BAR COUNCIL SEMINAR ON SENTENCING AND BAIL
Paper by Monika Leech BL
Wednesday 25th March 2009
BAIL – A PRACTICAL PERSPECTIVE
The purpose of this paper is not to provide a comprehensive treaty on the law of Bail which has been
covered extensively by Professor Walsh in his excellent guide, but rather to address the practical
issues which arise on a day to day basis in our courts.
Jurisdiction to grant bail has existed since ancient times and is referred to in Blackstone’s
Commentaries on the laws of England 6th Ed, (Dublin, 1775) where the author states :
“By the antient common law, before and since the conquest, all felonies were bailable... so that
persons might be admitted to bail almost in every case”.
The concept of preventative detention has traditionally been rejected by the Irish Supreme Court as
something which militates against the guarantees of personal liberty and the presumption of
innocence enshrined in the Constitution. Since the Sixteenth amendment to the Constitution in 1996,
bail now however in certain circumstances has to be examined against the backdrop of preventative
measures introduced by the Bail Act, 1997.
I propose in this short address to examine the existing valid grounds of objection to bail and then to
discuss how these operate within our current system and the challenges which arise for the
practitioner and client alike.
Objections to Bail.
In the seminal case on bail AG v. O’Callaghan [1966] IR 501, Mr. Justice Walsh stated that while
it was desirable to release on bail pending trial as large a number of persons as possible, the court
acknowledged that from time to time, necessity demanded that certain unconvicted persons should
be held in custody to secure their attendance at trial – necessity being the operative test. The
Supreme Court concluded that preventative detention could only be justified “where it is likely that
the accused may attempt to evade justice”
In practice this means that in any application for bail where there is an objection, the obligation is on
the Prosecution to establish to the court’s satisfaction that the accused is either:
(a) Unlikely to stand trial and or
(b) That the accused is likely to interfere with witnesses, jurors or the destruction of evidence.
In addition to O’Callaghan, the accused now also faces an additional challenge to bail arising from
the provisions of the Bail Act 1997 and in particular Section 2(1) thereof. This was the provision
which was enacted following the 1997 referendum on bail and which effectively permits the notion of
preventative detention to prevent the commission of further serious offences – a concept which was
expressly rejected by the Supreme Court not only in O’Callaghan’s case but also in the later case of
DPP v. Gordon Ryan [1989] ILRM 333
How this works in practice
Let us suppose that you have received a phone call on any given morning at 10.15am from your
valued instructing solicitor who instructs you to attend at the Bridewell District Court immediately for
the purpose of a bail application. You are instructed that the client has been charged with an
offence, namely drug trafficking and was refused station bail by the member in charge due to the
seriousness of the charge and a few outstanding bench warrants for previous failures to attend.
Matters arising for consideration:
(a) Jurisdiction of the Court to grant bail.
The jurisdiction of the District Court to grant bail arises from Section 28 (1) of the Criminal
Procedure Act, 1967 which provides as follows:
“ A justice of the District Court shall admit to bail a person charged before him with an offence, other
than an offence to which Section 29 applies, if it appears to him to be a case in which bail ought to
be allowed.”
Section 29 of the Act provides that a person charged with certain offences namely:
•
Murder
•
Attempted murder
•
Piracy
•
Genocide
•
Treason
shall not be admitted to bail except by order of the High Court.
(b) Objections to bail
Now that you have established that the court does have jurisdiction to hear the bail application, your
next task prior to the hearing is to try to establish the objections of the prosecution, if any to bail.
As you are likely to be unattended in the District Court and you will not have an opportunity to take
instructions from your client in custody, please ensure to obtain as much information from your
solicitor as possible in that initial telephone conversation. Ideally, you will be sent down the office file
which you should treat as you would the Hope diamond given that it will be the original office file
containing confidential information and instructions relevant to your client. Please ensure to take a
fulsome and intelligible note to inform your solicitor of the developments in the District Court.
You should then locate the prosecuting member and ascertain any objections to bail. Once the case
is called, the prosecuting member will outline in evidence the objections to bail. Unlike the High Court
procedure (see below) the application in the District Court is fairly informal and does not generally
require the submission of any paperwork. Any order which is made will be recorded on the charge
sheet.
Please ensure that you are appearing for the correct defendant. A helpful indicator is to cross check
the date of birth on the office file, if you have one and the charge sheet. If your client does not have
a charge sheet, you are entitled to ask the prosecuting member for a copy to put on file.
Your function in the bail application as counsel for the accused is to listen carefully to the evidence
and to test this evidence in cross examination by putting your client’s case to the court. The court is
only entitled to refuse bail if satisfied on the evidence that the accused is unlikely to turn up or to
interfere with witnesses.
(a) “Flight risk”
Clear indicators of failure to attend are previous warrants for failure to attend, previous attempts
to escape from lawful custody or attempting to evade arrest.
(b) Interference with witnesses or jurors
The Prosecution would have to establish clear evidence of intimidation from either the
complainant in the case or a crucial witness. Hearsay evidence is not normally admissible from
the Gardai as it clearly deprives the accused of the opportunity to test the evidence by cross
examination. If the Garda himself witnesses the intimidation, he can give direct evidence. In
certain cases, a court is entitled to admit hearsay evidence if satisfied that grounds exist where
witnesses are not required to give viva voce evidence namely in cases of police privilege where
Gardai act on confidential information.
See DPP-v-McKeon Supreme Court Unrep 12th October 1995.
In the case of DPP-v- McGinley 1998 2 ILRM 233, the Supreme Court held that where
evidence exists which indicates that as a matter of probability that the accused if granted bail
would interfere with witnesses, the right to liberty must yield to the public interest in the
administration of justice. In this context, hearsay evidence may become admissible and the
court’s obligation is to consider what weight to accord the evidence.
In accordance with O’Callaghan, factors which a court may consider include the following:
(i)
Likelihood of disposal of evidence
(ii)
The seriousness of the charge
(iii)
The nature of the evidence in support of the charge
(iv)
The likely sentence on conviction
(v)
The immediate apprehension of the accused ( the “smoking gun” alert)
(vi)
The previous convictions of the accused
(vii)
Failure to attend on previous occasions.
(viii)
The objections of the Gardai which must be supported by sufficient evidence to enable to the
court to arrive at a conclusion of probability.
Other factors, although not specifically outlined in O’Callaghan but which have evolved since that
case, include lack of ties to the jurisdiction or lack of fixed abode. While these are not reasons in
themselves to refuse bail, they may convince the court that certain conditions are prudent namely an
independent surety or the surrender of a passport. It is your obligation as counsel for the accused
with your instructing solicitor to put alternatives before the court to circumvent these difficulties. For
example, if your client is not welcome at one address but welcome at another you should put this to
the Garda in cross examination so that the alternative address can be approved.
In some situations while a trial date is looming 18 months hence, a court might be disposed to
release a person under very stringent bail conditions. Alternatively, an applicant charged with a less
serious offence may have actually served more time on remand than the length of sentence they are
likely to receive and you as Counsel have an obligation to bring this to the court’s attention.
(c) The Bail Act 1997
The prosecution may also have objections to bail based on Section 2(1) of the Bail Act, 1997 which
contemplates the lawful refusal of bail by a court to a person who stands charged with a “serious
offence” where it is reasonable considered necessary to prevent the commission of a serious offence
by that person.
A “serious offence” is defined in the Act as an offence specified in the Schedule of the Act and
punishable by at least 5 years imprisonment. While the Schedule contains a comprehensive list of
offences, it is not conclusive. Therefore, not every application for bail will be considered within the
framework of Section 2. It is crucial that you are familiar with the offences listed in the Schedule
examples of which are:
Murder, manslaughter, rape, criminal damage and all offences under the Theft and Fraud Act, 2001.
Factors to be considered in deciding whether bail ought to be refused under Section 2 are as follows:
(a) The nature and degree of seriousness of the offence with which the accused is presently
charged and likely sentence to be imposed on conviction.
(b) The nature and degree of seriousness of the offence apprehended and the sentence
likely to be imposed on conviction.
(c) The strength of the evidence.
(d) Any conviction of the accused for an offence committed while the accused was
previously on bail.
(e) Any previous convictions of the accused including any conviction the subject of the
appeal.
(f) Any pending charges
(g) If any of the above matters are considered, the court may also take into account the
accused’s drug addiction, if any.
The prosecution must put the defendants on notice of a Section 2 objection and the defence must be
given an opportunity to challenge this evidence by means of cross examination or direct evidence of
the accused. See McDonagh v. Governor of Cloverhill Prison, Supreme Court. McGuinness J.
28th January 2005:
“ It would seem to be essential as a matter of natural and constitutional justice that an accused
person should be made aware that an objection to bail of so serious a nature is to be brought
forward by the prosecution. In the same way, it is also a matter of natural and constitutional justice
that the accused person should be given a proper opportunity either by means of evidence or
through submissions to challenge such an objection.”
If you have been put on notice that there is a Section 2 objection pending, but would like to make
further investigations such as double checking on previous convictions or warrants, ask for the
matter to be put to second call so that you are in full possession of the facts before you get on your
feet or you will be doing a disservice to your client. It may even be prudent to adjourn the bail
application to a subsequent occasion to enable you and your solicitor to visit the accused in the
centre of his remand and to take further instructions.
(d) The Criminal Justice Act 2007
This Act introduces a new requirement namely:
(a) Applicants for bail charged with a serious offence may have to provide a statement of
their means, their previous criminal record and details of any offences committed while
on bail.
(b) It also provides that a Garda Superintendent may give an opinion that bail should be
refused on the grounds that the applicant is likely to commit a serious offence if granted
bail.
•
•
The prosecution authorities are now granted the right to appeal against
decisions to grant bail or against the conditions attaching to it, where granted.
Several changes are made to the technical rules relating to the operation of
bail.
Requirements of the statement of the accused are set out in Section 6 which inserts a new
Section 1a in the 1997 Act namely:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
Name or any previous name/alias.
Ocupation or preceding occupation within past three years.
Source of income within immediate previous three years.
Property wholly or partly owned either within or outside the State.
Previous convictions for a serious offence.
Previous convictions for offences committed while on bail.
Previous applications for bail to include refusals and conditions of previous bail.
This requirement may be dispensed with by agreement between the parties or where the
prosecution has indicated no objection to bail or by order of the court where it considers that
there is good reason to do so. Providing false information in the statement is a summary offence
and carries a penalty of 12 months imprisonment.
(e) Conditions of Bail.
In the event that the District Judge agrees to release your client on bail, it is likely that bail
conditions will be imposed and you must be in a position to agree to these conditions having
taken instructions from your client. You must advise your client that he will now be required to
enter into a bail bond and the significance of failing to adhere to the terms of the bond. Statutory
terms of bail under the Bail Act 1997 include
( i ) That the accused should not commit any further offence on bail.
(ii) That the accused shall be of good behaviour.
Some of the other conditions likely to be imposed at the request of the prosecutor are as follows:
(a) Travel restrictions.
(b) Surrender of passport.
(c) Prohibited contact with names persons (the accused will have to provide an undertaking in
court).
(d) Drug treatment/ alcohol treatment.
(e) Signing on at a garda station on specified days. (Please ensure it is a 24 hour station).
(f) Independent surety.
On signing the recognisance in court, the accused will be admitted to bail. Variation of the bail terms
can only take place on application to the court.
How much bail?
The accused will enter into his own bond which is generally a nominal amount as it is the terms and
conditions which are usually the punitive element of the recognisance. However, in more serious
cases, the courts have had a tendency to impose large financial obligations on the accused and the
independent surety. The Supreme Court has already acknowledged that bail should never be fixed at
an amount which is tantamount to a refusal ( O’Callaghan).
Independent Surety.
An independent surety is a person who is not connected with the charges and who agrees to either
lodge money in court to ensure the attendance of the accused at the trial or can prove their worth to
a certain amount of money. In the latter case, it is normally by the production of a bank/post office
book and an undertaking not to deplete the reserves by a certain amount. In the event of a breach
of bail, the surety stands to forfeit the amount he has pledged.
A surety should be :
(a) Over 18 years of age.
(b) Not the attending solicitor/you.
(c) Independent of the proceedings – no witnesses/co accused.
(d) Not in custody.
(e) Conviction /bankruptcy free (ideally).
(f) Not acting as surety for anybody else.
Generally at this stage of the proceedings in the District Court, the surety will be approved and it is
the job of the defence to put the surety into the witness box for approval pursuant to Section 7 of
the Bail Act, 1997 which imposes certain obligations on the Court when approving a surety namely
his financial resources and character. If it is not possible to have the surety approved on the day,
application may be made on notice to the Gardai at a later date. In the case of a cash lodgement,
the money can be lodged with the governor of the appropriate remand centre who has the authority
to deem a recognisance entered and direct the release of the accused on bail.
Refusal of Bail
If the Court refuses bail, Section 28(2) of the Criminal Procedure Act, 1967 will permit a
renewed application on the next remand date. Most District Judges are reluctant to consider a
second application based on the same facts unless there is a change in circumstances.
Other times, bail may be fixed which it was not possible for the accused to avail of. This is known as
a “remand in custody with consent to Bail”. If your client’s circumstances change and he is in a
position to take up bail at a later date, he may do so before the governor of the relevant institution.
If a refusal has been made pursuant to Section 2(1) of the Bail Act 1997, Section 3 (1) permits a reapplication to the original court if the accused’s trial has not commenced within four months from the
date of refusal.
Duration of Bail Bond
A District Court recognisance will technically expire upon the return for trial to the Circuit /Central
Criminal Court when a new recognisance will be entered into generally upon the same terms and
conditions. It is prudent for the surety to be present at the return for trial for approval.
The High Court
The High Court bail procedure is designed to facilitate the following applications for bail:
(a) Offences listed under Section 29 of the Criminal Procedure Act, 1967.
(b) Following a refusal in the District Court.
(c) Where a variation of terms fixed in the District Court is sought.
(d) Where the accused seeks to vary a recognisance fixed following an appeal of a conviction in the
District Court.
Applications to the High Court are provided for in Order 84, Rule 15 of the Rules of the Superior
Courts which provide for an application to be made on notice to the Chief Prosecution Solicitor
grounded on the applicant’s affidavit at least three clear days before the proposed hearing. The bail
list is presently taken on Mondays at the High Court in Cloverhill Prison. It is possible to obtain a
short service order in the Four Courts on the preceding Thursday but without guarantee that your
case will be reached on the day of the list.
A practice has also arisen whereby the applicant can file his own application through the prison and
in these cases, if the matter is not straightforward, the court will often adjourn the application to
facilitate legal consultation to take place and a new affidavit to be filed.
While the rules technically require the applicant to swear the affidavit, generally in practice this is
done by the solicitor. The affidavit must be in full compliance with SI 811 of 2004 which came into
effect on 29th December 2004 and which provides very specific requirements for inclusion in the
affidavit namely:
(a) Details of previous refusals of bail in the past.
(b) The place of the applicant’s detention.
(c) The normal place of residence of the applicant.
(d) The proposed residence of the applicant, if different.
(e) Full details of the offences as charged.
(f) Details of proposed independent sureties and the level of bail proposed.
(g) Previous terms of bail.
(h) Any previous High Court bail applications in respect of the offences.
(i) Details of previous warrants.
(j) Conditions of bail the applicant proposes.
(k) The personal circumstances of the applicant to include his means.
Copies of all charge sheets should be exhibited with the affidavit.
If you have successfully obtained bail, an order will be drawn up by the registrar and a copy should
be handed in to the District Court at the next remand date to be included on the District Court file.
Generally, the High Court will not approve sureties which should be approved in the District Court at
a later date.
Please note that there is no right of appeal from the High Court to the Supreme Court other than on
a point of law. Generally the High Court will not entertain a subsequent application for bail following
a refusal other than a substantial change of circumstances or the procedure outlined in Section 3 of
the Bail Act 1997 where four months have elapsed without a trial.
Please also note that withdrawal of a bail application from the list may be treated as an application in
itself and therefore any subsequent application may be considered an attempt at a second
application which would require a change of circumstances.
Breach of Bail
Failure to appear on bail will result in estreatment of the recognisance in the absence of a valid
explanation. Likewise, any other contravention of the terms and conditions will be treated as a
breach of bond. In the event of a non- appearance, a judge is likely to issue a bench warrant for the
arrest of the accused and to certify breach of bond. The penalty for failure to appear is a summary
offence pursuant to Section 13 of the Criminal Justice Act, 1984 and carries up to twelve
months imprisonment.
In addition, in the event of a breach of the terms or conditions, the prosecution is likely to have the
matter re-entered with a view to having the bail formally revoked. This is usually done on notice to
the defence and a full hearing will take place, usually before the Judge who granted the original bail.
The defence will be given an opportunity to cross examine the prosecution’s evidence.
Payment pursuant to the Attorney General’s scheme.
At the conclusion of the application to the High Court, win or lose or even bail by agreement, you will
be making an application to the court for a recommendation for payment pursuant to the Attorney
General’s Scheme. While this is described as a recommendation, it is rare for payment to be withheld
although there are always cases where the presiding judge will refuse an application in open court
where the application was considered frivolous or lacking in merit. When signing the legal aid sheet,
do tick the relevant box if in fact you drafted the affidavit and notice of motion as you are entitled to
payment.
Bail Post conviction
The conditions providing for bail pending appeal to the Court of Criminal Appeal or the Supreme
Court following conviction were set out in the judgement of Mr. Justice Geoghegan in the case of
DPP-v- Corbally [2001] 1 IR. The court indicated that notwithstanding that the applicant’s
convicted status, bail could be granted where:
•
“definite and discrete grounds of appeal” are identified which have a strong chance of
success on appeal.
•
The interests of justice require it particularly where the sentence is due to expire.
•
Discretion to be exercised sparingly given that the applicant is a convicted person.
•
The views of the gardai / DPP should be taken into account.
Where a person is convicted in the District Court and lodges an appeal to the Circuit Court, there is
an obligation on the court pursuant to Order 101 Rule 4 to fix a recognisance for the purpose of
the appeal. This recognisance if unsatisfactory may be appealed to the High Court using the
procedure outlined in Order 84, Rule 15.
The Criminal Justice Act, 1997 has amended the Bail Act of 1997 by inserting Section 6 A
which requires that any recognisance entered into for the purpose of appealing a conviction of the
District Court to the Circuit Court shall be subject to conditions namely:
(a)
That the accused shall prosecute the appeal.
(b)
That the accused shall attend the Circuit Court until finalisation of the appeal.
(c)
That the accused shall not commit an offence while on bail pending appeal.
Habeas Corpus
An application seeking an enquiry into the lawful detention of the accused would arise in the
following circumstances:
(a) Where the Gardai objected under O’Callaghan grounds and bail was refused pursuant to Section
2 of the Bail Act although no evidence was led in this regard – see DPP-v- McDonagh above.
(b) Where there was no Garda objection to bail but judge refused bail of own volition.
(c) Imposition of excessive bail without enquiry into the accused’s means.
(d) Breach of natural justice in the conduct of the application such as refusal to hear submissions.
(e) Imposition of bail terms by judge in the absence of any such request by the prosecution –
see Paul Grace v. Governor of Cloverhill Prison 22 February 2005, Mr. Justice White.