{"id":1654,"date":"2020-04-20T10:20:20","date_gmt":"2020-04-20T09:20:20","guid":{"rendered":"http:\/\/blogs.uwe.ac.uk\/bristol-law-school\/?p=1654"},"modified":"2020-04-20T12:54:25","modified_gmt":"2020-04-20T11:54:25","slug":"pre-trial-detention-decision-making-during-the-covid-19-crisis-the-urgent-need-for-open-justice","status":"publish","type":"post","link":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/pre-trial-detention-decision-making-during-the-covid-19-crisis-the-urgent-need-for-open-justice\/","title":{"rendered":"Pre-trial detention decision-making during the COVID-19 crisis: the urgent need for open justice"},"content":{"rendered":"\n

In April 2020, Tom Smith, Senior Lecturer in Law at UWE Bristol, published a short article for criminal justice NGO Fair Trials, discussing the use of pre-trial detention during the Covid-19 emergency. The full post was written by Tom Smith and was first published on the Fair Trials website<\/a>. <\/em><\/p>\n\n\n\n

Whilst the COVID-19 pandemic has the majority\nof the world confined to their homes on lockdown, vital public services \u2013\nmost visibly healthcare \u2013 continue to\noperate in very difficult and risky circumstances. The\ncriminal justice system is one such public service. Whilst most jurisdictions\nhave made significant changes to their working practices in response to the\npandemic, work must continue to ensure that justice is delivered fairly\nand effectively. An essential element of doing so is ensuring justice\nis seen to be done; this principle of open justice is\ncrucial to a fair and effective justice system, but is currently\nunder threat. In England and Wales (E&W), this is particularly so in\nrelation to cases involving pre-trial detention (PTD), which are, at\npresent, the main work of the criminal courts. The vast majority of cases\ndeemed non-vital are currently not being heard, most notably in magistrates courts\n(in which all cases start and most cases conclude). HM Courts and Tribunals\nService (HMCTS), which has been publishing daily operational updates<\/a>, identifies\n\u2018overnight custody cases from police stations\u2019, \u2018productions from prisons\u2019, and\n\u2018applications to extend custody time limits\u2019 as the only work currently being\nconducted by the Crown Prosecution Service (which prosecutes most criminal\ncases). All involve PTD. Overnight custody cases are, in effect, the\nfirst appearance at court of someone charged with an offence. If detained by\nthe police after charge, this must happen the next working day. Productions\nfrom prisons will also normally relate to a relevant time limit on PTD,\nsuch as the requirement for a defendant to be returned to court within 8 clear\ndays after their first detention. Custody Time\nLimits (CTLs) apply to all cases involving PTD, and vary\ndepending on the seriousness of the charge. If the limit expires, the defendant\nmust be released on bail \u2013 hence the need to return them to court to extend a\nlimit (which courts have the power to do). Other work is identified as continuing\nin magistrates courts, but the above will be the main case load\ncurrently being dealt with \u2013 and all involve,\nexclusively, PTD decision making. <\/p>\n\n\n\n

This is important for several reasons. There are no\nnew jury trials; the Crown Court (the higher criminal trial court) will\nonly cover urgent work. The senior courts, such as the Court of\nAppeal (which cover a fraction of the cases dealt with in trial courts)\nare similar. Therefore, dealing with PTD decisions are and\nwill represent the primary day-to-day activity of the criminal courts\nsystem as a whole for the foreseeable future. This makes\nsense in the current situation, but raises questions about pre-existing issues related to PTD<\/a>.\nFor example, concerns have been raised about the brevity of\nPTD decision-making, lasting on average a few minutes. Set against a\ngeneral atmosphere of \u2018urgency\u2019 both outside of and within\nthe courts, this may be exacerbated. Similarly, previous concerns about limited\nreasoning for PTD decisions may be affected by the desire to work swiftly in\nthe current circumstances. Both of the above may also be\nimpacted by the now pervasive use of video link technology (VLT) to\navoid the attendance of all parties at court. This is\nclearly justifiable for public health reasons and the safety of all\ninvolved; but this has also been implemented very quickly. VLT has been criticised in the past<\/a> for\nnot facilitating proceedings adequately in terms of quality, reliability and\nengagement of all parties involved (particularly defendants). In terms of speed\nand reasoning, one would hope that more time would be taken over\nVLT to ensure decisions are thorough and clear. But it might be\nargued that technology tends to enable and encourage us to do things more\nquickly. There is a risk this could deepen the problems above. <\/p>\n\n\n\n

The same might be said of disclosure of information\nand evidence in advance of PTD hearings. Defendants and their lawyers\nhave previously reported consistently failing to be given full\ninformation prior to consultation and representation before a court on PTD\nmatters. Lawyers would often receive such information shortly before or\neven during hearings, sometimes by physically being shown material in court.\nThis may be even more problematic in the current circumstances if none of the\nparties are actually present in the same room. One must wonder\nwhether remote conduct of PTD hearings will help or hinder defence lawyers\nin this regard; after all, sharing of evidence prior to the pandemic\nwas done entirely electronically, and yet has consistently been a problem. It\nis also worth noting that it appears that most PTD decision making in the\ncourts is currently being made by District Judges (DJs, professional\njudges) rather than a bench of lay magistrates (ordinary, legally\nuntrained citizens). Previous research  has suggested\ndistinct modes of practice depending on the decision-maker, with DJs tending to\nbe quicker, but better in terms of reasoning. Some research has also shown\na tendency of DJs to be more willing to detain defendants, though this\nhas varied. Again, this factor could have some impact on PTD\ndecision-making over the coming months. <\/p>\n\n\n\n

Aside from aggravating existing problems in PTD\npractice, the current situation creates new issues. It has been pointed out by\nmany that it is imperative to reduce the use of detention generally (including\nPTD) for public health reasons. Keeping defendants out of custody\nwhere possible and lawful should be a priority. As such, decisions need to\nbe well considered and not relapse into habitual ways of approaching\ncases. Previous research has shown PTD practice stubbornly resistant to\nchange in many respects (with some exceptions); we\nmust therefore hope that the long-term issues highlighted\nabove do not restrict this important need to think differently about\ndetention in light of Covid-19. It is hard to say how much\nof a problem the issues above will be; these suggestions are purely\nspeculative, but that is for good reason. At present, in E&W, it is\nalmost impossible for a researcher or the public to observe PTD\ndecision-making in the courts: they are\neffectively inaccessible. HMCTS has announced \u2018a range of measures\nto support the principle of open justice\u2019<\/a>,\nincluding: <\/p>\n\n\n\n

  1. access\nto open hearings if a public gallery is available <\/li>
  2. remote\naccess for a third party <\/li>
  3. transcripts (if\navailable) for any party or interested person <\/li>
  4. audio\nrecording which can be listened to in a court building <\/li>
  5. notes\nof a hearing to be made available on request <\/li>
  6. access\nfor accredited media  <\/li><\/ol>\n\n\n\n

    On paper, this looks to be a good range of access\nto PTD decision making in the current difficult circumstances. In\nreality, they are arguably unfeasible. Numbers 1 and 4 are\nalmost impossible in light of strong guidance to the public not to\nleave home unless it is essential. Number 2 will, effectively, depend on the\ngoodwill and engagement of particular court staff to facilitate such\naccess. Transcripts may not, in fact, be made and if requested, will\ndepend on definitions such as \u2018interested party\u2019. Number 5 may not provide\nuseful information to an observer since notes will not\nnecessarily be comprehensive or reflect their interests. It is\nalso worth noting that for none of the above is further information available\non how one might pursue these routes of access. <\/p>\n\n\n\n

    Number 6 is the only route that appears\nto be currently operational, but only to some extent. Some\njournalists have reported good access to proceedings via remote links. For example, Tristan Cork of the London Evening Standard\nreported on the bail hearing of Julian Assange<\/a> (who\nhad a bail request denied on the basis he might flee \u2013 a\nquestionable decision in light of the extreme travel restrictions presently in\nplace in the UK). However, this was a high profile case, likely\nto attract attention \u2013 unlike most PTD hearings. Moreover, most of the\njournalists reporting good access are London-based. It might also be added\nthat many \u2013 including Cork \u2013 will now be on furlough due to Covid-19, like many\nmembers of the working public, and will therefore not be reporting on\ncases. As such, at present, it is unclear\nhow accessible PTD decision-making is to the media, the public, or researchers. We might therefore ask \u2013 beyond the lawyers involved\nin cases, who is checking current practice? PTD\ndecision-making directly affects the liberty\nof unconvicted persons and this will (and\nshould) continue despite the various restrictions currently\nin place. However, the latter fact creates potential\nfor lengthy delays to trials since none are being\nlisted, and therefore much longer periods of detention for unconvicted defendants.\nIt is\nvery important to be able to properly scrutinise such decision making; a lack\nof scrutiny in any discipline enables (and in some cases encourages) poor\npractice to flourish.<\/p>\n\n\n\n

    All\nthe above might be dubbed an overreaction, but the conviction\nof Marie Dinou has already proven the risks to be real<\/a>. Dinou was\napproached by police at Newcastle Central train station and asked to account\nfor her presence. She did not do so and was arrested on suspicion of an offence\nunder the new Coronavirus Act 2020. She\nspent two days in custody before being brought to a court hearing; after\nfailing to confirm her personal details, she was returned to the court cells,\nand was convicted in her absence without a lawyer. Dinou allegedly did not say\na word on arrest; to her lawyer at the police station; or at court. It appears no mental health assessment was made of\nher, nor was it confirmed whether she spoke English<\/a>.\nAfter persistent inquiry by journalists and lawyers via social media, it\ntranspired that Dinou had been charged with a non-existent\noffence under the legislation, and therefore wrongfully convicted. This\nhas now been set aside. As has been pointed out by lawyer Robin Murray,\nthere appear to have been a catalogue of breaches of the Criminal Procedure\nRules (which govern criminal court proceedings) and legislation relating to\ndisclosure, compounded by a lack of legal representation\nand failure to confirm the defendant\u2019s ability to comprehend proceedings. This\ncase, however, bucks the trend of invisibility for most; it was a\nminor offence dealt with in a lower\ncourt, which are generally paid little attention.\nYet Dinou spent two days in PTD, to be convicted incorrectly.\nThis raises the very real possibility\nthat this may already be happening across E&W (a jurisdiction with a\ncomparatively robust PTD framework), and beyond; and with very limited access\nto the courts for external observers to scrutinise and question poor practice,\nthere is real risk of not only unnecessary and excessive detention of\nunconvicted persons, but wrongful convictions. It is therefore\nimperative that access to external observation be realistically operationalised\nas soon as possible; and that practitioners ensure that thoroughness and care\nis taken in PTD decision-making in the admittedly very difficult \u2013 but,\nequally, medium-term \u2013 circumstances in which\ncriminal justice now functions. <\/p>\n","protected":false},"excerpt":{"rendered":"

    In April 2020, Tom Smith, Senior Lecturer in Law at UWE Bristol, published a short article for criminal justice NGO Fair Trials, discussing the use of pre-trial detention during the Covid-19 emergency. The full post was written by Tom Smith and was first published on the Fair Trials website. Whilst the COVID-19 pandemic has the majority … Continue reading “Pre-trial detention decision-making during the COVID-19 crisis: the urgent need for open justice”<\/span><\/a><\/p>\n","protected":false},"author":8,"featured_media":1655,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"wds_primary_category":0,"footnotes":""},"categories":[2,347,353],"tags":[30,371,109,372],"class_list":["post-1654","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-bristol-law-school","category-faculty-of-business-and-law","category-uwe-bristol","tag-bristol-law-school","tag-fair-trials","tag-law","tag-tom-smith"],"_links":{"self":[{"href":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/wp-json\/wp\/v2\/posts\/1654","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/wp-json\/wp\/v2\/comments?post=1654"}],"version-history":[{"count":2,"href":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/wp-json\/wp\/v2\/posts\/1654\/revisions"}],"predecessor-version":[{"id":1658,"href":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/wp-json\/wp\/v2\/posts\/1654\/revisions\/1658"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/wp-json\/wp\/v2\/media\/1655"}],"wp:attachment":[{"href":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/wp-json\/wp\/v2\/media?parent=1654"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/wp-json\/wp\/v2\/categories?post=1654"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.uwe.ac.uk\/bristol-law-school\/wp-json\/wp\/v2\/tags?post=1654"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}