Soon after the pandemic started, the Lord Chief Justice gave a judgment which suggested that all judges should take into account the (worse than usual) conditions in prison when sentencing or remanding defendants. When I observed magistrates’ courts in April and May last year the Manning judgment was seldom referred to, and remand decisions seemed unaffected by the pandemic. Which is a pity, because the conditions in prison really were terrible and the pandemic offered a golden opportunity to reduce unnecessary remand. This would have helped reduce the court backlog, since cases involving remanded prisoners need more hearings and require courts with docks and cells, which are in short supply due to social distancing guidance.
Before the pandemic our report – Presumed innocent but behind bars – pointed out that the majority of those remanded and tried in England and Wales magistrates’ courts do not get sentenced to immediate custody. This is an indicator that there are unnecessary remands. Judges and lawyers are quick to point out that the criteria for remand are different to those for sentence, and that those remanded might have got a short custodial sentence had they been given bail pending trial. I accept this, but still feel that the figures indicate an overuse of remand when combined with other evidence. And if a short prison sentence is ineffective, “a short sharp shock” of pre-trial detention must be even more so.
Recent data from the MoJ indicates that the courts’ use of remand during the pandemic was very similar to previous. Magistrates and district judges remanded 48,745 defendants in 2020, only 4% less than in 2019. And the conversion to immediate custody (63% of those remanded and tried in magistrates’ courts were acquitted or got a non-custodial sentence) was exactly the same as in previous years. So the pandemic seems not to have inspired judges to take more risks.
A new report from Fair Trials shows the impact of such decisions. Locked up in Lockdown is based on letters from prisoners on remand during the pandemic. The cost is both to prisoners’ mental health and to justice itself. The prisoners relate huge barriers to communicating with their lawyers. Prisons locked down and refused to let lawyers visit in person. So prisoners had to communicate via video link, or phone. Access to video links and time for each call was insufficient, the quality was often very poor and it was impossible to see the prosecution evidence.
“The matter of getting legal consultations has been a nightmare, had one [remote] legal visit, couldn’t hear most of it, can’t talk and see evidence as you need to, I feel very unprepared for the case and I have to take the word of brief [lawyer] saying it’s in hand on the phone when they are not demanding things critical to my case i.e camera evidence, the full police interview… [I] still have no clue as to when it [trial] will be and if solicitors are prepared the way I want them to be prepared.” (Stuart)
Justice is at risk due to the court backlog. Prisoners’ trials have been delayed months, if not years. They are locked up for most of the day and family visits have been stopped or severely curtailed. So some have done the pragmatic thing and changed their plea to guilty, or been sorely tempted. “I was totally innocent but due to the conditions, time locked up and not being able to get appropriate legal conferences I was willing to plead guilty to get out of there. I was well over my custody limit as well. I am aware of at least 4 other people who pleaded guilty just so they didn’t have to stay in HMP Preston potentially until 2022 just to have a trial. It is totally wrong and unjust.” (Alex).
Next week marks the end of the pandemic extension to custody time limits (the maximum time on remand before a formal review). Unfortunately this is unlikely to make any difference to the length of time prisoners spend on remand. Before and during the pandemic, judges hardly ever refused requests to extend time on remand.
Even more unfortunately a pandemic scheme for probation to provide bail information in court for all those at risk of remand has not stemmed the flow. Transform Justice and our colleagues – the Criminal Justice Alliance – are not convinced it ever properly got off the ground. We were told this bail information would be available in all magistrates’ courts, but no defence lawyer came across it. And the government can’t provide any data as to how it worked.
That so many remanded prisoners were acquitted or received a non custodial sentence (16,622 people in 2020) even in a pandemic year shows the need for system change – for much better information, for more challenge to the prosecution request for refusal of bail and for more understanding of the privations of pandemic imprisonment. In 2020 1,893 prisoners who had been on remand received either a conditional/absolute discharge or a fine as their sentence. Is that pandemic justice?