Remand ‘overused and under-scrutinised’, says new study

prison bars, from Flickr, Jason Nahrung

Six out of 10 prisoners remanded in custody in the magistrates’ court and more than one-quarter in the Crown Court did not go on to be later sentenced to prison, according to a new report published today highlighting that remand is ‘overused and under-scrutinised’.

The paper from Transform Justice (here) argued that the courts appear to have ‘drifted far from the principle’ of using remand only when necessary. According to the report, 12,000 people charged with summary offences were remanded in 2016 and 60% of those did not receive a custodial sentence.  ‘The evidence we have gathered suggests that remand is over-used and under-scrutinised; decisions to remand are taken too quickly, on the basis of too little information,’ the report said. ‘Too often the prosecution case seems to be given greater weight than that of the defence, or the application to remand is unopposed.’

Once a defendant was remanded, it was very difficult for the decision to be reversed; the defendant found it hard to communicate with their lawyer, received little help from prison staff, and usually had to appear from prison on video. The paper drew on a survey of 131 defence lawyers.

Over-use of pre-trial detention was not only expensive for tax-payers but defendants and their families often suffered ‘serious adverse consequences with the accused receiving no compensation even if they are acquitted – as a quarter of those remanded in custody in magistrates’ courts are,’ wrote Professor Ed Cape in the foreword to the report. ‘It is also damaging in corroding the fundamental criminal justice principles of the presumption of innocence and the right to fair trial.’

Cape noted that whilst the law was ‘largely (although not completely) satisfactory’, the concerns were around its implementation. ‘Grounds for withholding bail rely upon the strength of evidence and likely sentence if the accused is convicted, yet the information supplied to the accused and the court by the police and prosecution, and the time devoted to consideration of that information, is normally wholly insufficient,’ he wrote.

According to the report, most people who were remanded had not been accused of sexual or violent crimes. On the recent figures, less than half (44%) of those on remand were accused of the most dangerous offences (violence against the person, sexual offences, robbery, and possession of weapons). The proportion of the remanded prison population charged with a summary offence was more than double the proportion imprisoned as a result of committing a summary offence.

Defence lawyers felt that judges assumed the prosecution’s version was correct. According to a study by the University of West England, seven out of 10 of prosecution applications for remand were accepted by the court (many were unopposed). A typical sentiment from a defence lawyer was that ‘bias always for pros [the prosecution] and I say that as a former prosecutor’. According to a Magistrates’ Association’s survey in 2017, defendants were representing themselves in almost one in five of bail hearings (18%).  ‘Those who represent themselves struggle to understand the law, their rights and the court process, and are thus more likely to be remanded,’ Transform Justice noted.

Defence lawyers felt that video links, increasingly used for bail, put defendants at a disadvantage. They complained that insufficient time was allowed for them to consult with their clients; that the ‘symbolism’ of the defendant appearing from custody was ‘potentially prejudicial’; and that defendants found it hard to communicate with the court and their lawyer which led o some ‘disengaging’.

‘People are being warehoused in our rat infested, crime ridden prisons despite protesting their innocence,’ commented Penelope Gibbs, director of Transform Justice. ‘Defendants are being locked up on the basis of a three-minute pitch, on dodgy information and with little help to get out once locked up. Of course, some people need to be imprisoned before their trial, but the risk aversion dial has moved too far. There is little point and no justice in remanding someone accused of a non-violent offence, particularly as so many are freed by the court whatever the outcome of their trial. With so much of our justice system at crumbling point, remand is fixable and requires urgent action.’

Author: Jon Robins

Jon is editor of the Justice Gap. He is a freelance journalist. Jon’s books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council’s journalism award (2015 and 2005) and is shortlisted for this year’s Criminal Justice Alliance’s journalism award

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