How Have Changes to the Bail Act Affected Remand Numbers?

The new Bail Act, which came into effect in May this year, has had a significant impact on the number of defendants being granted bail.

Although the Bail Act has been controversial, with requests for it to be reviewed only a month after it came into effect, civil libertarians generally agree that taking each case on its individual merits is likely to lead to a fairer process of justice and help keep people who have been wrongly charged out of prison while they await trial.

Recent custody statistics released by the NSW Bureau of Crime Statistics and Research have revealed a 27% decrease in remand rates for the period between April and June 2014.

This is believed to be a direct result of the changes to the Bail Act.

In June, the overall number of inmates in custody had dropped by 300 from a peak in April.

This was directly attributable to the decrease in the number of inmates on remand.

There was a particularly large drop in the number of inmates held on remand arising from police bail refusal, 58% between April and June.

The number of inmates being taken on remand from court bail refused also dropped by 40%.

This could have been due to fewer refusals of bail from courts, or by fewer police officers refusing police bail and therefore less defendants needing to go to court to request bail.

A few reasons for the high drop in remand numbers were suggested when the figures were first released in June.

As well as a reluctance to refuse bail on the part of the courts and the police, it was also suggested that the drop could have been due to a seasonal reduction in serious crime and arrest rates for offences that could lead to defendants being refused bail.

The idea that the reduced rate of prisoners being held on remand was due to police reluctance to refuse bail as the new laws would mean their refusal wouldn’t be upheld by the courts was refuted by Police Association President Scott Weber.

Mr Weber stated that police were not trying to deliberately undermine the new laws by automatically granting bail to alleged offenders and bypassing the court system.

New custody statistics which were released by BOCSAR in September indicated that the cause of the drop in remand rates appeared to be due to a decrease in the police remanding people in custody as there was no reduction in arrest rates or crime trends over the previous three months.

This drop is not likely to continue as the rates of police-issued bail court attendance notices have increased over recent months, according to BOCSAR.

What impact will the recent changes to the Bail Act have?

Since these figures were released, further changes to the Bail Act have been approved, including reversing the onus on defendants who have been charged with certain serious offences to prove they should be granted bail.

It is too early to know whether these changes will affect the number of prisoners in custody awaiting trial, but a number of objections to the changes have been raised by legal and civil libertarian groups.

The NSW Bar Association released a recent document stating a number of objections against the amendments, one of the main issues being that reversing the onus of proof undermines the idea that a defendant is innocent until proven guilty.

Considering that 50% of defendants who are charged will later have their charges withdrawn or thrown out of court, increasing the number of people held in remand could potentially increase the number of innocent people being unfairly incarcerated.

A number of organisations including the NSW Bar Association have expressed concerns that the recent changes to the Bail Act are based on popular opinion and not on empirical evidence.

They argue that as it is too soon to see how the Bail Act is likely to affect the community and gather any reasonable level of data, it is premature to start making changes back to the old system.

Figures released in the next quarterly custody report may give more indication of whether the changed Bail Act is likely to affect prisoner levels, in particular remand rates.

Allowing those who have been arrested and charged with an offence to remain at liberty until their hearing or trial may alleviate pressure on the prison system, and as long as cases are taken on an individual level, those who are likely to pose an ‘unacceptable risk’ that cannot be alleviated by bail conditions can still be remanded in custody.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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