Presumed innocent but behind bars
Innocent until proven guilty is an ancient principle of English law. Given this, there’s a presumption that those pleading not guilty should be granted bail, so they can live in the community while waiting for their trial. But for hundreds of years, in England and Wales as in other countries, some people have been imprisoned pending trial and/or sentence – remanded in custody.
Our over-use of remand is the subject of a new report from Transform Justice. The report: Presumed innocent but behind bars – is remand overused in England and
Wales? argues that imprisonment destroys family ties and community links, and leads to the loss of jobs and homes. Whilst remand is not technically a punishment, it effectively punishes the defendant as much as a prison sentence. Only those who are at high risk of either absconding or committing a serious crime on bail should be remanded.
We have too many people in prison in England and Wales and our prisons are plagued by violence and drugs, so it makes sense to ask whether all those in prison need to be there. We appear to have drifted far from the principle of using remand only when completely necessary. 12,000 people charged with summary (less serious) offences were remanded in 2016. Of these 60% did not get a custodial sentence at the end of their case.
Transform Justice argues that remand is over-used and under-scrutinised; and that decisions to remand are taken too quickly, on the basis of too little information. 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 has been remanded, it’s very difficult to get the decision reversed. The defendant in prison finds it hard to communicate with their lawyer, gets very little help from prison staff, and is usually forced to appear from prison on video for court hearings – which makes communication more difficult and leads to the defendant disengaging.
Remand facts & figures
There is no clear trend to the number of people remanded over the last fifteen years as the chart below shows.
Contrary to expectations, most people who are remanded have not been accused of sexual or violent crimes – according to 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 who have been charged with a summary offence is more than double the proportion imprisoned as a result of actually committing a summary offence.
Transform Justice argues that:
Speedy, summary justice has led to speedy remand.
The report makes 11 recommendations to reduce the over use of remand:
- Improve the training and development of judges and magistrates.
- Slow down the court process to allow the defence and prosecution to learn more about the defendant, the evidence of the alleged offence and the risks posed, whilst also improving disclosure prior to the first bail hearing.
- Increase the proportion of prosecution first applications for denial of bail which are opposed by defence.
- Halt any increase in the use of video hearings until there is research available on whether video affects the chance of a defendant being denied bail.
- Reform, revive and incentivise bail information services in prison and courts.
- Improve the outcomes for those housed in bail accommodation (BASS) pending trial and improve communication of its availability.
- Support defendants at risk of not turning up to their court hearing in doing so.
- Conduct research into why so many who are remanded do not go on to receive a custodial sentence.
- Reform bail legislation with more stringent criteria for the use of remand, including preventing remand being used for a defendants’ own protection.
- Gather evidence on the possible ways of reducing the perceived risk of granting bail for foreign national prisoners and those accused of domestic violence.
- Improve scrutiny of remand by the MoJ and justice inspectorates.