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NEWS

The Public Health Need to Keep People out of Detention - Practical Guidance

FairTrialsAdmin - March 21, 2020 - Pre-trial detention, COVID-19 Updates, Guides

 

Fair Trials has long been at the forefront of the movement to reduce the use of pre-trial detention in Europe and around the world, urging courts to impose the least restrictive conditions necessary to ensure the course of justice can take place.  


The grip of COVID-19 across the globe has made the liberty of arrested people take on a new urgency. Incarcerated people are some of the most vulnerable to infectious disease due to poor access to sanitation and health facilities, unsanitary conditions and often overcrowded detention facilities, making physical distance and isolation impossible.  


One of the most important public health measures to combat COVID-19 is restriction of physical contact and proximity. But the very nature of incarceration makes this practically impossible. As staff contract the virus and visitation is suspended, tension and violence also increase, leading to further risks to the life and health of both residents and prison staff.

  
The only way to preserve public health and safety and protect the right to life, is to reduce the number of people in detention facilities. With pre-trial detainees making up a third and more of the prison population in many countries, reducing the use of pre-trial detention would protect the health not only of detained persons, but also the many professionals who come into contact with people in detention (including detention staff and lawyers) and the families and communities to which both staff and prison residents return. 


Fair Trials urges all judicial authorities and criminal justice actors to take urgent action to reduce the number of people being held in pre-trial detention immediately as a matter of public health and safety, and to place arrested persons in pre-trial detention only as a measure of last resort.  


POLICE: 

  • Stop arresting and detaining people for minor offences.  
  • Issue citations and tickets instead of arrest. This has, for example, been done already in several large US cities.  

PROSECUTORS and JUDGES:  

  • Consider declining to prosecute minor offences.
  • Do not request or impose pre-trial detention except in extraordinary cases.  
  • Do not require in person check-ins during the pre-trial period (ask for phone or other types of remote supervision) and do not impose any kind of work or treatment requirement (these may not be available).
  • Do not penalize insecurely housed people or foreign citizens by considering them to be de facto flight risks.
  • Do not extend pre-trial detention orders without ensuring that this is strictly necessary and that no alternatives are possible in light of changed public health conditions.
  • Examine current rosters of prisoners held pre-trial and pro-actively release as many as possible, prioritizing those with health concerns and old age. 


DEFENSE LAWYERS:  

  • Argue vociferously for unconditional release in every case due to the risk to public health. Work with your colleagues to share evidence and template briefs, as lawyers have done in Belgium and France for example.
  • Insist that the court explain (on a case by case basis) why an alternative to detention is not feasible, in the light of the risk to the person’s life by placing them in detention.
  • File appeals immediately where this is not done.  
  • Insist on free phone and video calls with detained clients to continue to fulfil duties whilst visiting may be restricted due to health concerns.  


PRISON ADMINISTRATIONS:  

  • Ensure that people who are incarcerated pending trial are able to meet their lawyers in person and, where this is not possible, provide for unfettered, free access to confidential telephone lines and videolinks to enable detainees to exercise their right to access a lawyer. 
  • Bans on visitation by lawyers and friends and family of prison residents should be limited to specific risks and limited in time to enable in-person access whenever possible.  
  • Provide protective gear in lieu of limiting access to lawyers and observers.
  • Prison monitors should have unfettered access to all facilities including quarantine units. 

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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