Delays in getting cases heard in court are contributing to judges’ decisions to grant bail to defendants, legal practitioners have said.
Adrian Crevan Mackin had been on bail since January, pending his trial at the Special Criminal Court for alleged membership of a dissident republican organisation.
In the State, there is a constitutional presumption in favour of bail because in the eyes of the law a person is innocent until proven guilty. The European Convention on Human Rights also restricts the extent to which the right to bail can be limited.
Judges take into account whether the accused is likely to abscond or interfere with witnesses or evidence, and whether the person might commit a serious offence while on bail.
Length of time before trial is due to go ahead is not a determinative factor, but judges take it into account.
In the Special Criminal Court, for example, a person coming before the court today is unlikely to get a trial date until 2017. Sean Gillane SC, a criminal law specialist, said if a case is not going to be heard for a year or more, it is a big factor in the judge’s decision whether to grant bail. The presumption of innocence is central, he said.
Lengthy period
Feargal Kavanagh SC, who also specialises in criminal law, said judges were uncomfortable about refusing bail if a case would not be heard for a lengthy period.
“It is inappropriate to remand someone in custody for excessively long periods and is in breach of their rights under the Constitution and the European convention,” he said. Systems need to be more streamlined, more judges are needed to deal with the backlog, and more Garda resources are required.
The proposed new Bail Bill, which will give greater guidance to judges, should be enacted as soon as possible, Kavanagh said.
The Bail Bill 2015 requires judges to give reasons for bail decisions. It also requires the court to consider the persistent nature of the accused person’s conviction for serious offences.
A judge must also consider the nature and seriousness of any danger to any person or to the community if the person is released on bail and has been charged with an offence that attracts a penalty of 10 years imprisonment or more.
Victim evidence on the likelihood of harm may be permitted at a bail hearing on the application of a garda. And evidence of previous convictions in other states can be taken into account.
