Why courts grant bail and police don't

Unnecessarily holding people on remand is risking significant harm and costing millions of dollars.

A new study into New South Wales’ bail system has found that of those who were refused bail by the police, more than 60% were later granted bail by the courts.

The NSW Bureau of Crime Statistics and Research (BOCSAR) report found a “substantial variation” in the willingness of the police and the courts to grant bail, leading to more people being held on remand.

It points to an overly risk-averse process in the initial granting or denial of bail, something which is leading to people spending more time in prison and costing significant amounts of money.

In NSW, a police custody officer has the power to make the first decision on whether someone charged with a crime should be released on bail or not. If they are held in custody, they will then appear before a Magistrate, typically within 24 hours,  who will make a decision on bail.

For the study, BOCSAR observed 252 adult first court bail hearings in the NSW Local Court earlier this year. Of these cases, 197 people applied for bail but were refused it by the police.

But only 74 of those refused bail by police were also refused bail by the court, equating to more than 60% of those kept on remand being later released by a Magistrate.

The report found that this discrepancy is largely down to Magistrates being more likely to be satisfied that suitable bail conditions can be put in place, and that police are unlikely to grant bail to those charged with show cause offences.

“Stakeholders reported that differences in bail decisions occur because police prioritise community and victim safety, have limited access to information from defendants and legal representatives, and do not apply discretion when applying the show cause requirement,” the BOSCAR report said.

“Magistrates are more able to thoroughly assess show cause requirements and the suitability of bail conditions at the first court bail hearing, while police are more risk averse.”

According to one Legal Aid lawyer interviewed for the report, police will often deny bail due to reasons “they’ve created in their own head”.

“If you shoplift a t-shirt from David Jones and the police give you bail and then you steal a lollipop from a 7-Eleven, you also trigger show cause, and the police will bail-refuse you overnight,” they said.

The number of people in prison on remand, yet to be found guilty of a crime, has skyrocketed in NSW and around Australia in the last decade.

In NSW in March this year, the remand population was about 5500 adults, up from 3651 in 2013. Nearly 45% of the NSW prison population are on remand, compared with under 30% a year earlier.

These figures are largely consistent around the country, with about 40% of the overall prison population held on remand.

It costs just under $287 per day to hold someone in prison, meaning that it is costing more than $1.6 million each day to hold people in remand in NSW.

The impact of even just one day in prison on remand can be huge too, with studies finding this can lead to longer sentences and a higher likelihood of conviction, worse outcomes in terms of recidivism and poor employment prospects.

In the report, BOSCAR called for the introduction of bail specialists, independent of the police, to make the first bail decision.

“This would encourage informed, consistent and independent decision-making that focuses on the purposes of bail rather than the objectives of policing,” it said.

“Better alignment of police bail decisions with the court has the potential to reduce unnecessary episodes of short-term remand and the negative consequences that arise for defendants.”