Bail and Surety
If you are arrested and charged with an offence, you will be brought before a District Court as soon as possible. You may make an application in court to be released from custody on bail.
Bail is when you are released from custody because of a bond or promise made either by you or by another person (a surety) to guarantee that you will appear in court for your trial. Bail is based on the principle that the accused is presumed innocent until proved guilty.
If you enter into a bail bond, you are committing yourself to appear in court to answer the charges made against you.
If you are sent for trial in the Special Criminal Court you cannot get bail unless the Director of Public Prosecutions directs otherwise.
Sureties or Bails-persons
The court may not be satisfied with your promise that you will appear in court to answer the charges made against you. The court may decide that an "independent surety" is required to guarantee your appearance.
An independent surety is a person who makes him or herself responsible for your appearance in court. He or she promises to pay a sum of money to the court if you do not appear as agreed.
Types of Bail
When a Garda brings you into custody to a Garda station, the station may release you on bail either with or without sureties. The amount of money specified in the bail bond is set by the Garda in charge of the station. You must enter into a bond to appear before the District Court on a specific date.
When you are brought before the District Court, the judge may either remand you in custody or release you conditionally when you enter into a bail bond with or without surety. The amount of money specified in the bail bond is set by the judge.
If you are granted bail you (or your surety) must pay into court at least one-third of the amount of money promised in the bail bond. This money will be returned to you if you appear in court as promised.
The Director of Public Prosecutions can appeal the decision to grant you bail or the conditions of your bail to the High Court.
If the District Court refuses bail, you will be remanded in custody. You can appeal the decision to the High Court.
High Court Bail
If you are charged with treason, war crimes, murder, attempt to murder, conspiracy to murder or piracy and genocide, the District Court does not have the power to grant you bail. Certain offences under the Offences Against the State Act, 1939 and the Official Secrets Act, 1963 also rule out the granting of bail in the District Court.
In those cases, you or your legal representative must apply to the High Court for bail.
Considerations of the Court
Whether or not the District Court will grant you bail depends on a number of factors;
- Whether you are likely to flee
- If you are charged with a serious offence, whether you are likely to commit a serious offence while on bail. A serious offence is one for which you may be punished by a term of 5 years imprisonment.
- The fact that you were caught red-handed
- Whether you are likely to interfere with evidence, witnesses or jurors
- Whether you have ever breached a bail bond before.
- Your character and previous criminal record
- Your circumstances (whether you have a family, a job, a house, etc.)
- Whether you have roots in this jurisdiction - i.e., property, family, employment
- Whether you are willing to keep to certain conditions (e.g., surrendering your passport)
- The seriousness of the offence
- The likely sentence if you are convicted
- The strength of the evidence against you
- Whether the Gardai object to you being granted bail
People who cannot be accepted as sureties or bails-persons
A court cannot reject a person as a surety simply because of his/her moral character or political opinions. However, a surety may be rejected if it is clear that he or she could not pay the amount of money specified if the bail-bond was breached.
The following persons may not be accepted as bails-persons;
- your solicitor
- those under 18 years of age
- those in custody
- those with previous convictions
- those recently declared bankrupt by Order of the Court
Refusal of Bail
Where an application for bail is made by someone charged with a serious offence, a court may refuse the application. These grounds for refusal are set out in Section 2 of the Bail Act, 1997. Grounds on which the courts may refuse the application are where it is considered necessary to prevent the person committing of a serious offence while on bail. Items the court takes into account when making a decision to refuse bail are:
- evidence or submissions concerning the nature and seriousness of the crime charged;
- the severity of the punishment provided for by law for the offence;
- the strength of the case against the accused;
- the prospect of a reasonably speedy trial;
- the opposition of the Attorney General;
- any previous convictions of the accused person including any conviction the subject of an appeal (which has neither been determined nor withdrawn) to a court; and
- any other offence in respect of which the accused person is charged and is awaiting trial.
Consequences of breaching a bail bond
- If you do not appear in court as agreed, a bench warrant will be issued for your arrest. This means that the Gardai have been ordered to arrest you and bring you before the court.
- The amount of money that was specified in the bail bond will be forfeited by you and/or your independent surety.
- You will have committed a further criminal offence that carries a maximum penalty of a Class A fine and/or 12 months imprisonment. This sentence is set down in Section 13 of the Criminal Justice Act, 1984 as amended.
- You will be refused bail in the future.
You can show you had a reasonable cause for not appearing on the date. Possible circumstances might include an illness, family emergency, or a family death. It remains, however, at the discretion of the court as to whether or not any such excuse is accepted
How to apply
After you are arrested and brought to a Garda station, the member in charge of the station may decide to release you on station bail. He or she will grant bail if he or she "considers it prudent to do so". He or she does not have the power to release you on bail if there is a court warrant for your detention.
If you are granted bail at the station, you will have to enter into a bond to appear in the District Court as agreed. You may have to pay a sum of money and you may also have to get an independent surety to guarantee that you will appear in court as agreed.
If you are arrested and detained, you will be brought to the District Court as soon as possible. At the District Court, your legal representative may make a formal application to the judge that you be released on bail.
Usually the most important issue that will be discussed during the application is whether you are likely to abscond and avoid your trial.