If the bail amendment is passed, suspects could be denied bail without a chance of proving their innocence of what it is alleged they might do, writes Jerome Connolly

By JEROME CONNOLLY

IN February 1994 the then Attorney General, Mr Harry Whelehan, asked the Law Reform Commission to undertake an examination of and conduct research in relation to the law of bail". Before the outcome of this examination became available the Minister for Justice, Mrs Owen, announced her intention to hold a constitutional referendum on bail.

When the LRC report appeared in August 1995 it concluded, after examining the rates of offending on bail in Ireland, that "Irish figures on offending on bail are lower than the English figures, despite the fact that in England, courts may refuse bail on the ground of possible commission of further offences."

It seems unlikely that we would now be facing a constitutional referendum if the Minister had given herself, her Department and the public more time to ponder and discuss the conclusions of the LRC report in the systematic way they merit.

The LRC was not asked to recommend on the advisability or otherwise of amending the Constitution in regard to bail. But it did say that "one of the most significant ways in which bail offending could be reduced is by reducing the length of time persons are at liberty before trial." It urged that "a real attempt should be made to address the root causes of delay."

The LRC pinpointed two causes in particular of delay: a shortage of judges, and aspects of criminal procedure which are "cumbersome and productive of delay."

It would surely have been more prudent and sensible in the first place to follow up these and other suggestions on a scale commensurate with the problem and assess their impact, before proceeding to the extreme of asking the electorate to change the Constitution.

Two questions seem particularly relevant to the referendum debate: Would everyone likely to be refused bail under the new provisions have offended if given bail?

If the UK experience as analysed by the Law Reform Commission is anything to go by, most of those likely to be put away would not have offended.

THE real issue here, both in terms of effective crime prevention and of justice to the innocent is - as the Law Reform Commission put it whether and to what extent we can identify which offenders given bail will commit crimes during that period."

If potential offenders are wrongly identified, then this is not only an injustice to the innocent, but a costly failure in terms of crime prevention.

Yet, after a detailed examination of prediction studies in other countries, the LRC found that "empirical predictions" (of who will offend if given bail) are "more often wrong than right" and that the results which have emerged from such studies about our ability to predict, at least when the studies concentrate on violent crime, are "discouraging."

Mrs Owen has said that "this new provision the likelihood to reoffend - is just a third provision." But it is not "just" a third provision. The fact that it will be divorced from a specific charge puts it in a different category.

Under existing law the grounds for refusing bail (i.e. that someone may abscond and/or interfere with witnesses) derive from the fact that a specific crime has actually been committed, and that the person applying for bail has a definite case to answer in regard to that crime.

Under the proposed additional grounds, someone could be denied bail without any way of proving their innocence of what it is alleged they might do. Under existing bail law, this objection does not obtain.

Supporters of the amendment have not, I believe, convincingly demonstrated that it will benefit victims by leading to a net reduction in crime. What is clear is that it is likely to create a new category of victim: namely the unknown number of innocent people who will be imprisoned if the proposed new bail law is permitted.

Will the proposed amendment really mean that there will be fewer of those considered a danger to society at large?

This is highly unlikely, given the reality of the prison system which is already so choked that despite chronic overcrowding it still has to resort to continuous early release of convicted prisoners.

Even after the provision of a new prison at Wheatfield, the numbers out on temporary unsupervised release now are roughly the same as they were in 1984 when the Committee on Penal Reform made recommendations on how overcrowding could be eliminated.

The Minister has promised that an additional 800 new places will be provided by the end of 1997 or 1998. This cannot suffice, on the evidence of her own Department's estimate of accommodation needs.

The Department in its five year plan, "The Management of Offenders", estimated in 1994 that to eliminate overcrowding and premature releases, another 825 places would be required. At the time it stated that it would not be feasible to provide more than a quarter of these.

Yet within the past 12 months the Government judged even this modest provision to be of such low priority that it decided for budgetary reasons to halt work on the provision of the 210 places in question.

Twelve months later, in a notable U turn, the same Government feels both compelled and able to provide 800 places. This does not suggest a measured, long term response to crime or to the needs of the beleaguered prison system and staff.

Neither in 1994, nor in the context of the present referendum, debate, have any official projections been published of the expected trend in overall committals to prison over the next few years, although historically these have increased by about 50 per cent from the early 1980s to the mid 1990s.

Those who argue that tougher bail laws are needed cannot have it both ways: if crime is increasing, and likely to continue to increase, then the prison system will remain over crowded and prisoners will continue to gain early release to make room for newly sentenced or remanded prisoners.

There is no guarantee of a real improvement in the crime situation as a result of changes in the bail laws for as long as prison overcrowding persists. And without such an improvement victims of crime will be no better off.

AS these figures indicate, the promised 800 new places will not begin to touch the problem of coping with any post referendum influx.

Indeed one of the parties supporting the amendment (the PDs) has bravely estimated that an extra 1,500 prison places are needed.

Consideration of rights and justice questions aside (and these are fundamental to the debate), the public - which will have to pay for the changes which will flow from any new amendment - is entitled to be shown first that it will be effective in practical terms.

The real question is this: is it justifiable, morally, legally, politically or in terms of the real needs of victims, significantly to undermine our fundamental liberties in order to introduce a measure whose likely impact on the crime level is still highly debatable?

Jerome Connolly is executive secretary of the Irish Commission for Justice and Peace which advises the Catholic hierarchy on human rights and justice issues.