There has been a “dramatic” increase in the number of people detained in custody before a trial, new research shows.
The Irish Council for Civil Liberties (ICCL) published a new research report into the use of pre-trial detention and the denial of bail in Ireland.
The report, titled Improving Judicial Assessment Of Flight Risk, found that in general the operation of the rules surrounding bail applications respects people’s right to liberty and the presumption of innocence.
However, it did raise a number of concerns relating to bail and pre-trial detention in Ireland.
The research shows there has been a 21 per cent increase in the daily average number of people held in pre-trial detention since 2017.
In 2020, the average number of pre-detention prisoners was 738, a 4.4 per cent increase on 2019.
Figures show that 884 prisoners were being held on remand or at trial on April 4th 2022. On 1st April 2021 the number was almost half that at 428.
In February 2022, 835 prisoners were being held in remand or at trial, up from 712 in February 2021.
There is also an increase of those remanded in pre-trial custody for less serious crime.
Since 2016, there has been a 56 per cent increase in the number of people imprisoned while awaiting trial or sentencing for “public order offences and other social code offences”.
The research also found that foreign nationals, including those from other EU countries, are less likely to be granted bail by judge in Ireland.
The report finds that Irish judges lean heavily on the presumption that foreign nationals with no links to the State present a greater flight risk than Irish nationals.
This is despite a 2022 recommendation from the European Commission that a suspect being a foreign national with no links to a state is not on its own a reason to conclude that there is a flight risk.
Legal practitioners interviewed as part of the research highlighted the lack of suitable facilities available for proper consultation with their clients.
They also pointed to long delays in the criminal justice system, as contributing to longer periods of pre-trial detention.
The research finds that the wide discretion afforded to judges in making decisions on bail can lead to inconsistent application of the rules and presents a risk that inherent bias could affect the outcome of bail proceedings.
The report makes 15 recommendations to legislators, prosecutors, judges and practitioners.
It calls for comprehensive data to be compiled relating to the granting of bail and the use of pre-trial detention and for the Bail Act 1997 to be independently reviewed to assess its compatibility with Ireland’s international human rights obligations under the International Covenant on Civil and Political Rights (ICCPR).
The report also says that measures should be taken to increase the number of judges to address the long periods of delay in the criminal justice system and that training should be provided to gardai, prosecutors and lawyers on European Supervision Orders and alternatives to pre-trial detention.
It further recommended that the judiciary should stop the practice of refusing bail for non-serious offences, particularly where the time spent in pre-trial detention is likely to be longer than any potential sentence on conviction.
Niamh McCormack, criminal justice policy officer at the ICCL, said: “At a time when prison overcrowding is again presenting a real crisis in our justice system, this report demonstrates that there are significant challenges at the point of adjudication on bail.
“A shortage of judicial resources and an over reliance on pre-trial detention, especially for foreign accused persons, is contributing to Ireland’s excessive use of detention.”
Dr Helen Kehoe, legal and public affairs manager at the Irish Penal Reform Trust, said: “At a time when we have almost 1,000 people in pre-trial detention, often for longer periods of time, we should be looking to bail as a way to take pressure off the system.
“IPRT agrees with the report’s recommendation to stop the practice of refusing bail for non-serious offences.
“We are concerned that pre-trial detention can undermine the presumption of innocence as well as having a severe psychological impact on the person detained.”
Professor Mary Rogan, associate professor in law at Trinity College Dublin, said: “I welcome this opportunity to focus attention on the worrying increase in the numbers of people in pre-trial detention in Ireland.
“I am concerned that we are moving away from our position as having comparatively lower rates of pre-trial detention in the European context.
“Increased use of pre-trial detention places many rights at risk and, when accompanied with an already overcrowded prison population, a strategy is needed to reverse this trend.”
Damien Coffey, partner in Sheehan and Partners LLP, said: “This research demonstrates that there has been a dramatic increase in pre-trial detention figures in Ireland.
“The rise is particularly worrying when considered alongside the significant delays in processing matters through the criminal justice system and the level of overcrowding in our prisons.
“Additional judges have been appointed, and new prisons mooted, but neither will obviate the need for a review of the concerning trend of increased use of pre-trial detention.”
