Understanding the Impact of Bail Refusal

Introduction

  • Bail is a key factor in the over-representation of vulnerable people in the criminal justice system.
  • Australian incarceration rates are at their highest in a century (Sarre, 2021).
  • The circumstances under which bail is refused to vulnerable people, particularly by police, are unclear.
  • There is an urgent need to understand why bail is disproportionately refused to disadvantaged people and the impacts of these refusals.
  • A new research project aims to identify specific tipping points where police may make better, vulnerability-informed bail decisions.
  • Remand is in disfavour of vulnerable people and may be aggravating vulnerability circumstances for defendants and the broader community.

Key Issues

  • Most Australian inmates come from disadvantaged backgrounds, with significant increases in remand rates for vulnerable people.
    • Indigenous Australians are the most incarcerated population in the world (Anthony, 2017).
    • Other vulnerable groups include children, women, and people with acquired brain injury, substance use, or mental illness.
  • Vulnerable remandees, not yet proven guilty, are likely to experience an aggravation of their condition due to poor access to support services.
  • Remand in custody can escalate specific forms of vulnerability with limited public health service provision.
  • Bail refusal imposes considerable economic and social costs on individuals, communities, and Australian society.

State of Knowledge on Police Bail and Remand in Australia

  • Bail refusal and subsequent remand imprisonment contribute significantly to the over-representation of people from disadvantaged groups in custody.
  • Remand imprisonment is a significant factor in the growth of incarceration numbers.
  • In 2021, one-third of all persons incarcerated in Australia were on remand, doubling since 2000.
  • Preliminary research indicates flaws in procedural and distributive justice when bail is refused by police (Travers et al., 2020).
  • Issues include: people remanded at a younger age, homeless women remanded "for therapeutic reasons" without therapy provision, extended custody periods, and suicides during remand (JIIE, 2020).
  • Studies from New South Wales and South Australia show that over 50% of prisoners who committed suicide were on remand (Willis et al., 2016).

Police Bail Powers

  • Authorized police officers can grant or refuse bail and impose special bail conditions (Hucklesby, 2001).
  • This power was initially given to reduce the number of alleged offenders held in custody overnight and to retain control over defendants’ whereabouts during bail.
  • Limited data exists on bail granted by police, revealing inconsistent decision-making and a failure to consider differences in defendants' vulnerability attributes (Hucklesby, 2001).

Criteria for Bail Decisions

  • The five broad criteria considered by police are:
    1. Likelihood of showing up at court or absconding.
    2. Concern over the safety of the person.
    3. Criminal record and history.
    4. Seriousness of the alleged offense and strength of the prosecution case.
    5. Likelihood of re-offending while on bail.
  • The specific grounds for granting or refusing bail are not often recorded in police files, unless it is a prosecutorial file.
  • Police officers make decisions to refuse bail according to criteria that differ vastly between officers, and vulnerability factors usually are to the detriment of defendants.
  • Significant numbers of citizens are being deprived of their liberty without clear justification.
  • Procedurally arbitrary decisions have resulted in growing incarceration instead of a decline.
  • Hucklesby (2001) questions the legality of such decisions, particularly when personal circumstances are not considered, and vulnerability or disadvantage disfavors unconvicted defendants, potentially implying discrimination.
  • This is particularly concerning when the person is ultimately found not guilty and when remanded people have limited access to support services.

Work in Progress

  • The team is considering where, throughout the bail timeline, crucial tipping points exist that could facilitate procedural and distributive justice.
  • Exploring how bail (particularly bail refusal) impacts on public health, community health, and safety.
  • Current pressure on the criminal justice system indicates a need for restructuring how bail decisions are made for vulnerable people.
  • While legal guidance frameworks exist for granting bail, there is no agreed approach to how vulnerable people should be responded to in the decision-making process.
  • There is no clarity about how to set and apply consistently and equitably what is called the “unacceptable risk threshold.”
  • The “threshold test” requires the decision-maker to consider levels of risk of offenses being committed while on bail, but little is known about the threshold of risk considered acceptable in practice.
  • Bail decisions involve balancing competing legal principles and the probability of events occurring, weighing likely consequences for the persons concerned.

Socio-Legal and Judicial Challenges

The project addresses four intersecting challenges:

  1. Over-representation of vulnerable people in prison:

    • Vulnerable people are more likely to come into contact with police (Justice Reform Initiative, 2021; Bartkowiak-Théron & Asquith, 2012) and are over-represented in criminal justice, nearly seven times more than in the general population.
    • The Australian Productivity Commission (2021) indicates that vulnerability traits contribute to individuals entering the prison system.
    • Prominent vulnerability attributes:
      • Mental illness: 50% of incarcerated adults and 80% of incarcerated youth have been diagnosed with a psychological disorder.
      • Indigeneity: Australian Aboriginal people make up 28% of all inmates but only represent 3% of the general population; the imprisonment rate for Aboriginal and Torres Strait Islanders has increased by 35% since 2006, compared with 14% for the non-Indigenous population.
      • Gender: women are the fastest growing prison population (Justice Reform Initiative, 2021).
    • Some public health agencies argue that a much higher proportion of defendants experience these difficulties (Australian Institute of Social Welfare, 2019).
    • The New South Wales Commission determined, in 2015, that the cycle of disadvantage for First Nations peoples is likely to be exacerbated due to the detrimental impacts of prolonged periods of remand and separation from family (JIIE, 2020).
    • This is a significant challenge to vitally important legal principles, such as imprisonment as a last resort, the presumption of innocence, and duty of care for the most vulnerable (Travers et al., 2020).

  2. Lack of support while on remand:

    • Vulnerable defendants generally come from economically and socially disadvantaged backgrounds, have low levels of education, and require social support.
    • While remandees should have access to a custody nurse, there remains limited access to support services.
    • Remand incarceration does not provide for much follow-up on medical and vulnerability issues, increasing disparities for disadvantaged and vulnerable groups upon release and aggravating health outcomes for Indigenous people (Justice Reform Initiative, 2021).
    • Remand can have a particularly adverse impact on individual and overall public health and well-being indicators.

  3. Remand is at least as costly as incarceration, both economically and socially:

    • There are considerable costs to remanding vulnerable people, usually higher than the cost of imprisonment after a court decision.
    • People are typically not remanded overnight, with an average increase from 4.5 to 5.8 months between 2001 and 2020 (Australian Government Productivity Commission, 2021).
    • While the Productivity Commission (2021) reported that 90% of defendants were found guilty, 25% of them received a sentence consisting of less time than they had already spent on remand or received no custodial sentence at all.
    • Being refused bail and placed on remand means that the circumstances of disadvantage worsen, resulting in fractured families and communities.
    • The entire ecosystem (housing, employment, primary and public health care) is destabilized, especially given how long remand may last.

  4. Transparency, accountability, and procedural justice:

    • Hardship and worsening of vulnerability conditions should be a fundamental consideration of the bail decision-making process, focused on individual circumstances (Murphy & Ferrari, 2020).
    • Only police in NSW and Victoria are required to consider an accused’s vulnerability explicitly under the law (Hughes et al., 2021, 1).
    • Although legislation may cater for varying vulnerabilities, intersecting vulnerabilities are not considered (Hughes et al., 2021, 1).

Conclusion

  • The proposed project contributes a tangible “research lab” in which to test methodological approaches to policing, justice, and vulnerability assessment, as a political and social priority for Australia and beyond.
    • From a public health perspective: Prisoners can be highly vulnerable, and over-represented vulnerable people in remand can see their vulnerability aggravate due to ill-health, public health issues, or social factors, amplified by imprisonment, resulting in fractured communities, service inefficiencies, and a steep escalation of conditions for the vulnerable during incarceration and upon release.
    • From an economic perspective: Prisons are expensive, with increasing incarceration figures incurring a heavy financial burden (AU20 billion overall in 2019–20), and social costs continuing upon release (rise in homelessness, unemployment rates, etc.).
    • From a legal perspective: Remand is particularly problematic in terms of human rights, procedural fairness, and due process, since some bail refusals end up in non-guilty verdicts or no additional prison time, resulting in traumatic time in jail for nothing.
  • The COVID-19 pandemic saw magistrates granting bail more liberally, as time on remand and time-pressure on the system were deemed unfair and risky to defendants, resulting in a notable dip in remand rates and an associated decrease in incarceration rates altogether.
  • If unnecessary remand can be avoided in pandemic circumstances, and if incarceration can decrease out of concerns of fairness and public health, then there is significant social, economic, and public health benefit to considering how the circumstances of vulnerable people can be consistently ameliorated and carefully assessed in police custody suites prior to deciding on bail.
  • Such restructuring would increase police accountability and transparency and better articulate procedural justice for the most disadvantaged members of society.
  • There are additional benefits concerning the liability of police officers in making rushed or ill-advised bail decisions and in avoiding serious health complications or irreparable consequences, such as suicides by remandees.
  • The criminal justice system is under scrutiny for its lack of procedural and distributive processes, and this project is a significant step in correcting the current overincarceration trajectory.