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Lecture by Eamonn Fleming, Solicitor on Bail Applications

 

  1. The Constitutional right to Bail and DPP v O’Callaghan [1996].
  2. “Serious Offences” and the Bail Act 1997, (as amended).
  3. Ronan v Coughlan and the DPP [2005].

 

Despite the Constitutional changes made following a Referendum in 1996, and the restrictions contained in the Bail Act 1997(as  amended), any discussions on the right to Bail must begin with the decision of the Supreme Court and particularly the judgement of Walsh J in The People (Attorney General) v Roger O’Callaghan [1966] where the Supreme Court confirmed the established common Law position that the fundamental test to be applied in deciding whether to grant bail or not was the likelihood of the accused appearing for his trail, if released on bail. Walsh J. went on to say that a number of guidelines must be taken into account by all courts in applying this fundamental test.  The three main factors that can be taken into account in deciding on the likelihood of the accused appearing for his Trial if released on bail or not are:

  • the seriousness of the charge,
  • the nature of the evidence supporting the charge and,
  • the likely sentence on conviction.

 

The latter would lead to the view that consideration should also be given to the issue of the accused prior criminal record and Walsh J recognised this in O’Callaghan, particularly when the accused had a bad criminal record.

 

An Accused failure to answer to bail on a previous occasion suggests a flight risk and likewise this is a factor that a Court could legitimately take into account in deciding to refuse bail. Walsh on Criminal Procedure (2nd Edition) gives a very detailed and interesting elaboration on all of these grounds. The decision in O’Callaghan was again addressed by the Supreme Court in Ryan v DPP [1989] I.R.299 when the accused was refused bail in the District Court on the grounds that he was likely to commit further offences if released on bail. In Ryan, the President of the High Court considered himself bound by O’Callaghan and to admit the accused to bail as the only objection was the belief that the accused would commit further offences if released. The DPP challenged O’Callaghan on this point on an appeal to the Supreme Court and the Supreme Court emphatically rejected the possibility of refusing bail on the ground that the accused may commit further offences if released. The Court held that to decide otherwise would be to accept a form of preventative detention which would be unconstitutional. Arising out of the decisions of O’Callaghan and Ryan the Government ultimately acceded to demands for a Constitutional Referendum aimed at undoing their effects and the Referendum resulted in the 16th Amendment to the Constitution, and the addition of  Article.40.4.7 to the Constitution;

 

“Provision may be made by Law for the refusal of bail by a court to a person charged with a serious offence where it is reasonably considered necessary to prevent the commission of a serious offence by that person”.

 

The Amendment paved the way for the enactment of the Bail Act 1997 which came  into effect on the 15th of May 2000. Walsh on Criminal Procedure, at Parg.17.83 points out ……“It is worth noting that the 1997 Act does much more than make provision for a refusal of Bail in order to prevent a person charged with a serious offence from committing further serious offences if released on bail. It makes piecemeal provisions for the payment of bail money into Court, the imposition of bail conditions, the sufficiency of bail persons and various amendments and repeals of provisions of the Criminal Procedure Act 1967.

 

The Bail Act 1997 itself has been revised by the Law Reform Commission in accordance with its functions of consolidation of Statute Law. The revised Act is now updated to the 27th of November 2017 and includes the most recent amendments to it as contained in the Criminal Justice Acts 2017 ( that Act came into effect on the 31st of July 2017). In referring therefore to various sections of the Bail Act of 1997 I am referring to the revised version.

 

Following on the Constitutional Amendment, and the passing of the Bail Act  1997 Act a Court can refuse bail (where the bail applicant is charged with a “serious offence”) in order to prevent the commission of a “serious offence”. This is set out at Section 2(1) of the Act. A “serious offence” is defined under the Act as …….” an offence specified In the Schedule for which a person of full capacity and not previously convicted may be punished by a term of imprisonment for a term of 5 years or by a more severe penalty”.

 

The Schedule to the Act runs to 6 pages and includes, Section 3 Assault (assault causing harm), Section 2 Sexual Assault ( Criminal Law (Rape) (Amendment Act) Act,1990, various Fire Arms, Robbery and Burglary Offences, Section 106 Road Traffic Act 1961 (duties of an Accused  following on a road traffic accident ) and Sections 2,3 and 4 of the Criminal Damage Act 1991 and many more run of the mill type offences, a lot of which are dealt with in the District Court every day of the week.

 

Section 2 Assault, Sections 4 and 6 Public Order are therefore not serious offences within the meaning of the Act.

 

If a person therefore is not charged with a serious offence as defined by the Bail Act a Court may not refuse an application for Bail on the grounds that the Court considers it reasonably necessary to prevent the commission of a serious offence by that person. In essence therefore the grounds covering the granting or refusal of Bail in this situation are governed by the criteria as set out in O’Callaghan.

 

Section 1A of the Act provides that where a person who is charged with a serious offence applies for bail, he/she, (the applicant), shall furnish to the prosecution a written statement containing a list of information. There are “get outs” in relation to the provision to such a statement subject to sub sections (4) and (5).

 

Section 2 (2) sets out a list of circumstances that a Court can take into account when exercising its jurisdiction under S.2(1). These include…. the previous Constitutional factors as set out in O’Callaghan, being

(a) the seriousness of the charge and the likely sentence on conviction,

(b) the nature and strength of the evidence supporting the charge, as well as, any conviction of the accused person for an offence committed while he or she was on bail and,

(c) previous convictions including any conviction the  subject of an appeal (which has neither been determined nor withdrawn). Again the relevant evidence or submissions that a Court can receive here from the State, in relation to a Bail applicant not charged with a serious offence, only apply in so far as they are provided by O’Callaghan, and as contained in the Act, i.e. Section 2 (2) (a) and (c) apply but not 2(2) (b) as it refers to “the seriousness of the offence apprehended” which has no place under O’Callaghan.

 

In an application for bail by a person charged with a serious offence, a Court can also  take into account whether the accused is addicted to a controlled drug under the Misuse of Drugs Act, the number and frequency of any previous convictions indicating  persistent serious offending and the likelihood of any danger to the life or personal safety to any person or to the community that may be presented by the release on bail of a person charged with an offence punishable by imprisonment for a term of 10 years or more.

 

Section 2(2A)-2(4D) deals with issues where the application for bail is made by a person charged with a serious offence, which is a “relevant offence” alleged to have been committed in a dwelling and that section goes on to deal with that issue in detail. A “dwelling” is defined under ss. (4). “A relevant offence is defined under Section 12 and 13 under the Criminal Justice ( Theft and Fraud Offences) Act 2001, in effect a burglary or aggravate burglary.

 

 

Section 2(4) also provides for the opinion of a Garda Siochana, not below the rank of Chief Superintendent, to give evidence that the refusal of a bail application is…… “reasonably necessary to prevent the commission of a serious offence by the applicant.”  Such a statement by the Garda is admissible as evidence which a Court can take into account.

 

Section 3 provides for the renewal of a bail application in circumstances where there is a delay in a Trail date for a person where bail has been refused. It is now accepted that bail applications can generally be renewed at any stage on notice, where there is a material change of circumstances.

 

Section 4 sets out where evidence of previous criminal record can be given and provides for safeguards regarding the non -publication of any such information which could ultimately prejudice the applicant’s right to a fair Trial.

 

Section 5 deals with the payment of money into Court, where the Court may have regard to the circumstances of the case including the means of the person and the nature of the offence in relation to payment of a cash sum, (equal to one third of the recognisance) may be required or, where security in lieu of payment  by way of bank, building society, credit union or post office deposit book may be accepted. The Act precludes the acceptance of Title Deeds to land as security in a bail application. The Section goes on to provide for the re payment of any such funds to the Bails person or accused at the end of the trial.

 

Section 6 sets out the conditions that may be attached to a person granted bail including residency, reporting, surrender of passport or travel documents, refraining from having contact with persons or from attending on premises or places and includes conditions that the applicant shall not drive an MPV and provide for a curfew for specified times commencing 9pm on each day and ending at 6am on the following day. A Court has no jurisdiction to impose a curfew  outside these times,( in my opinion), with the consent of the accused.

 

Section 6(5)  provides for a Court application to be made  by the Gardaí or  surity/surities to revoke bail on the basis that they have information that the accused is about to contravene the conditions of his recognisance and  apply for a warrant for the accused’s arrest. The accused, in those circumstances, can be arrested even though the arresting Garda  does not have the warrant in his possession at the time. The arrested person must then, as soon as practicable, be brought before a Court.

 

Section 6A provides for persons on bail, appealing from the District Court, to attend the sittings of the Circuit Court until the appeal has been determined and not commit an offence while on bail.

 

Section 6B deals with Electronic monitoring of certain persons admitting to bail. This section has not yet been commenced .

 

Section 7 sets out the criteria for judging the sufficiency and suitability of a bails person. In this regard a Court shall have regard to and, where necessary, receive evidence or submissions concerning;

 

(a) The financial resources of the person,

(b) The character and antecdentes of the person,

(c) Any previous convictions the person, and

(d) The relationship of the person to the accused person

 

The Court is therefore not entitled to refuse to accept a Bails person purely on the fact that he/ she may have previous convictions.

 

Section 8 deals with endorsements on arrest warrants for the admission of a person to bail by the Gardaí and provides that “the Section 8 endorsement” fixes the amounts (if any) by which the person and his or her surety or sureties (if any) are to be bound and shall specify any other conditions of the recognisance. It allows the member in charge of the Garda Station, to which the arrested person named in the warrant is brought, be discharged upon him or her entering into the recognisance with or without sureties, and if the Court has so ordered, upon the payment of a sum of money as the Court may determine.

 

Section 9 deals with the estreatment of recognisance and provides that the Court may make an Order of forfeiture or estreatment where necessary where the accused fails to appear in accordance with his recognisance or is brought before the Court and the Court is satisfied that the person has contravened a condition of the recognisance.

 

S.9(10) provides that a Court may vary or discharge any such order of forfeiture if satisfied that it would cause undue hardship to the person or any surety.

 

Section 9A sets out the powers of a Court to hear complainant evidence in bail applications, particularly from the Gardaí of the likelihood of direct or in direct interference by the accused with the person in respect of whom the offence is alleged to have been committed or a member of his or her family or the nature and seriousness of any danger to any person that may be presented by the release of the accused on bail. It provides for reporting restrictions in relation to any such evidence.

 

Section 9B requires the Court to give reasons for its decision to grant or refuse an application for bail including reasons for a decision to impose or vary any conditions to be contained in the recognisance to be entered into by the accused.

 

Sections 10 and 11 refer to amendments to the Criminal Justice Act 1984 and 1967 in relation to the determination of a sentence to be imposed on a person for an offence committed while he or she was on bail. They relate to the imposition of two or more consecutive sentences, and that an offence, committed while the person was on bail, shall be treated for the purpose of determining the sentence as an aggravating factor, and, except where the Court considers that there are “exceptional circumstances” justifying it’s not doing so, impose a sentence that is greater than that which would have been imposed, in the absence of such a factor.

 

The remainder of the Act sets out in the Schedule the offences that are deemed to be “serious offences” within the meaning of the Act.

 

In the case of Sean Ronan v District Judge John Coughlan and the DPP [2005] IEHC 3702 High Court 16th of November 2005 the Applicant  was arrested and charged with a relatively minor Public Order Offence, S4. He applied for bail and there was no Garda objection (although the Judge was made aware of an outstanding bench warrant against him).  Without hearing any evidence in relation to the application the Judge granted bail subject to two conditions. These conditions where that the Accused observe a curfew in his own home between 3pm and 7am every day and that he remain at all times within the area of Ballyfermot.

 

Some days later the applicant’s solicitor to re-entered the matter to vary the bail conditions but the Judge refused to vary them. The Applicant then sought an Order of Certiorari quashing the Judge’s decision on the ground that it was made in excess of or without jurisdiction, that it was made contrary to the principals of fair procedures and natural and Constitutional justice and that it imposed an unwarranted restriction on his right and liberty.

 

In the High Court Quirke J. granted the Order holding that neither of the conditions imposed could have been imposed in order to accommodate any of the objectives identified in the Bail Act 1997 or because of a risk that the applicant might interfere with witnesses or fail to appear to answer the charges referred against him. Quirke J. went on to hold that the fact that the applicant had available to him the option of appealing to the High Court did not preclude him from seeking to quash the decision by way of Judicial Review. He held that where an accused person was deprived of his constitutional right to liberty by an Order made in flagrant breach of established principals of law then it was appropriate that such an Order should be quashed by way of Judicial Review.

 

Steps to be taken when dealing with a Bail application

 

Most of this information is common knowledge to any District Court practitioner with any degree of experience.

In my view the most important thing when given instructions to apply for Bail, in no particular order of importance are;

 

(i) Get the name, address and date of birth of a person that is prepared to go surety and give these details to the Gardaí as quickly as possible, (obviously with the accused and the proposed surety’s permission). Find out if the surety has any previous convictions, what is his/her relationship to the accused, if any, and what the surety can “put up” for Bail. Obviously speak to the Gardaí, see what their attitude is and whether they want conditions attached. District Judges are inclined to like the idea of a curfew, but this can be extremely restrictive on an applicant and should not be entered into without the Gardaí being in a position to give a specific reason why a curfew should be imposed  and these reasons need to “stand up”. A curfew should not be used as purely a punishment/restriction on the accused liberty and for no other reason.

 

(ii)Can the accused live with the surety or where will he/she live, does he/ she have travel documents that he/she is prepared to surrender? Is a reporting provision a problem? Check the Bail act as far as the criteria for refusing and/or granting Bail is concerned.

 

(iii) Is the offense a Serious Offence (as defined by the Act) or not. Since different criteria’s apply in Bail application in relation to serious and non-serious offences. Does the accused have previous convictions?

 

(iv) In my view, unless there is particular reasons not to, I think it’s always worthwhile to put the accused into the witness box in relation to a Bail application, particularly if the witness will present well, it may persuade a Judge to go with you. Remember, the accused, if refused bail, may not be happy  with not having his/her say and will have plenty time in prison to think of reasons to blame you for not allowing him/her to have a say. He/she will also get plenty support for that view by other inmates.

 

(v)Finally consider if the application is refused, whether it’s worth an appeal to the High Court. There are firms of Solicitors in Dublin who regularly do Bail applications in Cloverhill District Court and have it down to a fine art. Please do remember Judge Kelly’s recent decisions regarding swearing Affidavit’s which were made relating to a Bail Application, (as far as I can remember).

 

This is not an exhaustive list, obviously.

 

 

Sources;

  1. Walsh on Criminal Procedure, Second Edition, Roundhall Press.
  2. The People (Attorney General) v Roger O’Callaghan [1966].
  3. Ryan v DPP [1989].
  4. Ronan v Coughlan and the DPP [2005].

 

March 2018.

 

Article by Eamonn Fleming, Solicitor

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