Tougher bail rules put more in jail
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Tougher bail rules put more in jail

Remand in custody is not intended as a punishment, writes DAVID BILES

In my last published opinion piece in this newspaper I made the point that the decrease in Australian prisoner numbers since the peak in April 2010 had been greatest in NSW, where the fall had been nearly 10 per cent up to December 2011. I went on to suggest that this was no doubt the result of the new policy being pursued by the O'Farrell government. The numbers are correct and may be confirmed by reference to the Bureau of Statustics data issued in March, but my opinion that the decrease was due to the new policy of the O'Farrell government may have been premature.

Since I wrote that piece it has been brought to my attention that the NSW Premier, Mr Barry O'Farrell, was quoted in a Sydney newspaper saying that he wanted to toughen the bail laws in his state which would have the effect of increasing the numbers of people in jail. If that occurred, it is possible, even likely, that the overall prisoner population in NSW would start increasing again. As NSW is by far the most populous Australian state, such a change could even cause the national totals also to start rising again.

Matt Adams

Matt Adams

It is not clear to me exactly why the premier wanted to increase the numbers of remand prisoners, as I had been led to believe that his government was pursuing a more rational and less emotional approach to law and order.

This new policy, I understand, has been led by the Attorney-General, Greg Smith but it is possible that some differences of opinion have developed between O'Farrell and Smith on the bail-or-remand question. The bail-or-remand decision in all jurisdictions is always a crucial part of a fair and effective criminal justice system, and it is very frequently a subject which attracts significant differences of opinion. Even though the words may vary from place to place, as a matter of law there is a presumption in favour of bail: unless remand in custody is necessary to prevent the continuation or the repetition of a crime; if the accused person is of no fixed abode and is unlikely to appear in court for the trial; if there is some probability that the accused person may try to influence potential witnesses; or if the accused person is in danger of harm in the community.

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As a matter of law, remand in custody is not intended to be a punishment as the accused person has not been convicted or sentenced at that stage of the legal proceedings. That being the case, it is a matter of some concern that many studies have shown that a relatively large proportion of the people who were remanded in custody were eventually acquitted by the courts. This type of outcome fuels the belief in the community that there are some magistrates who order remand in custody to give the accused person a ''taste'' of jail as a lesson or deterrent against future law-breaking.

I have, from time to time, argued in favour of a slightly increased use of remand in custody. During the period until 2008 when I was the chair of the ACT Crime Prevention Committee and the ACT Police Consultative Board, many cases were brought to the attention of these bodies where an accused person was granted bail even while they were on bail for a similar offence. In some cases bail had been granted on three or four previous occasions.

I suggested in these pages that this practice was not in the best interests of the community and that presumption in favour of bail should be amended, as a matter of law or practice, so that people who were already on bail should expect that a second or third charge would result in a short period of custody, say one or two weeks. I also suggested that this should have the effect of making accused people realise that the granting of bail was serious business that had obligations.

In my view, my proposal would have been consistent with the law covering the bail or remand decision because it aimed to prevent the repetition of the criminal behaviour.

Needless to say, even though a few people publicly supported my proposal, it did not result in any action being taken by the ACT government.

The actual number of people held on remand at any time is the product of two separate factors, the first of which is the number of people remanded in custody, and the second is the average length of time they are held in this state of limbo. A reduction in either of these factors will reduce the overall number. In some Australian jurisdictions a significant number of remandees have been held for more than a year, or even more than two years, awaiting trial.

This issue is further complicated by the fact that in some cases remandees actively seek to delay the trial (by claiming, for example, that they need more time to prepare the defence) because they know that they will eventually be sentenced to jail and their time on remand will be deducted from the imposed sentence. Meanwhile, on remand they enjoy more generous visiting privileges than sentenced prisoners.

The ACT is currently conducting a ''blitz'' in the administration of the court system which aims to reduce the unacceptable delays in cases passing through the system. There is no way of knowing objectively whether or not this is achieving its goal, but that will be possible later in the year, specifically after the release of the ABS data in late September which will take the figures to the end of June. At that time we will be able to tell whether or not there have been any significant changes in the numbers of remandees in both NSW and the ACT. Watch this space for details.

David Biles is a Canberra-based consultant criminologist.

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