering a recognisance, providing sureties, and surrendering for trial. See further s.6 of the Bail Act 1997.
- 27.
The changes were “specifically designed to ensure that it will be more difficult for those charged with gangland offences to get bail.” Department of Justice, “McDowell publishes draft legislation to counter gangland crime” Press Release, 19 December 2006.
- 28.
There is also a concern regarding the prospect of private agencies taking responsibilities in monitoring mechanisms. The idea of responsible monitoring, which preserves due process in the pretrial stages of the system, become more tenuous when married with the prospect of removing this function from criminal justice agencies.
- 29.
Failure to comply with conditions of bail is subject to a number of statutory provisions including forfeiture of monies under s.9 of the Bail Act 1997 as inserted and aggravated sentencing for offences on bail under s.10.
- 30.
Williamson v US (1908) 207 U.S. 425.
- 31.
Research prior to the 1997 legislation observed a high rate of non-custodial outcomes for individuals who have been detained on pretrial custody. Only 38% of the remand prisoners dealt with in 1992 were subsequently recommitted to prison (Department of Justice Annual Report on Prisons 1992). The remaining 62% were either acquitted at trial, proceedings were dropped, or were given a non-custodial sentence . Of those charged with very serious offences, 30% were not recommitted. Since then, research has been lacking in tracking non-custodial outcomes for those remanded on pretrial detention, despite recommendations that such analysis would be useful in assessing the necessity of using pretrial detention to the extent it is currently used (Irish Penal Reform Trust 2015).
- 32.
For example, Kane, C. (2008) “43 killings in 4 years were by people out on bail” Irish Examiner, 28 October 2008, in which it was reported that almost 90,000 crimes were committed by suspects on bail since 2004. In the report victims group Advic commented on the pain suffered by victims and that “very often the families are not listened to … [b]ut in the Constitution, there seems to be a God-given right to bail.”
- 33.
- 34.
O’Mahony has remarked that “denying people their liberty on the basis of something they might do in the future strikes at the heart of our liberal democratic society. It is a form of ‘thought-crime’ and it must be opposed. It is also a short step away from imprisoning anyone on a suspicion that might commit a crime in the future.”
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Fitzgerald O’Reilly, M. (2018). The Role of Criminal Record in Bail. In: Uses and Consequences of a Criminal Conviction. Palgrave Macmillan, London. https://doi.org/10.1057/978-1-137-59662-8_4
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