Legal Measures Regarding the Use of the Court’s Discretion to Grant, Not Grant, and Request Security for the Temporary Release of Suspectd or Defendants in Criminal Cases

Abstract

This article aims to 1) study the concepts, theories, court judgments, and related research works of Thailand and abroad; 2) study the problems of fact and law; 3) study and analyze the comparative legal measures on the exercise of court discretion in granting, not granting, and requesting bail for suspects or defendants in criminal cases of foreign countries and Thailand; and 4) propose appropriate legal measures of foreign countries to be applied to the laws of Thailand. This is a qualitative research method by studying documents, legal texts, academic texts, research, and electronic media of Thailand and abroad. Focus group discussions were conducted along with in-depth interviews with a total of 5 sample groups: public prosecutors, investigators, lawyers, legal academics, and defendants in criminal cases.

The research results found that 1. The concept related to temporary release consists of 4 important basic principles: human rights, rule of law, benefit of the doubt in criminal cases, and presumption of innocence. 2. There are problems of fact and legal issues: the use of discretion by the court in granting, not granting, and requesting bail for temporary release of suspects or defendants in criminal cases, the lack of a system for assessing risk from background to be used as a reason for considering temporary release of suspects and defendants, and the consideration of requests for temporary release and methods for requesting bail in criminal cases. 3. There should be an office of investigation and probation in the temporary release process, following the United States model. 4. Therefore, it is recommended that the law be amended by adding a provision to allow temporary release of suspects or defendants in all cases, except cases with a maximum prison sentence of 10 years or more, by establishing a risk assessment system and providing temporary release officers specifically to collect background information to be used as a reason for considering temporary release. There should also be a legal framework for the use of discretion in considering temporary release. The new knowledge gained from this work is a system for assessing risk from background to be used as a reason for considering temporary release of suspects and defendants.