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Are we imprisoning too many innocent people?

Penelope Gibbs
26 May 2017

There are many people in prison who insist they are innocent. I’m very concerned about miscarriages of justice, but my focus currently is on those who are on remand and facing trial.  All are innocent until proved guilty.

The use of remand has been reducing in recent years. The percentage of defendants remanded by magistrates has reduced from 4.7% to 3.8% in four years and by Crown Court judges from 36.6% to 34.2%. This is good news, particularly since a significant minority of those who plead not guilty are acquitted at trial, and no-one wants people who have not committed a crime to languish in our drug infested prisons.

But there is evidence that we could reduce the number of people imprisoned on remand still further. There were nearly 12,000 people remanded by magistrates for summary (less serious) offences in 2016. Of all those remanded and subsequently tried by magistrates in 2016, 60% did not go on to be imprisoned. They were either acquitted (a quarter) or got another kind of sentence or sanction.  Even in Crown Court, 27% of all those defendants who had been remanded, did not go on to get a custodial sentence.

Legal eagles will counter that the reasons for remand are completely different from those justifying sentence or acquittal. So, they argue, I should not make a connection.  But to a layperson it still seems unfair that so many people should lose their liberty if they are innocent, or regarded as low risk enough to be given a community sanction. Most of the justifications for remand are about protecting safety – of the public, and of the defendant themselves. Which is why it is concerning that 13,224 people in 2016 were considered unsafe enough to imprison while they protested their innocence, but safe enough that, on conviction, they got a community sentence, fine or similar.  People might defend the remand decision by saying safety is dynamic, and the same person who was too risky to be on bail, became safer in prison, and could then be released into the community on conviction.  But this argument doesn’t really stack up.

A study of women who have been imprisoned on remand “for their own protection” suggests that unwise remand decisions are being made.  Tamara Pattinson, who worked in HMP Low Newton, researched why prison was being used as a place of safety for women defendants with severe mental health problems. Her research is shocking. It shows that courts are remanding women on the assumption that they will get better mental health assessment and treatment in prison and be safer, when the opposite is the case.  A full medical examination is unlikely to take place more rapidly in prison than in the community, and it takes longer for someone in prison to be transferred into a residential mental health unit, if that’s what they need. Above all, prison can exacerbate any mental health problems a woman might be suffering, through severing her ties with home and family. Tragically, many prison suicides are of those on remand.  Sarah Reed died in prison in January last year. She had mental health problems, but was stable and living near family when she was suddenly remanded – her family thinks to facilitate psychiatric tests.

If one small scale study can uncover such misconceptions about the use of prison as a “place of safety”, no wonder we imprison so many on remand who we then deem safe enough to release on conviction.

In New Jersey they are trialling an algorithm to help judges and prosecutors decide who is safe to let out on bail.  It claims to calculate the risk of re-offending. It has caused controversy, and I can understand why, but if our human judgement is leading to 13,224 people being imprisoned, with doubtful justification, we might have a lot to learn through an algorithm in better calculating the risk of letting unconvicted defendants live at liberty.

Please could any defence advocates fill in an anonymous survey with no compulsory questions on bail and remand to help Transform Justice with our research.

NB The best recent research on remand is a study by Professor Ed Cape and Dr Tom Smith