When someone is arrested and not released from the Garda Station on what is known as “Station Bail” an application can be made for that person before the next sitting of the local District Court. There is an exception to this where the offence is murder, piracy, genocide or treason and that means an application can only be made before the High Court.
The most important case on bail is the Supreme Court decision in the People (AG) –v- O’Callaghan which is a 1966 case in which Wallace J. says that the purpose of bail is to secure the appearance of the accused at his trial by a reasonable amount of bail. The purpose of bail is neither punitive nor preventive. He noted that from earliest times it was appreciated that detention in custody pending trial can be a huge cause of hardship and so therefore it is desirable to release on bail as large a number of accused persons as possible pending trial. He went on to say that “Presumption of innocence until conviction is a very real thing and not simply a procedural rule taking affect only at the trial. In the modern complex society in which we live today the effect of imprisonment on the private life of the accused and of his family may be disastrous in its severe economic consequences to him and his family dependent upon his earnings from day to day or even hour to hour. It must also be recognised that imprisonment before trial will usually have an adverse affect upon the prisoners prospects of acquittal because of the difficulty, if not the impossibility in many cases of adequately investigating the case and preparing the defence”.
Arising out of the O’Callaghan decision the following 11 matters should be considered regarding whether a prisoner is likely to evade justice:-
- The nature of the accusation. In other words, the seriousness of the charge.
- The nature of the evidence in support of the charge.
- The likely sentence to be imposed at conviction.
- The likelihood of committing further offences while on bail.
- The possibility of the disposal of illegally acquired property.
- The possibility of the interference with witnesses and jurors.
- The prisoner’s failure to answer to bail on a previous occasion.
- The fact that the prisoner was caught red handed.
- The objection of the Attorney General or of the police authorities.
- The substance and reliability of the ‘bails person’ offered.
- The possibility of a legal trial.
Until the Bail Act of 1997 there was no provision for what is known as ‘preventative justice’ in Ireland. Under Section 2 of the Bail Act 1997 where an Application for Bail is made by a person charged with a serious offence the court may refuse the application if the court is satisfied that such refusal is reasonably considered necessary to prevent the commission of the serious offence by that person. In other words, we now have a provision since 1997 of allowing for the future commission of crime. When considering this a court shall take account of the following:-
(i) The nature and degree of the seriousness of the offence which the accused is
charged and the sentence likely to be imposed on conviction.
(ii) The nature and degree of seriousness of the offence apprehended in the sentence likely to be imposed on conviction.
(iii) The nature and strength of the evidence in support of the charges.
(iv) Any conviction of the accused person for an offence committed while he or she was on bail.
(v) Any previous convictions.
(vi) Any other offence in which the accused person is charged and is awaiting trial.
(vii) It may also take into account whether the person is addicted to a controlled substance.
The definition of a serious offence is one of those offences that requires at least five years in prison. This can range from murder to certain road traffic and public order offences. Please note that it could also cover shop lifting and other relatively minor theft offences.
If a Garda after giving evidence of arrest, charge and caution in respect of the accused person in custody makes an application for the prisoner to remain in custody then that Garda should be asked to give reasons for his/her opposition to bail. That Garda may given evidence of not being satisfied as to the identity or address of the accused if the accused is alleged to have provided different names, dates of birth or address to the Gardai then there may well be difficulty obtaining bail. It should be noted, however, that homelessness of itself is not a ground for refusing bail. Nor is the fact that the accused is a non-national or ordinary resident outside the Jurisdiction for example Northern Ireland.
If the objection to bail is based on an alleged threat to a witness, then that witness should be in court to give evidence of such threats.
Conditions of Bail
A very basic principle and an essential condition of bail has always been that the accused will appear before the court and will be required to do so since the Bail Act 1997. There are other mandatory conditions and also possible conditions and those conditions imposed in a particular case are set out in what is known as the “recognisances” which basically is an acknowledgement of the bail contract.
In other words this is an acknowledgement of the obligation on the accused in consideration of being released to comply with the conditions of the bail. The ‘recognisances’ is in writing and is signed by the accused in sureties (a “surety” or “bails person” is a third party who enters into a recognisance to ensure compliance by the accused of the conditions of bail) and the Judge will first ask the other parties to first acknowledge their signatures. A recognisance is always in writing and is signed by the accused in sureties and the Judge will first ask the other parties to acknowledge their signatures. If the accused or surety refuses to sign the recognisances then the accused will simply not be released.
Section 6.1 of the Bail Act provides that where an accused person is admitted to bail on his or her entering into a recognisance then the recognisance shall in addition to the condition requiring his or her appearance before the court at the end of the period of the remand be subject to the following conditions:-
(a) That the accused person shall not commit an offence.
(b) That the accused person shall otherwise be of good behaviour.
(c) The Recognisances may be subject to such conditions as the Court considers appropriate having regard to the circumstances of the case including without prejudice to the generality of this requiring any one or more of the following conditions:-
(i) That the accused resides or remains in a particular district or place in the State.
(ii) The accused reports to a specific Garda Station at specified intervals.
(iii) The accused surrenders his passport or travel document in his possession.
(iv) The accused refrains from attending such premises or other places the court provides.
(v) The accused refrains from having any contact with such person as the courts specify.
It is common for an application to be made to reduce the Garda Station reporting or signing on conditions and this can be looked at as the proceedings progress. If the accused turns up at court when asked to do so then the court may be asked to relax the signing on conditions so it might be reduced from once or twice daily to three times weekly or even repealed altogether.
Amount of Bail
The amount of Bail and recognisance is fixed with a specific debt due in default of the conditions of bail. If they are not met then the accused will always be required to enter a recognisance (the Bail Contract) and the court may also require one or two sureties to enter recognisances or make provision for the lodgement of cash instead of sureties. When an accused is released on his/her own recognisances it means they are released on their own bond or own bail and sureties are not required.
Bail shall never be fixed at a figure that is so large that it in effect denies Bail and leads to inevitable imprisonment. Courts will often have more confidence that an accused will comply with the conditions where somebody is prepared to go bail for them rather than making a cash lodgement and this comes down to the Judge of the Court.
Finally, a word on sureties.
According to Section 7 of the Bail Act 1997 a court will satisfy itself as to the sufficiency and ability of any person to be proposed as surety for the purpose of Bail. A Court will also look at:-
- The financial resources of the person.
- The character of the person and history of the person.
- Any previous convictions of the person.
- The relationship of the person to the accused.
The Surety should be present in the District Court when the accused is sent forward for trial because fresh recognisances are fixed and an Application must again be made to the Court for the approval of that Surety.
Please note that the failure for an accused person to appear on bail generally means that a Judge will generally issue a Bench Warrant for that persons arrest and certify breach of the Bond.
Healy O’Connor Solicitors, Criminal Unit.