Bail decisions ‘an exercise in risk management’

A report on Ireland’s bail laws has found that the State’s current system operates in a “cumbersome, inefficient, inconsistent and haphazard manner.”

The report, written by Lorcan Staines SC, warns that without substantial reforms, the failures that contributed to the 2011 death of Shane O’Farrell could occur again.

However, the report states that Irish bail laws go “as far as constitutionally possible”.

Any expansion enabling courts to refuse bail more broadly would require a constitutional amendment, and none of the key stakeholders – including the gardaí, the Bar Council, the Law Society or the DPP, advocate for such a change, the report states.

The review concludes that while Ireland’s constitutional framework for bail cannot be fundamentally changed without a public referendum, significant improvements in procedure, information-sharing and oversight are required to reduce risks posed by recidivist offenders on bail.

The Probation Service also said that any potential reforms should not be focused simply on “serious offences” but should encompass “multiple offences” .

They stated that “the most significant impact of offending is often felt through high-volume, relatively low-level crime.

“While bail legislation focuses on serious offences, there is also considerable harm caused by persistent, low-level offending and repeated disregard for the law,” the Probation Service said.

The Probation Service concluded that the system needs to respond more effectively to recidivist offenders who persistently commit summary offences.

Effectiveness

The report warns that without substantial reforms, the failures that contributed to the 2011 death of Shane O’Farrell could occur again.

The review concludes that while Ireland’s constitutional framework for bail cannot be fundamentally changed without a public referendum, significant improvements in procedure, information-sharing and oversight are required to reduce risks posed by recidivist offenders on bail.

The report, commissioned by the Department of Justice, considers how bail law operates in practice, assesses its effectiveness, and identifies systemic weaknesses and potential reforms.

While the presumption of innocence and prima facie entitlement to bail limit how far restrictions can go, the review stresses that bail decisions are ultimately an exercise in risk management.

The reports also points to the ‘impossibility’ of refusing bail to every person accused of offences.

Risk cannot be eliminated

“It is axiomatic that, as with any other exercise of this kind, risk can never be eliminated, only managed,” the report states.

Structural problems undermine effective operation of bail procedures, the report states.

Among them is a persistent failure in information-sharing between the Courts Service, An Garda Síochána, and other agencies.

The lack of integrated recording systems means gardaí, prosecutors and courts often lack up-to-date information about an accused’s compliance with bail conditions or previous offending.

The manner in which Gardaí seek to revoke bail is often lacking in consistency and left to individual discretion, the report states.

Increasing caseloads and limited court capacity have also created long delays, with many accused persons on bail for months or even years before a case is heard.

Such delays, the report warns, heighten the likelihood of reoffending and complicate monitoring efforts.

Likewise, chronic prison overcrowding forces early release of sentenced prisoners in order to accommodate those remanded in custody, undermining rehabilitative supports and contributing to higher rates of recidivism, the report points out.

“Refusal of bail to many more accused would be unworkable without an enormous increase in the number of prison places,” the report states.

The review also notes inconsistent garda practice in seeking bail revocation.

Applications to revoke bail following breaches are “infrequent and inconsistent”, hampered by procedures the report describes as inefficient and overly cumbersome.

As a result, even persistent non-compliance may not trigger a timely response.

O’Farrell case

The report comes against the backdrop of the Dáil’s 27 May debate this year on the death of 23-year-old Shane O’Farrell, who was killed in 2011 by a driver on bail with a known history of offending.

During that debate, both Taoiseach Micheál Martin and Tánaiste Simon Harris issued formal apologies to the O’Farrell family, acknowledging a series of State failures that contributed to the death.

Fifteen recommendations

The report offers 15 major recommendations to improve the functioning of the bail system without breaching constitutional limits.

Central to these is a call for significant, immediate investment in information-sharing systems across the gardaí and Courts Service to ensure accurate, real-time data.

Other proposals include:

• Establishing an adult bail-supervision scheme, providing wraparound supports for offenders with persistent reoffending patterns,
• Introducing house arrest and strengthening legislation on electronic tagging, but only in cases where bail would otherwise be refused and subject to strict proportionality tests,
• Expanding bail conditions to include positive obligations – such as attending counselling, addiction or employment services – where appropriate and with the accused’s consent,
• Reforming District Court Rules so fine-only matters may proceed in an accused’s absence where fair notice was given, reducing unnecessary bench warrants,
• Removing responsibility for prosecutions from gardaí, ensuring that all future criminal proceedings are conducted by trained legal professionals,
• Allowing garda station chiefs to grant bail with conditions to those arrested on foot of bench warrants where there is no garda objection,
• Expanding garda powers by permitting arrest without warrant where a breach of bail conditions is reasonably suspected,
• Adding several offences – including breach of domestic violence orders, coercive control, sex-offender notification breaches and witness intimidation – to the list of scheduled offences under the Bail Act 1997,
• Allowing the prosecution to appeal bail decisions made in the Circuit Court,
• Developing judicial guidelines to improve consistency in bail decisions,
• Re-examining the use of cash bail, including whether it should be abolished.