Supreme Court allows bail reduction appeal due to inadequate inquiry into applicant's financial means by High Court.

THE SUPREME COURT

McCracken J.

Kearns J.

Macken J.

[127/2006]

IN THE MATTER OF AN APPEAL FROM A REFUSAL OF AN APPLICATION FOR BAIL

BETWEEN

DECLAN BRODERICK

APPLICANT/APPELLANT

AND

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice Kearns delivered the 26th day of May, 2006

1. This judgment is intended to address problems arising where bail has been granted but set at a level which the applicant contends

he is unable to meet and where, on an appeal brought by an applicant to the High Court, the prosecution, though not objecting to

bail per se, nonetheless objects to any reduction of the amount of bail which may have been fixed. It is not therefore concerned with

reasons for the refusal of bail.

2. In this case, the applicant was charged with two offences contrary to sections 15 and 27 of the Misuse of Drugs Act, 1977 (as

amended by s. 6 of the Misuse of Drugs Act, 1984), that he did, on the 16th day of March, 2006, at St. Joseph’s Hospital, Raheny, in

the City of Dublin, have in his possession cocaine for the purpose of sale or supply to another and that on the same date and at the

same location have in his possession diamorphine for the purpose of sale or supply to another.

3. He was brought before Cloverhill District Court following his arrest on 18 March, 2006. On that date the applicant was remanded in

custody to Cloverhill Prison to appear in Cloverhill District Court on 22 March, 2006. On that date, he was granted bail by Dublin

District Court on the following terms:-

(a) That the applicant enter his own bond in the amount of €50,000.

(b) That he provide an independent surety in the amount of €50,000.

(c) That he sign on every Monday, Wednesday and Friday at Raheny Garda Station between the hours of 7 a.m. and 10 p.m.

(d) That he surrender his passport and undertake not to apply for a new one.

4. The applicant thereafter made application to the High Court for a reduction of his bail, which said matter came before Butler J. at

Cloverhill Courthouse on 27 March, 2006.

5. On that occasion the application for a reduction of bail was opposed on the ground that a substantial amount of drugs was

involved, having a value estimated to be €1.3 million, and on the further ground that, having regard to the charges brought against

him and the possibility of further other charges being brought, it was apprehended that there was a real risk that the applicant might

not attend his trial. It was not suggested that the applicant would re-offend if granted bail, nor was there any suggestion that he

might interfere with witnesses. Equally there was no history of any failure to appear at any time in the past.

6. Garda Richard Byrne gave evidence that the value of the drugs seized was in the region of €1.3 million. He told the court that there

was evidence available that the applicant was using the hospital in which he was working to store drugs. He further stated there

would be evidence at trial that the applicant was witnessed in the act of handing over a case with the drugs inside. Garda Byrne also

stated that the applicant made admissions that he knew there were drugs in the case. Garda Byrne further stated his belief that the

applicant was a member of a criminal gang which would have access to cash in the amount of bail sought. He stated that the

applicant was driving a top of the range Audi TDI car. He accepted that the applicant had no history of having charges brought

against and that he had therefore never failed to abide by conditions of bail in the past. He also confirmed he had no objection to the

applicant’s sister, Linda Broderick, as a proposed independent surety, subject to the amount being satisfactory. However, that

independent surety was only prepared to put up €5,000 by way of cash lodgement. Garda Byrne was unable to state when the

applicant would obtain a trial. As of the date of the High Court bail hearing, directions were still being sought from the Director of

Public Prosecutions.

7. Declan Broderick gave evidence that he had no prospect of meeting the sum of €50,000 fixed for his own bail. He gave evidence

that he worked in a hospital and earned €980 every fortnight. His motor car had been purchased with a Credit Union loan of €8,000.

He further gave evidence that he did not own his own house, but rather occupied a house with the assistance of the Social Services

in a scheme known as “Hale Housing”.

8. He undertook to abide by all terms of bail if the amount was reduced, would surrender his passport and would sign on daily and turn

up for any future court appearances.

9. Linda Broderick also gave evidence on behalf of the applicant. She stated that she was the sister of the applicant and resided in

County Meath with her partner and three children, two of whom were dependent. She told the court that she works in Cadburys

where she earns €400 per week. She produced her bank book in court from which it appeared that there was a sum of €10,000 on

deposit. This sum represented monies derived from re-mortgaging her house, a step she had taken with a view to carrying out some

works to the house. Those works had now been completed and paid for and, while she had intended going on a holiday with the

remaining money, she was willing to put up this sum in cash if it meant the applicant could secure bail.

10. In submissions, counsel for the Director of Public Prosecutions submitted that the amount of drugs and the strength of the

prosecution case, taken in conjunction with the likely penalty to be imposed, meant there was a real risk that the applicant might not

stand trial. Counsel for the applicant stated that the court had to balance to gravity of the offences with the means of the applicant

and that there must be some reality to the terms of bail fixed if the granting of bail is to have any meaning. The court had heard

evidence as to the applicant's means, but had only heard in response garda objections based on the amount of drugs involved, garda

suspicions that the applicant was part of a criminal gang and garda evidence that the applicant drove a top of the range car. The

applicant’s evidence as to means had not been rebutted.

11. In adjudicating upon the matter, Butler J. placed considerable emphasis on the value of the drugs seized and held that the amount

involved suggested to the court that the applicant would have no real difficulty in putting up the bail fixed in the District Court. He

accepted in principle that bail should be fixed at a level which the applicant could meet but held nonetheless that the gravity of the

offence justified the District Court in fixing the terms as it did. He therefore dismissed the application which now comes before this

Court by way of appeal.

Relevant Legal Principles

12. At the outset it must be stressed that an applicant for bail is entitled to a presumption of innocence and, as such, is prima facie

entitled to bail. As Walsh J. stated in O’Callaghan v. Attorney General [1966] I.R. 501 at p.513:-

“The presumption of innocence until conviction is a very real thing and is not simply a procedural rule taking effect only at the

trial. In the modern complex society in which we live the effect of imprisonment upon the private life of the accused and of his

family may be disastrous in its severe economic consequences to him and his family dependent upon his earnings from day to

day or even hour to hour. It must also be recognised that imprisonment before trial will usually have an adverse effect upon

the prisoner’s prospects of acquittal because of the difficulty, if not the impossibility in many cases, of adequately

investigating the case and preparing the defence.”

13. As was recently emphasised in Hoffman v. Director of Public Prosecutions & Coughlan (Unreported, High Court, O’Neill J., 4th

March, 2005), rulings and decisions made in bail applications cannot proceed on the basis of a presumption of guilt. In that case, a

District Judge in dealing with the bail application in an assault case stated that:-

“People cannot attack the gardaí with cut-throat razors and anyone who does can stay in jail.”

14. This observation was criticised by O’Neill J. on the basis that it “implies a complete disregard for the presumption of innocence

enjoyed by the applicant and indeed it indicates the very reverse, a presumption of guilt together with the imposition of a custodial

punishment for the crime alleged, by a denial of bail. An approach such as this to a bail application entirely misconceives the judicial

function and is an abuse of judicial power.”

15. This citation accurately sets out the requirement that, regardless of the strength of the prosecution case, the presumption of

innocence must be borne in mind at all times by a judge when dealing with an application of this type. In the present case it has to

be said that the learned High Court judge was in error in so far as he based his ruling on any consideration that, if the applicant could

handle €1.3 million worth of drugs and was part of a criminal gang, he could meet the bail as fixed by the District Court. Such an

approach is in flat contradiction of the presumption of innocence

16. However, the application of a wrong principle does not of itself necessarily mean that his findings as to quantum of bail were

wrong and the real issue in this case is to determine how any judge, when fixing the amount of bail, should balance the competing

requirements, at least in the case of serious offences, to ensure that an applicant will stand trial by fixing bail at an appropriate level

on the one hand, but by not fixing it at a level which he can not meet on the other.

17. In The People (Attorney General) v. O’Callaghan [1966] I.R. 501, Walsh J. stated as follows (at p. 513):-

“In bail applications generally it has been laid down from the earliest times that the object of bail is to secure the appearance

of the accused person at his trial by a reasonable amount of bail. The object of bail is neither punitive nor preventative…”

18. He continued as follows (at p. 518):-

“As all students of constitutional history know, the question of the amount of bail has always been a matter of vital concern.

The Bill of Rights, 1688, which provided that excessive bail should not be required did not apply to Ireland and there was no

Irish Statute corresponding to it, but the enactment itself was declaratory of the common law which did apply to Ireland. Bail

must not be fixed at a figure so large as would in effect amount to a denial of bail and in consequence lead to inevitable

imprisonment. As I indicated earlier in this judgment, both Bracton and Hawkins testify that at common law the court in fixing

the amount of bail is to be guided by the ability to give bail and the condition or quality of the prisoner, in addition, of course,

to the other factors, such as the nature of the offence and the gravity of the evidence. If persons come from a humble walk

in life or are of little means it is most likely that their friends or those of them who are prepared to go as surety for them are

of the same condition and the amount of bail required must be just and reasonable in all the circumstances having regard to

the condition and ability of the accused, bearing in mind all the time the overriding test of the probability of the accused failing

to appear for trial.”

19. The proposition that the amount of bail must reflect the means of the applicant was also considered in the case of The State

(Attorney General) v. Coleman [1967] I.L.T.R. 183. In that case, the applicant was charged with arson of his own business premises

in Dublin with intent to defraud an insurance company and also with possession of a firearm with intent to endanger life. The applicant

was granted bail in the District Court in the following terms – that he enter his own bond of £15,000 and that he provide two

independent sureties of £5,000 each. He appealed to the High Court on the basis that he was unable to meet the terms as fixed. It

was submitted on behalf of the Attorney General in the course of the application that the applicant had used three different names,

had travelled widely and had evaded arrest for some days and that the bail set was just and reasonable in the circumstances. The

applicant submitted that the fixing of figures in the amount stated amounted to a refusal of bail and that the amount should be such

that an accused would be able to find bail sureties among those who knew him. In ruling on the application, O’Byrne J. stated (at p.

184):-

“The District Justice was satisfied that this was a case in which bail should be allowed and the accused was submitted to bail

in certain sureties. He fixed bail at £15,000 for the accused and two sureties of £5,000 each. I am impressed by Mr.

Fitzgerald’s argument as to the difficulty of the accused in getting sureties in that amount and that this amount is impossible

in this case and in effect it is a denial of bail; but I must have regard to the very serious nature of the charge – a charge for

which the accused might be sent to penal servitude for life, and accordingly this is a case for substantial bail. I propose to

reduce the accused’s personal bail fixed by the District Justice at £15,000 to £10,000, and, as regards to the two sureties of

£5,000 each, I reduce them to two sureties of £2,000 each, or four of £1,000 each, all in conjunction with the undertaking

that has been given.”

20 This approach may be seen as both measured and sensible in that it bridged the gap between requirements on the one hand to

acknowledge the gravity of the offences but not on the other hand to set terms which were tantamount to a denial of bail. As it

transpired, the applicant in that case was subsequently able to comply with the terms of his bail and secure his release.

21. It is accepted by both sides in the present case that the risk, such as it may be, of the applicant’s non-attendance for trial is

based entirely on the seriousness of the offence and the likely penalty which might be imposed if there is a conviction. It is not based

on any past history of failures of the applicant to attend court or on instances of absconding from custody. While Butler J. accepted

in principle that there must be some reality to the applicant being able to meet such bail as is fixed, he nonetheless relied on evidence

of belief given by the prosecuting garda that the applicant’s supposed membership of a criminal gang provided a gateway to

substantial funds. He did not regard the evidence of the applicant and his sister to be determinative as to means. The court did not

adjourn the application to afford the applicant the opportunity he apparently sought to provide evidence to support his version of the

circumstances in which he purchased his car, nor was the assertion that the applicant merely rented his dwellinghouse challenged in

any way.

22. In discussing the exercise which any judge who is required to fix the amount of bail must consider, Walsh’s Criminal Procedure

(Round Hall, 2002) states (at. Para. 10-52):-

“It is apparent, therefore, that the court must consider the individual circumstances of the case before it, including the

financial circumstances of the defendant and his immediate social circle. Two defendants with similar records facing similar

charges in similar circumstances could be set very different amounts of bail and surety requirements, reflecting their different

social and financial circumstances. Nevertheless, it is not a requirement that bail must be set at a level which the defendant

can satisfy. The nature of the offence or the defendant’s previous record, may be such that the tribunal may reasonably

consider that it is necessary to set bail at an amount beyond the personal means of the defendant in order to ensure that he

appears for his trial.”

23. Thus in McKeown v. Director of Public Prosecutions (Unreported, Supreme Court, 9th December, 1994) this Court refused to alter

terms of bail, even though the amounts set were beyond the means of the applicant, solely on the basis of the seriousness of the

charges brought against the applicant. However, this decision, which is the subject of only the briefest report, preceded the

introduction of the Bail Act, 1997. That Act provided as follows by section 7:-

“(1) A court shall in every case satisfy itself as to the sufficiency and suitability of any person proposed to be accepted as a

surety for the purpose of bail.

(2) In determining the sufficiency and suitability of a person proposed to be accepted as a surety, a court shall have regard to

and may, where necessary, receive evidence or submissions concerning:

(a) the financial resources of the person

(b) the character and antecedents of the person

(c) any previous convictions of the person

and

(d) the relationship of the person to the accused person.”

24. The wording of the section goes further than s. 27 of the Criminal Procedure Act, 1967 (which said section was repealed by the

Act of 1997) which had provided simply that:-

“The justice …shall in every case satisfy himself as to the sufficiency of the persons proposed to be accepted as bailsmen.”

25. The Act of 1997 further contemplates that courts other than the District Court may have to perform an inquisitorial role as to

sufficiency of means of a surety. More importantly, however, section 5 of the Bail Act, 1997 introduced a requirement that an

applicant for bail could not be released until one third of the amount fixed was paid into court, a requirement which greatly

concentrated the minds of judges on the issue of ‘ability to pay’ when dealing with such applications on a day to day basis. However,

when the particular requirement in the Act of 1997 to lodge one third of any bail fixed in cash finally came into effect in 2000, it

immediately caused great difficulty both in terms of practical implementation and in terms of administration of monies lodged. Where

indigent applicants were concerned, bail had to be fixed at extremely modest levels which in turn had to be divisible by three, so that

sums as low as three euro or even less were fixed during a period of time when a degree of chaos entered the system for these

reasons.

26. The requirement to lodge cash in the amount of one third of the sum fixed prior to securing release in every case was relaxed by

an amendment introduced by section 33 of the Courts and Courts Officers Act, 2002, which amended section 5 of the Act of 1997 so

that it now provides:-

“(1) Where a court admits a person who is in custody to bail the court may, having regard to the circumstances of the case,

including the means of the person and the nature of the offence in relation to which the person is in custody, order that the

person shall not be released until –

(a) an amount equal to one third, or

(b) such greater amount as the court may determine,

of any recognisance entered into by a person in connection therewith has been paid into court by the person”(emphasis

added)

27. It is clear, however, that the requirement on the court to make an inquiry as to means remains undisturbed. This leaves a judge

with many problems of a practical nature because an applicant will naturally wish to keep the terms as low as possible, given that the

court may direct a cash lodgement, and an applicant may thus have an incentive to mask or conceal his means, whereas the Gardai

will want the gravity of a particular offence and the risk of non-attendance at trial to be reflected in the amount fixed by the court.

The High Court judge who sits in Cloverhill to hear appeals may have a list of 60 or more applications on any given Monday and so it is

impossible to overstate the difficulties he or she faces when called upon to discharge the task of fixing quantum of bail. Insofar as the

actual approval of sureties is concerned, however, that task usually continues to be left to the District Court even in cases where the

High Court determines an appeal as to quantum.

Decision

28. Regardless of whether the task of measuring quantum takes place in the District Court or the High Court, it seems to me that

there must be, as part of any inquiry process, a responsibility on an applicant for bail to co-operate in that inquiry by producing

accurate information as to means. A failure to produce credible or accurate information may leave the judge with no option in such

circumstances other than to fix significant bail having regard to the gravity of the particular offence or the apparent strength of the

prosecution case, either or both of which may be seen as reasons why an applicant might not attend his trial. It is not sufficient in

my view for an applicant to simply rely on assertions of lack of means or to place the entire burden on the prosecution to negative

assertions made in this context on the hearing of a bail application. To adopt the latter course would be to impose an impossible

burden on the gardaí, except in those cases where the means of the applicant are already known to them.

29. There will be many instances where the gardaí will, on the making of an application of this nature, be unable to assess the

truthfulness or accuracy of assertions as to the means of the applicant or a surety when the information as to means is only first

produced on the actual day of the bail application.

30. There may well therefore be cases where a short adjournment might be appropriate and necessary to enable the gardaí to

investigate assertions made by an applicant as to means or the absence thereof. In this regard it seems highly desirable that some

procedure to regulate matters should be in place rather than that the judge be left in a situation where quantum of bail is fixed by

guesswork. I see no reason why in most cases an applicant for bail should not be provided with a simple form of questionnaire, both

as to his means and those of any proposed surety, which he may complete and furnish to the gardai either before or at the time of

making any application for bail. Such a form could be given to every person who is charged and taken into custody. In most cases,

the information thereby supplied will be capable of easy verification by the gardaí, who may well be in a position to deal with the

matter on the first occasion when the applicant is brought to court. Where an applicant is legally represented, this information should

be included in the grounding affidavit upon which any application to the High Court is based. Too often grounding affidavits are quite

devoid of relevant information when they could usefully provide information as to the means of the applicant, the names and

addresses of proposed sureties and information indicative of the amount for which a surety might be bound.

31. Where evidence is tendered by an applicant which the gardaí wish to verify, it seems to me that the judge, on being satisfied that

an adjournment is reasonably required for this purpose, should, if necessary, adjourn the application for the briefest period consistent

with the process of verification, bearing in mind the applicant’s prima facie entitlement to bail.

32. Furthermore, where the State wishes to altogether oppose the granting of bail per se in a case where an applicant wishes only to

challenge the sums already fixed in the District Court, notice to that effect should always be given to an applicant prior to the making

of his application so that he can fairly consider if he wishes to retain the terms of bail already determined rather than risk losing his

entitlement to bail altogether.

33. In the present case, the applicant is offering a cash lodgement of €5,000, with a further cash lodgement from one surety in the

same sum. The applicant asserts that this is the limit of what he can raise. It is substantially less than any sum the prosecution would

be happy to accept and is only 10% of the amount fixed by the District Court.

34. For the reasons already stated, I am of the view that the hearing before the High Court judge was unsatisfactory, partly because

the learned High Court judge, in fixing the amount, seems to have proceeded without having regard to the presumption of innocence,

but also because there was an inadequate inquiry as to means.

35. In my view this application should be referred back to the High Court so that an issue as to means can be properly conducted by

reference to the considerations outlined above.