The Irish Council for Civil Liberties research raises concerns about pre-trial detention & denial of bail
Inconsistent application of bail rules and long delays in the criminal justice system leading to more and longer periods of pre-trial detention
The Irish Council for Civil Liberties (ICCL) is publishing a new research report into the use of pre-trial detention (remand) and the denial of bail in Ireland.
The report, titled ‘Improving Judicial Assessment of Flight Risk’, finds that in general the operation of the rules surrounding bail applications respects people’s right to liberty and the presumption of innocence. However, it does raise a number of concerns relating to bail and pre-trial detention in Ireland.
Legal practitioners interviewed as part of the research highlighted the lack of suitable facilities available for proper consultation with their clients. They also pointed to long delays in the criminal justice system, as contributing to longer periods of pre-trial detention.
The research finds that the wide discretion afforded to judges in making decisions on bail can lead to inconsistent application of the rules and presents a risk that inherent bias could affect the outcome of bail proceedings.
In particular, the report finds that Irish judges lean heavily on the presumption that foreign nationals with no links to the State present a greater flight risk than Irish nationals. This is despite a 2022 recommendation from the European Commission that a suspect being a foreign national with no links to a state is not on its own a reason to conclude that there is a flight risk.
Speaking at the launch of the report, Niamh McCormack, Criminal Justice Policy Officer, ICCL, said:
“At a time when prison overcrowding is again presenting a real crisis in our justice system, this report demonstrates that there are significant challenges at the point of adjudication on bail. A shortage of judicial resources and an over reliance on pre-trial detention, especially for foreign accused persons, is contributing to Ireland’s excessive use of detention.”
Dr Helen Kehoe, Legal and Public Affairs Manager, Irish Penal Reform Trust, said:
“At a time when we have almost 1,000 people in pre-trial detention, often for longer periods of time, we should be looking to bail as a way to take pressure off the system. IPRT agrees with the report’s recommendation to stop the practice of refusing bail for non-serious offences. We are concerned that pre-trial detention can undermine the presumption of innocence as well as having a severe psychological impact on the person detained.”
Prof. Mary Rogan, Associate Professor in Law, Trinity College Dublin, said:
“I welcome this opportunity to focus attention on the worrying increase in the numbers of people in pre-trial detention in Ireland. I am concerned that we are moving away from our position as having comparatively lower rates of pre-trial detention in the European context. Increased use of pre-trial detention places many rights at risk and, when accompanied with an already overcrowded prison population, a strategy is needed to reverse this trend”.
Damien Coffey, Partner in Sheehan and Partners LLP, said:
“This research demonstrates that there has been a dramatic increase in pre-trial 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 pre-trial detention.”
The report makes 15 recommendations to legislators, prosecutors, judges and practitioners. It calls for comprehensive data to be compiled relating to the granting of bail and the use of pre-trial detention and for the Bail Act 1997 to be independently reviewed to assess its compatibility with Ireland’s international human rights obligations under the International Covenant on Civil and Political Rights (ICCPR).
The report also says that measures should be taken to increase the number of judges to address the long periods of delay in the criminal justice system; that training should be provided to Gardaí, prosecutors and lawyers on European Supervision Orders and alternatives to pre-trial detention; and that the judiciary should stop the practice of refusing bail for non-serious offences, particularly where the time spent in pre-trial detention is likely to be longer than any potential sentence on conviction.