The researchers ask why custodial remand is so often ordered when conditional bail might be appropriate.
A significant part of our prison capacity crisis is the growing remand population. The September 2023 remand population figure of 16,196 is 12% higher than in September 2022 and is the highest September figure in at least the last fifty years. The untried prison population rose by 8% (to 10,521) when compared to the end of September 2022 whilst the convicted unsentenced population rose by 18% (to 5,675) over the same period. We know (from a recent Justice Committee report) that there is little support for remand prisoners either in prison or on release.
Now research from the charity JUSTICE published last week suggests one key reason for this increase is that magistrates aren’t following proper procedures, leading to people being unfairly remanded in custody.
The report is based on data on remand decision-making from 742 hearings in magistrates’ courts collected by JUSTICE between January 2020 and December 2022. To collect the data, JUSTICE volunteers observed hearings involving pre-trial remand proceedings in magistrates’ courts across the England. Observations were conducted in publicly open hearings, most of which were first instance hearings following charge. A smaller number of hearings observed concerned a review of bail or a new application by the prosecution following a breach of bail by the defendant. Around half of the cases observed were presided over by a bench of lay magistrates, whilst the other half were presided over by district judges acting in the magistrates’ courts.
First, processes for determining bail do not appear to be properly followed in the magistrates’ courts, undermining the fairness of remand decision-making and increasing the likelihood of custodial remand being imposed unnecessarily. The findings also call into question the quality of remand decision-making.
Decision makers rarely provided reasons for their decisions, despite the requirements in the Bail Act and Criminal Procedure Rules that they do so. This failure makes it difficult to scrutinise remand decisions to determine why and to what extent custodial remand is being overused.
Disparities in outcomes, particularly for non-White defendants, foreign national defendants, defendants appearing via video-link and in a secure dock, and defendants lacking representation, were also found.
Researchers conclude that these disparities suggest biased decision-making driven by perceptions of risk, likely exacerbated by a lack of diversity amongst decision makers.
The Bail Act
Across cases where the prosecution raised objections to bail, decision-makers referred to the Bail Act when justifying their decisions concerning remand just over one third (37.8%) of the time. District judges referred to the Bail Act when justifying their decisions 42.8% of the time, compared with 33.1% for magistrates.
Rather than referring to the Bail Act, decision-makers instead referred to the decision being “reasonable” or “proportionate” in 9.9% of cases observed.82 In 48.4% of hearings, observers reported that no test at all was referred to. Magistrates failed to refer a test when making remand decisions more frequently than district judges, with magistrates being reported as making no reference to any test 52.6% of the time, compared with 43.8% for district judges. You can see this data in detail in the reproduced from the report below.
The researchers say that their study represents a step towards identifying and addressing concerning trends in remand decision-making, but say that further work is required in order to uncover both the extent of the issues identified and, critically, the most effective solutions.
The researchers call for the Government to uncover the reasons why custodial remand is so often ordered when conditional bail might be appropriate.
They also recommend that the Government revisit the efficiency of the magistracy compared to district judges in remand decision-making.
The study makes an urgent call for the Government to measure how racial bias and appearing via video link impact remand decision-making, and to commission further research regarding the practice of remanding individuals in custody for their own protection.
Their final point is an appeal for the Government, which collects some of these data to undertake a more comprehensive collection of data and make it publicly available.