Judge cites difficulty of doing justice to those seeking bail

A SUPREME Court judge has said tougher bail laws have made it “virtually impossible” to do justice to people seeking bail.

The High Court bail lists are “seriously overloaded” and those who sponsor bail law changes should also realise the amended bail regime requires adequate resources, Mr Justice Adrian Hardiman stressed.

Before the bail law changes, it was “just about possible” to deal properly with bail applications in the High Court, he said. The recent legislative changes considerably increased the scope to oppose bail applications and it was “virtually impossible” to do justice to the increased numbers and complexity of applications in the very long lists.

The Irish judiciary is a very small body, proportionately to population, by far the smallest in Europe, he said. When the law is changed so as to increase its complexity and the likelihood of serious disputes, it “must be realised” this has consequences in terms of resources required.

Ms Justice Susan Denham said bail applications are very important matters. It was “of concern” if a judge was trying to deal with a very long bail list to be determined in a limited time in circumstances where the issues may not be opened sufficiently or where a judge has insufficient time to give their full reasons.

The judges made the remarks when granting an appeal by a man against a refusal by High Court judge Mr Justice Paul Butler to grant bail on May 29th last on an assault charge after accepting gardaí “may have genuine fears” for witnesses allegedly intimidated against giving evidence.

In a later bail application brought after the man was additionally charged with violent disorder, a different judge, Mr Justice Michael Hanna, granted bail on that charge. Mr Justice Hardiman remarked that additional charge may have been “a fall back” charge and it was “puzzling”, where both charges related to the same incident, bail was refused on one and granted on another.

Ms Justice Denham and Mr Justice Hardiman allowed the appeal against Mr Justice Butler’s decision and returned the matter to the High Court for fresh consideration according to the principles set out. Mr Justice Hugh Geoghegan agreed.

The man was charged on May 5th last with assault of another man in a pub in Naas, Co Kildare, on October 26th, 2008. It was alleged the injured man received 100 stitches.

Gardaí objected to bail on grounds including alleged intimidation of witnesses – leading to the injured man withdrawing his statement – prior to the trial of the man’s brother on charges relating to the same incident. That brother was convicted of common assault.

Gardaí told the High Court the witnesses allegedly intimidated were not in court because they were afraid to come.

Mr Justice Butler adjourned the bail hearing for a week to allow gardaí to try and get witnesses to court but none appeared at the resumed hearing.

The judge said gardaí had given hearsay evidence of the “most awful” intimidation and he accepted gardaí “may have genuine fears for those witnesses”.

He added that while the man was not charged at the time of his brother’s trial, the two cases were connected by their facts and witnesses. As he had specific evidence why there was no witness evidence of alleged intimidation, he accepted the Garda hearsay evidence as admissible and would refuse bail. His decision was “draconian”, he added.

Ms Justice Denham affirmed the judge was entitled to consider the hearsay evidence in the circumstances of the case but ruled he erred in not himself making, as a matter of probability, an express finding a person would interfere with or intimidate witnesses.

The test was not whether gardaí had a fear of intimidation, the court itself should be satisfied of the probability of the risk.

Mr Justice Hardiman agreed that the court itself must be satisfied the objection to bail had been made out as a probability. It seemed this bail application was dealt with in a somewhat summary way but the Supreme Court was not criticising that given the huge number of bail cases, he said.

He also noted the man denied any intimidation. The man’s brother was sentenced to six months for common assault but, as he had been in custody longer than that while awaiting trial, he was released immediately on conviction, the judge observed.

Such a situation was sometimes unavoidable but did not reflect well on the criminal justice system, he said.

He further noted the evidence of alleged intimidation before Mr Justice Butler all related to events before the man’s brother’s trial with no such episode after that trial.

There was no evidence to connect the man to any alleged intimidation, he said.

The judge added hearsay evidence could be admitted in bail applications only in rare circumstances. In this case, the ruling allowing its admission was not remotely adequate.