While media and public attention has understandably been focused on the NHS and education, the already strained criminal justice system is now struggling to address the backlog of court cases delayed by the pandemic. As a result, the number of prisoners on remand has increased 25% since this time last year to around 11,500, around 15% of the total prison population.
Being ‘on remand’ means being in custody pending a court hearing. Typically, an individual has been arrested and charged and is awaiting trial, or they may have been convicted and are awaiting sentencing. According to http://www.gov.uk, you will probably be put on remand if:
- you have been charged with a serious crime, for example armed robbery
- you have been convicted of a serious crime in the past
- the police think you may not go to your court hearing
- the police think you may commit another crime while on bail
- you have been given bail before and not stuck to the terms
Given the principle of ‘presumption of innocence’, pre-trial detention is subject to safeguards, to protect the individual. In the UK, these are known as Custody Time Limits:
Custody Time Limits (CTL) safeguard unconvicted defendants by preventing them from being held in pre-trial custody for an excessive period of time. The Act and Regulations governing CTL require the prosecution to progress cases to trial diligently and expeditiously. The legal burden of monitoring and complying with CTLs rests on the prosecution. (CPS Guidance, 2020)
In broad terms (with the precise limit governed by the circumstances of the case):
- for ‘summary only‘ offences (offences heard at the magistrates court), the time limit is 56 days
- for ‘either way offences‘ (offences which can be heard at the magistrates or Crown court, depending on whether magistrates feel their sentencing powers are sufficient to deal with the offence), the time limit is also 56 days
- for ‘indictable‘ offences (a serious criminal offence that is triable only on indictment (trial by jury) in the Crown court), the time limit is 182 days
During the lockdown, around half of court buildings were closed for a period. Some criminal and civil hearings were conducted using BT MeetMe for telephone hearings and Skype for Business for video hearings. In June 2020, the Independent reported that the number of cases waiting to be heard at the magistrates court was nearing half a million. The backlog of Crown court cases was around 40,500. However, it is worth noting that it was 37,400 pre-COVID in December 2019, due, among other factors, to austerity-induced cuts to the number of days that Crown courts can sit.
A coronavirus protocol, agreed between between the Senior Presiding Judge (SPJ), HM Courts & Tribunals Service and the Crown Prosecution Service, has allowed for temporary extensions to remand periods. However, some judges are increasingly unhappy with this situation. On 11 September, the BBC reported that:
Judge Keith Raynor refused to extend the time a teenager charged with drugs offences could be held in custody before his trial. Woolwich Crown Court heard Tesfa Young-Williams was charged with serious drug offences last October and had been in custody for 321 days because of delays. That is 139 days beyond the custody time limit (CTL), the judge said.
In July 2020, ten ‘Nightingale’ courts were set up to help clear the backlog. These new venues were meant to deal with non-custodial hearings, to enable existing courts, equipped with cells and secure dock facilities, to run cases involving defendants in custody. However, although a start, the Criminal Bar Association called for a far higher number of venues to be opened. In August 2020, Private Eye (No. 1528) reported that one barrister told a custody time limit hearing:
“When… a man of good character faces an indefinite period of time in custody because there has been a deliberate lack of investment, that cannot in my submission be said to be justice.”
You might think that individuals on remand are going to be convicted anyway and that they must represent a danger to the public, otherwise bail would have been granted. The Prison Reform Trust Bromley Briefings report than more than half of people entering prison on remand awaiting trial are accused of non-violent offences; that two-thirds are awaiting trial (rather than awaiting sentencing) and that around 25% of those remanded into custody by magistrates courts are either subsequently acquitted or receive a non-custodial sentence.
If you are on remand for a number of weeks, there is a real possibility you could lose your job, lose your income, lose your home. Remand prisoners receive no financial help from the prison service at the point of release: you are not compensated if you are acquitted.
You are also 25% more likely to be remanded in custody if you are a Black or mixed ethnicity male, than if you are White male. What is more, compared to the general prison population, a remand prisoner is around 30% more likely to commit suicide.
So the power of the state to imprison the innocent must be used carefully. It is not just to hold someone in prison without any prospect of a timely trial; neither is it just to release individuals who present a likely but unproven risk to their victims and to the public.
The Chancellor has ever increasing demands on the public purse. Prisoners on remand are likely low on public visibility and sympathy in good times, never mind during a pandemic. But for the individuals involved and their families, and for the victims seeking justice, these delays can be devastating. This is a problem that is not going to be resolved quickly.
© Natasha Mulvihill and Criminology Tales, 2020.