Locked up without a trial

They are treated like animals. Life in jail is appalling. It is awful in ways that most people could never imagine.

This is an experienced criminal lawyer talking about the men, the increasing proportion of our prison population, who find themselves imprisoned without a trial. On remand and locked up in vile conditions with violent, dangerous people. They are being locked up because of changes to our bail legislation which are resulting in more and more men being refused bail – shut away for months, sometimes even years before their cases are determined.

Yet as I write this our media is inflamed, demanding fewer men should be let out on bail. This is the result of the death of a young NSW mum, Molly Ticehurst, apparently at the hands of her ex-partner who was out on bail facing various domestic and sexual violence allegations. "This has to stop" – demanded the Daily Telegraph, calling for changes to the state's "failing bail laws."

During an interview with the Shadow NSW Police Minister Paul Toole, Chris Kenny on Sky News was quick to blame the magistrate for allowing bail to the alleged offender. Toole called for a complete overhaul of bail laws to ensure that even fewer accused men are given bail. The NSW government has already caved in and announced a review.

Every time a crime is committed by someone on bail, we see similar demands for tightening of the laws to ensure that everyone accused of any serious crime, particularly domestic violence, is safely locked away – even before there is any attempt to examine the evidence supporting the accusation at trial.

It's easy to see why public sentiment is behind the demand to do more to protect vulnerable women in these circumstances. But the price we pay for knee-jerk responses to a very complex issue is that thousands of, both legally and factually innocent, men are locked up in jails across the country.

It is very easy to argue that there will never be an offence committed by a person on bail if nobody is ever granted bail. But the true cost of such a position needs to be understood.

Sure, we can reduce the risk of offending by removing bail as an option. And we can increase the likelihood of convictions by implementing a reverse onus in what we perceive to be 'problem' areas of crime. In fact, we can absolutely ensure that all persons suspected of committing a crime are summarily convicted, just by removing the right to a trial. But do we want to live in such a place?

Right now, across this country more than a third of men in Australian prisons haven't had their case determined by a court. In national trends, the number of unsentenced people in custody almost doubled, reaching 16,000 in the past decade. The proportion continues to go up – with a 15.5% increase in the last five years.

In NSW, 42% of prisoners are now on remand – which means that they are legally innocent. Yet they are behind bars.