Culture before law? Comparing bail decision-making in England and Canada

This thesis examines the factors that contribute to the bail decision-making process in English and Canadian courts. Despite the fact that bail contributes to rising prison remand populations, influences the lives of legally innocent defendants, and is central to assessments of human rights, very little is known about this process. England and Canada were ideal jurisdictions with which to explore this issue as that their similar bail laws and divergent practices related to pre-trial custody reflected different patterns of bail decision-making. This research took place when Canada’s prison remand rates had been increasing over several decades and England had one of the lowest prison remand rates in the Western world. The objectives of the study were to identify the factors that contribute to bail decision-making, investigate how they converged and diverged between jurisdictions, understand the impact of the decision-making at the local level, and explore how the findings contribute to an understanding of the bail decision- making process in a wider context. It is argued that court culture is central to understanding bail decision-making but that it is shaped by broader views that are specific to the criminal justice processes in England and Canada. These views relate to values that developed in each jurisdiction as a result of the evolution of criminal justice ideology and guiding philosophies over time. The influence of these informal factors on the bail decision-making process were facilitated by the discretion afforded to court actors in their application of formal laws and policies, which enabled them to balance multiple competing principles whilst, in the main, remaining within the prescribed legal framework. This suggests that the factors contributing to bail decision-making are nuanced, varied, and interdependent and, as such, should not be examined individually but rather in terms of their interactive effects.