Introduction
This chapter will outline the methodology adopted for the study and describe the nature of the analysis undertaken. First, the aims and objectives of the research are stated. Next, the relevant research paradigm and the value of a comparative approach in achieving these aims and objectives are discussed. The third section argues that a ‘multiple-case study’ is an appropriate research design and subsequently describes the basis for selecting each ‘case’ (i.e. court) and outlines the access issues surrounding the process. In the fourth section, the research context is examined through a description of the day-to-day operations of both court locations. The fifth section discusses the value of a mixed methods approach and presents the sources used to obtain the data. This includes both court observations and semi-structured interviews with court practitioners. The sixth section addresses the manner in which ethical issues were approached. Finally, the data analysis process is presented, including descriptive statistical procedures as well as quantitative and qualitative content analysis.
Aims and objectives
The aim of this research was to better understand the factors that contribute to bail decision-making in English and Canadian courts. Specifically the study had the following objectives:
1) Identify the factors that contribute to bail court decision-making in England and Canada.
2) Analyse the extent to which these factors converge and diverge in each jurisdiction.
3) Understand and compare the impact of bail decision-making patterns in each jurisdiction at the local level.
4) Examine how these findings contribute to a greater understanding of the bail decision-making process in a wider context.
First, it was assumed that court actors (i.e. judicial officials, prosecutors, defence lawyers, and legal advisers) make decisions related to bail based on specific factors (e.g. law, policy, the circumstances of the case, the background of the offender, the culture of the court, broader views about the criminal justice process). The nature of those factors as well as the extent of their influence were determined by examining the behaviour of court actors and their explanations for these behaviours. Second, the research intended to describe how and to what extent those contributing factors were similar or different across jurisdictions. This was accomplished by investigating the patterns of behaviour and attitudes of court actors in England and Canada. Third, the emerging patterns in bail decision-making were examined in relation to the overall functioning of each court. For instance, the relationship between decision-making practices and factors such as case processing and case outcomes were explored at the local level. Fourth, the wider implications of these findings were determined by examining those patterns at the theoretical level. Specifically, the implications for developing an understanding of the process in a broader context were explored.
Interpretive framework
Certain philosophical assumptions were embedded within the interpretive framework of this research and their interplay frames the theoretical approach. This section will outline the research paradigm that shaped the process of the research and describe the extent to which the principles of comparative law informed the conduct of inquiry.
Research paradigm
The ‘paradigm’ or ‘worldview’ adopted in the study is a set of beliefs that guides the methodological approach (Creswell, 2007). This study took an integrated approach to the research, focusing on broad social structures and the effects of law and policy, but also examining the consequence of this behaviour on
criminal justice actors. This approach is in line with McConville and his colleagues (1991) and Henry (1983), who integrate micro and macro approaches through a combination of structuralism and interactionist interpretations of the justice system.
Structuralists emphasise the importance of socio-economic structures and legal bureaucratic rules, focusing on the senior officials and ‘state elite’ who mediate between those structures and rules (McConville et al., 1991). Interactionists, on the other hand, are concerned with the meaning individuals attribute to their environment (including the actions of others) and the action they take on the basis of this imputed meaning (Bryman, 2004). Interactionism is thus focused on the behaviour of individuals and the variables that intervene between how institutions should work and how they do work.
In this study, the behaviour of court actors was examined and the meanings these actors attributed to the bail process was explored, but this was examined in the context of the formal laws and policies related to bail that structured their decisions. This approach recognised the dialectical relationship between structure and behaviour and their interdependence in the context of the bail decision-making process.
Comparative approach
The principles associated with comparative law were also used as a framework with which to structure the methodology of the study. Specifically, a ‘traditional’ form of comparative law was employed in which it is conceived primarily as a method (Nelken, 2007; Samuel, 2013). The traditional approach is often referred to as the ‘functional’ method of comparative law (Zweigert & Kotz, 1998) and its focus is discovering which legal system – or in this case, which bail system - fulfils certain legal demands (Jansen, 2006). Proponents of the traditional approach seek to use comparative law for primarily instrumental purposes and are interested in comparing legal rules and institutions for practical purposes related to adjudication and law reform (Orucu, 2004). They often attempt to learn from other systems how to improve their own and seek to borrow an institution, practice, technique or idea in order to reach this objective
(Nelken, 2010). In this instance, the functional method was used to develop a better understanding of the bail decision-making process. Specifically, it was used to examine the impact of different decision-making practices across two jurisdictions. This type of approach had both practical and theoretical benefits, which are outlined below.
From a practical standpoint, it was anticipated that policy-makers aiming to reform their bail systems could use the knowledge gained in this process to inform laws, policies, or practices. This could be achieved by gaining a better understanding of actions that have been shown to achieve desired objectives in other legal systems. For instance, jurisdictions with rising remand rates could gain a better understanding of procedures used in jurisdictions with decreasing or stable remand rates in efforts to reduce their prison remand population. It was anticipated that framing the study in terms of the functional method would result in findings that could be used to inform ‘policy transfer’ between Canada and England. According to Dolowitz and Marsh (2000), policy transfer is:
…the process by which knowledge about policies, administrative arrangements, institutions and ideas in one political system (past or present) is used in the development of policies, administrative
arrangements, institutions and ideas in another political system (p. 5). While effective ‘hard’ forms of policy transfer - in terms large-scale importation of policy goals, content and instruments – are rather rare, there has been evidence of successful ‘soft’ policy transfer, primarily at the level of policy ideas, symbols, and labels (Jones & Newburn, 2007). As such, while wide scale importation of specific bail laws and policies might not be feasible, more malleable ideas such as those related to the incentives of court actors and informal practices could potentially be exchanged.
The comparative approach also has theoretical benefits. While previous studies that have investigated bail decision-making have provided valuable insight into this topic in specific jurisdictions, a comparative approach would fill gaps in the research by offering a broader understanding of the subject. Zweigert and Kotz (1998) suggest that approaches that focus on one jurisdiction only offer legal solutions to practical problems ‘on their own terms’ and argue that solutions
should be freed from the context of their own system in order for an assessment to take place. In this case, research that examines bail decision-making in one jurisdiction may not fully appreciate the impact of the wider context in which it is taking place. Indeed, trying to determine the influence of a specific policy or aspect of the government’s rhetoric is difficult when it is common to every court and every court actor being studied. Only by examining similar behaviours in an environment without these factors could their influence be fully understood. In this way, a comparative approach could clarify the individual differences in the impact of the law, rhetoric, and the behaviour of court actors.
Comparative approaches may also widen the scope with which specific problems can be understood. This is because there may be factors that are bypassed when seeking explanations for a process if they are taken for granted to be the norm. For instance, instead of assuming actors are not adhering to ‘due process’ or ‘crime control’ values, one might ask whether these principles are conceptualised differently across jurisdictions and how this impacts decisions. These broader questions can be answered by removing oneself from the confines of single jurisdiction studies and examining them in a comparative context (Zweigert & Kotz, 1998).
Ultimately, it is projected that this type of approach will achieve what Samuel (2013) sees as a fundamental component of comparative research: the acquisition of new knowledge through the process of comparison. One must be able to draw conclusions from the comparison that could not otherwise be drawn had the two objects been analysed separately. It is anticipated that a comparative approach to understanding bail decision-making will expand on and overcome many of the obstacles involved with single jurisdiction studies through the acquisition of this new knowledge.
Research design
This section will describe the type of case study design employed in this study and discuss the advantages of its use as well as some challenges. It will also outline how and why each ‘case’ was selected and describe the access issues surrounding this process.
Multiple-case study
The comparative analysis was employed using a ‘multiple-case study’ design. Case study research is an approach in which “the investigator explores a bounded system (a case) or multiple bounded systems (cases) over time, through detailed in-depth data collection involving multiple sources of information ... and reports a case description and case-based themes” (Creswell, 2007, p. 73). In this instance, each case was represented by a criminal court in which bail decisions were made. In accordance with Yin (2014), the cases were selected on the basis that they would produce contrasting results for an anticipatable reason. In this case, the remand rates observed in each jurisdiction as well as the culture surrounding bail (see Chapter One and Two) suggested there might be different models of bail decision-making, and potentially contrasting perspectives.
The most obvious advantage of using a case study design is that it provides extremely rich, detailed, and in-depth information (Berg, 2009). This was particularly appropriate for the current study as it enabled a comprehensive understanding of the bail decision-making process from a variety of perspectives. This level of depth is advantageous when one is undertaking a study in comparative law since proponents of the functional method advise that researchers must account for both legal and social factors when they are comparing systems (Zweigert & Kotz, 1998). This level of detail was obtained by studying both the actual manner in which decisions were made as well as the context of these decisions as explained by a variety of different court actors. In order to produce a rigorous, systematic research design, several challenges with case study research were addressed. For instance, Berg (2009) asserts the importance of objectivity when conducting a case study. He advises that researchers ensure they avoid bias with the ultimate goal being that others could repeat the research. This enhances the reliability of the results. The study addressed this concern by applying methods systematically. For instance, the observation schedule standardised the categories of information gathered during court observations both across cases and jurisdictions. Further, although the interview schedule allowed tangential discussions, it maintained a
consistent structure that allowed for the same categories of data to be collected between participants.
Another common criticism of case study research is that the findings are difficult to generalise to other cases beyond the study (Berg, 2009; Yin, 2014). In other words, they lack external validity. However, Yin (2014) argues that although the findings cannot be generalised to populations in a statistical sense, they can be generalised theoretically. He refers to this process as ‘analytic generalisation’ and argues that it provides an opportunity to shed empirical light about theoretical concepts or principles. The generalisation is posed at a conceptual level higher than that of the specific case. As such, findings from a case study can have implications well beyond similar cases and can extend to a host of other disparate situations. In relation to this study, the findings may not explain how all bail decisions are made, but it could suggest explanations for how other bail decisions are likely to be made in other courts.
Site selection
The ‘cases’ in this study (i.e. the two criminal court sites) were selected because of several factors. This included the legal jurisdictions they were located in, the level of court they were associated with, and the geographical areas in which they were located.
The sites were located in England and Canada, whose legal systems have similar historical foundations. These jurisdictions share a common-law tradition and adhere to similar international human rights instruments. In addition, both jurisdictions have comparable bail laws and have imposed restrictions on the law related to bail in recent years (see Chapter One). This means the sites were ideal subjects for a comparative approach. Indeed, studies in comparative law often borrow from those in politics and include ‘most-similar’ designs (Hague, Harrop, & Breslin, 1998). In this type of design, similar jurisdictions are selected on the basis that the more similar the units being compared, the easier it will be to isolate the factors responsible for the differences. England and Canada were selected on the basis that their legal systems, generally, and bail laws, specifically, were alike, yet there are differences in their prison remand
populations. A most-similar design was appropriate in these circumstances as the study aimed to identify factors which contributed to bail decision-making that were potentially associated with the jurisdictions’ disparate use of remand custody.
The similarities between the bail laws in each jurisdiction as well as the extent to which they evolved harmoniously provided a convincing argument that the research compared ‘like with like.’ Nelken (2010) asserts that the more relevant constants between the jurisdictions, the more surprising and instructive the finding of difference can be. For instance, the finding of significant differences in bail-decision making in two jurisdictions with similar bail laws could be particularly useful in understanding which factors influence bail decision-making beyond their respective legal frameworks.
Just as the jurisdictions being compared should share similarities, so should the institutions within them. In this case, the sites involved a magistrates’ court in England and an Ontario Court of Justice in Canada. The functionalist approach to comparative law dictates that comparatists must seek out institutions that have the same role, or more specifically, those that are functionally comparable or solve the same problem (Orucu, 2007). This introduces the concept of ‘functional equivalence’, which asserts that an institution in one jurisdiction must perform an equivalent function to the jurisdiction it is being compared with (Orucu, 2007). In other words, both institutions must attempt to solve the same universal problem (Zweigert & Kotz, 1998). In this instance, the problem that both legal systems faced was determining which defendants should be detained in custody and which defendants should be released into the community during the court process as well as which, if any, conditions should be imposed on those released.
It is important to note that, although the courts selected in each jurisdiction served the same function, they had different court structures in relation to bail. Specifically, although the police made the initial decision to detain or release a defendant upon arrest in both jurisdictions, they subsequently appeared in court in slightly different manners. The Criminal Code of Canada dictates that any form of release, including those imposed by police, remain in effect (unless they
are reviewed or revoked) until the end of trial or sentencing. For this reason, defendants who received bail from police prior to the court process entered a different ‘stream’ and their bail status was not readdressed unless there was an explicit reason to do so. At the site selected, those who were detained by the police began the court process in ‘bail court’ in order for a justice of peace to determine whether they should be remanded in custody or released on bail. Those who were released by the police appeared in ‘set-date court’ to decide upon the purpose of their next court date.
At the site selected in England, defendants could appear in ‘remand court’ on their first appearance regardless of what the initial police decision was regarding bail. Although the court theoretically makes the final bail decision in all first appearances, in reality it would be rare for magistrates or District Judges to detain a defendant who had been previously released by the police (see Chapter Two). This means that in practice the police had a comparable amount of power in England than they did in Canada, in that their decision to release a defendant on bail was typically not challenged by the courts. Consequently, the police could be thought to have a significant role in both jurisdictions’ bail procedures, albeit in slightly different capacities.
Although police were important to the bail decision-making process, they were excluded from the study for two reasons. First, they were not part of the courtroom workgroup and, as such, were not part of the informal dynamic that was central to the focus of the study. Second, the addition of another group of criminal justice actors in an already wide-ranging study was impracticable in terms of time restraints and could have disrupted the completion of the project. Despite the aforementioned structural differences, the courts in each jurisdiction had bail procedures that served essentially the same purpose. In both England and Canada, the primary purpose of the court (in relation to bail) was to determine the liberty of the defendant. Both the magistrates’ court and the Ontario Court of Justice dealt with the vast majority of defendants on their first appearance and made the initial judicial decision as to whether they should be held in custody pending trial or released into the community.
In addition to serving similar functions, the courts selected in each jurisdiction shared similar demographics. This was to ensure the institutions were meaningfully comparable. Courts were selected from both jurisdictions that were located in major cities with relatively large populations. In Canada, the court was one of six Ontario Courts of Justice in a city of a population of 2.7 million. In England, the court was the only magistrates’ court located in a city of a population of 750 thousand. Unfortunately, the number of cases proceeded against at these court was not publically available. However, both of these