February 01 2023

Remand custody decisions made in minutes with no reasons for detention given, new report finds

Remand custody decisions made in minutes with no reasons for detention given, new report finds

Pic: Patrick Maguire
Red Cell: Patrick Maguire from Proof magazine, issue 4

Almost two thirds of hearings in the magistrates’ courts dealing with remand were dealt with in under five minutes and often with no reasons given for holding people in custody, according to a new study. The small-scale survey conducted by Tom Smith, associate law professor at the University of the West of England, revealed that reasoning for pre-trial detention decisions was provided in less than half of hearings studied – with nearly 60% providing no reasons for the decision. It was found that in 65% of hearings observed, pre-trial detention matters were dealt with in under five minutes, with just under 20% spending five to ten minutes on such matters.

The legal charity Fair Trials recently highlighted the plight of thousands of people being held on remand for months, sometimes years, far beyond lawful time limits – as reported here. The research focuses on adult pre-trial detention in the Magistrates’ Courts and drew on observations of 28 pre-trial detention hearings as well as a survey of lay magistrates and defence lawyers. According to Fair Trials, ‘huge decisions on removing people’s liberty and remanding them in custody are being made in just a few minutes’. The study also found that judges’ reasons for remanding people in custody were often not given and, where they were, decisions were ‘often generalised and not linked to the specifics of the individuals’ cases’. In most cases where no reasoning was given, the defendant was refused bail and remanded in custody.

As explained in a new article by Smith published in the European Journal on Criminal Policy and Research, a court must be satisfied that there are ‘substantial’ grounds to detain a defendant based on the risk that they will fail to surrender, interfere with evidence or witnesses or else commit further offences. The Bail Act 1976 includes a presumption in favour of release which can be overturned if exceptions set out in statute are satisfied. As Smith puts it: ‘This implies that a thoughtful, individualised rationale is expected for each decision.’

The article explains how the use of pretrial detention has varied over the last two decades with approximately 10,000 persons in detention on any given day between 2014 and 2019. However, over the last two years numbers have peaked at 12,727 in June last year. A 2016 study of decisions to detain highlighted a lack of engagement with individual cases as well as significant problems with disclosure of evidence by the prosecution. According to Smith, one of the co-authors of the 2016 report, evidence provided to the defence was ‘often tardy, minimal or incomplete’.

The 2016 report led to amendments to the criminal procedure rules to ensure  ‘sufficient time’ is taken for decision-making, that prosecutors share evidence and case materials with the defence, that the defence have time to consider material, and that courts fully explain the reasoning for their remand decisions by reference to the specifics of a case.

According to the latest study, in cases where no proper reasoning was given, more than 80% involved the refusal of bail and detention of a defendant.

According to Fair Trials, this study provides ‘strong suggestions’ as to why the remand population has grown in the last few years hitting a record high in 2022.