The use of bail plays a central role in the rise of prison remand populations, influences defendants and criminal justice institutions, and raises human rights concerns, yet relatively little is known about the bail decision-making process. For the purposes of the paper, this is considered to be the process by which court practitioners decide whether defendants should be released on bail into the community or detained in custody pending trial. It also involves the decision as to which, if any, conditions should be imposed upon those released. The objective of this paper is to demonstrate the value of a comparative
approach in developing a better understanding of the bail decision-making process. It is anticipated that such an approach will shed light on the relationship between bail practices and prison remand population trends. The value of a comparative approach will be illustrated through a preliminary examination of bail decision-making in England and Wales and Canada.
Although there have been some studies that investigate bail decision-making within specific jurisdictions, there is a paucity of research that makes comparisons on an international level. This paper will demonstrate how this type of approach will offer lessons of theoretical and practical significance. Specifically, a comparative analysis will facilitate a greater understanding of an important part of the court process that has rarely been discussed in previous research and will lay the foundation for interventions in the legal systems examined.
The paper will first identify the significance of bail-decision making and explain how a comparative approach could fill gaps in the research on this subject. Second, the value of the comparative approach will be illustrated through a preliminary examination of remand population trends, bail laws and informal practices in England and Canada. Finally, a methodological design will be proposed for future comparative research.