Abstract
Quantitative findings from 150 bail applications indicate a high level of discretion. Approximately half of the applications observed were granted, and half refused, and there were indications that defence lawyers could predict decisions made by particular magistrates. This chapter draws on interviews with the practitioners about their work in bail applications. It describes the work and perspectives of magistrates, defence lawyers and prosecutors, providing an insight into such routine tasks as arranging a surety and correcting mistakes.
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Notes
- 1.
This does not explain why the remand rate in Victoria has since increased.
- 2.
We only observed applications in central Metropolitan courts whereas most Indigenous defendants appear in courts in particular suburbs or in country areas. In addition, we only identified defendants as Indigenous when this was mentioned during the hearing. It is possible that many more defendants had an Indigenous background, and even that this influenced the decision without being mentioned. We discuss this methodological problem in Chap. 6.
- 3.
Perhaps supervision by pretrial services in Melbourne reduces non-appearances. To complicate matters, in some jurisdictions a technical breach is a criminal offence. It is possible to receive a short sentence of imprisonment, usually back dated, once the case is finalized.
- 4.
We were told by a manager in one criminal justice agency that academic researchers had little to contribute to evaluations. This was partly because they tended to be critical, but also because they did not know what assessors required in reports. It was safer to employ management consultants who had worked for the government and knew exactly what was required.
- 5.
See Bartels et al. (2018) for an analysis of statutes in each state. In Tasmania decisions are governed by the common law case R v Fisher.
- 6.
In law in action studies, researchers usually only succeed in interviewing a few judicial officers, often with a background in representing defendants. These practitioners are more research minded and more willing to talk about policy issues.
- 7.
Many defendants were in their early twenties.
- 8.
The extent to which local decision-makers can influence or make policy has received some attention from political scientists (Lipsky 2010). Although the information collected about decision-making practices in this study is limited, it seems clear that magistrates differ in how they apply bail legislation.
- 9.
This observation that most bail applications were successful can be contrasted with our overall finding that half were granted. Perhaps the prosecutor meant that most applications in this court, or before this magistrate, were successful.
- 10.
In Australia, each State has its own Legal Aid commission that provides free representation in criminal courts by duty lawyers. Defendants must satisfy a means test.
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Travers, M., Colvin, E., Bartkowiak-Théron, I., Sarre, R., Day, A., Bond, C. (2020). Professional Perspectives. In: Rethinking Bail. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-44881-3_4
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