Reconciling Ireland’s bail laws with traditional Irish constitutional values

Bail is a device which provides for the pre-trial release of a criminal defendant after security has been taken for the defendant’s future appearance at trial. Ireland has traditionally adopted a liberal approach to bail. For example, in The People (Attorney General) v O’Callaghan (1966), the Supreme Court declared that the sole purpose of bail was to secure the attendance of the accused at trial and that the refusal of bail on preventative detention grounds amounted to a denial of the presumption of innocence. Accordingly, it would be unconstitutional to deny bail to an accused person as a means of preventing him from committing further offences while awaiting trial. This purist approach to the right to bail came under severe pressure in the mid-1990s from police, prosecutorial and political forces which, in turn, was a response to a media generated panic over the perceived increase over the threat posed by organised crime and an associated growth in ‘bail banditry’. A constitutional amendment effectively neutralising the effects of the O'Callaghan jurisprudence was adopted in 1996. This was swiftly followed by the Bail Act 1997 which introduced the concept of preventative detention (in the bail context) into Irish law. More recent legislative enactments have further strengthened this encroachment on the right to bail. The combined effect of these incremental changes has been to produce a bail regime fundamentally at odds with core values of the Irish legal system as espoused in the O'Callaghan jurisprudence. At the very least, they entail a direct attack on the right to liberty and the presumption of innocence. However, it must be said that they are not necessarily incompatible with the European Convention on Human Rights. Nor are they peculiar to Ireland. Most of them are already established features of several other common law jurisdictions, including England and Wales, and the United States. The primary aim of this thesis is to explore the reorientation of the Irish criminal justice system from a due process to crime control system of justice. The reform of Ireland’s bail laws and the introduction of preventative detention in the bail context will serve as the principal example to convey this contention. A related aim of this thesis is to assess how and the extent to which these bail changes have been imported hastily from other jurisdictions without being adequately assimilated to the distinctive domestic and constitutional traditions of the Irish criminal justice system.