sign in sign up
<<
Home , Remand (detention)

TRENDS & ISSUES in 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 rose from 12 to 20 percent of the total population, and the rate of prisoners remanded into custody tripled. In an attempt to identify the factors associated with high and low 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 custody sergeants and authorities in their decision to grant bail. Factors associated with lower remand rates included ‘enhanced police accountability for bail refusal, improved feedback loops between 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 , 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 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 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

• 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 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 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 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 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

 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 population (25,078: to 2002 (42.2), while the Victorian rate draw certain individuals to the attention ABS 2002b). climbed only from 12.2 to 16.5 over of police and hence into the criminal Finally, there is always a suspicion that the same period. In 2003, these rates justice system, but more significantly, delays in prosecutorial processes or converged slightly, with South Australia in the decision-making processes once court delays might affect upward trends coming down to 39.4 and Victoria rising those individuals have been selected. in remand rates in a significant way. In to 18.2. By 2004, this had shifted again, That is, the policies and practices of this analysis, however, time on remand, with the South Australian rate rising to police, police custody sergeants and while important in influencing overall 43.5 and the Victorian rate dropping court bail authorities in relation to bail remand rates, was found to be an to 15.9 (ABS 2004b). (and the formal and informal rules that empower and constrain them) are crucial unreliable predictor of rates. For example, South Australia also has a much higher to the determination of remand trends. South Australia has, and has consistently percentage than Victoria of remand Four critical factors are: bail legislation, had, one of the shortest average times prisoners as a proportion of all prisoners. accountability for decision-making, on remand. Over the past three years, Over one-third of all prisoners in South agency procedures, and an emphasis the mean time of remand in South Australia are remandees, compared with upon therapeutic justice. Australia was around 56 days whereas less than a fifth of all prisoners in Victoria. in Victoria it was over 85 days. Yet These differences pointed to the Victoria has a remand rate about Differences in bail legislation possibility that these two jurisdictions one-third that found in South Australia. Bail decision-makers rely on bail might reveal useful information about legislation to guide their decisions. what it is that drives remand rates up Legislation in different jurisdictions is The search for critical factors: and down, and whether there is anything similar but not identical. The Victorian comparing South Australia that policy-makers can do to influence Bail Act 1977 has a number of significant with Victoria those movements directly or indirectly. differences from the South Australian Since 2001, South Australia and Victoria Analysis of Victorian and South Australian Bail Act 1985. The Victorian Act have had, respectively, the highest and processes and policies, along with distinguishes between grounds for the lowest remand rates of the Australian statistical data and interviews with key remand in custody and the information

 AUSTRALIAN INSTITUTE OF CRIMINOLOGY

to be used in determining whether those Agency operational procedures three broad goals to be achieved in grounds exist. The South Australian Act Bail decision-making occurs in a time- bail decision-making. Bail authorities is less constraining, with grounds for bail pressured context and in accordance will make their decisions with the merged with information to be used in with the policy and cultural constraints following aims in mind: determining the granting of bail. The of the various bail authorities, especially • to ensure the integrity and credibility Victorian Act also contains reverse onus the police. In South Australia custodial of the justice system provisions that require defendants in remand was closely linked to operational • to protect the community, and certain circumstances to overcome policing objectives and strategies. For • to assist in the care and protection a presumption against bail, provisions example, it is not uncommon to find of the rights of the defendant. that are currently under investigation by operational policies that encourage the Victorian Law Reform Commission. even where a summons could There are limited data collected by The Victorian legislation also provides for also be appropriate, or that use custodial agencies that allow the measurement immediate review of police bail decisions, remand as an incapacitation strategy to of the extent to which current bail and either by a court or, if out of court hours, achieve crime reduction goals. That same remand practices achieve these aims. by a Bail Justice. The approach taken by operational ethos was not as apparent The availability of data on issues such as the courts and some police to the reverse in Victoria. failure to appear, the reasons for failure onus provisions, and the extensive use to appear, offending on bail, interference of Bail Justices, reflects a culture that Therapeutic justice with and victims is so poor either promotes bail or does not and court resources that the effectiveness of the remand in discourage the granting of bail. custody system cannot be analysed The research identified a trend in with any degree of accuracy. Victoria towards new perceptions of The accountability of bail authorities judicial roles that have not been identified There is a clear tension between the and review of remand decisions in South Australia to the same extent. goals of custodial remand. It is arguable There is significantly greater transparency While both jurisdictions boast a wide that, in the past 40 years, there have of remand decisions in Victoria than in variety of diversionary courts, some been legislative and operational policy South Australia. The opportunity for Victorian magistrates have, in addition, changes that have shifted the emphasis review of police remand decisions is adapted what has been described as the away from the first and third of these more available in Victoria with its Bail therapeutic jurisprudence or therapeutic goals in order to elevate the importance Justice process, compared with the more justice model to the bail process. of the second. piecemeal telephone review process in Under this model, the court (through Studying the effect of having been South Australia. Those opposing bail for the magistrate or judge) explores remanded in custody on the final accused persons in Victoria (operational opportunities to act as a therapeutic sentence of accused persons police) are required to attend the Bail agent using mental health and related subsequently found guilty fell beyond Justice and any subsequent court disciplines (Birgden 2004). This trend the scope of this research. However, hearing to give sworn evidence. This appears to be, in part, a response to the custodial remandees who are not ensures that the information upon which changing characteristics of defendants subsequently convicted or imprisoned a court assesses the risk of a defendant appearing in the remand system, and were examined briefly. If custodial not complying with bail is more likely to is designed to focus on their needs. remandees typically receive sentences be closely scrutinised. Moreover, the The therapeutic emphasis has enabled of , this may indicate increased level of scrutiny of information Victorian courts to attract a greater range that the decision to remand anticipates is reflected in the time taken to consider of resources than those available in (or perhaps influences) subsequent contested bail applications. The court South Australia to help defendants sentencing decisions. Conversely, a low observation study, conducted between with alternatives to remand in custody. remand-to-sentence rate might suggest November 2002 and October 2003, that bail authorities are too often wrong showed that the percentage of contested What are the effects in their assessments, or that custodial matters is about the same in both remand is being used inappropriately as jurisdictions (40%), but the median time of custodial remand? a substitute . This research taken for a contested hearing in South The study was also designed to identify could not make a judgement about the Australia is 5 minutes, while in Victoria the effects of any remand strategy relationship between custodial remand it is 18 minutes. on remandees and the wider justice and subsequent sentence. Nevertheless, environment. There are arguably,

 AUSTRALIAN INSTITUTE OF CRIMINOLOGY

in South Australia only about 30 percent Good practice in remand requires greater sensitivity to the rights and needs of those remanded in custody serve clearly defined roles for decision-makers. of victims is expected by the community additional time in prison following The judicial power of bail was initially and within the justice system itself. sentencing, whereas in Victoria, with exercised only by the sheriffs in medieval Resourcing of victim support services its lower remand rate, about 60 percent England, but it has now also become is axiomatic in such an environment. of remandees spend additional time a power exercised by police. It became To facilitate quality assurance, reliable in custody after sentence. clear from this study that it is very easy data must be collected and made for police to merge their role as bail Another part of the study reviewed the publicly available. To understand the decision-makers with their role as crime significant number of defendants each contribution of each set of decision- preventers and crime investigators, year who fail to attend court as required. makers to remand rates requires and that custodial remand can be Explanations from the qualitative research systematic, comparable and accessible employed as a tool to achieve other suggest that this is largely due to poor data on remand hearings and remand police objectives such as crime self-management skills, or a lack of outcomes. The lack of data currently reductions. Clearer definitions respect for the court’s authority, rather available may explain the significant would remove these ambiguities. than deliberate attempts to abscond, number of key interviewees who had little although technically all attract the same Resourcing is crucial to good practice. or no idea whether remand rates were outcome. Resources are required to ensure changing and if so, in what direction. that support services that have been Better statistical services are required Good practice in established are maintained, such as the within and between jurisdictions, using South Australian Bail Advocacy Unit, and common terms and collection and bail and remand the Victorian Bail Advocacy and Support collation processes that can allow data The final purpose of this research Programme which is available in some to be compared and trends determined. was to identify desirable good practice parts of Melbourne. Such services are Good practice would be enhanced by characteristics of a remand system. designed to focus on the issues that the inclusion of performance indicators A preferred system of bail and custodial gave rise to the risks on which decisions relating to bail decisions and processes in remand will establish, develop and to remand are based. agency reporting. Inter- and intra-agency maintain: Adequate resourcing is also required liaison between bail decision-makers • statements of principles, objectives to address appropriately the needs of encourages the identification and and criteria guiding bail decision- victims. Concerns about victims and addressing of problems as they arise, making their interests were clearly evident in both along with the development of innovative • clear definitions of the roles of bail jurisdictions. Some bail decision-makers practices to meet the changing context authorities and their responsibilities indicated that they take special care in which decision-making occurs. • adequate resourcing when dealing with bail applications from • quality assurance mechanisms. defendants charged with domestic Policy implications violence offences since the risks and Within both South Australia and Victoria consequences of re-offending were This research identified that lower remand differences in interpretation of the particularly significant in this situation. rates are associated with enhanced principles, objectives and criteria guiding police accountability for bail refusal, However, in other offence situations, bail decision-making were found. For improved feedback loops between there appears to be very little by way of example, while both jurisdictions appear courts and police, higher transaction formalised processes in either jurisdiction to use the statutory criteria for custodial costs for custodial remand, and longer that allow victims to either have a voice or remand in similar ways, there is evidence bail hearings. In the current political receive information. Analysis of court files of cultural differences underpinning environment, the high level of interest indicated that the remand period might practice and policy. The Victorian process in law and order policy has made involve several changes of bail status, appears to be willing to go beyond the remand decision-making a matter and victims’ representatives reported that legislation in certain areas and to take of public interest and comment. their clients were shocked on occasion a pro-bail approach to the reverse onus Community interest in justice processes to come face to face in public with a provisions in some situations, and to is an important element of sustained defendant whom they believed to be in facilitate a review of police decisions legitimacy of the justice system. However, prison. In today’s justice policy context, to refuse bail. positioning bail decision-making as an

 indicator of the strength or weakness for them to be more active in claiming Bamford D, King S & Sarre R 1999. Factors affecting remand in custody: a study of bail practices of any criminal justice policy, as often the time needed to give more detailed in Victoria, South Australian and Western Australia. happens in a politically charged debate, consideration to the bail/remand decision Research and public policy series no. 23. Canberra: Australian Institute of Criminology moves remand from its role as a tool and to influence the development of http://www.aic.gov.au/publications/rpp/23/index. to ensure effective court administration more creative options for achieving html to something that it was never designed the objectives of custodial remand. Birgden A 2004. Therapeutic jurisprudence: the role of forensic psychology. In Sarre R & Tomaino J (eds) to be. However, a focus on, and analyses of, Key issues in criminal justice. Adelaide: Australian the decisions made by the non-judicial Humanities Press: 166–191 The research also suggests that many participants in the process, especially Fitzgerald J 2000. Increases in the NSW remand defendants’ failures to attend court police decision-making and information population. Crime and justice statistics: bureau brief as required are simply the result of November they provide to the courts, is the key http://www.agd.nsw.gov.au/lawlink/bocsar/ll_bocsar. disorganised lives or indifferent attitudes. nsf/vwFiles/bb09.pdf/$file/bb09.pdf to isolating the critical factors affecting Alternatives to custody for this group of remand in custody trends. With this in Freiberg A & Ross C 1999. Sentencing reform and defendants range from increased social penal change. Sydney: Federation Press mind, policy-makers should be far better support and case worker intervention to International Centre for Prison Studies (ICPS). equipped to be able to drive custodial the use of surveillance technologies, for World prison brief remand policy in a manner that is http://www.kcl.ac.uk/depsta/rel/icps/worldbrief/ example, electronic monitoring of home world_brief.html consistent, efficient and fair. defendants under curfew. The Joudo J & Veld M 2005. Deaths in custody in Australia: National Deaths in Custody Program report also identifies a number of other annual report 2004. Technical and background specific examples where efficiency could Acknowledgment paper series no. 19. Canberra: Australian Institute be improved, for example, eliminating of Criminology This project is supported by a grant from http://www.aic.gov.au/publications/tbp/tbp019 delays in forensic analyses and court the Criminology Research Council. The King S, Bamford D & Sarre R 2006. Factors that listings (King, Bamford & Sarre 2006). influence remand in custody. (forthcoming on views expressed are the responsibility of http://www.aic.gov.au/crc/) the authors and are not necessarily those Morgan P M & Henderson P F 1998. Remand Conclusions of the Council. decisions and offending on bail: evaluation of the Bail Process Project. Home Office Research This research indicates that remand Study 184. London: Home Office http://www.homeoffice.gov.uk/rds/pdfs/hors184.pdf rates, resulting from the interaction of References South Australian Office of Crime Statistics 2002. personal characteristics of defendants All URLs were correct at April 2006 Increasing remand rates in South Australia: some and the policies and practices of Australian Bureau of Statistics (ABS) 2004a. explanatory factors. Adelaide: South Australian decision-makers, can be influenced Corrective services Australia, December quarter Office of Crime Statistics 2003. ABS cat. no. 4512.0. Canberra: Australian over time by strategic provision of Bureau of Statistics resources and a change in a jurisdiction’s Australian Bureau of Statistics (ABS) 2004b. philosophical approach to remand. Prisoners in Australia, 30 June 2003. ABS cat. no. 4517.0. Canberra: Australian Bureau of Statistics Furthermore, it suggests that the key to Australian Bureau of Statistics (ABS) 2002a. understanding the remand in custody Census of population and housing: selected social and housing characteristics for statistical and local process is for researchers to move areas, South Australia 2001. ABS cat. no. 2015.4. outside the courtroom and to focus Canberra: Australian Bureau of Statistics on issues that arise prior to the judicial Australian Bureau of Statistics (ABS) 2002b. Census of population and housing: selected social hearing. This is not to say that the courts and housing characteristics for statistical and local have no influence. Several magistrates areas, Victoria 2001. ABS cat. no. 2015.4. Canberra: Australian Bureau of Statistics argued that an important future direction in remand decision-making would be



Rick Sarre is at the School of Commerce, General editor, Trends & issues The AIC is a statutory body with a University of South Australia. Sue King is in crime and criminal justice series: Board of Management comprising at the School of Social Work and Social Dr Toni Makkai, Director, Australian, state and territory Policy, University of South Australia. Australian Institute of Criminology, government representatives, David Bamford is at the School of Law, GPO Box 2944 Canberra ACT 2601 administered under the Criminology Flinders University. Note: Trends & issues in crime and Research Act 1971 criminal justice papers are peer reviewed