Bail is a notoriously unpredictable commodity here, in the Republic and in England and Wales. There's the Bail Act but legislation like the 2000 Terrorism Act knocks the Bail Act sideways. As if that wasn't bad enough, judges and magistrates are disgracefully capricious. Even in ordinary cases some magistrates, if they don't like the look of someone, will deny bail perhaps because they think the applicant will get up to no good, or perhaps because they're just plain nasty. Who knows?
They order their affairs a wee bit more carefully in Scotland. They've always had stricter rules including time limits before a case must be brought to trial, but they have their share of vindictive sheriffs too. Still, with our legacy of bending the law and special courts, the north must take the biscuit.
There's no telling what will happen to a bail application. Just when a lawyer reckons a guy has no chance of bail, boom, he's out. Other lawyers try to learn how their colleague managed it, but it's no use.
Take exactly the same line as your successful colleague and clang, your client is locked up.
It's easiest to get bail in the Republic partly because of its written constitution. There, people complain about miscreants on bail committing offences and even getting bail again. We're at the other extreme.
Take these two examples on the same day last week. One guy was charged with attempted murder on June 29. The victim had to have reconstructive surgery to his skull in a six-hour operation. The accused, according to the Crown, ''had a history of involvement with a loyalist paramilitary organisation''. The judge decided that despite this history with an organisation ''whose sole reason for existence is to inflict misery on ordinary people'', he'd get bail.
Another court, a guy charged with possessing documents of use to terrorists. He's been in custody 16 months, repeat 16 months, equivalent to a three-year sentence. The Crown said he might not turn up or could commit further offences. His parish priest gave evidence on his behalf, a local businessman offered a £10,000 bond and his lawyer said his client was a mainstream republican committed to the peace process, the clear implication being there wouldn't be any offences.
The judge refused bail because of the items found at the applicant's home and because of danger of further offences being committed.
The judge did spot that the accused had been in custody for 16 months and asked for a date to be set for trial.
Big deal. For all the good that will do, you may as well write a letter to the prosecution service yourself. So much for the protection of the court. First, if bail was going to be denied after 16 months there was an opportunity to do justice by requiring the Crown to come back in a specified time with a date for a trial.
Secondly, even if there was a lot of material discovered on a computer at the applicant's home, what has happened to all those accused of Stormont intelligence gathering? Answer: they're all out on bail despite tons of material being seized by the police, some on computers, some in sacks.
Given the state of the peace process how would you rate on a scale of one to 10 the chances of offences being committed in the near future, especially with Dublin and London about to establish the Independent Monitoring Commission? If 10 is high would you say one? The answer is as plain as the nose on your face. Not, unfortunately to the learned judge who clearly resides with a number of his colleagues in an ivory tower on a planet far from here, a distance from reality which affords an ability to predict the future not vouchsafed to earthlings.
The difference between these two cases demonstrates like nothing else the need for urgent reform of the criminal justice system here. The British administration has footered about now for three years since the Criminal Justice Review team reported.
Only in June did a draft Criminal Justice Order appear. Included in it are time limits on the period a person can be remanded without trial. Unfortunately our proconsul can set those limits.
All through the troubles people's trials were deliberately delayed, especially if there was a chance they might be acquitted.
The stratagem, in effect internment by remand, grew after internment was ended in 1975.
Worse was the fact that it made a mockery of both law and justice. The simple adage remains. Justice delayed is justice denied.
