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International Journal for Crime, Justice and Social Democracy

Looking Behind the Increase in Custodial Remand Populations

Abstract

Numbers, rates and proportions of those remanded in custody have increased significantly in recent decades across a range of jurisdictions. In Australia they have doubled since the early 1980s, such that close to one in four prisoners is currently unconvicted. Taking NSW as a case study and drawing on the recent New South Wales Law Reform Commission Report on Bail (2012), this article will identify the key drivers of this increase in NSW, predominantly a form of legislative hyperactivity involving constant changes to the Bail Act 1978 (NSW), changes which remove or restrict the presumption in favour of bail for a wide range of offences. The article will then examine some of the conceptual, cultural and practice shifts underlying the increase. These include: a shift away from a conception of bail as a procedural issue predominantly concerned with securing the attendance of the accused at trial and the integrity of the trial, to the use of bail for crime prevention purposes; the diminishing force of the presumption of innocence; the framing of a false opposition between an individual interest in liberty and a public interest in safety; a shift from determination of the individual case by reference to its own particular circumstances to determination by its classification within pre-set legislative categories of offence types and previous convictions; a double jeopardy effect arising in relation to people with previous convictions for which they have already been punished; and an unacknowledged preventive detention effect arising from the increased emphasis on risk. Many of these conceptual shifts are apparent in the explosion in bail conditions and the KPI-driven policing of bail conditions and consequent rise in revocations, especially in relation to juveniles.

The paper will conclude with a note on the NSW Government’s response to the NSW LRC Report in the form of a Bail Bill (2013) and brief speculation as to its likely effects.

Published:
Pages:80 to 99
Section: Articles

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Author Biography

Adjunct Professor QUT Emeritus Professor UNSW
Australia Australia

David Brown is an Emeritus Professor UNSW, Faculty of Law, and adjunct Professor, School of Justice, QUT.

He is a co-author of the major and innovative Criminal Laws (1990), (2nd edn 1996) and (3rd edn 2001) (4th edn 2006) (5th edn 2011) which has become the leading student teaching text in criminal law in universities in NSW. David is very widely published across the broad areas of criminal law, criminal justice, criminology and penology, both in Australia and internationally. He has co-authored or co-edited 10 books; published 33 chapters in books, and over 100 articles in journals and in conference proceedings published; given 120 conference papers or public addresses all over the world; and is a regular media commentator on criminal justice issues.

Open Access Journal
ISSN 2202-8005