Discretion afforded to judges deciding on bail applications leaves room for “bias, prejudice and undue leniency or rigidity”, a new research report has found.
The report, titled Improving Judicial Assessment of Flight Risk and published by the Irish Council for Civil Liberties (ICCL), said that there was a consensus among legal practitioners that, generally speaking, rules surrounding bail applications in Ireland “respects people’s right to liberty and the presumption of innocence”.
However, the discretionary nature of the bail procedure leaves it open to the inherent biases of the decision-maker, ie the judge to which the bail application is made.
This bias was most obvious, the report found, when it comes to non-Irish nationals with no links to the State applying for bail. The report’s research indicates that Irish nationals are more likely to be granted bail than those from outside the country – including other EU member states – without links to the State.
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This is despite a December 2022 recommendation issued by the EU Commission, stating that “if a suspect is a foreign national with no links to a State, this on its own cannot be used as a reason to conclude that there is a flight risk”.
The report also noted that the State holds a disproportionate number of accused people in pretrial detention, an increase in accused people remanded in custody for less serious crimes, and an increase in the average duration of remand.
Niamh McCormack, criminal justice policy officer at ICCL and author of the report, said that are “significant challenges” when it comes to “adjudication on bail”.
“A shortage of judicial resources and an over reliance on pretrial detention, especially for foreign accused people, is contributing to Ireland’s excessive use of detention,” Ms McCormack said.
The report made a number of recommendations, including for “comprehensive data to be compiled relating to the granting of bail and the use of pretrial detention”.
Damien Coffey, partner at Sheehan and Partners LLP, said that the new research “demonstrates that there has been a dramatic increase in pretrial detention figures in Ireland”.
“The rise is particularly worrying when considered alongside the significant delays in processing matters through the criminal justice system and the level of overcrowding in our prisons. Additional judges have been appointed and new prisons mooted, but neither will obviate the need for a review of the concerning trend of increased use of pretrial detention,” Mr Coffey said.
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