Ben Lowry: Bailing of Ismay murder suspect raises wider questions about bail policy in NI

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Ten days ago a series of bail decisions were made in the criminal case against the man charged with murdering Adrian Ismay, the prison officer who died in the aftermath of a dissident terrorist bomb attack in March.

Christopher Robinson, aged 45, was bailed on Wednesday May 4 at the High Court by Mr Justice Colton, despite the seriousness of the charge and despite the opposition to bail of the PSNI and the PPS.

The bail had been granted with strict conditions including a curfew and the wearing of an electronic tag.

The judge said that Robinson, of Aspen Park in Dunmurry, was well known to the authorities, thus diminishing any offending risk.

That night, at 2.25am, police called at his house. They got no response and returned after 6am to arrest him.

He was brought before a court that day, Thursday, and granted bail again, this time by a district judge. Once again, the PPS and PSNI opposed bail.

That night, Thursday, the security firm reported an issue with his tag.

The following day, last Friday, he was brought before a court a further time. Again, the PPS and PSNI opposed bail.

But the court was told that Robinson’s tag had come loose after a fall. Bail was granted a third time, on this occasion by another district judge.

Robinson is innocent of the offence with which he is charged unless and until he is proven otherwise.

The legal case against him will run its course, and this newspaper would not in any way seek to pre-empt that process.

However, the sequence of events in this case raise wider questions of the utmost public interest about bail policy, that are worthy of urgent examination, and that should not have to wait the outcome of any particular trial.

The urgency of the public interest element to the questions that are raised has been underscored by the fact that the threat from the New IRA was raised this week.

These queries about bail policy need to be placed near the top of the in-tray of Stormont’s justice minister, whoever that will be.

For the purposes of the wider issues in this article, and for a news story that I wrote earlier this week, I have spoken to lawyers in Northern Ireland and Great Britain. I have also sought the views of the police, prosecutors, and the courts, as well as people in the wider criminal justice and security fields.

The first point that needs clarified is the appropriateness or otherwise of the granting of bail to a defendant charged with murder.

Is this more likely to happen in Northern Ireland, and if so why? On paper, it is not more likely in the Province. It is up to the prosecution to raise the grounds for opposing bail, even in serious cases.

In practice granting of bail in a murder case is still a highly unusual event.

My queries have established that it would be hard to envisage a situation in which an accused in, for example, an Islamic terrorism murder case would be granted bail in Great Britain. Aside from any legal considerations, the public would be outraged.

But the granting of bail to a murder accused would also be hard to envisage in a host of other situations, such as a defendant on a gangland murder charge.

The question then arises as to how the courts should respond to a breach of bail, when a defendant has been granted bail on such an extremely serious charge.

According to court reports in the Robinson case, there was no suggestion that he was not at home at 2.25am.

But we must consider other situations involving other defendants. What would happen if the police did suspect that one such defendant was not in fact at home? Would officers, on getting no answer, be entitled to break down the door, or would that be disproportionate?

Apparently the onus in such a situation would be on the police to show that they had a reasonable suspicion that the defendant was elsewhere, such as having been seen elsewhere. This suggests that breaking down the door might be disproportionate.

In the absence of the PSNI having recourse to actions such as breaking down a door that has not been answered, establishing whether or not a defendant is in fact at home during a curfew could be difficult. That being so, the spotlight then returns to the appropriateness of granting bail in the first place, or the appropriateness of the court declining a bid to revoke bail once the terms have been breached.

What about a case where there has been an alleged breach of bail, but the police-PPS bid to revoke bail has been declined, and then there is a further breach of bail?

My understanding is that in England and Wales a second breach would rarely result in continuing bail.

One reason that the Robinson case has raised wider bail questions is that it cannot be deemed to have been an instance of single highly unusual court decision.

There were three separate judges who rejected opposition to bail in three separate court hearings.

When I asked the Courts Service about such bail decisions, they gave me a statement which was printed in our news story on Wednesday (and is still online).

In summary, the statement emphasised the onus on the judiciary to release applicants on bail since the incorporation of the European Convention on Human Rights into domestic law through the Human Rights Act 1998.

That act has been the subject of serious debate at Westminster, amid concerns that it is being used to inhibit severely state efforts to combat serious crime.

This is a national debate in which Northern Ireland MPs need to be involved.

Finally, there is the matter of possible 24 hour-7 day eavesdropping of terror suspects who have been granted bail. In the absence of such monitoring, how could the authorities rule out the possibility that a defendant was, for example, making phone calls or communicating digitally about the case in which they have been charged?

I have been unable to establish whether eavesdropping would be likely in a bail scenario where such communication was feared. It is safe to assume that the overwhelming majority of the public would hope and trust that such monitoring would occur. But even if it did, there are cost implications to 24-7 eavesdropping, and it diverts resources from other intelligence operations.

If such eavesdropping is for whatever reason difficult, the question once again returns to the appropriateness of granting bail in the first instance and also the enforceability of conditions.

This article raises issues that the Department of Justice at Stormont, or the Northern Ireland Office (in the case of terrorist legislation that is not devolved), have the expertise and the resources to investigate and establish.

It is to be hoped, at this time of heightened terrorist threat to life and property, that they are doing exactly that.

Ben Lowry (@BenLowry2) is News Letter deputy editor

PPS and PSNI explain how they opposed bail each time Adrian Ismay murder accused appeared before court