THE ISSUES relevant to the bail referendum are very complex. The decision in any individual case about a suspect should be held in custody until trial or whether the suspect's constitutional right to freedom should be respected by the system has been called the most acute dilemma in the whole criminal justice process.
It is a serious misrepresentation to reduce it, as an unholy alliance of Government and Opposition parties has done, to a simplistic slogan like "tougher bail for safer streets". Dealing with the delicate balances in this area through a referendum is like using spray paint to touch up the ceiling of the Sistine Chapel.
Parties that are normally at each other's throats are strangely united n this issue. It is well known that the two junior parties in Government have, until recently, had serious misgivings about the proposal to widen the grounds for refusing bail by way of a constitutional amendment to permit preventive detention. Their current solidarity with Fine Gael on the question is a victory for pragmatic political loyalty over the honest airing of principled dissent.
All five main parties are now in thrall to public opinion on this issue. However, public opinion has been formed by years of shamelessly one sided lobbying on the issue by the Garda Siochana and politicians themselves, often facilitated by an equally blinkered media. The bail referendum is a piece of stunt politics focused on the cosmetics of presentation and diverting attention from the real work of reform.
It is also highly disquieting that this latest proposal is part of a wider agenda to erode civil liberties, which has already seen the introduction of seven day detention and a significant curtailment of the right to silence for the specified group of suspected drug dealers. Such is the extent of the present hard line consensus that these incursions on individual rights have been adopted with hardly a murmur of dissent.
All five political parties are now telling the public that this is a modest, common sense adjustment to our legal system, which is needed to fight serious criminals. They maintain that it will not compromise the presumption of innocence any more than it is already compromised by the current grounds for refusing bail i.e., reasonable suspicion for believing that a person will not turn up for trial or will interfere with evidence or witnesses.
HOWEVER, this is wrong on both counts. Under the present bail laws, most serious criminals such as armed robbers and drugs dealers can be refused bail. A clear cut rationale for refusal is almost always available based on the evidence against the suspect and on their past behaviour and current demeanour.
It is true that the operation of the bail system is in disarray, with widespread failure to pursue actual breaches of bail, the failure to estreat bail money in cases where it has been forfeited, and the failure to specifically punish crime for being on bail in accordance with the 1984 legislation, which made this mandatory. It can be reasonably argued that the bail system is, in fact, more abused by the laxity of State agencies than by the suspects themselves. But the solution is in operating the system fully and effectively, not in refusing bail on suspicion of future offending.
More rigorous policing and more effective investigation resulting in the gathering of incriminating evidence are what is required to tackle serious offending. There can be little doubt that the criminal outrages of the past year and the public and political response to them have galvanised the Garda into more resolute action. It is this energy and momentum that must be extended and maintained.
Regarding the second argument - that civil liberties will not be seriously damaged - it is obvious that the proposed amendment is specifically designed to counteract Supreme Court judgments on those articles in the Constitution which protect the freedom of the individual. These judgments concluded that there is an essential and crucial difference between depriving suspects of freedom in order to ensure that they face justice and depriving them of freedom in order to prevent them from committing crimes while one bail.
The latter is seen by the Supreme Court, quite correctly, I believe, as a means of punishing people for a future offence of which they could never be guilty. If this referendum is passed, the Supreme Court, which is the ultimate guardian of our civil liberties, will be forced to interpret as best it can a Constitution which both outlaws preventive detention as a matter of fundamental principle and allows it in a very wide range of circumstances.
Under the proposed system, a person who is innocent of the offence for which he is charged can be imprisoned for months on the sole grounds that there is reasonable suspicion that he might commit an offence in the near future. Everyone can see that this form of internment is unjust and should not be permitted by our laws, but this reasoning is dismissed as irrelevant because everyone is assuming that suspects are always guilty.
However, sometimes suspects are innocent and, more frequently, the police are unable to put together a substantial case against a suspect who may be guilty. One of the most serious consequences of the proposed changes is that they will strengthen the hand of the Garda in the interrogation situation in a way that is likely to lead to more false confessions.
The Garda, by choosing as a tactic, in circumstances where they have little evidence, to prefer charges and object to bail will have an undue influence over the freedom of a suspect, and are likely to exploit this to extract confessions. Regrettably, the Garda's record in respects of suspects in their custody is not an unblemished one.
THAT THE proposed changes are not needed and that they will significantly damage civil liberties are the most compelling reasons for voting no. But there is a host of other serious objections.
The State has manifestly failed to provide satisfactory conditions of imprisonment for prisoners, perhaps innocent who have been refused bail. They, in fact, suffer some of the worst conditions in the penal system. Research which shows that imprisonment on remand is especially stressful and that remand prisoners are several times more likely than, convicted prisoners to commit suicide is highly relevant. Remand imprisonment also impedes the preparation of the defence case.
Available statistics suggest we already greatly overuse remand in custody, remanding many who will not eventually be convicted or sentenced to prison. It is also rarely appreciated that the time spent in custody after refusal of bail will automatically be discounted against sentence; so, in effect, we are being asked to vote for the indefensible nonsense of substituting time in jail when legally innocent for time in jail following conviction.
In short, it can be said that in the absence of radical reform of the criminal justice system as a whole, the proposed changes are most likely to add to the confusion, chaos, and arbitrariness of the penal system.
Edmund Burke has said that "the people will not give up their liberties except they are under a delusion". It is a poor reflection on our politicians that they are currently not challenging but rather exploiting and promoting numerous popular delusions about bail.
