SINCE a Supreme Court decision in 1966, bail can be used by our courts on only on grounds: the likelihood that an accused will not turn up for trial or will interfere with witnesses or evidence.

This means that it is not open to our courts at present when considering a bail application to take into account at all the question of a person committing serious offences if released on bail. This is the case even where, for example, the accused has a track record of being involved in serious crime while on bail on previous occasions.

If people believe that situation is wrong, then the only way to change it is to amend the Constitution: along the lines being put before the people in the referendum on November 28th.

What people are being asked is simply whether they agree with the idea that, as well as the two existing grounds for refusing bail, it should be possible to introduce laws which would allow a court to refuse bail to a person charged with a serious offence if it is reasonably considered necessary to prevent the commission of a serious offence by that person.

I believe that this reform of our bail laws, which is taking place against the background of the provision of 800 extra prison places, is overdue and represents a measured and balanced response to the reality of modern crime.

Our bail laws are regarded as very liberal compared to those which apply in other jurisdictions. The Law Reform Commission in its Report on the Law of Bail, published last year, examined the position in many other jurisdictions and found: that all of these allowed the question of offending on bail to be taken into account by the courts in deciding whether to refuse bail.

The wording of the amendment now being put before the people is based on the relevant part of the European Convention on Human Rights which allows for the deprivation of liberty . . . when it is reasonably considered necessary to prevent a person committing an offence".

The Government has made available an outline of the main provisions of the bail legislation which it would propose to introduce if the amendment is passed.

Theoutline legislation sets out the serious offences to which the new bail regime would apply and the matters which the courts would take into account in deciding whether the test (which would be set out in the Constitution) for refusal of bail is met.

A dual approach is taken to specifying the offences to which the new bail regime can apply. Firstly, a "serious" offence is defined as an offence carrying a maximum penalty of five years' imprisonment or more.

Secondly, a schedule is included setting out the type of offences covered by the legislation.

This approach means that, while all offences to which the legislation will apply must carry a maximum penalty of five years or more, not all such offences will be covered by the legislation - primarily on the grounds that some of the offences in our current law carrying such a penalty are archaic or unlikely to be ones where the question of re offending is relevant.

Refusal of bail will not, of course, apply automatically in respect of any particular offence or category of offence. Refusal of bail in relation to any particular offence is a matter for the courts to decide on in the light of the criteria set out in the legislation. Therefore, there is no basis for the claim that, under the new bail regime, bail can be refused "on the say so of a member of the Garda Siochana".

As a safeguard, the outline legislation provides for a review of refused bail applications if the trial has not commenced within four months of the initial refusal of a bail application.

The outline legislation sets out the matters to be taken into account by the courts, where appropriate, in deciding whether it is reasonably considered necessary to refuse bail to prevent the commission of a serious offence. These relate mainly to a person's criminal record and the nature and degree of seriousness of the offence with which the person is charged, or which it is feared will be committed if bail is granted.

A suggestion has been made bye those opposed to the amendment that very petty offences would be covered by the new bail regime. That seems to me to overlook the reality that the Constitution will refer specifically to serious offences and that the proposed legislation will mean that the courts must take into account the nature and degree of seriousness of the offence.

Opponents of the amendment argue that it is wrong in principle to deprive someone of their liberty without that person having been convicted. But under the two grounds on which bail can refused at present the courts are allowed to detain a person in custody pending trial on the basis of taking a view of the accused person's likely behaviour if released.

What is at issue now is whether the third ground relating to the commission of serious offences should also be allowed to be taken into account, and what people are being asked to decide is whether this is a reasonable balance between the rights of the accused and the rights of victims and the community generally.

It is also worth making the point that, in relation to the presumption of innocence, the fact that bail has been refused has no relevance at all to the trial of an offence where the full presumption of innocence continues to apply.

It is argued that changes which could be made in our existing laws to tighten up on bail and improvements which could be made ink bringing about speedier trials would make the constitutional referendum unnecessary. Changes are planned in our existing laws on bail separately from the constitutional amendment by, for example, tightening up on the laws in relation to the imposition of consecutive sentences for offences committed on bail and improvement in relation to the forfeiture of bail.

But those measures cannot prevent the commission of offences on bail.

EQUALLY, a number of measures have been and will continue to be taken to bring out speedier trials. But despite all the improvements which have been brought about, there will always be some lapse of time between a person being charged with an offence and the trial taking place not least so that the accused has a proper opportunity to prepare a defence.

Without an amendment to the Constitution, no changes in law or procedure can address the central issue should a court be allowed, in certain circumstances, to take into account the question of someone committing a serious offence if granted bail? For all the extraneous arguments which inevitably are raised in the course of a debate such - as this, that is the key question: which people are being asked toe address.

The question of reform of our bail laws has been on the agenda for a long time now. What is now being proposed represents no panacea for our crime problem. But it is a balanced and necessary measure in the fight against crime, and November 28th will give people an opportunity of having their say as to how one particular aspect of our crime problem should be tackled.