There is a price to pay for an underfunded justice system
Published 13/10/2015 | 02:30
Justice Minister Frances Fitzgerald chose her words carefully on the thorny issue of bail reform in the wake of the callous murder of Garda Tony Golden.
The minister was right to be circumspect: it was the State, after all, that consented to the granting of bail to Adrian Crevan Mackin, the man who shot Garda Golden dead and critically injured his partner.
Last January, Crevan Mackin appeared in the non-jury Special Criminal Court on charges of membership of the IRA. Gardaí had found component parts used to make pipe bombs in his home in Omeath that month. However, the DPP did not proceed with an explosives charge due to insufficient evidence - and instead the State opted for the catch-all of extremely serious membership charges.
Aside from his court appearance last January. Crevan Mackin - whilst 'well known' to the gardaí and the PSNI - had no particular criminal record of note and had no particularly serious criminal or terrorist background.
To be clear: this was not a case where the gardaí objected to bail or where a judge somehow ignored special pleadings to keep Crevan Mackin behind bars.
The State consented to bail.
This is no aberration, as more than 50pc of suspects who are charged in the Special Criminal Court are granted bail. Unless gardaí can prove a suspect is a flight risk or is likely to commit another offence, bail is typically granted, with concerns of the gardaí reflected in the individual bail conditions.
And even if gardaí had sought to revoke bail on the basis of a suspected domestic assault, it would not have succeeded. Domestic violence - considered a fairly 'minor' offence as it carries a sentence of less than five years - is not sufficient to revoke bail on this type of charge.
Part of the reason why bail is granted is due to the constitutional right to the presumption of innocence. But it is granted primarily because of the amount of time it takes to amass evidence and the length of time it takes to secure a trial date once that is done.
To paraphrase one judge, "delay crystallizes" - ie if the delays are material, they crystallize and the accused gets bail. And the delays, rooted in a lack of adequate resources for our justice agencies, are endemic.
Books of evidence, outlining the case against an accused, are meant, under statute, to be served within six months.
That process can, in fact, take up to nine months, with most adjournments sought by the State.
Then there is the difficulty of securing a trial date.
For years, judges have been making public appeals from their courtrooms for extra resources to deal with backlogs of two years or more to run trials.
Added to this toxic mix is the haphazard manner in which suspects who are released on bail are monitored. Individual gardaí do sterling work to monitor accused persons, but they can't carry out 24 hour surveillance - how else did a dissident republican on bail pending trial obtain an illegal handgun?
There is, therefore, a price to pay for a criminal justice system that is chronically underfunded from the time an offence is committed right through to arrest, prosecution and, if the evidence supports it, conviction.
There is also a price to pay for a failure to invest in policing, particularly in border areas such as Louth where republican dissidents act with impunity.
Knee-jerk calls for bail reform are populist, but they are meaningless unless we are prepared to adequately resource our justice system.