ON July 8th last Mr John Quinn, one of the men accused of offences allegedly connected with the murder in Adare, Co Limerick, of Det Garda Jerry McCabe on June 7th, was refused bail by the High Court. He appealed to the Supreme Court and his appeal was granted on July 31st.
The extempore judgment of Mr Justice O'Flaherty (concurred in by Mr Justice Blayney and Mr Justice Keane) is of considerable significance to the current debate on the proposed changes to the bail laws.
Mr Justice O'Flaherty in that judgment noted that Mr Quinn was charged with two offences: that on June 9th he was a member of an illegal organisation and that on June 6th he was in possession of ammunition. In the course of the hearing, the Supreme Court was told that these charges were intertwined with the ongoing investigation into the murder of Jerry McCabe.
Mr Justice O'Flaherty noted: "Our law knows nothing of the concept of an entitlement on the part of the State to detain anyone on a holding charge, or while further investigations are being carried out so as to discover whether other charges may be brought against a person who is in custody. The obligation of the court, on a bail application, is to deal only with the charges on which the person is detained in custody.
Mr Justice O'Flaherty went on to say: "It seems to be here there is basically a very simple case presented against this man. It is said that he is a member of the IRA and that he admitted to it. That is capable of proof by leading the opinion evidence of the chief superintendent as well as the confession evidence that it is said is available.
"Then it is said that he was found in possession of ammunition and that he has admitted such possession. And if that was the ammunition that was supplied in the murder of Garda McCabe, as submitted before us, let that fact be proved. If ammunition was found on him that fact can be established and the provenance of the ammunition can be established by a scientist or other expert.
"We have been told that the Director of Public Prosecutions will process the matter with all due expedition, but that will take until the end of September. Then it seems that the Special Criminal Court list has been filled for another length of time, until the end of the year.
"My understanding of how the Offences Against the State Act should operate is: when a person is brought before the Special Criminal Court and charged there, at that moment in time the Director of Public Prosecutions should have then basic evidence to proceed with the case.
"It may be that he will need some additional evidence some expert evidence or whatever but, subject to that he should be in a position there and then to go on with the case in a matter of days rather than weeks or months ...
"Simple cases should be conducted expeditiously, within a very short time span ... We are presented with a situation where no papers will be served on the applicant much before October next and he cannot hope to get a trial before next year. That is totally unacceptable."
Mr Justice O'Flaherty had already gone into the current criteria for refusing bail and concluded that Mr Quinn should be allowed bail, noting that the mere assertion of any opinion by a chief superintendent that the accused would not appear for his trial was not sufficient: "Belief that a person may abscond must be founded on something substantial and I am unable to discover any viable basis for this ground in the State's evidence."
THE judgment highlights one of the many absurdities in the campaign by the political establishment (all the main political parties, including the three parties in Government)to change the bail laws.
It is the duty of the State to bring people accused of a crime before any court (not just the Special Criminal Court) to be tried within the shortest possible time. Indeed, except in exceptional circumstances, there should be no reason for any delay between the charging of a person and the trial of that person, apart from the time that the accused needs to prepare a defence. The preliminary examination by a District judge of charges for indictable crimes is hardly necessary any longer.
Either the State has evidence against an accused or it hasn't. If the State has evidence, the case should proceed almost immediately, subject to defence requirements. If the State hasn't evidence, charges should not have been brought in the first place.
It is obvious that if there were a short time lag between the preferment of charges and the trial arising from those charges - say, two weeks at the most as compared with well over a year, as is now the case - the opportunity for the commission of crimes while on bail would be greatly reduced and the incidence of such crimes would be reduced greatly.
It is also obvious that the question of changing the bail laws would hardly arise, if the State could get its act together and meet the obligations it has to administer justice expeditiously and efficiently.
There is another obvious way of reducing the incidence of crime committed on bail still further. In the early 1980s legislation was introduced (the Criminal Justice Act, 1984), providing for consecutive sentences for crime committed by persons on bail. This had an immediate impact on the level of reported crime committed on bail. In one year (from 1985 to 1986) it fell by over 55 per cent.
But the effect of this measure was dissipated when the courts started to suspend the consecutive part of such sentences. There is surely reason to believe that if further legislation were introduced making the consecutive sentence mandatory, there would again be a huge reduction in such crimes.
The twofold impact of (a) vastly abridging the time between the preferment of charges and the actual trials and (b) making consecutive sentences mandatory would surely reduce hugely the incidence of crime committed by persons on bail.
Even if there were a major problem with crime committed by persons on bail, one would have expected that such obvious measures would be underaken, at least a preliminary to interfering with basic human rights (imprisoning people for crimes they might commit in the future, rather than for crimes they have committed, is a major qualitative change in our legal system).
But the bail debate is not susceptible to reason. We are in an era of stunt politics. Because of the hysteria generated about crime, spectacular stunts are demanded, even if they compromise the quality and fairness of our society and even when they are entirely unnecessary.