Moments of Truth: Researching Police Bail, a comparison of processes and the effect on discretion.

Mr Cliff Sayer¹

¹Flinders University, Bedford Park, Australia

One of the most notable features of imprisonment in Australia has been the seemingly inexorable increase over many decades of the proportion of prisoners who are unsentenced; most of whom are unconvicted.  These people must wait in prison for their criminal justice proceedings to wend their way to a conclusion, a consequence of no access to bail.  The different jurisdictions also have some markedly different statistical outcomes in their numbers of unsentenced prisoners

The concept and quandary of ‘Bail’; preserving the right of an accused to the presumption of innocence whilst also attempting to assure both the safety of other members of the community and that the accused will continue to participate in the criminal justice processes has exercised the minds of society since Plato in Ancient Greece.

Bail predominantly regarded as a legal mechanism, where the final arbiter of an accused’s liberty in many jurisdictions is the Supreme court, on appeal from a Magistrate’s decision.  It is readily accepted that Magistrates continue to uphold the original police decisions on bail in 90% of cases.

Thus, despite its legal trappings, ‘bail’ remains predominantly the preserve of police.  Yet despite its overwhelming influence, ‘Police Bail’ seems to continue to ‘fly under the radar’ evading most academic scrutiny.  This should not be unexpected, policing itself is notorious for its low profile, and reluctance to encourage let alone permit third party research or scrutiny.

Bail, has been a creature of statutes in Australia since the 1980’s.  Each state jurisdiction creating differing sets of processes and procedures.

Thus, one wonders if it is the variation of what is required of the police themselves in the variation in the processes, and that might be influential in the level of remand in custody.

This presentation will describe a ‘model’ police bail process from one particular jurisdiction, and invite consideration, reflection from other researchers on how this model might differ in other jurisdictions, along with the concomitant advantages and disadvantages.

Biography:

Studied law at Flinders University, which was followed by being Associate to Debelle J in the Supreme Court of SA.  This provided first-hand exposure of the legal bail review process.  Subsequent legal experience included representing criminal law clients in a wide variety of matters and localities.   Conducted many matters funded by legal aid, some of which led to the considering and reflecting on the weight and importance accorded police bail.