Craft skills and legal rules: how Australian magistrates make bail decisions

In at least one criminal court in the USA, the discretion exercised by judicial officers in making bail decisions has been replaced by computer programs that recommend outcomes from risk scores (Livni, 2017). Although we should not t similar initiatives in other countries any time soon, those concerned about terrible offences committed by defendants who are at-large on bail or seeking to save costs, are considering alternatives to the current system.

The paper will start by comparing how the use of rules has been under­stood in the field of jurisprudence, from the perspectives of legal realism and the sociological tradition of ethnomethodology. It is written for a general readership concerned about fairness and justice in the same way as early ethnomethodological research about criminal courts (for example, Sudnow, 1965). Employing this approach, the central part of the paper presents empirica­l data obtained through observing bail applications in Australian magis­trates courts, and explicates the practical, interpretive methods in applying these legal rules. The third part of the paper will consider the extent to which judicial discretion can be controlled through legislation. Magistrates apply tests that make it more difficult to obtain bail, yet they still exercise discretion. The conclusion will review the implications for those advancing philosophical bents about legal practice, and for current debates about bail policy.