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Remand in Custody : Critical Factors and Key Issues

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Remand in Custody : Critical Factors and Key Issues TRENDS & ISSUES in crime and criminal justice No. 310 May 2006 Remand in custody: critical factors and key issues Rick Sarre, Sue King and David Bamford Between 1984 and 2004 the proportion of remanded prisoners rose from 12 to 20 percent of the total prisoner population, and the rate of prisoners remanded into custody tripled. In an attempt to identify the factors associated with high and low remand rates the researchers undertook a detailed study of Victoria (which has comparatively low remand rates) and South Australia (which has comparatively high remand rates). Factors associated with increased remand rates included increasing levels of drug and mental health issues, and the informal and formal rules that influence police, police custody sergeants and court bail authorities in their decision to grant bail. Factors associated with lower remand rates included ‘enhanced police accountability for bail refusal, improved feedback loops between courts and police, higher transaction costs for custodial remand, ISSN 0817-8542 and longer bail hearings’. The authors have concluded that the key to good practice in bail decision- making is to ensure that pre-court and non-judicial processes are given due consideration, and they ISBN 1 921185 01 5 point to the need for enhanced performance monitoring, data collection and research. Toni Makkai GPO Box 2944 Director Canberra ACT 2601 Australia Introduction Tel: 02 6260 9272 Fax: 02 6260 9293 Remanding a person in custody is a serious matter. Remandees awaiting trial enjoy a presumption of innocence, yet they remain incarcerated, often for months at a time. With almost 5000 Australian prisoners currently in custody because they have been refused bail, there has been a renewed focus For a complete list and on custodial remand policies and procedures by academics and practitioners. the full text of the papers This research task was threefold: in the Trends & issues in • to search for critical factors that determine and affect the rates at which people enter Australian crime and criminal justice series, visit the AIC website corrections systems as remandees at: http://www.aic.gov.au • to study the effects of any remand strategy on remandees and the wider justice environment, and • to consider principles of good practice and policy implications arising from that consideration (King, Bamford & Sarre 2006). Disclaimer: This research paper does not The study included: necessarily reflect the policy position of the Australian • a literature review Government • a statistical analysis of correctional data on defendants remanded into custody over a three year period (2001–03) in Victoria and South Australia • qualitative and quantitative analyses of the effects of custodial remand on justice outcomes • a series of courtroom observations AUSTRALIAN INSTITUTE OF CRIMINOLOGY • a case file study of changes in bail population, but between 35 percent remandee numbers are usually the result status, and and 40 percent of remandees. of one or more of the following factors: • interviews with key decision-makers According to evidence from the United • changes in the volume of persons concerning policy implications. Kingdom, remandees are more likely appearing before the courts, as a result of changes in crime rates, This paper contains a summary of its than sentenced prisoners to be apprehensions or charging practices conclusions. homeless, unemployed or have some form of mental disorder (Morgan & • changes in bail practices and policies Henderson 1998). Remandees are also that affect the probability of bail being The remand in more likely than sentenced prisoners to granted or denied custody population die in custody, according to recent data • changes in defendant characteristics Of the 24,171 persons in custody in released as part of the ongoing Deaths that make custodial remand more Australia at June 2004, 19,231 had been in Custody study. The death in custody likely rate of unsentenced prisoners, while sentenced and 4935 had been remanded • court delays, which affect the average trending slightly downwards, remains in custody awaiting trial or sentence period spent on remand. (ABS 2004b). The proportion of prisoners consistently higher than the rate of held in custody on remand in Australia deaths of sentenced prisoners. In Research on remand patterns in Australia (20.4%) is similar to rates in comparable 2004, there were 3 deaths per 1000 has been principally concerned with countries such as England and Wales unsentenced prisoners compared the first category of explanations. For (16.9%), New Zealand (18.3%), the with 1.2 deaths per 1000 sentenced example, Fitzgerald’s (2000) research USA (20%), Canada (21.1%) and prisoners (Joudo & Veld 2005). indicated that the principal cause of the increase in the New South Wales remand Germany (21.2%: ICPS). The total number of prisoners in Australia population between 1994 and 2000 has increased by around 20 percent Like sentenced prisoners, remandees was the rise in the number of persons since 1995, but remandee numbers are overwhelmingly male. They are also charged with offences that have high bail have jumped almost 150 percent over relatively young, although, according refusal rates, such as robbery, and break the same period, from 1999 remand to this research, the average age of and enter. Similarly, the South Australian prisoners at 30 June 1995 to 4934 remandees in Australia is rising at Office of Crime Statistics (2002) found remand prisoners at 30 June 2004 a faster rate than the average age that the increase in remand numbers (ABS 2004b). Remandee numbers have of the sentenced prisoner population. after 1999 could have been influenced increased in the states and territories The distribution of charge types for by increased apprehensions of offenders by between 50 and 270 percent. which remandees are in custody is for crimes of burglary, motor vehicle Numbers continue to rise substantially generally similar to the distribution theft, and major drug offences. of offences in the sentenced prisoner in some jurisdictions (New South Wales population. and Queensland) although in South Other research has gone beyond crime Australia, Western Australia, Tasmania, rates, apprehensions and charging In remand populations, females are the Northern Territory and the Australian practices to look at broader political more highly represented than in Capital Territory, the numbers appear to factors as well. In Victoria, one study sentenced populations. Nationally, have remained relatively steady for the concluded that the rise in sentenced approximately 25 percent of female past four years. prisoner numbers was the result of shifts prisoners are remandees, compared in criminal justice policy that increased with 19 percent of male prisoners the number of persons imprisoned much Factors critical to remand rates (ABS 2004a). While Indigenous prisoners faster than the rate of increase in the make up about 20 percent of the prison The decision to remand a person in general population (Freiberg & Ross population and also about 20 percent custody emerges from a complex array 1999). The authors speculated that of the remand population (ABS 2004b), of legal and social dynamics that vary the rise in the Victorian remand rate there are significant regional differences. between jurisdictions and over time. It is proceeded from the same cause. In Victoria, for example, around difficult to isolate precisely what causes This research indicates that defendant 4.5 percent of all prisoners are remand populations to change and what characteristics are changing, and that Indigenous, compared with around factors influence the rise and fall of these changes are influencing remand 20 percent of remandees. In South remand rates. Building on earlier work in custody trends. For example, there Australia, Indigenous prisoners comprise (Bamford, King & Sarre 1999) however, appear to be increasing levels of drug about 17 percent of the total prisoner it was determined that changes in and mental health issues affecting 2 AUSTRALIAN INSTITUTE OF CRIMINOLOGY those in custodial remand populations. Figure 1: Australian remand rates 1998–2004 Victorian data collected as part of this study indicate that, over the three years 1998 1999 2000 2001 2002 2003 2004 studied, remandees demonstrated 120 statistically significant declines in seriousness of criminal history at the same time as there were indications 100 of increasingly severe drug and alcohol abuse and mental health problems. 80 Key persons interviewed for this study nominated these changes in defendant characteristics as one of the significant 60 reasons for rises in custodial remand numbers in recent years. 40 Corrections data on Indigenous remandees, however, highlight the 20 fact that personal characteristics on their own are an insufficient explanation for remand rate differences. In South 0 Australia, over the three years 2000–03, NSW Vic Qld SA WA Tas NT ACT Aust. there were 1782 remand receptions Sources: ABS Corrective services Australia and Prisoners in Australia (2004 data only). Note: 2004 data based on single-day census. of Indigenous Australians from an Indigenous population of 23,425 (ABS 2002a), whereas in Victoria states. The remand rate in South personnel, indicate that the critical there were only 450 remand receptions Australia continued to climb steeply from factors are to be found in the personal in the same period from a very similar 1998 (22.7 per 100,000 adult population) characteristics (discussed earlier) that sized Indigenous
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