Michael Williams is a retired solicitor; he practiced as a lawyer for 30 years. He left the firm at which he was a partner to become a Professional Mediator. He has served on the Board of Academy of Family Mediators, and chaired its Ethics Committee. He is also the author of Serving the People?: The Need for Reform in the Irish Legal System (Liffey Press; 2013), which argues for major reform in the Irish legal system, and he has contributed to many other media outlets on Court reform.
The Problem with the Bail Bill
The Bail Bill 2015 proposes important changes in our law, so we should examine it carefully. Our criminal justice system is founded on the proposition that a citizen accused of crime is innocent unless, at his trial, he is proved guilty “beyond reasonable doubt”. Someone standing trial is not “presumed” to be innocent. He is innocent unless a fair trial leads to a finding that he must be guilty, because no other possibility is credible. We start from these propositions:
- An accused awaiting trial is an innocent person.
- Imprisoning him will inflict incurable injustice if he is acquitted at his trial, as the law presumes he will be.
- However, society is entitled to ensure that an accused does not abscond, and does not do anything – such as trying to intimidate witnesses – that might prevent a fair trial.
- Only a judge, not a member of the Gardaí, should authorise imprisonment of an accused person pending trial – though the Supreme Court’s decision in Ryan v. Governor of Midland Prison raises “reasonable doubt” about judges as protectors of citizens’ rights.
The presumption of innocence requires authorities to watch their language. We may say an accused is innocent unless proved guilty, but not “until proved guilty”. “Until” assumes it will happen, that is, that the accused is guilty. Deplorably, the Department of Justice’s announcement of the Bill uses this word.
Looking at the Bill, Section 5 requires someone seeking bail to prepare a detailed statement of his assets, earnings, etc., and of his previous convictions, and makes him guilty of a crime if his statement is inaccurate or incomplete. The Section expects the judge that hears the bail application to take previous convictions into account and assume the accused is probably guilty of the current one, and should be locked up to prevent him from committing more crimes. Extraordinarily, the Section allows the judge who hears a bail application to prohibit publicity if reporting it might prejudice his trial. The presumption of innocence is to be preserved at the ultimate trial, though ignored at a bail hearing.
Section 16 provides for bail being granted subject to a condition “that the accused person shall not commit an offence while on bail”. At first sight, that seems absurd. How can it be proved that this condition has been broken without a trial, presumably after the trial on the first charge, when, whatever its outcome, bail will no longer be needed? But it has another purpose. You may be willing to act as a surety for someone close to you (for example, a family member who is a drug addict) if your only obligation is to see that he turns up for his trial. But you will think twice if you know your surety will be forfeited if he commits a crime in the meantime. The intention, clearly, is to make it harder for an accused to get bail by discouraging people from acting as sureties.
Section 16 proposes that someone on bail may be arrested and a judge may rescind his bail if the Gardaí think he is going to break one of the conditions of his bail. It also allows the driving licence of someone accused of a serious driving offence to be suspended pending trial. If, like so many, his job depends on his being able to drive, he will presumably lose his job while awaiting trial, and will not get it back even if he is acquitted.
The following is a fair summary of Section 27:
“If someone is accused of a crime, a judge who thinks he’s probably guilty, is a habitual criminal, and is likely to do it again, should order him to be locked up without bail – especially if he seems to be an alcoholic or a drug addict.”
In summary, Sections 5, 16 and 27 all propose to substitute preventive detention for the presumption of innocence.
Section 28 would allow a “complainant” to give evidence on a bail hearing. Obviously, lawyers for the accused must be allowed to cross-examine the “complainant”, and the hearing will become a mini-trial. So an accused is to be tried twice, first to see if he should be deprived of his freedom pending trial, and then to see if he is guilty. The injustice of this hardly requires comment. There is no mention of the additional legal fees the State must incur by holding two trials.
Nor is there any mention in the Bill or the Government material introducing it of the obvious response to crimes committed on bail: speedy trial. Someone deprived of freedom pending trial should be tried within days—at most, weeks—to minimise the inevitable injustice he will have suffered if he is acquitted. If the authorities are afraid an accused on bail may commit crimes, the best way to prevent that, and protect the rest of us, is, again, a speedy trial.
In setting aside the presumption of innocence, the Bill proposes to demolish a fundamental protection not only for habitual criminals but for all citizens against State oppression. It will make little difference to what I call “criminals of greed” such as financial fraudsters or organised drug dealers. It is not aimed at them, but at unfortunates who are addicted to drugs or alcohol and whose addiction pushes them into crime. That is, at people who need help, not punishment, whom we as a society have failed, and continue to fail.
It may be politically expedient before an election for the Government to seem “tough on crime”. But this Bill abuses not only legal rules but fundamental principles that protect all citizens from injustice. We should reject it.