Journal of the Bar of Ireland • Volume 15 • Issue 5 • November 2010 Electronic Tagging of Applicants for Bail An Update on Competition Law Editorial Correspondence to: Eilis Brennan BL The Editor Bar Review Law Library Four Courts Dublin 7 DX 813154 Telephone: 353-1-817 5505 Fax: 353-1-872 0455 E: [email protected] Cover Illustration: Brian Gallagher T: 01 4973389 Editor: Eilis Brennan BL E: [email protected] W: www.bdgart.com Typeset by Gough Typesetting Services, Dublin Editorial Board: [email protected] T: 01 8727305 Gerry Durcan SC Mary O’Toole SC Patrick Dillon Malone BL Conor Dignam BL Brian Kennedy BL Vincent Browne BL Mark O’Connell BL Paul A. McDermott BL Tom O’Malley BL Volume 15, Issue 5, November 2010, ISSN 1339-3426 Patrick Leonard BL Paul McCarthy BL Des Mulhere Jeanne McDonagh Contents Jerry Carroll Consultant Editors: Dermot Gleeson SC Patrick MacEntee SC 88 Electronic Tagging of Applicants for Bail Eoghan Fitzsimons SC Pat Hanratty SC AMES AVID HARITY J D C BL James O’Reilly SC The Bar Review is published by 96 Update; Assigning a Tenancy to a Third Party, What is an Round Hall in association with The Bar Council of Ireland. Unreasonable Refusal by the Landlord? 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The views expressed in the articles herein are the views of the contributing authors and do not represent the views or opinions of the Bar Review or the Bar Council. The Bar Review November 2010 Electronic Tagging of Applicants for Bail JAMES DAVID CHARITY BL* A. Introduction right of the public to be protected, and the right of both accused persons and convicted offenders to due process in In the context of bail, many would argue that the presumption order to restore the public confidence in the administration of of innocence has been consistently compromised since the justice, promote the safety of the public and protect the right introduction of the Bail Act of 1997. Frequently, media to liberty. One such attempt is the forthcoming introduction criticism of the judiciary, and the legal system in general, of electronic monitoring orders which were provided for with respect to the administration of our bail laws and the under the Criminals Justice Acts of 2006 (with respect to number of accused persons admitted to bail while awaiting sentencing) and 2007 (with respect to bail) respectively. While trial has created a perception that there is an indifference to these provisions have yet to be commenced, it is clear that the welfare of the general public which is endemic in our 1 the recent introduction of the Criminal Justice Act 2006 Courts. There is frequently an equally venomous outcry from (Electronic Monitoring Devices) Regulations 2010 (SI 209 the media with regard to a perceived leniency in sentencing 2 of 2010) signals a clear intention to introduce electronic on the part of the judiciary. monitoring as a viable alternative to remands in custody Setting aside the legal considerations which are and custodial incarceration. This article aims to examine fundamental to any debate on bail and sentencing, such these provisions in detail and highlight the experiences of as the presumption of innocence in bail applications and the English and Welsh jurisdiction with respect to electronic the aim of rehabilitation in sentencing, another practical monitoring. consideration which influences a debate in this area is the availability of prison space which stricter sentencing and B. Electronic Monitoring under the Criminal tightening of our bail laws would inevitability require. With Justice Act 2006 the Thornton Hall project some way from completion, the simple fact is that a significant increase in the number of The first move toward electronic monitoring in Ireland prisoners remanded in custody pending trial, or indeed a came in the form of Criminal Justice Act of 2006 and in the policy of imposing longer custodial sentences, is not realistic context of the sentencing provisions provided by Part 10 at present given the availability of prison spaces in the State. of that legislation. However, it is worth noting at the outset In 2008, there was capacity for 3581 prisoners in our Prisons that although the provisions of Part 10 of the Act of 2006 and an average number of 3544 in custody at any one time, came into effect on the 2nd of October 2006, those sections representing an occupancy rate of 99%.3 Furthermore, related to electronic monitoring were excluded.5 available published figures show that the average yearly amount of accommodating a single prisoner in 2007 was (i) Restriction of Movement Orders 4 €97,700. Clearly, this represents a significant financial strain The Act provides that where the Court considers a sentence on the State in accommodating those remanded in custody of imprisonment for a term greater than three months or sentenced to terms of imprisonment. appropriate with respect to certain offences listed in Schedule It is clear that a balance must be achieved between the 3 of the Act6, a “Restriction of Movement” Order may be imposed as an alternative under Section 100.7 A Restriction on * B.A. LL.B LL.M Movement Order may restrict the movements of the offender 1 The conviction of Gerard Barry for the murder of the Swiss as the Court sees fit and may require the offender to be in student Manuela Riedo while on bail for other offences is one such place or places for any period as may be specified for a example of this where the Irish Independent edition of the July 29th 2009, in response to an apology by White J on behalf of the period not exceeding 12 hours in any given day, or not to be 8 people of Ireland to the late Ms. Reido’s parents commented: “May in such a place as the case may be. The Order may be made I respectfully suggest to Mr. Justice White that it is not the ‘Irish nation’ that needs forgiving but the Irish judicial system and Irish 5 Criminal Justice Act 2006 (Commencement) Order 2006- The judiciary...Most of us can only look on in helpless bewilderment specific provisions of the 2006 Act relating to electronic monitoring and confused frustration at the inadequate sentencing policies and are Sections 101(10), 101(12)(c), 102, 103(1)(d), 103(4)(d), 107, bizarre bail laws which result in violent serial criminals remaining 108(4), 109, 111 and 112. at liberty to terrorise society” 6 Schedule 3 of the Act lists certain offences contrary to the Criminal 2 The recent release of Larry Murphy, after serving 10 years of a 15 Justice (Public Order) Act 1994 and the Non-Fatal Offences year sentence following a conviction for rape in 2000, led to much Against the Person Act 1997 such as affray, the use of threatening media criticism that a harsher and lengthier sentence had not been or insulting behaviour in a public place, assault and assault causing imposed and thus, the community exposed to increased risk. harm. 3 Irish Prison Service, Annual Report 2008 (Dublin, 2009) at 16 7 Section 101(1) Criminal Justice Act 2006 4 Irish Prison Service, Annual Report 2007 (Dublin, 2008) at 31 8 Section 101(2) Criminal Justice Act 2006 Page 88 Bar Review November 2010 “for any period not exceeding six months” and requires the when one considers the provisions of Section 102 which offender to be of good behaviour and to keep the peace.9 states that an authorised person shall be responsible for Clearly, the extent of the power was intended to be unchecked monitoring the compliance of the offender with the and effectively provides the Court with unlimited jurisdiction electronic monitoring order.16 It is unclear whether some in restricting the movements of a convicted person who technical expertise in the operation of the devices is necessary comes within the scope of its provisions. It is arguable that or whether it is envisaged that such monitoring is to be an the wording of Section 100(3) of the Act10, and in particular exercise of the probation service. This is an obvious flaw the words “for any period”, allow the Court scope to impose in the legislation and indicative of the rushed nature of the a Restriction of Movement Order at a specified date in the Act. However, it is apparent however that the Minister17 must future, providing same does not exceed six months when it prescribe such persons without any guidelines on the criteria does come into effect. It is not clear if this was the intention for selection or the factors to be considered.18 of the legislature but certainly, if such is the case, there is Furthermore, Section 102(b) of the Act, which states no provision in the Act which limits the period in which the that the order shall include a requirement that the offer Order may come into effect.