What Works? How English & Welsh law and practice impacts on low rates of pre-trial detention.

This post was written by Dr Tom Smith, University of the West of England, Bristol, UK.

England and Wales has long been recognised as having a low ‘rate’ of pre-trial detention when compared with, primarily, its European neighbours. In this article (based on a paper delivered at Fair Trials’ LEAP Annual Conference 2020, Lisbon), I will argue that the English and Welsh system has a number of ‘strengths’ which arguably drive this trend. It is hoped that this will catalyse debate about how low rates of pre-trial detention might be achieved across the EU and beyond.

Before considering this, it is important to outline the context for pre-trial detention in England and Wales (hereafter, E&W). In 2018/19, criminal courts ordered pre-trial detention (known as a ‘remand in custody’) for approximately 80,000 defendants, with around 60% of them accused of less serious offences dealt with at magistrates’ courts. On any given day, approximately 10,000 persons are detained either prior to trial or sentence in E&W – roughly 11% of the overall prison population. Whilst these are significant gross numbers of unconvicted citizens, the overall ‘rate’ of pre-trial detention in E&W is low in comparison both to its EU neighbours and global counterparts. To understand why this is the case, we need to know a little about the law relating to pre-trial detention in E&W. There is a starting presumption of release on bail for all defendants appearing before criminal courts (with some exceptions, such as for defendants accused of murder). A court can overturn this presumption and detain a defendant if it has sufficient grounds (in other words, reasons) to do so. These grounds are known as ‘exceptions to bail’, and are enshrined in statute (the Bail Act 1976). Grounds for denying bail include the belief that a defendant will fail to surrender to the custody of the court (known in some jurisdictions as ‘flight’); will interfere with witnesses or the investigation of crime; or will commit further offences if released. These grounds should be based on ‘factors’ in the case, such as the seriousness of the offence; the defendant’s bail record (that is, previous behaviour when released); the strength of the case against the defendant; and the likely sentence should the defendant be convicted. A court also has the power to release defendants on bail with ‘conditions’, which essentially require the defendant to comply with various controls on their behaviour, or risk arrest. With this context in mind, this blog asks: what are the key drivers for the comparatively low rate of pre-trial detention in E&W? I would argue that the following represent key reasons:

1. The existence of legislative Custody time limits (CTLs);
2. The presumption of release on bail;
3. Limited use of ‘money bail’ in practice;
4. Legislative restrictions on pre-trial detention for non-imprisonable offences;
5. The range of alternatives to pre-trial detention available to and used by courts.

1. Custody Time Limits

CTLs are maximum periods for which a defendant can be detained pre-trial. The ‘clock’ for a relevant CTL begins the day after the court appearance when the defendant was first detained. CTLs are shorter for less serious offences (a maximum of 56 days in most cases); and longer for more serious offences (182 days). These periods can be extended before they expire, but to do so it is necessary for the prosecution to justify the need for an extension to a court; there must, in short, be a good reason to go beyond the maximum initial period of detention prior to a trial. There is, however, technically no maximum limit to the number of extensions available. It is worth noting that the consequences of expiry are, in theory, significant: if a CTL is reached before a trial has started and an extension is not granted, the defendant must be released on bail.

How does this drive low pre-trial detention?

CTLs create urgency for the actors within the criminal justice system (particularly the prosecution) when dealing with defendants in pre-trial detention. For example, a defendant in custody will be returned to court quickly and listed as a priority before ‘at liberty’ defendants. The awareness that there is a maximum time limit – and therefore a restriction on the time to investigate and build a case – should motivate the prosecution to be expeditious and diligent in their work. Research conducted by myself and Professor Ed Cape for Fair Trials indicated that prosecutors are very mindful of CTLs and therefore prioritise duties related to pre-trial detention cases in order to avoid defendants being released – which could potentially risk public safety or vulnerable witnesses in a case. As such, the existence of CTLs place a burden on prosecutors; if prosecutors frequently sought and obtained pre-trial detention of defendants, this burden would become enormous and place significant (and unnecessary strain) on their time and resources. Almost inevitably, excessive use of pre-trial detention would lead to expiry of CTLs before the prosecution was ready for trial and defendants would be released prematurely (with significant potential consequences). In short: CTLs drive low pre-trial detention because they deter unnecessary prosecution requests for it, because of the associated time pressures and risks of expiry.

2. The presumption of release on bail

As mentioned above, virtually all defendants have a prima facie right to be released on unconditional bail at the end of a court appearance. This right is enshrined in primary legislation (the Bail Act 1976) and thus has force and stature. However, this can be overturned if one of the statutory grounds mentioned above is established. A court may (and sometimes does) identify such grounds of its own motion, but will normally expect to be persuaded by the prosecution that there is a need to detain a defendant due to the risks of release.

How does this drive low pre-trial detention?

The presumption means that the prosecution must rationalise any request for pre-trial detention and a court must justify its decisions in this regard (specifically, by reference to the individual case). As such, pre-trial detention cannot be arbitrarily ordered. The presumption implies that defendants are, at the start of a case, automatically assumed to be low risk (and therefore eligible for unconditional release) unless it can be demonstrated otherwise. This emphasises both the presumption of innocence afforded to all defendants as well as the importance of maintaining a defendant’s liberty if at all possible. It also implies that pre-trial detention should be the last option for a court, when other options are not viable or have been tried and have failed. In short, pre-trial detention should not be the norm. Additionally, by requiring prosecutors and judicial figures to provide oral reasoning in open court for any requests for or orders of detention, defendants and their lawyers are better able to understand and challenge the decisions made. In summary, overturning the presumption of release on bail requires clear and robust justification; this reduces the likelihood of unnecessary pre-trial detention based on flimsy grounds, lowering the overall rate.

3. Limited use of ‘money bail’ in practice

The use and availability of ‘money bail’ in relation to criminal proceedings is common to most jurisdictions in some form. It is best summarised as:

• the deposit of money or valuables with the court; or a promise to pay money;
• by the defendant or a third party;
• made in order to secure the defendant’s release on bail.

In E&W, there are two forms of money bail: a security (when the defendant or a third party deposits money or valuables); or a surety (when a third party promises to pay money to the court should the defendant fail to surrender to the court). Either can be required as a condition of release for a defendant (though there are some statutory limitations as to when they can be ordered). These forms of money bail represent an alternative to the use of pre-trial detention to mitigate the risks of release, particularly the fear of flight. However, research (including that conducted by myself and Professor Cape) suggests that, in practice, these forms of money bail are rarely requested by prosecutors or ordered by courts in E&W. This appears to be because most defendants lack the financial means to afford a security or do not know of anyone with the means to act as a surety. This under-use of money bail is not based on any formal rule; it has naturally evolved as a practical response to the realities of the lives of many defendants, which are often characterised by poverty, lack of employment, housing insecurity, social isolation, and various physical and mental vulnerabilities. These realities – but particularly, lack of money – usually mean that there will be a low likelihood that a defendant would be able to secure their release were money bail attached as a condition.

How does this drive low pre-trial detention?

With this in mind, making release contingent on the acceptance of money bail as a condition would simply result in pre-trial detention for many (if not most) defendants, because they will not be able to satisfy the requirements outlined above. This would therefore lead to detention based primarily on a lack of personal means, rather than risk. For an example of the negative impact of such an approach on levels of pre-trial detention, one need only look to the USA with its high rate (nearly twice that of E&W at 20% of the overall prison population) and huge gross numbers of unconvicted persons (around 430,000 defendants – a staggering 43 times the number of E&W). This is particularly problematic (and inappropriate) for cases involving less serious offences, in which other conditions of release could arguably be used to mitigate any risks – risks which are, in broad terms, likely to be less acute than a case involving, for example, an offence of serious violence. As such, rare use of money bail in practice avoids the problems outlined above, leading to fewer needless and disproportionate detentions, therefore helping to lower the rate of pre-trial detention generally. This is particularly so since the vast majority of cases involve less serious offences. In short: wide use of ‘money bail’ drives up pre-trial detention because most defendants are poor and this, effectively, becomes the major criteria for release; by avoiding its use, there is a reduction in excessive pre-trial detention and a lower overall rate.

4. Legislative restrictions on pre-trial detention for non-imprisonable offences

In 2012, legislation was introduced in E&W which restricted the circumstances in which the presumption of release could be overturned by a court when the case involved non-imprisonable offences – those unlikely to attract a prison sentence should the defendant be convicted. This was rationalised by the Government at the time as ineffective and wasteful; in its white paper preceding the legislation, the Ministry of Justice highlighted that:

‘[E]ach year several thousand people are remanded in custody awaiting trial for offences for which they would be unlikely to receive a custodial sentence if they were convicted, because the offence of which they are accused is not serious enough to warrant it. In these cases custodial remand achieves little. There are limits to what the criminal justice system can properly do with unconvicted prisoners.’ (‘Breaking the Cycle’, 2010)

The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act requires courts to apply a test in such cases: when there is ‘no realistic prospect’ of a prison sentence after conviction, pre-trial detention cannot (normally) be ordered. However, even if there is ‘no real prospect’ of custody, pre-trial detention can be justified in very specific but limited circumstances (for example, if the defendant has a record of offending when released on bail). As a result, LASPO 2012 removed in one stroke the scope for pre-trial detention in a theoretically large number of cases.

How does this drive low pre-trial detention?

By legally restricting the use of pre-trial detention when prison is an unlikely outcome for a convicted defendant, there is less likely to be disproportionate use of pre-trial detention for minor offences (which will normally be non-imprisonable). As the largest category of offences coming before criminal courts, this provision therefore contributes to a lower overall rate of pre-trial detention because it should only be available to courts in a narrow range of cases (those which are more serious and which, therefore, attract a potential custodial sentence). Arguably, statistics support this argument. In 2000, the pre-trial detention rate in E&W was approximately 18% of the overall prison population; by 2015 it had dropped to 14%. As of 2019 it was approximately 11%. That being said, it is worth noting that during this period the overall prison population of E&W sky-rocketed (growing from approximately 65,000 in 2000, to 85,000 in 2015). Therefore, this drop in the overall pre-trial detention rate is somewhat distorted. This notwithstanding, the gross figures depict a similar (if less dramatic) dip in pre-trial detention, with around 13,000 detained on any given day in 2010 compared to 9,000 on any given day in 2019. This evidence (and the research conducted by myself and Professor Cape) suggests that LASPO 2012 has played a significant part in the drop in overall pre-trial detention use in E&W (as intended by the legislation). To summarise, by placing a statutory restriction on pre-trial detention in a large number of cases, there appears to be a significant reduction in its overall use.

5. The range of alternatives to pre-trial detention

E&W has a (theoretically unlimited) range of alternatives to pre-trial detention which can be used by a court to regulate the release of a defendant and therefore manage risks associated with it. If a court has a well founded fear about release (for example, a belief that the defendant may try to intimidate witnesses), they may opt to overturn the presumption of bail and detain the defendant. This is arguably much more likely when courts have a ‘binary’ choice – that is, a choice between either unconditional release of the defendant (with no controls on their behaviour); or pre-trial detention. Research has suggested that courts (particularly magistrates’ courts) tend to be risk-averse and cautious when it comes to pre-trial detention. When presented with the above options by a prosecutor emphasising the risks of release, pre-trial detention would seem a more likely outcome. In contrast, conditional release acts as a ‘halfway house’ between these two extremes, and can be used to mitigate such risks in place of pre-trial detention. In E&W, common conditions used by courts include orders to ‘stay away’ from a person or location; electronically monitored ‘tagging’; an order to reside at a certain address; and curfews. However, any number of non-standard conditions can be used and conditions can effectively be ‘tailored’ to the circumstances of the case and the defendant.

How does this drive low pre-trial detention?

Conditions can help allay judicial fears regarding the risks of releasing a defendant and therefore encourage courts not to overturn the presumption of bail. They allow some degree of control over the defendant without going as far as pre-trial detention, therefore decreasing the unnecessary use of the latter. Conditional bail also strikes a fair balance between, on the one hand, the presumptions of innocence and pre-trial release (which both emphasise that the defendant is merely accused and risk should not be automatically assumed); and, on the other, the recognition that some defendants genuinely pose a risk of offending, flight, or witness intimidation if released without some form of control. Moreover, a choice of conditions and their ‘creative’ use (to quote a judicial figure from our research) is more effective in lowering use of pre-trial detention, because they can be customised to individual defendants and adapted to varying case circumstances. In summary, offering a court alternatives to custody to manage any pre-trial risk deters unnecessary orders of pre-trial detention.

Conclusion: How can we effect change in pre-trial detention?

This article has focused on the strengths of the E&W system of pre-trial detention; but this is not to suggest it is by any means perfect. The research conducted by myself and Professor Cape found a number of weaknesses in both regulation and practice. We sought reform primarily through dissemination of our findings to policy makers; followed by lobbying of and constructive engagement with those stakeholders who could deliver legal changes. As a result, we successfully influenced changes to procedural laws affecting pre-trial detention in 2017. Whilst we can celebrate achieving some legal change, there is, arguably, a more important question to be addressed: did this lead to long-term change in practice? That is, in my view, what matters. A failure to transform legal change into practical change raises questions about the utility of the approach we took to addressing the issues identified. In E&W (and probably most jurisdictions) it is likely that any legal change needs to be accompanied by a broader shift in working culture at the ‘coal face’of practice – that is, amongst those practitioners working on cases involving pre-trial detention from day-to-day (particularly prosecutors and the judiciary). Arguably, in E&W at least, some of the legal tools for addressing the weakness of pre-trial detention practice now exist. As such, raising awareness, improving motivation and, ultimately, altering everyday behaviour in a manner which reflects these legal changes is more important to effecting real change. Focusing on this, rather than change through policy/law making, would therefore seem to be the next logical step on the road to achieving a more effective system in this jurisdiction – one which will (hopefully) create a bridge across the gap that often emerges between law on paper and law in the real world.