Balancing bail - making the right decision

By Natalie Lindo
BBC News

Earlier this week, a Londonderry man accused of murdering a fellow guest after a family wedding breached his bail by failing to turn up at court for the final two days.

James Meehan, who remains on-the-run, was subsequently found guilty of the murder of Jim McFadden and faces a life sentence.

A defendant's right to bail is enshrined in British law under the Bail Act of 1976 but every court is in a position to grant or deny it.

However, Meehan's case and others like it, have led to calls for changes to be made to the current legal system.

Currently bail is only withheld if there are substantial grounds for believing that the defendant would abscond, commit an offence, interfere with witnesses or otherwise obstruct the course of justice whilst on release.

Reoffend

Norville Connolly, vice-chair of the Law Society in Northern Ireland, said when someone in this jurisdiction is charged with a serious offence, such as murder, they are taken to a local district court where the judge can grant bail.

"At this stage it is normally refused, but the suspect can then apply to the High Court and the High Court Judge would have to be satisfied on three main conditions.

"First, is there a likelihood that the defendant would reoffend?

"This takes into consideration any previous convictions, the type of murder it was, for example whether it was a domestic or terrorist murder.

"The second condition is the likelihood they would turn up for trial.

"The third main condition is would a defendant interfere with a witness."

If someone is charged and not convicted, they have spent years in prison, but then there is the possibility that they could be convicted at trial and should not be on bail Norville Connolly, vice-chair of the Law Society in NI

"They would look at whether the defendant is embedded in society - do they have loose connections with society, are they likely to flee, do they have a passport, a family or a business, a whole range of circumstances ."

It is the difference between each case and the question of liberty and freedom that makes the right to bail such a contentious issue.

Mr Connolly said a judge has to take these factors into consideration in every case.

"If someone is charged and not convicted, they have spent however many years of their life in prison, but then there is the possibility that they would be convicted at trial and should not be on bail."

'Reconsider the situation'

This very issue came up for debate in England and Wales in 2008 following the case of Garry Weddell, a policeman who killed his mother-in-law while on bail for his wife's murder.

The Ministry of Justice published a consultation paper specifically to tackle the problem and even considered banning the option of bail for all murder suspects.

Speaking in 2008, Justice Secretary Jack Straw said: "Public protection must be paramount when considering an application for bail."

Mr Straw said bail decisions in murder cases "would never be easy", but the "vital thing was to ensure that the courts strike the right balance between respecting individuals' right to liberty and protecting the public".

The report concluded that banning bail for all murder suspects would present legal problems, as it might contravene the European Convention on Human Rights - which requires courts to have some discretion to grant bail in some circumstances.

However, it did suggest some "less drastic changes" to the rules requiring courts to give greater weight to the potential risks of granting bail to a murder suspect, including the likelihood of them inflicting physical or mental harm.

This was implemented through the Coroners and Justice Bill, which was introduced in January 2009 and limited the decisions on granting bail in murder cases in England and Wales to Crown Court judges.

Mr Connolly said he agreed that under the current judicial system a complete ban in on bail murder suspect would present problems.

"I have no doubt that in light of this case and several other the home secretary will reconsider the situation.

"I presume, although I'm not fully aware, that this issue is kept under review from time to time and will be reviewed again in light of what has happened," he added.

For now the the situation remains fluid.

The right to freedom and liberty is well protected and the protection of the innocent, in many cases, overrides the curtailment of freedom for a suspect.

Currently, an innocent person awaiting trial could face several years on remand and equally a guilty party could enjoy a similar period of freedom.

Neither is completely fair, but at present it is the way the system works.