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Abstract | In this paper we seek to review the rapid rise in remand in custody rates in Australia. In particular, and in response, we ask and discuss three specific questions:
1. To what extent do defendants applying for bail have vulnerabilities?
2. To what extent can risk analysis tools that seek to predict breach of bail terms be relied upon?
3. To what extent can the emerging pre-trial services programs in Australia reduce remand in custody populations?
There was a rapid increase in the remand in custody population in Australia between 2008 and 2018, partly caused by legislative responses to some high profile offences committed by defendants while on bail. The proportion of remand prisoners in the Australian prison population also increased, from 20 percent to 30 percent, during this time (Australian Bureau of Statistics 2018). In New South Wales, the proportion of unsentenced prisoners in relation to the overall prison population in 2008 was 23 percent; today it is 34 percent. In Victoria, the proportion of unsentenced prisoners in relation to the overall prison population in 2008 was 19 percent; today it is 36 percent.
Commonwealth and state governments should be concerned about a rising remand population for four reasons. Imprisoning people is expensive (Sarre, King & Bamford 2006), and there is substantial evidence that it leads to more crime. An unremitting remand policy is unfair on defendants who are not likely to commit serious offences while on bail, especially for those who later receive a non-custodial sentence (McMahon 2019; New South Wales Law Reform Commission 2012). Finally, there is concern that the presumption in favour of bail (a manifestation of the presumption of innocence) is being eroded.
This is an emotionally charged field of criminal justice policy. Our approach in this study was to explore bail and remand policy that might provide protection to the public, maintain budget responsibility and, at the same time, achieve fair outcomes for all concerned.
Bail legislation
There are two common law presumptions relevant here: that accused persons are innocent until found guilty, and that the defendant has a right to bail (New South Wales Law Reform Commission 2012). Jurisdictions in Australia respect these principles, as the factors to be considered in determining 'unacceptable risks' under...