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Is imprisonment before trial the result of poor risk assessment?

Penelope Gibbs
25 Mar 2022

How long does it take to hear the arguments for and against depriving someone of their liberty? Minutes in the case of pre-trial detention in magistrates’ courts. Dr Tom Smith and Professor Ed Cape published a major study on remand (pre-trial detention) decision-making in England and Wales in 2016 . They and their team observed hundreds of magistrates’ court hearings – the only way of getting quality data on remand since little is published. Three startling findings were that the average time taken by prosecution and defence arguments was very short (average prosecution application for remand took 3 ½ minutes, average defence case 5 ½ minutes), that the defence often didn’t counter the prosecution’s case for remand, and that the reasons given by judges and magistrates for using remand were usually general, not particular to the case.

Tom and Ed worked with Fair Trials to influence changes in the law (criminal procedure rules) so that remand hearings were given more time, and particular reasons given for decisions. Just before the pandemic hit, Dr Tom Smith bravely decided to check whether the changes in criminal procedure rules had fundamentally changed practice. Unfortunately they hadn’t. Tom and colleagues observed a week of magistrates’ court hearings and surveyed lawyers, judges and magistrates. Despite reasonable awareness of the changes to the criminal procedure rules, defence practitioners felt that they were not observed. Dr Tom Smith recently published this research.

Another recent study by May Robson throws light on remand practice through the lens of one group particularly likely to be remanded – foreign national women. All the normal drivers to the over-use of remand affect these women, plus suspicion of the “other” and concerns about “crimmigration”. May interviewed lawyers and bail support workers.  They suggested that the challenges of being a foreign national woman start in police custody. Women are more likely to be remanded – detained post-charge – in police custody as they don’t appear on the usual databases (such as the electoral register) used to check whether defendants meet the legal criteria for bail. Once remanded by the police, any defendant is more likely to be remanded by the court because police remand leads to a fast-track court appearance, which in turn deprives practitioners of the time they need to prepare a bail package – information on accommodation and potential bail conditions.

When a defendant who is a foreign national woman arrives at court, the problems of lack of disclosure and incomplete paperwork are often worse than usual. A lawyer complained to May about the police information ‘Either deliberately or accidentally – it’s full of errors or important documents are missing but you’re pressurised by the court to get on with it.’ When foreign national women have language barriers, it may be particularly difficult for the defence to get reliable information and women may be remanded while this is obtained.

Lawyers interviewed by May described the court system itself as a ‘meat grinder’, ‘factory farm’, and ‘recipe for post-traumatic stress disorder’. They told her that cuts prevented them giving the service defendants needed. Simon, a solicitor, complained ‘we can no longer do a proper job’. Lawyers needed more time in the case of foreign national women, partly to overcome the defendants’ fear, partly to overcome language issues. “A lack of privacy, time and training were reported across the board. Rachel, a solicitor, described the situation: ‘You meet for the first time and there’s no private place to sit and speak. There are some rooms, but they are usually full or they are not very nice.’ This environment may inhibit disclosure of abuse, trafficking or mitigating factors around the offence that inform bail decisions”.

May’s interviewees said delays in getting interpreters and their variable quality prejudiced the outcomes of foreign national women. In one case, an Indian woman charged with shoplifting £40 of clothes was remanded for five days. She needed a Gujurati interpreter, but no such interpreter turned up when she appeared for her remand hearings. After several failed hearings, a court usher offered to interpret. This was not an ideal solution but it seemed better than keeping the woman in prison, particularly since she had a child and baby at home and was not at any risk of absconding.

Risk of absconding was the key reason given for the remanding of foreign national women, and the onus was put on them and their lawyers to show they were unlikely to abscond. This burden of proof was less often put on people who were British nationals. Foreign national women were asked to prove they had “community ties” through evidence of length of time or family in the country, employment and a National Insurance number, fixed abode, education, bank account and so on. The supposedly increased risk of foreign national women absconding is unproven. Many defendants of all nationalities do not turn up for their court hearing (mainly because they lead chaotic lives), but only a tiny proportion of them genuinely abscond. And previous research suggests that 95% of foreign nationals subject to Home Office reporting restrictions comply with them.

Video hearings, judges’ fear of impeding immigration proceedings and stereotypes of bad migrants also contributed to foreign national women’s risk of being remanded.  Most of those remanded and tried in magistrates’ courts do not go on to get a prison sentence. Yet remand is reserved for those cases where there is a “real prospect” of the defendant receiving a custodial sentence. And, legally, bail without conditions should be the rule, not the exception.

Risk assessment is always challenging. But this recent research on the use of remand in England and Wales suggests that the risk posed by defendants is regularly miscalculated. Police are risk averse and readily recommend denial of bail for those charged. But police have seldom gathered much information about the personal circumstances of defendants. Prosecutors take police recommendations for refusal of bail seriously and don’t have time to make up for gaps in information. Defence lawyers aren’t given enough time to secure bail conditions to reassure judges. And judges and magistrates often take the prosecution case at its highest. Under pressure to get through cases, they may not challenge the prosecution case, particularly if the defence does not present arguments for bail. The Justice Committee has launched an inquiry on the use of custodial remand for adults. Lets hope it highlights the over-use.