bail conditions
A concern that has been raised in the literature is that young people granted bail are often subject to inappropriately high numbers of bail conditions (Bailey 2009; Mulroney 2012; Noetic Solutions 2011; Wong, Bailey & Kenny 2010), many of which are unrealistic and may be difficult for young people to adhere to (ACCG 2010; Noetic Solutions 2011; NSW LRC 2012; Stubbs 2010). Importantly, bail conditions placed on young people often appear arbitrary and unrelated to the young person’s offending (Mulroney 2012; NSW LRC 2012). Judicial officers in Clare et al.’s (2011: 31) study expressed
concern that police officers ‘stipulate stringent conditions for bail, such as curfews or school attendance regardless of the relevance or appropriateness of such conditions’. Raine and Willson’s (1995) study of bail in England and Wales found that there was little connection between the types of bail conditions imposed on accused persons and the rationale Magistrates gave for imposing the conditions. Further, they found no significant correlations between the number and type of bail conditions imposed on accused persons and the seriousness of the alleged offence, revealing ‘a lack of clarity about the objectives being pursued by the various decision-shapers and decision makers in the process’ (Raine & Willson 1995: 28). As Clare et al. (2011) argue, unrealistic bail conditions are likely to impact more heavily on Indigenous young people and young people from regional, rural and remote areas, given the lack of resources these young people may be faced with. It has also been raised that bail conditions fail to take into account the mobile lifestyles of some Indigenous young people, particularly those from remote communities (Reynolds cited in House of
Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs 2011). It is also likely that onerous and/or arbitrary bail conditions will impact more profoundly on young people in out-of-home care, who come under more scrutiny than other young people on bail. The issues faced by young people in out-of-home care are discussed in detail later in this report.
Further, there are issues regarding the practicalities of a young person complying with numerous and/or onerous bail conditions, which may result in an increased likelihood of breaching (ie failing to comply with) their bail conditions. By definition, young people have limited agency and are often dependent on their parents or other adults (NSW LRC 2012). For example, if a young person must report regularly to police as a condition of bail, the young person might be reliant on their parents for transport or public transport fares in order to meet this condition. The frequency of the use of behaviourally based conditions as opposed to financial surety is demonstrated in Wong, Bailey and Kenny’s (2010) NSW study, which listed the top four conditions imposed on young people granted bail as:
• curfew;
• reside as directed and specified;
• obey reasonable direction; and
• non-association.
To pay surety was the seventh most common condition imposed on young people’s bail, with nine percent of the 78 young people who received conditional bail receiving this condition (Wong, Bailey & Kenny 2010).
Although breaching bail conditions is not a criminal offence in all jurisdictions (see discussion below), a breach of bail conditions results in an opportunity for the court to reconsider a young person’s bail (Stubbs 2010). Placing young people on strict bail orders with numerous conditions that are difficult to comply with may therefore contribute towards larger numbers of young people being placed on custodial remand (NSW LRC 2012). This is an important issue to consider, given that the literature identifies breaches of bail by young people as a key driver of rates of custodial remand. This issue is considered in more detail in the section below. The appropriateness of bail conditions placed on young people has thus been raised as a key issue for further consideration (ACCG 2010; Clare et al. 2011; Stubbs 2010). Bail conditions such as reporting regularly to police or not associating with peers may be difficult for young people to meet for a range of reasons including:
• practical reasons—most young people don’t hold
a drivers licence or have access to a vehicle and many may not be able to afford public transport (Noetic Solutions 2011);
• social reasons—young people are heavily
influenced by their peers (Gatti, Tremblay & Vitaro 2009; Hay, Payne & Chadwick 2004; Steinberg 2005) and may find it more difficult than adults to disassociate from their peer group or social network; and
• biosocial and psychosocial reasons—young
people may lack the maturity and insight that are often required to comply with bail conditions. It has been recommended that bail conditions need to be more cognisant of the ‘mental health, cognitive abilities, family situation and social needs’ of young people in addition to their limited access to transport
(Noetic Solutions 2011: 15). In addition, it has been argued that young people (particularly those with an intellectual disability and Indigenous young people) often have difficulty understanding or remembering their bail conditions, resulting in unintended breaches of bail (Allan et al. 2005; Bailey 2009; NSW LRC 2012).
Many stakeholders from multiple jurisdictions interviewed for this research felt strongly that bail conditions for young people are often onerous, arbitrary or unrealistic. Examples of impractical bail conditions imposed on young people include prohibiting a young person from spitting and banning young people from whole towns and suburbs. Stakeholders also expressed frustration with the ‘welfarisation’ of bail conditions and the way in which, as one stakeholder put it, they are used to ‘control’ young people. This was seen as especially problematic when bail conditions are not related to the charge(s) against the young person (although as Mulroney (2012) notes, some bail conditions that may appear to be based on welfare, such as attending school, may also address the young person’s criminogenic needs). Stakeholders noted that bail conditions for young people are often more onerous than those imposed on adults and less relevant to the charge(s). Curfew was one bail condition that stakeholders deemed particularly problematic for young people to adhere to for a number of reasons. First, young people in trouble with the law are often from violent homes. Insisting that a young person return to a violent home and adhere to a strict curfew is likely to be damaging to the young person and may have a criminogenic effect on the young person (see Richards 2011b for a discussion). Second, young people’s families are sometimes involved in offending behaviours themselves and/or encourage the young person’s offending behaviour (Goodwin & Davis 2011). Again, therefore, having young people reside in the family home according to a curfew is likely to be counterproductive. Finally, stakeholders argued that placing a young person on a strict curfew prevents the young person participating in sporting and/or community activities that may be beneficial for the young person’s development.
Stakeholders also raised concerns that in some instances, bail conditions imposed on young people
are more onerous than sentencing outcomes are likely to be.
In summary, the existing literature and stakeholder interviews conducted for this research suggest that the number and nature of bail conditions imposed on young people can result in young people being ‘set up to fail’. Given that breaches of bail have been identified as a key driver of custodial remand rates (as discussed below), minimising the opportunities for young people to breach their bail conditions is one important strategy for reducing the custodial remand of young people.