In November 2018, Dr Tom Smith hosted a delegation of visitors from China, including academics from two universities, several prosecutors and lawyers from city, provincial, and national procuratorates (the bodies responsible for prosecution decisions), and colleagues from the Great Britain China Centre. The purpose of the visit was to discuss pre-trial detention practice in England and Wales, with a view to promoting reform in China (following on from a pilot project conducted in various provinces in 2016-17). Alongside a question and answer session and a court visit, the visit included a presentation by Dr Thomas Smith. This blog is a written form of this presentation.
This presentation aims to summarise the current regulatory structure for pre-trial detention (PTD) in England and Wales (E&W); to summarise research conducted in this area of practice; and to identify future issues which will be faced in ensuring PTD is used appropriately and decisions are made fairly. It is hoped that this presentation will assist the delegation in promoting reform of PTD practice in China over the coming years, an area of both great importance and great challenge.
Law and Procedure in E&W
Before engaging in analysis of the system, it is first necessary to briefly summarise the stages at which a person suspected or accused of a criminal offence can be detained prior to trial (commonly known as pre-trial detention (PTD)). PTD traditionally refers to detention of a person, by a court, prior to trial. However, since the police also have the power to detain unconvicted persons (both before and after a charge), these have been included in this summary. After a person is arrested on suspicion of an offence, decisions about their detention or release can be made at various stages prior to any potential trial. The first, and earliest, point at which this can happen is before a person is charged with any offence (hereafter, the pre-charge stage). The second stage is after a suspect is charged with offence, but before their first appearance at court (hereafter, the post-charge stage). At both of these stages, the decision as to whether a person should be released or detained is made by the police (specifically, a custody officer). The third stage at which such decisions will be made is after the accused person (now referred to as a defendant) has appeared at court for the first time (hereafter, the court stage). The court stage also includes such decisions made at the conclusion of any subsequent court hearings involving the defendant. At the court stage, PTD decisions are made by judicial figures – specifically, Magistrates or District Judges in a Magistrates’ Court; or professional judges (such as Circuit Judges) in the Crown Court. Whilst PTD will not normally be the primary focus of court hearings, all such hearings must end with a decision about the liberty of the defendant. Decisions or hearings relating to PTD in E&W are commonly referred to as ‘bail’ or ‘remand’ hearings; in this sense, if one encounters a reference to bail or remand in relation to court proceedings, this can be equated to PTD decision-making. Notwithstanding the different figures responsible for these decisions, one element is common across all stages: a person suspected or accused of an offence is at risk of being deprived of their liberty; or, if they are released, of being the subject of ‘conditions’ which can regulate or control their behaviour. As such, PTD at all stages has a significant impact on the fundamental rights of people who have yet to be charged, tried or convicted.
If suspects are not charged with an offence, there is a presumption that they will be released without bail (that is, unconditionally). This presumption was recently introduced by the Policing and Crime Act 2017. However, this presumption can be overturned if certain pre-conditions are met, meaning that a suspect can be released on bail for 28 days (initially). This will allow the police to attach conditions to release. Crucially, if the police decide it is necessary (to secure or preserve evidence or obtain evidence through interrogation), a suspect can also be detained until they are charged with an offence. This is, initially, for a maximum of 24 hours (which can potentially be extended) and is subject to review.
After a person is charged, they can either be released (with or without bail); or detained (if the police believe that they may fail to attend court, commit an offence or interfere with witnesses). Whatever decision is made, it will apply until the charged person’s first court hearing. Both pre and post-charge, all suspects held in police custody are entitled to legal representation if they request it, regardless of means (under s.58, Police and Criminal Evidence Act (PACE) 1984).
If an accused person is detained post-charge, they must appear before a Magistrates’ Court quickly. Normally, this will be no later than the first court sitting after charge (generally, within 24 hours of being charged). At the end of this first court hearing, the defendant must be released or detained; as such, this represents the first ‘formal’ PTD hearing for those accused of criminal offences. Importantly, there is a presumption of release on bail for every defendant (under s.4, Bail Act 1976). This applies at all stages of proceedings (there are some exceptions to this presumption). The presumption can be overturned if the court has reasonable grounds for believing that detention is justified. There are a number of available ‘grounds’ for detention under the Bail Act 1976, with the main ones being the fear that the defendant may fail to surrender to the court; may offend on bail; or may interfere with the administration of justice (for example, by intimidating a witness). In deciding whether the ‘grounds’ to detain a defendant are established, the court should consider various factors, including the nature and seriousness of the offence; the probable outcome/sentence; the character of the defendant; antecedents (previous convictions); and the defendant’s bail record (that is, whether they have breached bail conditions in the past).
If the presumption of release is not overturned by the court, a defendant will be released on either unconditional bail or conditional bail. With the former, the only requirement is for the defendant to return to court for a future hearing (for example, a trial). With the latter, the defendant can be released subject to additional requirements, commonly known as ‘conditions’. Conditional bail is effectively an alternative to detention; that is, when the court feels that the defendant needs to be subject to some measure of control or monitoring, but detention is inappropriate or disproportionate. Conditions can therefore be attached to release, primarily if the court believes that the defendant might fail to surrender to custody; might offend on bail; or might interfere with witnesses or the administration of justice (among others). The court has significant discretion in terms of the type of conditions it can impose. There are three basic categories: a surety (the surrender of something of value, such as a passport); a security (sometimes known as ‘money bail’); and ‘other conditions’. The first two categories (particularly securities) are generally unusual in E&W. Other conditions are common, and can include (theoretically) anything the court thinks is necessary. However, frequently used conditions include a residence requirement; a curfew and/or electronic monitoring (or ‘tagging’); or the requirement to stay away from a location or person (for example, a witness).
Defendants can be represented by a lawyer at court, but – in contrast to police custody – are not entitled to this (with some limited exceptions). Whether a defendant will qualify for legal aid will depend on whether they pass an interests of justice test; and a means test. If the defendant does not qualify for legal aid or cannot afford their own lawyer, they may be unrepresented. A ‘duty’ lawyer scheme operates in English and Welsh criminal courts, which provides a lawyer to unrepresented defendants on a rota system. That is, a lawyer will be assigned a ‘slot’ during which they will provide representation at court to defendants who require it. However, if the current duty lawyer is not available when a defendant requires one (perhaps because they are covering another case); or is unable to deal with the case because of its nature, a defendant may be left unrepresented.
Research on pre-trial detention in E&W
E&W has one of the lowest ‘proportional’ PTD populations both in Europe and globally, at approximately 10% of the prison population. However, this figure needs additional context. E&W also has one of the highest prison populations per capita in Europe (141 per 100,000); therefore, the gross number of pre-trial detainees is significant (roughly 9,000 persons on any given day). It should also be added that this figure relates only to those placed in detention by the court – it does not include those in police custody, a figure which is not routinely published. The number of persons placed in PTD annually has varied over the years, but was estimated to be roughly 80,000 in 2016. In that year (and the following year), it has also been suggested that 10-12,000 people facing less serious offences were kept in PTD. Finally, the average number of persons held in PTD on any given day has been decreasing over the last decade (whilst the overall prison population has been increasing, until recently). PTD has largely received little attention from policymakers, although the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 did usher in some significant changes with the aim of lowering the PTD population. In essence, this legislation restricted the circumstances in which the presumption of release could be overturned at the court stage in relation to summary (that is, minor) non-imprisonable offences and introduced a ‘real prospects’ test – that is, courts making PTD decisions needed to consider whether there was any ‘real prospect’ that a defendant would receive a custodial sentence if convicted.
Some research has been conducted on PTD at the court stage over the past two decades, but a limited amount. Hucklesby conducted research on bail and detention in the late 1990s; HMIP undertook a thematic review of remand prisoners in 2009; and the Howard League for Penal Reform conducted some examination of this area in 2014. Most recently (2016), Professor Ed Cape and Dr Tom Smith undertook research in England and Wales as part of a 10 country study of PTD (coordinated by Fair Trials International, and backed by the EU Commission), producing a report entitled the ‘Practice of Pre-trial in England and Wales’. The project examined five aspects of PTD decision-making: process (how decisions are made); substance (content/nature of decisions); review (scrutiny of decisions); alternatives to PTD (specifically, the use of conditional bail); and outcomes (the case outcomes for defendants subjected to PTD). The project examined these aspects of practice based on observation of PTD hearings; interviews with lawyers and judges; a survey of defence practitioners; and a review of prosecution case files.
Processes used in E&W PTD hearings were broadly compliant with European Convention on Human Rights (ECHR) standards. Detained defendants were promptly produced; were normally present at hearings, and represented by a lawyer. When defendants were detained, trials normally took place quickly. However, PTD hearings were often uncontested (that is, parties did not challenge each other); were reliant on police and prosecution information, rather than an extensive, objective body of evidence; and were generally short and formalistic. Disclosure of information to the defence prior to hearings was the subject of limited regulation; so much so, that it was possibly in breach of the EU directive on the right to information by virtue of its narrow scope. There were significant problems with timely disclosure, with concerns about the lack of material available to the defence prior to hearings (although prosecutors were generally observed to share such information if it was available). Defence practitioners generally felt that most disclosure was ‘somewhat’ sufficient.
The most common outcome in observed hearings was unconditional bail; the most common outcome in reviewed cases was conditional bail. Defendants were detained in approximately 40% of observed hearings and reviewed cases. Most applications for detention by prosecutors were granted, and where detention was approved by the court the most common ground for doing so was fear of further offences. In establishing grounds for detention, the most important factor influencing the decisions of courts was a defendant’s history of offending. In terms of the nature of the decisions made, witnesses were rarely called to give evidence in PTD hearings. Additionally, the reasoning provided by judges for their decisions was limited at times, arguably in breach of ECHR jurisprudence. In some cases, Magistrates were observed confusing ‘grounds’ for detention with the ‘factors’ to be taken into account. As such, rather than using a factor as evidence to establish a ground (for example, using a history of offending to establish the ground of ‘fear of further offences’), some Magistrates would simply detain on the basis of a factor (for example, the seriousness of the offence). This was therefore in breach of domestic legislation, specifically the Bail Act 1976.
In terms of the use of alternatives to detention, bail (both types) was granted in approximately 60% of observed hearings and reviewed cases. Extensive use was made of a limited range of bail conditions, with the most frequently imposed being a residence requirement; an order to stay away from person or location; and imposition of a curfew or electronic monitoring via a ‘tag’. The research also found that bail was not limited to less serious cases; in one observed case, a defendant accused of rape was released on unconditional bail (although this was exceptional). Concerns were raised by practitioners and judges about monitoring and enforcement of conditions, which could potentially undermine confidence in their use as an alternative to custody. Additionally, there was concern about the lack of available bail hostels and bail information schemes, which were felt to be helpful in ensuring that defendants were not detained unnecessarily.
Generally, review of PTD decisions took place quickly. When a defendant was detained by the court, such a review had to take place within 8 days. When PTD decisions were reviewed in the Crown Court (for example, when a defendant appealed a decision or when a routine review took place in serious cases), defendants were generally not present (although were normally represented by a lawyer). Practitioners and judges could not adequately explain why this was, with the ultimate conclusion being that non-appearance was simply habitual. Review hearings experienced the same issues as at initial hearings, namely limited reasoning, a lack of evidence, and short length. There was some anecdotal evidence to suggest that an informal ‘reversal’ of the presumption of release operated at the review stage. That is, when a defendant was detained at a previous hearing, the review court would expect the defendant to show why they should be released. This appeared to be a prima facie breach of the presumption under the Bail Act 1976, suggesting that securing release at the review stage was significantly harder for detained defendants. Finally, the research examined final outcomes in cases where defendants had been detained at some point during proceedings. This was only recorded for case file reviews as observed cases could not be followed through to completion. The research found that nearly 25% of defendants detained at some stage were acquitted or had the case against them dropped. Of the remainder, just under one-third received a non-custodial sentence. Additionally, nearly half of defendants detained at some stage prior to trial did not go to prison after conviction. Of those who did receive a custodial sentence, nearly all received a sentence longer than the time spent in PTD.
On the basis of these findings, the authors made a number of recommendations. It was suggested that the law regulating PTD should be simplified and codified in one statute. It was also suggested that judges and prosecutors should receive consistent and regular training on ECHR standards, due to an apparent lack thereof. The report also recommended clarified and extended regulation to ensure defendants had access to all relevant information, material and evidence prior to PTD hearings. The research recognised that a lack of time and resources was a significant factor in a number of the problems identified, and suggested that more time and resources be made available to the courts, the prosecution and the defence to ensure thorough and fair consideration of PTD decisions. It was also suggested that more resources be made available for the provision of bail information services and bail hostels, and that the mechanisms for monitoring and enforcing bail conditions should be reviewed and strengthened.
Recent reform in this area
Since the research was published, some progress has been made in implementing these recommendations. In March 2016, Professor Cape and Dr Smith engaged with the Criminal Procedure Rule Committee (hereafter, the Committee), the agency responsible for drafting the rules governing criminal proceedings (the Criminal Procedure Rules, hereafter CrimPR). The Committee had pre-existing concerns about aspects of PTD practice, including problems with disclosure of information and evidence to defendants prior to hearings and the amount of scrutiny undertaken during hearings. Based on the research report, the authors engaged in dialogue with the Committe over a period of several months; attended Committee meetings; and submitted a position paper relating to the recommended changes to PTD practice. On the basis of this (alongside contributions from a number of other stakeholders), the Committee proposed changes to the CrimPR in late 2016. These changes would clarify and expand the scope of initial disclosure required of prosecutors before a PTD hearing; introduce a new rule requiring defendants to be given sufficient time to consider information and evidence before a PTD hearing; and amend an existing rule, to require the court to ensure sufficient time is taken in considering PTD decisions. These proposals were accepted, becoming law in February 2017.
Current and future issues in pre-trial detention practice
Notwithstanding these very positive developments, the research – and other developments since – suggest that PTD practice in E&W has a number of ongoing challenges that should, ideally, be addressed. These include the problem of limited information and disclosure; the ‘routinisation’ of PTD hearings; the viability of alternatives to detention; access to lawyers and legal aid; and the use of Video Link (VL) technology in PTD hearings.
Limited information and disclosure
Courts rely primarily on police and prosecution information and summaries in PTD hearings. The research (alongside a more recent study by Transform Justice, in 2018) suggests that such material has some problems of reliability, accuracy, completeness, and availability at the early stages of a case. Whilst this is, to some extent, understandable considering that a hearing will normally take place within a day of charge, there is undoubtedly a gap in terms of material that can and should be supplied. This problem is exacerbated by a lack of clear and extensive regulation for disclosure of information to the defence in advance of PTD hearings. At the time of the research, this was primarily regulated by the CrimPR, specifically Rules 8 & 14. The requirements were fairly limited, both in terms of scope and the obligation to provide material to the defence in advance of proceedings. The regulation therefore appeared to be in breach of Articles 6 and of the 7 EU directive on information, which mandate disclosure of a more extensively defined category of material and information. As described above, the CrimPR were amended in 2017 and this went some way toward addressing these issues on paper. However, it is as yet unclear whether these amendments have been impactful in practice. As noted earlier, prosecutors did generally share available information with the defence when they could; but equally, 30% of surveyed defence lawyers stated that they regularly received no paperwork pre-hearing. Such issues impact on the accuracy of decision making and the fairness of the hearings for defendants, since a lack of information will inevitably limit the ability of defendants and their lawyers to challenge detention applications.
Similarly, PTD prior to the court stage is also afflicted by problems in relation to disclosure. These are, arguably, even more acute and impactful. At the pre-charge stage the police and prosecution have few requirements to disclose information (with some limited common law requirements and some regulation in PACE 1984, Code of Practice C). Post-charge, disclosure is generally regulated by statute (specifically, the Criminal Procedure and Investigations Act 1996) although this primarily relates to disclosure once a defendant pleads not guilty or is anticipated to plead not guilty. Generally, there is an ongoing ‘crisis’ in relation to the disclosure of evidence and information which might assist the defence at the pre-court stage (which covers material which would be useful for the purposes of PTD decisions). There have been a number of high profile cases involving disclosure failures (for example, that of Liam Allan, in December 2017). This has led to the halting of a number of prosecutions due to concerns about inadequate disclosure; a critical parliamentary inquiry into the issue (published in July 2018); and a review by the Attorney General (published in November 2018). As such, at all stages, the failure to provide information and evidence to the defence can impact on the ability of accused persons to adequately engage with and challenge bail decisions and the ability of authorities to make fair and proportionate decisions which take such representations into account..
Routinisation of PTD hearings
Another concern raised by the research was that PTD hearings are ‘routinised’ – that is, conducted in a very routine manner with limited engagement with individual cases on the part of practitioners. Hearings were largely uncontested, with little discussion or debate amongst lawyers or judges. Hearings were also very swift, lasting only a matter of minutes on average. Whilst this is not inherently inappropriate, the frequency with which proceedings were dealt with in this almost cursory manner raises the risk that cases of genuine complexity might be not be scrutinised properly. The brevity of hearings and the speed of the overall PTD process can arguably be explained by a range of factors, including the actual or perceived simplicity of many cases; pressures on lawyers and judges to make decisions quickly; the long-running agenda of maximising efficiency in courts; and statutory time limits on the detention of defendants (which would therefore motivate all parties to proceed with in-custody cases as quickly as possible to avoid any undesired release of a defendant). Hearings also appeared to be formalistic; that is, the submissions of parties and the judgments of the court were often repetitive, generic, and closely reflected the ‘formal’ wording of the law. There was often a lack of individualised rationale for decisions in cases – that is, one which relied on and engaged with the specific facts and issues in the case before the court. It might therefore not be obvious to a defendant exactly why decision has been made (even if such reasons were obvious to the judge and lawyers). Generally, the reasoning provided by judges was limited – in some cases, no reasoning was provided at all or no decision was clearly announced. Such practice appeared to pose issues of compliance with ECHR jurisprudence. Overall, the findings (and the response to their publication and dissemination) suggested an attitude of complacency and political lethargy to PTD practice in E&W. An exception was the proactive and engaged response of the Criminal Procedure Rule Committee; otherwise, no action has been taken by Government or other bodies, despite the inclusion of PTD as part of the 2030 Sustainable Development Goals (which the UK is committed to). Most practitioners who engaged in the research appeared to think the PTD system in E&W was adequate, despite identifiable problems and areas for improvement.
Viability of Alternatives to Detention
The research also identified three significant problems with alternatives to detention: bail information schemes, which practitioners considered to be useful but lacking provision across courts; the lack of availability of bail hostels when a defendant did not have a suitable address to be released to (which could lead to unnecessary detention); and concerns about the monitoring and enforcement of bail conditions. Bail information schemes involve specialist assessment of the needs and circumstances of a defendant, which is used to provide recommendations to the court about appropriate conditions for release. This is normally conducted by probation officers. Whilst the input of the scheme was not always necessary, practitioners and judges noted the usefulness of this support in some more challenging cases, particularly those involving issues such as mental health and addiction. As such, this was generally regarded to be a valuable service for prosecutors and judges when making PTD applications and decisions. However such schemes were not consistently available at courts, with some schemes only being available on certain days or simply not being available at all in other locations. This might therefore rob decision-makers of valuable insight into the best way forward. A similar problem affected bail hostels, officially known as ‘approved premises’ – a form of accommodation used to house released defendants in the community. These are utilised when a defendant does not have an appropriate address to which they can be released on bail. They are particularly useful for offences involving domestic violence (which will often involve a defendant and complainant who co-habit) or homeless defendants. Like bail information schemes, bail hostels were lacking in terms of availability or might be located in inappropriate locations (such as being some distance from a defendant employer). As such, when a defendant had no address or no suitable address, the court might have no choice but to detain them. In some cases, this might be unnecessary or disproportionate.
In terms of monitoring and enforcement of alternatives to detention, it would be fair to say that prosecutors and judges were generally confident in using conditional bail. Electronic ‘tagging’ was considered to be the most effective condition, and appeared to be used commonly. However, some practitioners and judges expressed concerns about effective and consistent monitoring of conditions and enforcement of breaches. There was, to some extent, a lack of clarity as to who was responsible for checking defendants were abiding by conditions. The default assumption was that the police should do so, although this was not necessarily clear. Particular concern was expressed about monitoring and enforcement of residence conditions; ‘no contact’ orders (especially via social media); and the condition to report to a police station. Ultimately, it was felt that, in many cases, it was difficult to ensure that adherence to these conditions was effectively supervised and that breaches could be detected and acted upon (with the exception of ‘tagging’, which has a fairly clear protocol for this). In this sense, confidence in the effectiveness of the conditions as regulators of defendant behaviour – and therefore as alternatives to detention – could be undermined. That being said, the courts utilised conditional and unconditional bail in the majority of cases, suggesting that such misgivings have not necessarily translated into more restrictive use of alternatives.
Access to lawyers and legal aid
As highlighted earlier, access to a lawyer is an entitlement for all suspects in police custody regardless of means; but not for all defendants at court. Access to a lawyer is a vital element of the right to a fair trial (Article 6, ECHR) which should be available from the very start of criminal proceedings (for example, see the case of Salduz v Turkey). In relation to PTD (in both police stations and courts), access to a lawyer helps an accused person understand what is happening; challenge decisions; and ensure those decisions are taken legitimately. Provision of lawyers and the quality of representation is affected by both the amount of legal aid funding for lawyers and the law firms who employ them, as well as the eligibility of defendants at court for legal aid. With this in mind, it is important to highlight that (notwithstanding claims it has ‘spiralled out of control’) legal aid funding has reduced year on year since 2004, and fees for legal aid lawyers have been effectively ‘frozen’ since the mid 1990s. Significant cuts to fees were imposed in 2014; and further planned cuts were either abandoned (2015) or ruled unlawful (2018) – although, may well be imposed in the future. Evidence suggests that the overall number of firms and providers of criminal legal aid services has reduced, with a consequent impact on the numbers of lawyers available to provide such services. We might therefore ask what the impact of this is on PTD decision-making.
Notwithstanding the challenging climate in which criminal legal aid now exists, suspects in police custody continue to remain entitled to a lawyer if they request it. However, the reality of uncompetitive, fixed fees for police station advice work may mean an impact on the availability of providers (for example, in rural areas) and the quality of advice provided (for example, if firms are forced to rely on less experienced and/or qualified advisors for financial reasons). A lack of available lawyers may mean long delays in arrival at the police station; those who request advice may be deterred from waiting for their lawyer, leaving them unrepresented and the police freed from external scrutiny in considering PTD decisions. Fewer defendants in court now qualify for a legal aid lawyer due to restrictions on the rules of eligibility. Moreover, a smaller pool of legal aid providers and lawyers may mean that ‘duty’ schemes in courts are stretched beyond capacity, with demand outweighing supply. A major concern is that defendants may be forced to appear as ‘litigants in person’ (that is, unrepresented) in PTD hearings. Some evidence suggests this is happening in criminal proceedings (for example, a suppressed Ministry of Justice report and research undertaken by Transform Justice). Unrepresented clients at court is rarely a desirable outcome for any party, with defendants potentially disadvantaged and the time of courts wasted. Overall, the fundamental concern is that fewer lawyers with less time and shrinking resources may impact access to a representative and therefore the quality of PTD decisions affecting defendants. PTD hearings should have meaningful input from both parties; without a defence lawyer involved, a defendant is at a significant disadvantage and the court is robbed of a valuable perspective in choosing whether or not to overturn the presumption of release.
Video Links and PTD
The use video link (VL) technology in court proceedings is not new, and is relatively widespread (although is not the norm in criminal proceedings generally). Currently, the Ministry of Justice is in the midst of a £1bn reform programme designed to ‘modernise’ the courts, and the use of VL is a major part of this. In terms of PTD hearings, the primary benefit is saving time and money by avoiding the need for detained defendants to be transported to court from a prison or police custody. Many PTD hearings are already conducted using VL; the Ministry of Justice has also suggested that, in the future, VL might be used for all but exceptional PTD hearings. However, some concerns exist about the use of VL in such hearings. The reliability of the technology used has been called into question (for example, when the virtual connection between the defendant and the court is lost during proceedings). Questions have been raised about the variable quality of VL and the impact it has on PTD decision making (for example, poor audio and visual quality). Access to legal advice for those on VL may be more inconsistent; the ‘duty’ lawyer (if available) will be at the court centre rather than custody. There may be problems of access for lawyers in custody locations (particularly prisons). As such, defendants appearing virtually may not have a lawyer at all. If they do, it may be more difficult for them to consult their lawyer in private, as there are significant concerns about how well police stations and prisons ensure defendants are not observed or monitored. Some research suggests that the psychological impact of a virtual appearance, specifically feelings of isolation and disengagement from proceedings (particularly for those with vulnerabilities) may impact the fairness of proceedings. Finally, there are also concerns about the accuracy of claims that it saves time and money, particularly if proceedings are slower or interrupted. In 2010, research by the Ministry of Justice suggested defendants appearing via VL in PTD hearings were less likely to be represented. A more recent study by Transform Justice (2017) found that 58% of court users thought VL made it more difficult for defendants to engage. Multiple studies of VL in bail immigration hearings have been critical, noting that applicants are depersonalised and isolated from the court. All of these concerns should be borne in mind for the use of VL in PTD hearings.
When compared with other systems – both in Europe and globally – it is reasonable to argue that E&W operates a system that, in theory, is well designed, fair and balanced. In practice, PTD does not appear, when taken at face value, to be used excessively – but it is difficult to determine what proportion of cases may involve detention which is inappropriate, unjustified or possibly unlawful. Considering the proportion of defendants who are either not convicted or not imprisoned after conviction (in combination with the somewhat superficial approach PTD decision-making observed in a number of cases), PTD does not appear to operate as a matter of last resort. If this were the guiding principle, it appears difficult to justify the detention of 40% of defendants. Whilst the system and its practical operation do compare favourably with some European neighbours, there are undoubted problems which have existed for a number of years and which, if unchecked, can feed unfair and opaque decision-making, inadequately regulated conditional release and, ultimately, unnecessary deprivation of liberty. Complacency as PTD practice in E&W, at both a political and practice level, appears to be entrenched. Bearing in mind that PTD is likely to be in the ‘front line’ of future reform of criminal proceedings (both financial and technological), this apathy towards the need for improvement is concerning. That being said, interest in the area has been growing in recent years. In March 2018, Transform Justice undertook research into remand hearings which provided further insight into the issues affecting this area of practice, and have proceeded to lobby for reform. In April 2018, the Commonwealth Human Rights Initiative gathered a roundtable of academics (including Dr Smith) to discuss pre-trial detention in relation to the UN’s Sustainable Development Goals (to which the UK Government is committed), which includes limiting excessive pre-trial detention. In July 2018, the House of Commons Justice Committee published an inquiry into disclosure in criminal proceedings, referencing written evidence based on Professor Cape and Dr Smith’s research. One can only hope that, with sustained effort, awareness can be raised and action taken on the issues highlighted in this presentation.