OPINION: Those seeking overhaul of Irish bail laws should be careful what they wish for

In the immediate aftermath of Sunday's shooting incident at the Fairgreen Shopping Centre in Carlow Town, there were calls for Ireland’s bail laws to be urgently reviewed and changed.

The calls came less than a week after the Government announced it's to appoint a senior counsel to examine the conditions under which a repeat offender can be granted bail while awaiting trial.

That announcement was made as part of a public apology to the family of cyclist Shane O'Farrell who was killed in a hit-and-run incident in Monaghan almost 14 years ago by a man who should have been in prison at the time.

In a statement issued on Monday evening - just over 24 hours after the shooting incident in Carlow - Independent Ireland TD Ken O’Flynn called for “sweeping reform” of our bail laws. “Effectively we have a bail law system that is a threat to life and security,” he wrote.

In a separate statement, Sinn Fein TD Matt Carty said: “Our laws must ensure that the most dangerous criminals are behind bars”.

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While I’m sure there are thousands of people across the country who agree with the sentiments of both statements, others will argue against any knee-jerk reaction and I, for one, would agree.

Any reform of the bail laws will be complex and our elected legislators must exercise caution given the potential of there being unintended consequences which could cause havoc within the criminal justice system.

The suggestion, in some quarters, that anyone suspected of carrying out a serious criminal offence should be ‘locked up’ as soon as they are arrested by gardai is non-sensical and unworkable, particularly given the current delays in hearing some cases and the overcrowding crisis in our prisons.

What about due process and the presumption of innocence that every citizen is entitled to?

What about Article 40 of the Constitution which states: "No citizen shall be deprived of his personal liberty save in accordance with law"?

Currently, there is robust legislation and strong case law relating to bail and the grounds on which an individual can be refused bail and remanded in custody.

As it stands, every person who is brought before a court has an entitlement to bail unless the State objects and, even then, only if the objection reaches the required threshold to satisfy a judge otherwise.

In some cases, such as murder, only a High Court judge can make such a determination but in most cases, issues relating to bail are heard by district court judges up and down the country.

Bail is not an issue in the vast majority of cases before the courts but bail hearings do take place every day of the week - some are reported in the media, others are not.

From my experience covering the courts, the implementation of the existing bail laws can vary depending on where you are in the country and, perhaps, a review of the current system is warranted rather than “sweeping reform” as Deputy O'Flynn puts it.

Section 2 of the Bail Act 1997 outlines six factors which a judge must consider before deciding to refuse bail if there is an objection.

These include the nature and degree of seriousness of the offence, the nature and strength of the evidence and any previous convictions which the accused person may have. Case law allows for the likelihood of an individual fleeing or failing to appear in court to also be considered.

Occasionally, senior gardai will give ‘opinion evidence’ in the context of a bail hearing but this can be challenged and it is up to the presiding judge to determine how much weight to give to such evidence.

Refusing bail and depriving someone of their liberty is a serious decision for any judge to make and it is right that a high burden of proof is placed on the State in cases where bail is opposed.

Every citizen has an entitlement to their liberty so it is not something that should be done lightly or in response to public pressure.

While the current bail system may not be perfect it’s certainly not broken.