The bail system in Ireland is “operating in an opaque, haphazard manner” which risks eroding the rights to liberty and to a fair trial, the Irish Penal Reform Trust (IPRT) has said.
The IPRT has argued that reforming current bail systems and reducing the number of people on remand in prison would help solve the prison “overcrowding crisis overnight”.
It said a reliance on pre-trial detention for minor offences is putting “unnecessary strain” on Ireland’s overcrowded prisons as it called for the establishment of an “adult bail support scheme” modelled on a youth justice scheme of intensive supervision which saw significant reductions in reoffending.
In its most recent report, it also supported the recommendation of the Joint Committee on Drugs Use recently for decriminalisation of drugs possession for personal use.
As of last Friday, prisons were operating at 122% capacity with 5,976 people in custody, of which 1,045 people were on remand.
The IPRT published an analysis of pre-trial detention practices in Ireland, evaluating how the bail framework operates and complies with constitutional standards and human rights obligations.
It argues for pre-trial detention “as a last resort” which would see a reduction in prison overcrowding, more efficient use of resources and a process which “upholds the dignity and rights of all individuals”.
It has raised concerns over the setting of unaffordable amounts of cash bail as well as “overcharging” defendants with multiple offences arising from a single incident.
The IPRT has also questioned why so many people, particularly those from marginalised communities, continue to be remanded into custody for minor offences despite a legal presumption in favour of bail.
IPRT calls for reform to divert people with mental health conditions and addiction into health-based treatment instead of prisons
On any given day, approximately one in five people in the country’s prisons are awaiting trial or sentencing.
The IPRT says that pre-trial detention is a traumatic experience, particularly for those who are eventually found not guilty or do not receive a custodial sentence.
It said 74% of people remanded to custody last year were later released without receiving a custodial sentence.
This includes those who were found not guilty, did not receive a custodial sentence or their time spent in remand custody was deemed to be sufficient.
The report’s author, IPRT legal and public affairs manager Niamh McCormack, said the system is “under severe strain” and “failing to meet the needs of those who come before the courts”.
While the courts grant bail in most cases in which an application is made, she raised concerns over “the disproportionate use of remand custody for people experiencing homelessness, mental illness, addiction and poverty for minor offences”.
Ms McCormack said the report’s findings show that behaviour associated with acute mental health crisis and addiction is “being criminalised”, leading to people being sent to prison for minor public order offences rather than getting treatment in healthcare facilities.
She said: “These issues cannot be resolved without systemic change across criminal justice, housing and health.
“As it stands, people are being put in prison simply because there is nowhere else for them to go or because they cannot afford to pay bail bonds as low as 30 euro.”
Ms McCormack added: “The bail system in Ireland is operating in an opaque, haphazard manner that risks eroding standards of evidence, the right to liberty and the right to a fair trial.”
The report recommends the abolition of Section 3 of the Misuse of Drugs Act 1977, which makes it an offence to possess drugs for personal use, arguing it is a “minor offence which is commonly ‘over-charged’ with Section 15 for sale and supply” which is an offence which may be tried summarily or on indictment.
It also calls for reform to divert people with mental health conditions and addiction into health-based treatment including “therapeutic bail” at a designated facility, as well as reforming or dispensing with cash bail lodgements and removing “unnecessary garda-approved address requirements”.
The report’s first recommendation – that gardaí should not responsible for prosecuting offences or presenting objections to bail – is in line with a separate report commissioned by the Minister for Justice last year which was undertaken by Lorcan Staines SC.
This recommendation was also raised at the Oireachtas Committee on Justice earlier this month by the mother of a man killed by a hit-and-run driver.
Lucia O’Farrell, whose son Shane died when he was hit by a car driven by a man who should have been in jail for breach of bail conditions, said this was among the “most important” recommendations of the Staines review which was commissioned by Minister Jim O’Callaghan after delivering an apology to her family last year.
A similar recommendation was also made eight years ago in the 2018 Commission on the Future of Policing report.