WHAT'S it all about, anyway?

There's a referendum on November 28th - that's next Thursday - when you'll be asked if you want to change the Constitution to allow new grounds for a person to be refused bail.

At the moment a court can refuse to grant bail only if the judge believes the accused won't show up for the trial, or will interfere with witnesses or evidence. If the referendum is passed, new legislation will allow a court to refuse bail also if it believes the accused would commit a serious offence while on bail.

What are the exact words to be put into the Constitution, assuming a majority agrees?

Provision may be made by law for the retinal of bail by a court to a person charged with a serious offence where it is reasonably considered necessary to prevent the commission of a serious offence by that person.

Vote Yes if you want that in the Constitution, vote No if you don't. The Government says the wording closely follows part of the European Convention on Human Rights. And it has published an outline of new bail legislation which it will enact if the amendment is accepted.

And what is a "serious offence?"

Murder, manslaughter, rape, assault, grievous bodily harm, kidnapping, incest, rape and sexual assault of children, having a gun or ammunition or a knife, explosives, dangerous driving causing death or serious injury, stealing a car, drug trafficking, and robbery or burglary - the Government has published a long list of crimes carrying a maximum sentence of five years or more.

Anything else?

Organising prostitution, criminal damage, forgery, treason, public order offences (riot, violent disorder, affray) ... and stealing an aircraft.

Quite a list. So the Government's in favour of this referendum?

So it says. Opposition parties are in favour, too, apart from the Greens.

I thought some Government people had doubts about all this

Well, Nora Owen made a "solo run" last year when she announced - she wanted a referendum, but then she got reined in by some of her Cabinet colleagues and the plan was put off. And Dick Spring had an article in the Kerryman last February saying "everyone is innocent until proven guilty, would it not be better to consider seriously an alternative approach - to make absolutely sure that there will be serious and major extra penalties for any crime committed while on bail?"

Sounds like he was against this kind of referendum

Well, he doesn't mention it now.

That's politics, I suppose

What made the difference was the murder of Veronica Guerin last June. The Government was casting around for things to put into a "crime package" and this was an obvious one, because it was a reform a lot of people, and especially the Garda, wanted.

Did the Government do any studies on it first?

Well, it got the Law Reform Commission to do a report on bail. That said the real problem - was that people were out on bail for so long because the courts process was so slow, and it suggested holding trials sooner. But the Government says it is arranging that as well.

So how will a judge decide whether you might commit a new offence if you're let out on bail?

Well, according to the Government's planned legislation, the judge will have a list of things to consider, including the seriousness of the charge you're facing, the seriousness of the crime you might commit, whether you previously committed a crime while on bail, and whether you're a drug addict. It's really up to the Garda and the prosecuting lawyer to persuade the judge to keep you in, if that's what they want.

And if you didn't get bail, how long might you be in jail before your trial?

Who knows? The delays at the moment can be anything from months to a couple of years. But if you're still in jail after four months and there's been no trial, the court has to review the position and you might be let out. It's up to the judge.

I thought there were already penalties to deter people from committing an offence while out on bail

There are. The main one is a provision for consecutive sentences, brought in in 1984. According to this you would serve a sentence for your original crime, and then the sentence for the crime committed while on bail would be added on, so you would spend longer in jail. But recently judges have tended to suspend; the second sentence, or make it concurrent.

Why?

There is no mechanism for judges to explain sentencing policy.

Are there any other penalities to deter offending while on bail?

Yes, such as the loss of the bail money. Opponents of the referendum say these measures have not been used enough, but the Government says none of them would have the effect of preventing crimes being committed by people on bail.

Of course, there have been a few notorious cases, haven't there?

Certainly. The late Martin Cahill - "The General" - used his bail time to commit extra robberies so he could get some cash together before going to jail. Tony Felloni, the heroin dealer who got a 20 year sentence last June, had been selling the drug almost unimpeded for the previous three years even though gardai caught him with heroin four times (once with £100,000 worth). He got bail every time.

But, overall, how many crimes are committed by people on bail?

Don't know. The Garda says 5,440 crimes detected last year were committed by people on bail, but that the true figure must be higher to take into account the crimes that were not detected. The 5,440 amounts to 13.7 per cent of detected crimes that year, and 5.3 per cent of recorded crimes.

The truth is, as in most areas of the criminal justice system, there has not been enough research done to allow a decent estimate.

How many people would be refused bail every year if the referendum was passed and the new law came in?

Again, not enough research to say. Estimates range from 600 to more than 1,000 people a year.

Do we have enough space in the prisons for them?

No. The Government says we have, because it is building to bring the total number of prison spaces up to about 3,000.

So that's taken care of, then

Not really, because the prison system is already overloaded and hundreds of people get out early every year because there is not enough space for them. If the higher estimates about the number of extra people who will go to jail because they are refused bail are right, then the Government's prison building programme will leave us more or less where we are now, i.e. with the infamous "revolving door".

What about the bishops? Are they in favour of the proposed change?

Well, the Irish Commission for Justice and Peace, which advises the Hierarchy, is against it. They called it "internment without trial". The Catholic Archbishop of Dublin, Dr Desmond Connell, welcomed their contribution, but then said he wasn't advising people how to vote.

Sounds like he's having it both ways

No comment.

So who is for, and who's against?

The Dail parties are for, of course, and so is the Garda, and so is Victim Support. Victim Support says passing the referendum would be "an acknowledgment of victims' rights". But there are plenty of lawyers and criminologists and the like who are against it. And people who work with drug addicts are against it, arguing that it would be more sensible to try to help people with their addiction than to lock them up in case they commit crimes.

Is there a civil liberties issue here?

If the referendum was passed and the new law was enacted, an accused person could be locked up not for the crime for which they have not yet been convicted, but for a crime they may not yet have committed. Opponents of the proposal say this means that, while in theory you're innocent until proven guilty, in practice you're treated as guilty twice over. But those in favour say that kind of thing already exists, as someone can be locked up on suspicion they might interfere with witnesses or disappear before the trial.

I suppose if you were wrongly locked up, you could seek compensation

You could try. The Government was asked if it would set up a compensation system, but there isn't one and there are no plans for one. You'd probably have to go to court to try and prove you were unfairly treated.

And what chance would you have?

If the judge was legally within his powers to have locked you up, and the evidence presented against giving you bail was all right and proper in law, then it's hard to see what sort of case you'd have.