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Reconciling Ireland's Bail Laws with Traditional Irish Constitutional Values

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Reconciling Ireland's Bail Laws with Traditional Irish Constitutional Values Reconciling Ireland's Bail Laws with Traditional Irish Constitutional Values Kate Doran Thesis Offered for the Degree of Doctor of Philosophy School of Law Faculty of Arts, Humanities and Social Sciences University of Limerick Supervisor: Prof. Paul McCutcheon Submitted to the University of Limerick, November 2014 Abstract Title: Reconciling Ireland’s Bail Laws with Traditional Irish Constitutional Values Author: Kate Doran 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. i Declaration I hereby declare that this dissertation, submitted in fulfilment of the requirements for the degree of Doctor of Philosophy, represents my own work. Signed ______________________________________ Kate Doran November 2014 ii Acknowledgments I would like to thank my supervisor Professor Paul McCutcheon for his help, advice and support over the course of this research. I am deeply indebted. I would also like to thank Professor Dermot Walsh for acting as my initial supervisor. Thank you to my friends and family, particularly those that endured the PhD process along with me – Helen McDermott. This research would not have been possible without the financial assistance of the Irish Research Council (IRC). Finally, thanks B! This thesis is dedicated to my parents – Anne and Stephen Doran. iii Table of Contents Abstract………………………………………………………………………………… i Declaration……………………………………………………………………………... ii Acknowledgments……………………………………………………………………... iii Table of Contents ……………………………………………………………………… iv Table of Cases………………………………………………………………………….. vi A General Introduction………………………………………………………………. 1 Chapter 1 – Theoretical Overview…………………………………………………... 6 Introduction……………………………………………………………………………. 6 Packer’s Due Process and Crime Control Models…………………………………….. 7 The Critical Reception to Packer’s Due Process and Crime Control Models………… 10 David Garland’s Culture of Control…………………………………………………… 14 Risk Management……………………………………………………………………… 18 Chapter 2 – Ireland’s Traditional Constitutional Values………………………….. 21 Introduction…………………………………………………………………………….. 21 A Brief History………………………………………………………………………… 21 Ireland’s Traditional Constitutional Values……………………………………………. 24 Ryan v Attorney General………………………………………………………………………. 29 The Right to Liberty…………………………………………………………………… 32 The Presumption of Innocence………………………………………………………… 37 The Constitutional Rights Doctrine in England and Wales……………………………. 40 The Constitutional Rights Doctrine in the United States………………………………. 47 Chapter 3 – From a Due Process to Crime Control Model………………………... 54 Introduction…………………………………………………………………………….. 54 From a Due Process to Crime Control Model…………………………………………. 54 Moral Panic, the Crime Control Phenomenon and Risk Management………………… 56 Preventative Detention and the European Convention on Human Rights……………... 63 Imprisonment for Public Protection……………………………………………………. 65 From a Due Process to Crime Control Model?............................................................... 67 Chapter 4 – The Evolution of Bail…………………………………………………… 73 Introduction…………………………………………………………………………….. 73 The Origin of Bail……………………………………………………………………… 75 Bail and the Normans………………………………………………………………….. 78 The Assize de Clarendon………………………………………………………………. 83 The Sheriff……………………………………………………………………………... 87 Obtaining Release by Writ……………………………………………………………... 90 The Magna Carta………………………………………………………………………. 93 The Statute of Westminster …………………………………………………………… 94 The Petition of Rights………………………………………………………………….. 99 The Habeas Corpus Act ……………………………………………………………….. 103 Further Legislative Enactments………………………………………………………... 105 The Judicial Stance…………………………………………………………………….. 108 iv Chapter 5 – The People (Attorney General) v O’Callaghan………………………… 112 Introduction…………………………………………………………………………….. 112 The History of Bail in Ireland………………………………………………………….. 112 Before ‘O'Callaghan’………………………………………………………………….. 119 Murnaghan J’s approach in O’Callaghan…………………………………………………… 125 The Supreme Court Decision in O’Callaghan……………………………………………… 130 Does Preventative Detention Conflict with Ireland’s Traditional Constitution Values? 133 Chapter 6 – Bail Reform……………………………………………………………... 141 Introduction…………………………………………………………………………….. 141 After ‘O'Callaghan’……………………………………………………………………. 142 An Increase in Ireland's Crime Levels…………………………………………………. 144 The Pressure for Bail Reform Begins………………………………………………….. 151 Legislative Changes……………………………………………………………………. 153 The Criminal Justice Bill 1983………………………………………………………… 156 The Criminal Justice Act 1984………………………………………………………… 159 Ireland's Distinctive Constitutional Values……………………………………………. 163 The ‘Ryan’ Case……………………………………………………………………….. 165 Why Depart from the O'Callaghan Principles?............................................................... 168 Chapter 7 – The Bail Referendum…………………………………………………... 171 Introduction…………………………………………………………………………….. 171 The Referendum Debate……………………………………………………………….. 171 The Criminal Justice Bill 1994………………………………………………………… 173 The Criminal Law (Bail) Bill 1995……………………………………………………. 175 The Fifteenth Amendment of the Constitution Bill 1995……………………………… 179 Due Process v Crime Control………………………………………………………….. 182 The Installation of Pre-Trial Preventative Detention into Irish Law…………………... 186 The Bail Act 1997……………………………………………………………………… 195 The Criminal Justice Act 2006………………………………………………………… 200 The Criminal Justice Act 2007………………………………………………………… 202 Chapter 8 – A Transplantation of Bail Laws…………………………...................... 208 Introduction…………………………………………………………………………….. 208 Pre-trial Preventative Detention in England and Wales……………………………….. 208 Pre-trial Preventative Detention in the United States………………………………….. 213 United States v Salerno………………………………………………………………………… 217 A Transplantation of Bail Laws?..................................................................................... 221 Why Introduce Pre-trial Preventative Detention in England and Wales?....................... 226 Why Introduce Pre-trial Preventative Detention in the United States?........................... 233 Ireland's Distinctive Constitutional Values……………………………………………. 238 Conclusion ……………………………………………………………………………. 245 Bibliography…………………………………………………………………………... 250 v Table of Cases A v Governor of Arbour Hill Prison [2006] 4 IR 88 Attorney General v Ball [1958] IR 280 Attorney General v Duffy [1942] IR 529 Attorney General v Gwyn Dyer [1964] 98 ILTR 203 Attorney General v McCann [1955] IR 163 Bell v Wolfish 441 US 520 (1979) Blunt v United States 322 A 2d 579 (DC 1974) Bowman v Middleton 1 SCL (1 Bay) 252 (1792) Braddish v DPP [2001] 3 IR 127 Byrne v Ireland [1972] IR 241 Caballero v UK App no 32819/96 (ECtHR, 8 February 2000) Calder v Bull 3 Dallas 386 (1798) CC v Ireland [2006] 4 IR 1 Coffey v United States 116 US 436 (1886) Coffin v United States 156 US 432 (1835) Crotty v An Taoiseach [1987] IR 713 Curries Administrators v Mutual Assurance Society 14 Va (4 Hen & M) 315 (1809) De Burca v Attorney General [1976] IR 38 DPP v Abdulakim Yusuf [2008] IECCA 37 DPP v Cole (CCA, 31 July 2003) DPP v Gilligan [2006] 1 IR 107 DPP v PT [1998] ILRM 344 DPP v Windle [1999] 4 IR 280
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