• Research aims to better understand the way in which bail decision-makers, such as police, consider vulnerability when making decisions about bail
• Consideration of an accused’s vulnerabilities are legislated for in the NSW and Victorian Bail Acts, to varying degrees, but are not legislated for in the Tasmanian Bail Act
• The researchers argue that for procedural justice, it is crucial to gauge the importance of police obligation to consider vulnerability at any stage of the policing process, up to bail and prosecution stages

Researchers at Charles Sturt University argue their research into bail decision making might help to improve policing practices and reduce rates of imprisonment in Australia and in international jurisdictions.

Their research, ‘Police and Vulnerability in Bail Decisions’, has recently been published in the International Journal for Crime, Justice and Social Democracy (Vol 10, No. 3, 2021).

Lead author Ms Danielle Hughes conducted the research for her Bachelor of Criminal Justice (Honours) in the Charles Sturt Centre for Law and Justice, and is currently studying a Bachelor of Laws online in the Centre.

She said that since bail legislation was enacted in the 1970s, Australia has experienced a continual increase in the number of prisoners on remand.

“Amendments to bail legislation and police discretion have been shown to contribute to this increase,” Ms Hughes said.

“Further, an accused’s vulnerability affects whether they are granted or denied bail, with vulnerable people being more likely to be denied bail.

“Vulnerability in the criminal justice system refers to factors such as race, age, sex and socioeconomic status.”

The authors observe that many vulnerable people have multiple intersecting vulnerabilities, which further compounds their contact with the justice system.

Their study employed a qualitative content analysis of bail legislation for the Australian states of New South Wales (NSW), Tasmania, and Victoria, along with key correlating second reading speeches.

“The aim was to better understand the way in which bail decision-makers, such as police, consider vulnerability when making decisions about bail,” Ms Hughes said.

“A particular focus was whether and how decision-makers are required by legislation to consider factors relating to vulnerability to ensure that vulnerable people are not remanded unnecessarily and to uphold the principle of imprisonment as a last resort.”

The research found that vulnerabilities are legislated for in the NSW and Victorian Bail Acts but are not legislated for in the Tasmanian Bail Act.

Therefore, only police in NSW and Victoria were required to consider an accused’s vulnerability explicitly under the law.

Although legislation may cater for varying vulnerabilities, intersecting vulnerabilities are not considered.

The vulnerabilities that are required to be considered by police when making bail decisions in NSW and Victoria are Indigeneity, youth, mental impairment and illness, intoxication arising out of alcohol and other drugs, and an accused’s individual circumstances and background.

“The extent to which police need to consider these vulnerabilities differs from NSW to Victoria,” Ms Hughes said.

“In Victoria, vulnerabilities must be taken into account, whereas in NSW, vulnerabilities only need to be considered.

“Taking the literal meaning of these provisions, it is clear that there is a nuanced difference between the two terms.”

Ms Hughes said there is a stronger emphasis on vulnerabilities in Victoria as the bail decision-maker must acknowledge any vulnerabilities when making a decision on bail, whereas, in NSW, the decision-maker need only turn their mind to the vulnerabilities before making a decision.

“Current legislation does not state to what extent police must consider such vulnerabilities,” she said.

“For the sake of procedural justice, it is crucial to gauge the importance of police obligation to consider vulnerability at any stage of the policing process, up to bail and prosecution stages, and as the gateway to criminal justice, the extent to which police involvement in the bail process is essential in addressing Australia’s rising imprisonment rate.”

Co-author and Charles Sturt Senior Lecturer in Law and Criminology Dr Emma Colvin said understanding requirements to consider vulnerability can assist in reducing imprisonment rates and recidivism, while still balancing the rights of the accused with the interests of the community.

“It is essential that intersecting vulnerabilities are considered by police when making bail decisions to help reduce the number of vulnerable people being remanded or imprisoned,” Dr Colvin said.

“Further research is needed to consider the legislative requirements in other Australian jurisdictions.

“In addition, police practice manuals may provide further extensive instructions and directions as to whether vulnerability should or should not be considered when deciding whether to grant or refuse bail.”

She said this further research is crucial, as it may be able to help improve policing practices and reduce rates of imprisonment, especially ever-increasing remand rates.

“A next step could be to talk to police officers who make bail decisions about their understanding of their obligations to consider vulnerability when making bail decisions,” Dr Colvin said.

“Critically, this study provides a starting point for comparative analysis with other jurisdictions, both those similar in process and those differing (such as the Gladue system in Canada).”