Why does pre-trial imprisonment in England and Wales get so little scrutiny? Innocent until proven guilty is a principle of our justice system, another that there should be a pretty high bar for imprisoning people who have not been convicted. The default option should be unconditional bail with the defendant simply obliged to attend scheduled court hearings. But the courts contravene those principles daily.
A new report from the charity Justice adds to the evidence that pre-trial imprisonment (remand) in England and Wales is abused and overused. Five years ago we published a report which cited research that remand was overused and recommended ways of reducing its use. Rory Stewart, when prisons minister, seized this agenda but within a blink of an eye, he had been moved on to another role in government. There was no “burning platform” – neither a steeply rising remand population nor any public outcry – so action to reduce remand ground to a halt.
Crown Court trials were suspended when Covid struck, which prompted an increase in the length of time people spent on remand. Conditions were terrible, with prisoners locked up 23 hours a day. Since the final Covid lockdown things have got worse (partly due to the continuing court backlog) with the remand population now the highest it has ever been.
The new Justice report paints a picture of what is going wrong in magistrates’ courts’ remand decisions. Remand is a casualty of speedy summary justice, the pressure on courts to act as a case conveyor belt. This research (the product of student volunteers observing 742 hearings) suggests that decisions on the liberty of the unconvicted are made in minutes, and that the reasons for denying people bail are not explained properly. Judges – district judges and magistrates in the magistrates’ courts – are seldom referring to the bail act when they announce their decision and, even when they do, they tend not to refer to the individual case. If the reason for the remand decision isn’t openly justified then no-one understands why it was made, including the defendant, and it may be wrong.
The culture of the magistrates’ courts may lead to an overuse of remand. Apart from the pressure on speed, hearings too often go ahead without all the relevant evidence being disclosed to the defence, and without defence and prosecution arguments being challenged. Defence lawyers have often said that district judges and magistrates “take the prosecution case as its highest” i.e that the bench is biased in favour of the prosecution. This research backs up that concern – defence submissions were challenged more than twice as frequently as prosecution submissions. I’ve also heard lawyers say that District Judges are speedier, but readier to use imprisonment. Again there are indications from this research that this might be the case – magistrates used remand in 28% and DJs in 43% of bail/remand decisions. This could be because DJs deal with more serious cases, as Justice suggests, but may not. The report suggests overall magistrates’ practice is poorer than DJs, but if they are less likely to use remand, it’s swings and roundabouts. And Justice’s recommendation that “the Government should revisit the efficiency of the magistracy compared to district judges in remand decision-making” seems ambiguous.
Transform Justice published a report on unrepresented defendants in 2016, on defendants on video in 2017, and on magistrates’ courts during Covid in 2022. Evidence in these reports indicated that outcomes were worse if defendants had no lawyer and/or appeared on video link from prison/police custody. This research from Justice suggests the system really is biased against these groups when it comes to pre-trial imprisonment – those who appeared on video were 40% more likely and unrepresented defendants accused of high severity offences were 44% more likely to be remanded.
So where does that leave us? With pretty solid proof that, as the Secret Barrister has always contended, the magistrates court can be the Wild West where fair trial rights are too often flouted. The outcomes of remand decisions made in the magistrates courts suggest the same – only a third of defendants who are remanded and tried in magistrates’ courts in the end receive an immediate custodial sentence.
Our CourtWatch London project, in which members of the public observe magistrates’ court hearings (including remand hearings) and write down what’s said, will dig into these issues in its report next year.
Meanwhile there is some light at the end of the tunnel – if the government succeeds in legislating to more or less eliminate short prison sentences, that should have a positive knock-on effect on remand. No one should be remanded unless there is a real prospect of them receiving a custodial sentence. That real prospect will be more difficult to justify. Let’s just hope the proposal gets through parliament.
NB Rory Stewart himself stars in our latest podcast discussing the politics of criminal justice with Stephen Bush of the Financial Times.