Challenging spiralling remand in custody rates: what legal and procedural changes can address the trend?
| DOI | https://doi.org/10.1108/JCRPP-08-2015-0035 |
| Pages | 196-205 |
| Date | 19 September 2016 |
| Published date | 19 September 2016 |
| Author | Rick Sarre |
| Subject Matter | Health & social care,Criminology & forensic psychology |
Challenging spiralling remand in custody
rates: what legal and procedural changes
can address the trend?
Rick Sarre
Rick Sarre is based at the
School of Law, University of
South Australia, Adelaide,
Australia.
Abstract
Purpose –The purpose of this paper is to draw to the attention of parliamentarians and policy-makers the
specific vulnerabilities of applicants for bail that need to be addressed if there are to be any answers to the
current malaise.
Design/methodology/approach –Almost a quarter of the adult prison population in Australia is made up of
persons imprisoned awaiting trial. By looking at current data and recent research findings, the paper reveals
that there persists in Australia great unevenness in remand distributions by jurisdiction.
Findings –The paper explains why there are differences in remand rates across Australia and why they are
rising and draws from more recent snapshots that complement these findings from comprehensive studies
conducted a decade ago.
Practical implications –Furthermore it examines ideas floated in the last decade by academics and
practitioners keen to lower remand rates and to bring some uniformity to the processwhile keeping intact the
two key (yet potentially contradictory) aims of the remand in custody system: the safety of thecommunity and
the presumption of innocence.
Originality/value –The paper’s findings will appeal to parliamentarians and policy-makers tasked with
bringing about law reform in the field, as well as police leaders, correctional advisors and students of the legal
process.
Keywords Policing, Risk, Evidence-based practice, Courts, Alternative to custody, Bail determinations
Paper type Conceptual paper
Introduction
Remanding a person in custody is a serious matter. Adult remandees enjoy a presumption of
innocence, yetthousands of them find themselvesincarcerated often for monthsat a time despite
their remaining unconvicted. Given that there are almost 10,000 Australian prisoners who are
currently in custody because they have been refused bail, there has been a renewed focus on
custodial remand policies and procedures by academics, practitioners and policy-makers alike.
This discussion begins with a restatement of two important and fundamental principles. The first
is that it is a right of all citizens to expect that the remand process will lead to fair and not
unreasonable outcomes. This principle is underpinned by the notion that the presumption of
innocence should not be diluted. Moreover, people who are presumed innocent must not be
treated in a manner that assumes their guilt (Quilter, 2014; Brown and Quilter, 2014, p. 85).
As Brown and Quilter remind us, this principle can easily fall victim to political whim:
While bail decision-making is a procedural stage in the process of bringing someone to trial so that
their culpability can be decided, it has increasingly become […] a forum for the condemnation of the
Received 14 August 2015
Revised 10 February 2016
Accepted 25 April 2016
PAGE196
j
JOURNAL OF CRIMINOLOGICAL RESEARCH, POLICY AND PRACTICE
j
VOL. 2 NO. 3 2016, pp.196-205, © Emerald Group Publishing Limited, ISSN 2056-3841 DOI 10.1108/JCRPP-08-2015-0035
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