‘Rushing Remand’? Pretrial Detention and Bail Decision Making in England and Wales
| Published date | 01 March 2021 |
| Author | TOM SMITH |
| Date | 01 March 2021 |
| DOI | http://doi.org/10.1111/hojo.12392 |
The Howard Journal Vol60 No 1. March 2021 DOI: 10.1111/hojo.12392
ISSN 2059-1098, pp. 46–74
‘Rushing Remand’? Pretrial
Detention and Bail Decision Making
in England and Wales
TOM SMITH
Senior Lecturer in Law, University of the West of England, Bristol
Abstract: Deprivation of liberty as part of the criminal process is always a significant
step, and arguably even more so when the person so deprived has not yet been convicted
of an offence. Remand decision making – that is, granting bail or requiring detention of a
defendant prior to trial – in the courts of England and Wales is a common and important
part of modern criminal procedure, yet has been under-examined in the last two decades.
This article presents some of the findings of the first empirical study of remand law and
practice in this jurisdiction in many years. It concludes that, notwithstanding that the rate
of pretrial detention is comparatively low and practice is broadly in line with domestic and
regional standards, there remain significant issues – particularly in relation to the time
spent on such decisions and the information provided to courts when considering remands
on bail or in custody.
Keywords: bail; courts; criminal procedure; disclosure; lawyers; pretrial
detention; remand; right to a fair trial
Any matter relating to the deprivation of a person’s liberty should, justifi-
ably,attract the attention of critical comment and scrutiny. This is, arguably,
even more true when the person so deprived has not yet been convicted of
any criminal offence. The impact on fundamental rights, such as the right
to liberty and presumption of innocence (Articles 5 and 6 of the European
Convention on Human Rights (ECHR) respectively), is potentially signifi-
cant. People arrested and detained should normally be immediately con-
veyed to a police station (Police and Criminal Evidence Act 1984, s. 30(1A)).
On arrival, suspects can be detained and routinely are (Dehaghani 2017;
McKenzie, Morgan and Reiner 1990; Phillips et al. 1998;). A recent report
estimated that 850,000 suspects were detained at police stations in 2018/19
(Gibbs and Ratcliffe 2020, p.5); of this group, roughly 40% were charged
with an offence, with approximately half of those charged detained until
their first appearance at court (Gibbs and Ratcliffe 2020, p.4). Once there,
the courts ordered the detention of approximately 40% of those detained
46
C
2020 The Authors. The Howard Journal of Crime and Justice published by Howard League
and John Wiley & Sons Ltd
This is an open access article under the terms of the Creative Commons Attribution License, which per-
mits use, distribution and reproduction in any medium, provided the original work is properly cited.
The Howard Journal Vol60 No 1. March 2021
ISSN 2059-1098, pp. 46–74
post-charge by the police (Gibbs and Ratcliffe 2020, pp.26–7). In short, if
a person is arrested, on little more than reasonable suspicion, there is a
significant chance they will not be at liberty again for several days, weeks,
or in some cases, months. Detention without conviction is thus not only a
substantial interference with fundamental civil liberties; it can form an ex-
tended, compulsory pathway deeper into the forest of criminal justice, for
the guilty and innocent alike, with all the implications that has.
The rules governing decision making by courts regarding pretrial de-
tention and release on bail (which will be collectively termed ‘remand’
in this article) should, like all legitimate legal rules, be accessible, pre-
cise, applied reasonably,and should adequately protect fundamental rights
(The Sunday Times v.UK(No1)(1979); Allan 2001; Bingham 2007; House
of Lords Constitution Committee 2007, Appendix 5 (Craig)). Day-to-day
practice of remand decision making should adhere to these rules, and
should endeavour, ideally, to reserve pretrial detention for those cases
in which it is absolutely necessary (R (Thompson) v. Central Criminal Court
[2005]). Yet, despite the importance of regulating remand and the poten-
tial impact of failing to do so adequately,there is a dearth of recent research
on law and practice in this area (discussed further below). Furthermore,
policymakers have given limited attention to it in the last 20 years (excep-
tions being Criminal Justice Act 2003, Part 2; and Legal Aid, Sentencing
and Punishment of Offenders (LASPO) Act 2012, Schedule 11).
This article will present the findings of the first independent, empir-
ical study of multiple aspects of the remand decision-making process in
England and Wales (E&W) undertaken in more than two decades. Its pri-
mary objectives are to highlight long-ignored weaknesses in remand law
and practice in this jurisdiction, specifically in relation to the time spent
on, and the information relied on, in decision making; and to consider
what changes are required to ensure that such decisions are made effec-
tively, fairly, and lawfully. The study makes an original contribution to the
literature in this area by bolstering the evidence base for problems related
to remand decision making; demonstrating that such problems remain sig-
nificant and unresolved; and drawing attention to emerging issues which
could hamper effective and fair remand decision making. In the long term,
it is hoped that doing so will lead to a reduction in unnecessary use of
pretrial custody. The first part of the article will explain the background
and context for the study, including a review of the relevant law relat-
ing to remand in E&W. The next part will examine the findings of the
study, specifically in relation to time spent and information relied on in
remand decision-making practice. The third part will summarise the key
issues which emerged and outline some of the recommendations made as a
result of the study.The article will close by considering the future direction
of remand practice in E&W and what issues, if any, need to be addressed
in the future and why.
47
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2020 The Authors. The Howard Journal of Crime and Justice published by Howard
League and John Wiley & Sons Ltd
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