The Irish Council for Civil Liberties (ICCL) today published a research report into the use of pre-trial detention and the denial of bail in Ireland, which raises particular concerns around the “discretionary nature of the bail procedure”.

A recommendation adopted by the European Commission in December 2022 says the fact that a suspect “is not a national of, or has no other links with, the state where the offence is assumed to have been committed” should not automatically be treated as a flight risk.

However, the ICCL says its research suggests “that the judiciary in Ireland rely heavily on this factor tipping the chances of bail more in favour of Irish nationals and against nationals of other states including EU member states”.

The report, titled Improving Judicial Assessment of Flight Risk, makes 15 recommendations to legislators, prosecutors, judges and practitioners to reverse the trend towards more and more people being held in pre-trial detention.

It calls for comprehensive data to be compiled relating to the granting of bail and the use of pre-trial detention and for the Bail Act 1997 to be independently reviewed to assess its compatibility with Ireland’s international human rights obligations under the International Covenant on Civil and Political Rights (ICCPR).

The report also says that measures should be taken to increase the number of judges to address the long periods of delay in the criminal justice system; that training should be provided to gardaí, prosecutors and lawyers on European supervision orders (ESOs) and alternatives to pre-trial detention; and that the judiciary should stop the practice of refusing bail for non-serious offences, particularly where the time spent in pre-trial detention is likely to be longer than any potential sentence on conviction.

Commenting on the launch of the report, Niamh McCormack, ICCL’s criminal justice policy officer, said: “At a time when prison overcrowding is again presenting a real crisis in our justice system, this report demonstrates that there are significant challenges at the point of adjudication on bail.

“A shortage of judicial resources and an over reliance on pre-trial detention, especially for foreign accused persons, is contributing to Ireland’s excessive use of detention.”

Dr Helen Kehoe, legal and public affairs manager at the Irish Penal Reform Trust (IPRT), added: “At a time when we have almost 1,000 people in pre-trial detention, often for longer periods of time, we should be looking to bail as a way to take pressure off the system.

“IPRT agrees with the report’s recommendation to stop the practice of refusing bail for non-serious offences. We are concerned that pre-trial detention can undermine the presumption of innocence as well as having a severe psychological impact on the person detained.”

The report has also been welcomed by academics and practitioners.

Professor Mary Rogan, associate professor in law at Trinity College Dublin, said: “I welcome this opportunity to focus attention on the worrying increase in the numbers of people in pre-trial detention in Ireland.

“I am concerned that we are moving away from our position as having comparatively lower rates of pre-trial detention in the European context.

“Increased use of pre-trial detention places many rights at risk and, when accompanied with an already overcrowded prison population, a strategy is needed to reverse this trend.”

Damien Coffey, partner in Sheehan and Partners LLP, said: “This research demonstrates that there has been a dramatic increase in pre-trial detention figures in Ireland.

“The rise is particularly worrying when considered alongside the significant delays in processing matters through the criminal justice system and the level of overcrowding in our prisons.

“Additional judges have been appointed and new prisons mooted, but neither will obviate the need for a review of the concerning trend of increased use of pre-trial detention.”