A sop to public opinion or an attempt to outwit the criminal

"THERE are moods and there are times when certain proposals will gain credence with the public" - the Minister for Justice, Mrs Owen.

"The integrity of the justice system is important and has to be defended in bad times as well as good" - Michael Farrell, Irish Council for Civil Liberties.

The battle lines are drawn - apparently. Mood versus principle, pragmatist versus purist, "bleeding heart liberals" versus "knee jerk law and order brigade".

In a week where an Irish Times/MRBI poll showed that a staggering 80 per cent of voters favour changing the Constitution to make it more difficult to get bail, the Right to Bail campaigners failed to take the hint and lie down.

They stand to win no popularity contests in the current climate and they know it. Their language is peppered with defensive statements such as "I don't want to sound `lawyerly' about this" or "I suppose this is going to sound very purist...

But the problem, they say, is that the issue has been simplified by its proponents to a reckless degree precious principles - the presumption of innocence until proven guilty and the right of all citizens to be held equal before the law - are about to be sacrificed to political expediency and without any meaningful debate.

The other side, meanwhile, is urging opponents as one politician put it - to "get real"; a constitutional amendment, it says, is the only way to outsmart the criminals. "Yes, I know. They say they're modernising the courts, appointing more judges, going for speedier trials, but we should be legislating for the way things are now and not for how things will be in 10 years' time," says Tony Gregory TD.

He is not prepared to shelve a Constitutional amendment on a wait and see basis, however radical that amendment may be. "The courts are more chaotic now than at any time in the past. It's getting worse in fact."

For voters attempting to make up their own minds using official figures, there is only quicksand. The extent and type of offences committed by people out on bail are key questions in this debate. But the truth is that no one knows the answers - not even the Minister for Justice. No independent researchers have been sent into Garda stations.

What information there is based on Garda data, and this - as many gardai freely admit depends entirely on the accuracy knowledge and interest of the busy garda responsible for writing up the charge sheet when an offender is brought in.

The problem is compounded by the range of interpretations which is put on those figures. There are several official sets of statistics - recorded crime, detected crime (an offence for which there was no conviction but which gardai were satisfied was committed by a known person while on bail), convictions and undetected crimes.

These can be interpreted to suit any cause, as may be seen from arguments over figures compiled by the Law Reform Commission based on Garda data. For example, at first glance, it appears that out of 128 armed robberies reported in 1993, just eight were the work of people out on bail.

However, as only 30 (or 23 per cent) of these crimes were detected and the eight on bail were among those, it is then inferred in the commission report that 27 per cent of armed robberies in 1993 were carried out by people on bail.

From this, bail amendment supporters such as John O'Donoghue, of Fianna Fail, attempt to extrapolate that "up to 32 out of 128 undetected armed robberies may have been committed by persons while on bail ... i.e. one in four".

The Law Reform Commission cautions, however, against drawing this sort of conclusion. It argues for example that people on bail are more likely to be arrested for a subsequent crime because of their higher visibility. The reliability even of the raw statistics is questioned by the commission.

The percentage of offences reportedly committed by persons on bail plummeted from 16 per cent in 1992 to 4 per cent in 1993 - all described in the commission's report as "rather curious", and "difficult to reconcile with the fact that at least some of the offenders must be addicts who would not cease drug use pending trial".

The upshot of all this is that any debate based on figures is futile. This week, figures presented for offences committed while on bail ranged from 4 per cent (of recorded crime) and 9 per cent (of detected crime) espoused by the anti amendment side - all the way up to 80 per cent in the opinion of some gardai.

Figures, however, are only one element in the debate. Who is to be targeted by this amendment?

The name of Tony Felloni a heroin dealer jailed in June for 20 years, crops up repeatedly as an example. Although caught redhanded" no fewer than four times between August, 1994, and his ultimate arrest in January, 1996, he was granted bail each time. He had previously served seven years of a 10 year sentence for supplying heroin.

Pro amendment campaigners argue that he is a prime example of how drug dealers can manipulate the system and that he and his ilk can only be dealt with by new rules on bail which now require a constitutional amendment.

However, law lecturer Gerard Hogan points to existing options that have, in his view, been overlooked by the courts in certain cases - where judges are, in fact, permitted to take account of the gravity of the charge, the strength of evidence and the likelihood of a lengthy sentence when considering bail motions.

In addition a potentially powerful deterrent against offending on bail is already in place, as criminologist and psychologist Paul O'Mahoney points out.

The law since 1984 allows for mandatory consecutive sentences for crimes committed while on bail in addition to the crime for which the offender was allowed bail - a fact not generally acknowledged in the stereotypical picture of untouchable offenders.

Another existing deterrent is the money or assets required for bail bonds. However, this money is rarely, if ever, collected, according to lawyers.

Figures obtained by John O'Donoghue suggest that, of 189 bench warrants issued by Dublin Circuit Criminal Court last year for defendants who broke bail terms by not appearing in court, the authorities applied to recover money in only one case. And even that was unsuccessful.

John Lonergan, governor of remand prisoners (out of bound 620 in total) at an one time. He believes the amendment may serve a purpose but "in fewer cases than the fingers on two hands . . . Overall, I'm not so sure it would make a huge difference," he says.

"The speeding up of trials is a far more effective way of dealing with these. It is the delay in trials that contributes to the manipulation of bail. In the context of solving the crime problem, this amendment will do nothing."

He also rejects the generally held perception that a significant lumber of prisoners use the bail system to build up so called nest "eggs". Where it happens, it is among professional criminals, and again, the numbers are tiny, he bays. "Most of the offenders we have here are petty criminals and when they steal it's not to build up a nest egg but to feed their drug habit."

And these, says Paul O'Mahoney, are the core of the repeat offenders, the ones most likely to be detained under the new system, but least likely to be deterred by such measures.

"The Government agrees that 80 per cent of crime is drug related," says Michael Farrell, of the ICCL, "and the only thing that will make a real difference is not only dealing with the pushers but with the demand."

And where are all these prisoners to fit? At a practical level, this would appear to be one of the most intractable problems of all.

Add the current prison numbers of the hundreds of bail offenders against whom bench warrants have been issued to the 600 or so convicted prisoners on "temporary release". Then allow for the additional 600 prison places, £80 million capital and £20 million annual running costs which, in the estimate of the Law Reform Commission, will be the result of blanket bail refusal.

Even the Garda representative groups - the most vocal in favour of bail reform - have pointed to the futility of addressing the bail laws in the absence of a clear prisons policy. "The 400 promised extra prison places should be viewed in the context of over 1,000 escapers at large," writes Chris Finnegan, national secretary of the Garda Federation.

On top of that, preliminary conclusions drawn up by the working group on a courts commission suggest that the administration of the courts system is already antiquated, over burdened and in crisis.

With all these reservations, the Right to Bail campaigners believe that the proposed constitutional amendment is nothing more than a vote catcher, a sop to the public mood for which the long cherished principle of presumption of innocence is to be sacrificed.

"This referendum is launching in at the deep end first, without availing of other remedies which haven't been tested to the full," says barrister and Right to Bail convenor Aileen Donnelly.