Excessive Bail Conditions

When an accused person is granted bail pending trial there are conditions applied. This article looks at the lawfulness of those conditions and the circumstances in which excessive conditions might properly be challenged.

The Decision to grant or refuse bail

The initial decision on whether to grant or refuse bail is not going to be examined in this article. There is already plenty of academic and judicial commentary on the factors to be applied in deciding whether to grant or refuse bail.

This article looks instead at the situation where bail is granted with conditions, and in particular those situations where the bail conditions might be said to be excessive.

The Power to Impose Conditions

A court granting bail has always had power to impose conditions. The power has also been expressed in statute form in Section 6 of the Bail Act 1997 which sets out a non-exhaustive list of conditions which may be imposed, including:

• that the accused person resides or remains in a particular district or place in the State;
• that the accused person reports to a specified Garda Síochána Station at specified intervals;
• that the accused person surrenders any passport or travel document in his or her possession or, if he or she is not in possession of a passport or travel document, that he or she refrains from applying for a passport or travel document;
• that the accused person refrains from attending at such premises or other place as the court may specify;
• that the accused person refrains from having any contact with such person or persons as the court may specify.

This is not an exhaustive list and a court is at large to impose such conditions as it deems appropriate. Frequently courts will impose conditions requiring:

• that the accused furnish his/her mobile number to the Gardai and remain contactable on that mobile number 24 hours a day, 7 days a week;
• that the accused refrain from drinking alcohol (and/or from ingesting illicit substances);
• that the accused observe a curfew between certain specified (usuaully night-time) hours.

As to the circumstances in which such conditions might be imposed, the 1997 Act says that the court may impose such conditions as it considers necessary and proportionate having regard to the circumstances of the case. This would appear, on its face, to require that reasons be given for the conditions imposed and that no condition be imposed that is not necessary and proportionate having regard to the circumstances of the case.

The Basis for Bail Conditions

As Gearty J. put it in Hannifin v Director of Public Prosecutions [2020] IEHC 206:

“conditions should always be considered in an effort to avoid having to refuse bail, if that is possible. […] The reasoning is that the conditions reduce the probability, and hence the risk, that he will breach his bail…”

The imposition of conditions is therefore to be seen as a halfway house between (a) refusing bail and remanding the accused in custody pending trial, and (b) allowing an accused to remain at liberty, unfettered by any restriction, pending trial.

A ‘breach of bail’ would occur if the accused interefered with prospective witnesses or jurors, committed a serious offence, or failed to appear in court for trial.

Accordingly, if a court finds that an accused person should be granted bail, but is satisfied by evidence that there is a risk that the accused might interfere with prospective witnesses or jurors, or that the accused might commit a serious offence, or that the accused might not appear in court for trial, the court may impose conditions to reduce that perceived risk.

Excessive Bail Conditions

Occasionally courts will impose bail conditions that do not, on their face, appear to relate in any way to the risk of interference with prospective witnesses or jurors or the commission of a serious offence. However, there may be a tangential link. For example, requiring an accused to refrain from drinking alcohol may not be directly related to any of the aformentioned concerns, but may be indirectly related in that, if the accused were to become drunk, there would be an increased risk of interference or of the commission of a serious offence. Whether such a condition is excessive in an individual case will depend on whether it is necessary and proportionate having regard to the circumstances of the case.

Additionally, courts might impose bail conditions that operate in parallel and seek to achieve the same result. For example, a court might require an accused to sign on at a local Garda station on a regular basis and might also require the same accused to furnish Gardai with a mobile phone number and remain contactable on that number 24/7. Both of these conditions might be said to be designed to ensure that the accused remains under Garda ‘supervision’, which in turn is linked to ensuring that the accused appears in court for his trial (and does not abscond in the meantime). It is questionable, however, whether both are necessary. In addition, there has to be a question mark over the reasonableness of requiring an accused to remain contactable 24 hours a day, 7 days a week. When is the accused to sleep? Is the accused to sleep with the mobile phone on the pillow, set to ‘loud’, in case a Garda might call him? If the accused fails to answer a call at any time, does this constitute a breach of bail condition? What does ‘contactable’ mean? Does it mean that the accused must answer a call, or simply that he be able to be contacted (even if he does not, in fact, answer)?

There is also the question of curfews, which are regularly imposed and are often imposed alongside a requirement to reside at a specified address. What does ‘curfew’ mean? Is it a requirement to remain off the streets or is it a requirement to be at a specified location? What does ‘reside’ mean? Is it a requirement to spend every night in a specified location or is there scope for overnight travel to other locations within the State?

The associated question of curfew checks arises frequently in practice, with accused persons complaining to their lawyers that Gardai are banging on their doors in the middle of the night to check that they are at home. Gardai feel justified in doing this to check that bail conditions are being complied with, but one wonders whether this is an unfair imposition. Are Gardai entitled to actively monitor compliance with bail conditions in this way or are they restricted to a more passive role?

Alcohol Consumption

In Purdue v Director of Public Prosecutions [2016] IEHC 619 the applicant, Mr. Purdue, had been given a suspended sentence in the Circuit Court on condition that he (i) not partake of any alcohol, and (ii) not leave County Kildare without the consent of the Probation Service. These conditions were challenged by Mr. Purdue by way of judicial review.

Strictly speaking the case is not concerned with bail conditions but with conditions attaching to a suspended sentence. However, similar considerations apply. Section 99(3) of the Criminal Justice Act 2006 provides that, in supending a sentence, the court may impose such conditions as it considers (a) appropriate having regard to the nature of the offence, and (b) will reduce the likelihood of the person in respect of whom the order is made committing any other offence.

In quashing the condition relating to alcohol consumption, the High Court (Barrett J.) held:

“There was no evidence before the District Court that Mr Purdue had consumed alcohol or had been intoxicated at the time the offences were committed. There was no evidence whatsoever before the District Court that alcohol use has ever featured in Mr Purdue’s history. The imposition of the condition was, the court is advised, consistent with a general policy of the learned District Judge, perhaps based on her general experience of criminal cases coming before her, to impose alcohol-related restrictions when sentencing. But in this case there was simply no basis for the imposition of the alcohol-related restriction; it amounted to an ancillary punishment for which there was no basis in the evidence before the learned District Judge. The condition did not correspond to the particular circumstances of the offence or the particular personal circumstances of Mr Purdue. […] Having regard to the foregoing, it is clear that the portion of the sentence imposed by the learned District Judge and requiring that Mr Purdue abstain from alcohol cannot stand.”

In quashing the condition relating to leaving County Kildare, the High Court held:

“It appears that the learned District Judge imposed the condition that Mr Purdue remain in County Kildare, having regard to the fact that his parents had previously removed him there with a view to getting him away from the company of a “bad crowd” with whom they perceived Mr Purdue to have fallen in with in Dublin. However, the learned District Judge heard no evidence and made no enquiry that would appear to offer justification for excluding Mr Purdue from all but one county in the State. […] The restriction on Mr Purdue’s movements to the county of Kildare has no relationship to his likelihood of re-offending. It is, in truth, a most remarkable restriction on his constitutional right to liberty. The curtailment of liberty in the course of a suspended sentence can only rest upon its reducing the likelihood of an offender’s committing another offence and of being appropriate to the nature of the offence, (Act of 2006, s.99(3) and (4)). Notwithstanding that Mr Purdue’s parents considered their son to have fallen in with a “bad crowd” hailing from some part of Dublin, there was no available evidence or information before the sentencing court by reference to which the impugned restrictions on liberty could reasonably be seen as appropriate to such offences of which Mr Purdue had just been convicted, let alone proportionate or necessary in reducing the likelihood of re-offending. Had there been some restriction on his returning to that part of Dublin where the “bad crowd” hailed from, the respondent might have had a more stateable case as to the lawfulness of the sentence imposed. But that is to speculate as to the lawfulness of a sentence that was not imposed by the learned District Judge. Having regard to the facts at hand, and the law as considered above, the court cannot but conclude that the restriction of Mr Purdue to County Kildare represents an unnecessary, unwarranted, and unlawful restriction on, and interference with, his constitutional right to liberty.“

Curfews & Residence Requirements

According to the online Cambridge English Dictionary, “curfew” means ‘a rule that everyone must stay at home between particular times, usually at night, especially during war or a period of political trouble’ (UK), or ‘a time by which a child must be home in the evening’ (US), or ‘a rule that some or all people must stay off the streets during particular hours, used esp. to maintain peace during a period of violence’ (US).

When a court imposes a curfew on an accused as a condition of bail, does it mean that the accused must be ‘at home’ during the specified hours or does it mean that the accused must be ‘off the streets’ during those hours? Is there even a valid distinction to be drawn between the two?

In Brennan v Judge Brennan [2009] IEHC 303 (which is considered in more detail below) the High Court (Peart J.) drew a distinction between a ‘curfew’ and ‘an order requiring a person to remain in his house for even a substantial number of hours in a given day’. It therefore appears that a curfew does not amount to an order requiring a person to remain in his house, unless expressly stated as such (see, for example, DPP v Lee [2017] IECA 152 where the imposed curfew was “a curfew during which he must remain indoors within his notified place of residence from 7pm each evening until 7am on the following morning“)

In Ronan v Coughlan [2005] 4 IR 274 the District Court judge, “…having looked at the charge sheets and remarked that the defendant was getting drunk on O’Connell Street … proceeded immediately to remand the applicant on his own bail of €100 but imposed two conditions”, namely that the applicant:

• should observe a curfew at his home in Ballyfermot, Dublin 10, between the hours of 3.00 p.m. and 7.00 a.m. every day; and
• should remain at all times and in all circumstances within the area of Ballyfermot, Dublin 10.

In quashing the bail conditions, the High Court (Quirke J.) observed that:

“The effect of the first condition was to confine the applicant to one household in west Dublin for a period of sixteen hours of every day.

The effect of the second condition was to confine the applicant at all times and in all circumstances to a comparatively small area in the city of Dublin. Under no possible circumstances could the second condition have been required either:- (1) because the court was concerned that the applicant might not appear to answer the charges preferred against him; (2) because of any risk that the applicant might interfere with witnesses; or (3) in order to accommodate any of the objectives identified in the Bail Act 1997.

The first condition could not have been imposed by reason of an apprehension by the court that the applicant might interfere with witnesses. There was no evidence which could possibly support such an apprehension. Neither could a condition have been imposed in order to accommodate any of the objectives of any of the provisions of the Bail Act 1997.

On the evidence adduced in these proceedings the first condition was not imposed by the first respondent by reason of any apprehension that the applicant might not appear to answer the charges preferred against him. Had it been imposed on that ground it would have comprised an unduly severe restriction which would have been wholly unwarranted by any evidence before the District Court at the time of imposition.

However, as I have indicated, the evidence adduced in these proceedings has disclosed that the decision of the first respondent to impose the conditions which he imposed was based upon considerations other than the principles which should have been applied to an application for bail.

It follows from the foregoing that I am satisfied that the order made by the first respondent on the 10th March, 2005, was made in excess of jurisdiction.”

House Arrest

In Brennan v Judge Brennan [2009] IEHC 303 the accused was granted bail in the District Court on condition that he “leave his home at 27 Rathmullen Park only to attend Court (‘House Arrest’). This condition was challenged and the High Court (Peart J.), in quashing the condition, found that there was no evidence before the Distirct Judge to justify the imposition of such a condition:

“I am satisfied that there was no lawful basis for the respondent to make the order he did in this case. There was no objection to bail mounted by the prosecution, albeit that the prosecuting Garda stated that if bail was to be granted it should be subject to strict conditions. The only evidence before the respondent was that the applicant was before the Circuit Court in relation to another offence and that the offences before the District Court were alleged to have been committed while the applicant was on bail in relation to the Circuit Court charges. The applicant enjoyed the presumption of innocence in relation to the District Court charges. There was no evidence that the applicant had previous convictions for failing to appear. There was no evidence that he would not turn up for his trial or that if remanded on bail he might interfere with witnesses. It would appear reasonable to conclude that the respondent, from his previous knowledge of the applicant, was of the view that he should not be permitted “to be on the streets” since he made the remark that “there are too many people on the streets”. There was no evidence adduced in this regard and it was not a view which he was entitled to hold against the applicant so as to justify a house arrest order, even if such an order can be seen as one which could be made in some other case in which there was appropriate evidence.

The order made in this case must be seen as an extreme order amounting to a total and unreasonable restriction upon the liberty of the applicant. It seems to me that even a condition imposing a curfew during night-time hours may not have been one for which there was any relevant evidence. There was no evidence offered to suggest that the applicant was a person in the habit of committing offences at night. Perhaps there could have been some such evidence, but the fact is that no such evidence was offered to the respondent by the prosecution. I am satisfied that the restriction of house arrest is not one for which in this case there was any lawful basis on general principles arising from The People (at the suit of the Attorney General) v. O’Callaghan. The order was made in excess of jurisdiction and must be quashed. I should perhaps add that the fact that the applicant was permitted to attend court, attend Mass or attend his probation officer does not relevantly or materially alter the essential character of the 24 hour house arrest imposed.“

Peart J. also examined whether there would ever be circumstances in which a condition amounting to house arrest would be justified. In this regard, he noted that counsel for the accused had submitted:

“…that the use of the word ‘place’ in s. 6(1)(b) is insufficient to confer jurisdiction on the first named respondent to confine the applicant to a particular house on a 24 hour basis, and submits also that if such a literal meaning was to be given to the word, a District Judge would be entitled to impose a condition that a person remain not only in a particular house on a 24 hour basis but also to a particular room in a particular house, and that this was not the intention of the Oireachtas when enacting this section. He submits that it is significant that the word “place” occurs alongside the word “district”, and that what is intended is that a judge may impose a condition that a person reside or remain in a district or a place such as a town or village, but that it is not intended that a person’s activities would be so confined that he or she could not go outside the front door of his or her home. He submits that such a literal interpretation would amount to an unlawful deprivation of liberty albeit within the confines of his own home, or indeed a refusal of bail.”

Peart J. agreed with that submission, stating that:

“The confinement of a person to a particular house or even a part of a particular house amounts to such a draconian limitation on the freedom of movement and liberty of the citizen that it would require a very specific and clear legislative provision to confer such a power. None such is provided.“

However, Peart J. did conclude his judgment by stating that a condition of this type will not necessarily always be unlawful, and that each case would have to be decided on its own facts and circumstances:

“It follows in my view that s. 6, whether as interpreted by me without reference to the Convention, or interpreted by reference to the jurisprudence of the European Court of Human Rights, does not provide a lawful basis for the imposition of a 24 house arrest order as imposed in this case. I am not to be taken as concluding that a curfew order or even an order requiring a person to remain in his house for even a substantial number of hours in a given day would offend in the same way. It will be a matter of considering the degree of restriction, and for each case to be decided on its own facts and circumstances, and the evidence adduced in order to justify any such restrictions imposed.“

Curfew Checks

The practice of Gardai calling to an accused’s residence to check that a curfew is being observed received tacit approval in DPP v Hill [2019] IECA 305 – “He had been expecting gardaí to call, as they routinely did, to check up on him as he was subject to a curfew as one of his bail conditions.” However, it is not clear from that case whether Gardai had been given leave by the court to carry out such checks, or whether the accused had consented to such checks, or whether there was any reference at all to such checks in the order granting bail.

It is instructive to note that, in DPP v Lynn [2018] IECA 178, the accused brought a (failed) bail application in which one of the conditions he offered to abide by was to observe a curfew at [address] from 9pm to 6am “with liberty to the Gardai to check that I am at that address during those hours”. This would suggest that Gardai are not entitled to conduct curfew checks unless granted liberty to do so either by the court or by the bailed accused.

Challenging a Bail Condition

The means by which a bail condition should be challenged depends on whether the decision to impose the condition was good or bad in law – in other words whether the intiial hearing was fair/unfair and whether the imposition of the condition was done with or without jurisdiction.

It is well settled that, where a condition is imposed in breach of fair procedures or without jurisidiction, a challenge to that condition should be brought by way of judicial review. In any other case the imposition of the condition can be addressed by way of an appeal.