The publication of the draft legislation on bail finalises preparations for the referendum on the issue next month. On the basis of the most recent Irish Times/MRBI opinion poll - which indicated that some 81 per cent of the public favour more stringent rules on bail - the Government appears assured of success. But the strong majority in favour of the proposals does not lessen the need for a comprehensive debate on the issue. There should be no doubt that in its responses to the law and order issue the Government has at least one eye firmly on the coming election.
The right to bail, copperfastened by the judgment in 1966, has been one of the fundamental freedoms of this jurisdiction over the past 30 years. Any proposal to detain persons in custody on the basis of crimes that they may commit is clearly fraught with danger; and this State does not enjoy an unblemished history in its treatment of persons in its custody. But these concerns must be set against public unease about crime and criminality.
The O'Callaghan principles - which in essence mean that bail can only be denied if there is a likelihood that a defendant may not face trial or may interfere with witnesses before the trial - were framed at a time when our society was relatively crime free. Thirty years later, the criminal law must confront and reflect the reality of crime in modern Ireland, notably the upsurge in professional crime and drug trafficking.
Critics of the amendment argue that only a small fraction of crime is actually committed by those on bail, according to the Garda's annual report on crime. But it is important to acknowledge that the Garda figures only record reported crime. As any policeman or journalist familiar with professional crime in Ireland will attest, the reality on the ground is much more serious; major criminal figures like the late Martin Cahill, Tony Felloni and, indeed, many of those now under investigation in the Veronica Guerin murder inquiry, have exploited or continue to exploit a liberal bail regime to plan and execute further crimes.
And it is important to acknowledge that this jurisdiction does operate a very liberal regime, when compared to other EU states. The O'Callaghan principles have been interpreted in a very liberal way by the courts, while a provision in the 1984 Criminal Justice Act which sought to penalise offences committed on bail has been rarely applied. The reluctance of the judges to apply the clearly expressed intent of the Oireachtas must remain something of a mystery.
On balance, the wording of the proposed bail amendment (based on Article 5 of the European Convention on Human Rights) and the accompanying legislation (setting out the precise circumstances in which bail can be restricted) appear to strike a reasonable compromise between the rights of the individual and the right of society to protect itself from serious crime. Reform of the bail laws does not in any sense offer a panacea for crime. It does not lessen the need for parallel action to shorten the period between arrest and trial or the need to resolve the chaos in our prison service. The proposed expansion of prison spaces, as outlined by the Minister, will be swiftly swallowed if bail is to be restricted on any widespread scale. Most of all, this proposal does not obviate the need for the most through going review of all the elements of the criminal justice system of the type long advocated by this newspaper.