A recent research report has highlighted a potential risk of “bias, prejudice, and excessive flexibility or inflexibility”, due to the discretionary powers given to judges when considering applications for bail. The findings were published by the Irish Council for Civil Liberties (ICCL) in a report named Enhancing Judicial Evaluation of Flight Risk.
The general consensus among legal professionals, the report noted, is that Ireland’s bail application procedures largely uphold individuals’ liberty rights and presumed innocence. Nevertheless, the potentially prejudiced leanings of the judge handling the bail application, given the discretionary nature of the process, were flagged as an area of concern.
The report further revealed an apparent bias towards non-Irish nationals applying for bail, particularly those with no established connections with the State. Despite an EU Commission’s recommendation issued in December 2022 that lack of State ties should not be used as a basis for determining flight risk, the study demonstrated that Irish nationals are more often offered bail than those from other countries, including fellow EU members.
Additionally, it was noted that there’s a disproportionate pretrial detention rate, alongside a surge in the average remand duration and an increase in less severe crime defendants being held in custody ahead of their trials.
The report’s author, Niamh McCormack, a criminal justice policy officer at ICCL, cited “significant hurdles” in the issue of bail judgment. She included the country’s excessive application of detention due to insufficient judicial resources and an over-reliance on pretrial detention, particularly for foreign defendants.
The research suggested several changes, such as gathering in-depth data about bail grants and the utilisation of pretrial detention. Damien Coffey, a partner at Sheehan and Partners LLP, warned of the “troubling trend of increased pretrial detention use”, emphasising the significant increase in pretrial detention figures in Ireland.
Coffey raised concerns about severe delays in the criminal justice system and prison overcrowding, highlighting the increasing need to investigate this issue despite the appointment of additional judges and discussion of new prisons.
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