Release on Bail
Once a person has been arrested and charged, the question arises as to whether he should be released on bail or remanded in custody. A person charged with an offence is presumed innocent until convicted. In these circumstances, detention pending trial is presumed inappropriate, unless there are overriding circumstances that justify the denial of bail.
A person may remain on remand for a considerable length of time awaiting trials. The criticism has often been made, that many offences are committed by persons on bail and that the immediate release on bail is unfair to victims.
In many cases, bail is granted at the Garda station under so-called Garda station bail. The sergeant or member in charge may release the person on bail and may for that purpose take a recognisance, i.e., a bond with or without securities (guarantors) for appearance before the District Court.
The remand must be to appearance must be to the next sitting of the District Court or sitting within 30 days subject to certain variations. A recognisance is entered before the District Court office in the case of further remands.
There is a special procedure under the Constitution by which a person may apply to the High Court for bail. This is a so-called Habeas Corpus (have/produce the body) application. The application is for a review of the legality of detention. It is a general provision for challenging the legality of detention and it covers non-criminal scenarios, such as psychiatric detention.
Persons charged with certain very serious offences including murder may apply for bail to the High Court only. In other circumstances, such as in relation to certain Offences against the State, the Special Criminal Court is the appropriate court.
A District Court judge may admit a person to bail who is charged with an offence. Refusal of bail on the occasion of one appearance is not a bar to a subsequent application at a further appearance. Where bail is granted, a person in custody shall enter into the requisite recognisance and be released unless he is in custody for some other reason.
Generally, remands in the District Court are for periods of eight days unless both sides agree to a longer period.
The remand is for eight days on the first appearance. On subsequent occasions, remands may be for up to fifteen days but the court may specify a shorter period. Remand may exceed 15 days if both sides agree. If a person cannot attend by reason of illness or accident the court may make a further remand for a period exceeding 15 days if appropriate.
An applicant for bail or the prosecution may appeal to the High Court if dissatisfied with the refusal or grant of bail, or any matter pertaining to bail. Where a person is remanded in custody by the District Court in relation to an offence triable in the Circuit Court, the High Court may transfer the appeal to the circuit judge. An appeal against the decision of the Circuit Court lies to the High Court at the instance of either the accused or prosecutor.
Bail for Appeals
There is a provision for an application for grant of bail where a person has been convicted in a lower court and has appealed the matter to the higher court. District Court summary decisions are appealed to the Circuit Court. Special Criminal Court and Central Criminal Court convictions on indictment are appealed to the Court of Appeal.
Bail may be granted where the interests of justice require or because of the apparent strength of the appeal or the impending expiry of the sentence or some other special circumstances. The convicted person no longer has the presumption of innocence. Bail will be granted only where there is some definite ground that can be identified that has a strong chance of success. In the case of appeals from the District Court to the Circuit Court, bail is more readily granted
Availability of Bail
Because the refusal of bail involves a loss of liberty, the refusal must be undertaken in accordance with principles of constitutional justice on the basis of objective reason. If the application is contested, evidence must be given that there is a good reason why bail should be refused. The strict laws of evidence need not be complied with, but the procedures must be constitutionally fair. Hearsay evidence may be allowed in certain circumstances.
If the circumstances are such that which bail ought to be granted and the District Judge must allow it. In 1966, the Supreme Court held that a refusal of the bail on the basis that a person may re-offend, was contrary to the Constitution. Effectively, it would amount to a deprivation of liberty on the basis of an apprehension of a future crime. The court held that the refusal of bail was limited to circumstances where there was a risk that the person would not appear for trial or would interfere with the course of justice, such as be intimidating witnesses.
This position was reversed by a referendum amending the constitution past in 1996. Article 40.4.7 of the constitution reads
“Provision may be made by law for the refusal of bail 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.”
Referendum & Bail Act
The Bail Act 1997 implements this provision and provides but when an application is made for bail by a person charged with a serious offence, the court may refuse the application if it is satisfied that such refusal is reasonably necessary to prevent the commission of a serious offence by that person.
A serious offence is one listed in the legislation which carries a punishment of at least five years.
In exercising its jurisdiction, the court must take account of the following circumstances and may receive evidence on submissions in relation to them.
- nature and seriousness of the offence
- nature and seriousness of the upper end of likely sentence
- nature and strength of the evidence in support of the charge
- previous convictions of the accused for offences while committing bail
- previous convictions for offences including any other offence with which the accused has been charged and is awaiting trial.
The key question is whether the accused is likely to fail to appear to answer the charge or commit further offences.
The grant of bail must not be subject to conditions that effectively amount to a denial of bail, which are not necessary in the circumstances.
An applicant for bail by a person who is charged with a serious offence must set out certain information including his income, assets and details of previous conviction. This may be dispensed with if the parties consent or if there is good and sufficient reason. The contents of the statement may not be published or broadcast unless the court otherwise directs.
Where a member of an Garda Siochana not below the rank of chief superintendent gives evidence that he believes that the refusal of bail is reasonably necessary to prevent the commission of a serious offence, this is admissible as evidence that refusal is necessary for that purpose. The court may direct that no information be published as to this evidence, if it may prejudice the applicant’s right to a fair trial.
Principles of Bail
The courts must take a proportionate view in considering bail. In the case of a less serious offence with less obvious risk, greater evidence of the likelihood of further offences must be established. If on the other hand, a person has made specific threats, lesser evidence may be required. This does not affect the presumption of innocence.
A person who has been refused bail and his trial does not begin within four months of refusal, may make a further application for bail on the grounds of delay. The court, where satisfied that the interests of justice so require, must release the applicant.
In appropriate circumstances, account may be taken of the defendant’s previous conviction. This must not be published nor referred to in a way that would prejudice the applicant in relation to his trial.
The applicant may be heard otherwise than in public or following the exclusion of parties other than bona fide representatives of the press.
The Supreme Court has stated that the personal safety of the applicant should not be a consideration in a bail application. They have some cases which have indicated to the contrary, but the matter has not finally been decided.
The amount of bail must be such that it does not amount to a denial of bail. This will depend on the means of the accused and of the persons prepared to act as surety. The court must be satisfied as to the sufficiency and suitability of bailsmen. It may take account of the person’s resources, character, background, previous convictions and relationship to the accused.
The court in ordering and taking recognisances may require the monies to be paid into court on account. The condition of the recognisance is that the person accused appears before the court at the end of the period and should not commit an offence while on bail.
It may include conditions that he lives in a particular place, report to the Gardai, surrender his passport, stay away from particular places, not have contact with persons and other conditions as appropriate may be inserted. Electronic monitoring may be provided as a condition, in the case of serious offences.
A warrant may issue for the arrest of the person if he has or is about to breach a condition of the recognisance. He must be brought to the court as soon as practicable. It may commit the person to prison o require a fresh recognisance to deal with the threatened breach.
Breach of Bail
A failure to appear in court in accordance with the terms of a recognisance is itself an offence. It is a defence if there is a reasonable excuse for not so appearing. On failure to appear in an arrest warrant may be issued by the court and may be executed by any member from Garda Siochana.
Failure to surrender from bail is a summary offence subject to imprisonment up to 12 months and a fine up to €5,000. The commission of an offence on bail requires the imposition of consecutive prison sentences. A sentence passed on a person convicted of an offence committed while on bail or after issue of a warrant for noncompliance with conditions, must be consecutive. Where two or more consecutive sentences are required to be passed by District Court, the aggregate shall not exceed 2 years.
“Estreatment” of a recognisance
Estreatment refers to its enforcement and forfeiture of the monies paid or other security under a recognisance in a criminal case. This may arise if the accused fails to appear or breaches the terms of the recognisance, for example in relation to bail.
Where the court makes an order, it notifies the accused and the surety who may apply within 21 days to court vary it or discharge it. Failure to comply with the order or variation may result in the issue of a committal warrant. The terms of imprisonment are equivalent to that for non-payment of a fine of value equal to the estreated recognisance.
Electronic tagging is permitted under the Criminal Justice Act 2007 for persons released on bail. It applies only in respect of certain serious offences. Services in relation to monitoring may be contracted out by the state.
Electronic tagging may apply where a person is released from bail subject to certain conditions including for example that they should reside at a particular place, report to the Gardai, surrender a passport, refrain from going to a particular place. It may not be provided unless the person agrees to comply.
A recognisance with electronic monitoring conditions may be revoked or varied. An application may be made for an arrest of a person on the basis that he has breached or is about to breach a condition associated with electronic monitoring. Evidence may be given way of automatically generated data.
ECHR & Bail
The European Convention on Human Rights strongly supports the principle of pre-trial bail.
The European Conventional on Human Rights requires that the question of bail be examined by an independent judicial officer. There is to be an examination of the facts of the case, allowing argument for and against the existence of genuine requirements and, the public interest, with due regard to the presumption of innocence, which is the point of departure in respect of the accused’s liberty. The individual merits of each case should be considered.
Denial of bail should be exceptional. See our separate sections on the Convention.
Under the Convention, bail may be refused on a number of grounds
- failure to appear to
- interfere with the course of justice
- prevention of further offences.
- preservation of public order.
The current Irish law is accordingly compatible with the Convention.