Study shows why cops and courts clash on bail

Police officers refuse bail more often than magistrates because they are more risk-averse, a leading crime research agency has found.

Risk-aversion is one of three key differences in bail decision-making between the police and the courts, a new study from the NSW Bureau of Crime Statistics and Research suggests, leading to an entrenched pattern of accused persons being locked up in jail for one or two days only to be released at their first court hearing.

In 2023, 53.5 per cent of adults refused bail by police were granted bail by the NSW local courts within 24 hours.

To explain the split between cops and the courts, authors Amy Pisani, Sara Rahman, Madeleine Griffiths and Suzanne Poynton observed 252 first court bail hearings between February and May 2023 and interviewed 40 decision-makers.

They concluded police were more risk-averse and sensitive to community and media blowback.

“Stakeholders suggested that police bail decisions are held to a higher standard by the media and the community, with courts afforded a greater degree of authority and independence,” the report states.

“Custody managers carry the personal burden or responsibility for a poor bail decision that leads to tragic or serious reoffending outcomes.

“As such, custody managers are more inclined to let courts make the decision to release a person on bail.”

Second, the authors conclude bail hearings permit a more considered show cause process.

“In our sample, more than half of those unable to show cause to police were able to do so at their first court bail hearing and most of these individuals were subsequently released on bail by the court,” the report states.

“A number of stakeholders suggested that this is both because police typically apply very little discretion in show cause matters and, where they do, the accused is often unable or unwilling to provide the necessary information/evidence to justify their release.”

Finally, the application of bail conditions can make magistrates more inclined to grant an accused person bail.

“For the majority of those released, 61 per cent, magistrates cited the presence of conditions that could mitigate risk as the main reason for granting bail,” the report states.

“Again, defence lawyers were cited by stakeholders as critical to achieving this outcome. “Availability of suitable accommodation was seen as especially important in addressing bail concerns, with four out of every five matters where conditional court bail was granted being subject to an accommodation requirement.”

Bureau executive director Jackie Fitzgerald said the pattern of holding an accused for one or two days and then releasing them constituted a “system inefficiency”.

“That short custodial episode can be potentially harmful for the defendant,” she said.

“The aim of this study was to explore why about half of the people who are bail refused by police are immediately granted bail by a court.”