What factors influence police and court bail decisions?

Release date: 10.30am Tuesday 23 March 2021

Link to report summary


Aboriginal people facing criminal charges are more likely to be refused bail by police than similar non-Aboriginal defendants according to a new study by the NSW Bureau of Crime Statistics and Research (BOCSAR).     

The research analysed more than 500,000 bail decisions to determine the relative importance of various defendant and case characteristics in decisions made by police and courts.   A large range of factors were considered including prior offending, offence seriousness, existing bail and sentencing orders, plus demographic characteristics such as age, gender, Aboriginality and socio-economic disadvantage.

As expected, BOCSAR found that legal factors had the largest impact on police and court decisions to refuse bail. The strongest predictors of bail refusal were whether the offence carried a presumption against bail, offence seriousness, concurrent charges, prior offending and prior imprisonment.

However, certain demographic factors were also associated with the probability of being refused bail even after controlling for other factors.  Aboriginal defendants were more likely to be bail refused by police than non-Aboriginal defendants.  Male defendants and those aged between 35 and 44 years were more likely to be bail refused by both police and the courts.

The study also found wide variability in bail decisions across police areas and courts.  At the extreme end, moving between police districts or between magistrates had a greater impact on the probability of bail refusal than many legal factors, including prior court appearances and bail breaches.

According to Jackie Fitzgerald, Executive Director at BOCSAR, given the over-representation of Aboriginal people in custody, the finding that Aboriginal people appear to receive less favourable police bail decisions warrants further investigation. 

“Among people on remand, 25% of adults and 45% of young people are Aboriginal.  This study confirms that bail decisions are overwhelmingly based on legal factors related to offending. However, it remains possible that Aboriginal people are disadvantaged in police bail decisions and that this is contributing to their over-representation in custody. A new study is planned to determine definitively whether the Aboriginal bail result reported here is due to bias or a factor not controlled for in this research.”

Further enquiries: Jackie Fitzgerald, Executive Director 0423 139 687
Email: bcsr@justice.nsw.gov.au
Copies of the report: www.bocsar.nsw.gov.au