Galway Advertiser 1996/1996_11_21/GA_21111996_E1_027.pdf 

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Referendum on a Proposal t o Amend t h e Constitution in relation t o Bail
The Sixteenth Amendment of the Constitution A c t 1996 proposes to amend Article 40 of the Constitution by adding the following subsection to section 4 of Article 40: 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 proposal will be submitted by Referendum to the decision of the people on November 28, 1996.
The statements below have been produced and published under the supervision of the Ad hoc Commission on Referendum Information consisting of Mr. Kevin Murphy, Ombudsman, Mr. Kieran Coughlan, Clerk of the Dail and Ms. Deirdre Lane, Clerk of the Seanad. The Ad hoc Commission was established on the invitation of the Minister for the Environment, Mr. Brendan Howlin, T.D. The Minister requested the Chairman of the Bar Council to nominate two Senior Counsel one of whom, Mr. Sean Ryan, prepared the statement of the case in favour of the proposed constitutional amendment and the other, Mr. Edward Comyn, the case against.

A S t a t e m e n t o f t h e Case In F a v o u r O f T h e proposed a m e n d m e n t o f t h e Constitution
The Amendment will give Greater Protection t o t h e Public The case for this Amendment is very simple. It is a matter of widespread public concern that crime is committed by people who are on bail awaiting trial for other offences. The Amendment will clear the way for legislation to enable a judge, who is considering a bail application, to take into account the fact that the accused is likely to commit serious crime if he or she is given bail. The Annual Report of the Garda Commissioner for 1995 showed that 5,440 offences were committed by people on bail. The Law Reform Commission reported in 1993 that more than a quarter of detected armed robberies were committed by people on bail. These figures refer to detected crime only so the number of crimes actually committed by people on bail is likely to be a multiple of those detected. Nobody suggests that the proposal is the answer to our crime problem. There is, however, a public demand for changes in criminal law and procedure and the Amendment will help to restore the balance between the rights of victims and the rights of those charged with crime. The Present Rules on Bail The present law severely restricts the court's discretion in regard to bail. In practical terms, there are only two grounds for refusing bail: (i) the accused will not turn up for trial; (ii) he or she will interfere with witnesses. Even if it could be clearly shown that the accused was going to commit serious crimes if given bail, the court at present would be obliged to grant bail if the two conditions set out above did hot apply. For example, if an accused had a long track record of being involved in serious crime while on bail on previous occasions, a court would be prohibited from taking that into account in deciding whether or not to grant bail. The Amendment is intended to remedy that situation. What is Proposed The Amendment if passed will be followed by legislation. Courts will be empowered to refuse bail to a person charged with a serious offence if it is considered necessary in order to prevent the commission of serious crime by the accused. It will be a matter for the courts to decide in each case whether the refusal of bail is reasonably considered necessary to prevent the commission of a serious offence. This wider discretion is needed because of the way judges' hands are tied by the present, outdated, law. The proposal is a carefully balanced and reasonable measure under which it will be necessary for the court to be satisfied of the risk to society posed by an accused person before bail is refused. The Amendment is confined to cases where the accused is charged with a serious offence and where it is reasonably considered necessary to prevent the commission of another serious offence by that person. The Amendment complies with International Standards and makes Common Sense The Amendment is based on the relevant part of the European Convention on Human Rights. Article 5(1) of the Convention allows for the deprivation of liberty "when it is reasonably considered necessary to prevent a person committing an offence". It is also in accordance with bail laws in other countries. When the Law Reform Commission examined the question of bail, they found that all the other jurisdictions they examined allowed the question of the commission of further crimes if bail were to be granted to be taken into account by the courts. The Amendment accordingly is in line with modern international standards in regard to human rights. The question is not an ideological one but is basically a matter of common sense. The proposal does not dictate that bail will be refused in any particular case. It just gives the court the capacity to refuse it if the accused is likely to commit serious crime while awaiting trial. The State has an obligation to protect people against individuals who persistently re offend while on bail.

A S t a t e m e n t o f t h e Case Against T h e proposed a m e n d m e n t o f t h e Constitution
The Amendment will Breach a Fundamental Principle of Justice Every person is presumed innocent until, after a valid trial, such person is found guilty. This simple statement, so well known to everybody, is a fundamental principle of justice both constitutional and natural. This proposed Amendment, if passed by the people, will breach this basic principle by allowing laws to be made enabling judges to keep persons charged with a serious offence in prison until trial on the ground that they might, if given bail, commit another serious crime or crimes. No judge can do this as the Constitution now stands. When, some years ago, a judge in a case before him purported to breach this principle, the Supreme Court gave a strong response and held that such preventive justice has no place in our legal system; yet, through this Amendment, it is sought to place it there. For a court to deprive a person of their liberty because they might commit a serious offence in the future is preventive detention. The idea is not new; it lies behind the concept of internment without trial, a form of detention which should never be part of the ordinary law of the land. The Crucial Importance of Bail Fundamental principles of liberty are involved in the law of bail. The right to bail is that right which every accused has to personal liberty until his/her trial. Bail is a right and not a privilege. Courts must grant bail unless the prosecuting authority can show that there is a likelihood of the accused not attending the trial or interfering with witnesses. All of these matters directly relate to the trial of the offence of which the accused is charged and not to any trial of some offence the commission of which has not taken place. The courts are entitled to require sureties to guarantee an accused's attendance at the trial and also to attach conditions to the bail, but so important do the courts regard the right to bail, excessive or unreasonable sureties or conditions are held to amount to an unconstitutional denial of bail. The Consequences if t h e Amendment is Passed (i) An accused who is refused bail is put in prison even though no crime has been proved against him/her. Such accused is given certain privileges which are denied to convicted prisoners but is otherwise similarly confined. Remand centres or hostels are required today to redress this injustice. (ii) Even if the extra places of custody already required are made available, this Amendment will result in a greater number of convicted prisoners having to be released to make way for people who will be refused bail. (iii) Where a person has been kept in prison pending trial and is subsequently found not guilty there is no provision for compensation, even though the person may have thereby lost his/her job or business, or found that relations with his/her family have been seriously damaged, or suffered psychological damage. (iv) The standard and quality of proof required to show that an accused will commit a serious crime pending his trial is as yet undefined. If the courts set too high a standard the proposed Amendment will not serve the purpose of its proposers, if too low grave injustices will result. At present no person can be convicted of a crime unless that person's guilt can be proved beyond reasonable doubt. It is impossible to apply the test of beyond reasonable doubt to a crime that has not been committed. The proposed Amendment is Unnecessary The research to support this serious step has not been done. The percentages of people who would be denied bail is not known. Such figures as have appeared in the media for crimes committed on bail are not significant and relate more to the number of crimes rather than the criminals. The existing laws could be used or developed more effectively, e.g. more forfeiture of bail bonds, more realistic conditions attached to bail, ensuring trials will take place quickly after arrest and charge and the mandatory imposition of consecutive sentences for offences committed by people who are on bail.

A V o t e I n F a v o u r O f is a " Y e s " V o t e .

A V o t e A g a i n s t is a " N o " V o t e