9th March 2023
Bail, pre-trial detention: Comparing Legal Systems & Legal Cultures?
Dr Mary Rogan, Associate Professor, Trinity College Dublin
High rates of pre-trial detention are a concern in many countries. International human rights instruments and, increasingly, European instruments, emphasise the need for pre-trial detention to be a measure of last resort. Understanding the factors which drive and protect against overuse of detention at the pre-trial stage is needed.
In this paper, I will explore the case of Ireland. At around 15 per 100,000, Ireland has a comparatively low rate of pre-trial detention in European terms. Drawing on comparative research with seven other EU countries and the UK, this paper explores the role of legal culture in explaining this comparatively restrained use of pre-trial detention. It finds that legal practitioners and judges in Ireland remain predominantly focused on the likelihood of a person turning up for trial when making decisions about detention. The role of the risk of offending ground is less important.
The paper argues that the legal framework and particular elements of Irish legal culture such as the constitutional position of bail and shared understandings between the legal actors have acted as protectors against high rates of pre-trial detention. The paper explores ways in which these factors may differ from other national contexts and what insights the Irish experience may offer.