Courts failing to follow ‘basic legal steps’ when jailing people before trial, report reveals

Thousands may have been jailed without proper legal justification, ‘deeply concerning’ new analysis reveals

Ethnic minority suspects accused of high-severity offences found to be more than 50% less likely to be granted unconditional bail than white defendants (Getty Images)

Courts are failing to follow “basic legal steps” when deciding to deny bail to suspects awaiting trial, a new investigation suggests – as the record-high remand population fuels overcrowding in full-to-bursting prisons.

More than 16,000 people were on remand in prison as of 30 September, up from 9,600 just four years ago – with many held in harrowing conditions in some of the country’s most overcrowded jails. In 2022, more than a third of all self-inflicted deaths in prisons were among those on remand.

Following frequent expert warnings over the lack of available government data on the soaring remand population, a new investigation has now uncovered widespread failures during the courts’ decision-making process.

Magistrates’ courts could be remanding thousands of people in prison without giving proper legal justification for their decisions, the human rights charity Justice warns, based on new analysis of hundreds of court hearings.

Their report reveals vast racial disparities in bail outcomes, and alleges that various non-legal factors – such as race, nationality and which type of dock a defendant appears in – may be impacting upon these decisions.

“This data reveals serious problems in the way decisions about people’s liberty are currently being taken,” said Sir Bob Neill, Tory chair of the justice committee of MPs. “It is deeply concerning that such decisions are being made without regard to due legal process.

Noting that understanding the reasoning behind remand decisions “is vital to easing prison overcrowding”, Sir Bob added: “It is shocking that no data has existed to shed light on remand decision-making until now.

“Clearly more needs to be done to investigate and address poor decision-making in the magistrates’ courts.”

This ‘lack of due process invites biased outcomes’, the charity warned (Getty Images)

The law states that suspects should be released on unconditional bail unless there are substantial reasons not to. Any decision to override this should reference the Bail Act 1976, give reasons in language the defendant can understand, and refer to the facts of their particular case.

But in 742 hearings across England observed by volunteers, the charity found that just two of every 10 decisions to either imprison or impose bail conditions on a suspect referenced the relevant law and gave full reasons with reference to the facts of the case.

Meanwhile, only one in five defendants reported as having a poor understanding of English and a different first language were provided with an interpreter in court, the investigation found.

This “lack of due process invites biased outcomes”, warned Emma Snell, a senior legal fellow at the charity.

In apparent evidence of this, their investigation found that ethnic minority defendants accused of high to very high severity offences were more than 50 per cent less likely to be granted unconditional bail than white defendants accused of comparable crimes.

And foreign nationals were nearly 50 per cent more likely to be denied bail than their UK national counterparts, despite little evidence they are more likely to fail to surrender to court, the charity said.

Courtroom pressures themselves may also be directly impacting upon decisions, the investigation suggests. Those appearing in a secure dock were more than eight times as likely to be remanded than those sitting in the central courtroom area – despite their placement there often merely appearing to reflect court-specific factors, such as an earlier case having required a secure dock.

Suicides in prison have risen by 24 per cent in England and Wales, official figures show (Ian Waldie/Getty Images)

“It is time for the government to examine these disparities and what is driving them, and for steps to be taken to ensure fair, accountable decision making in the magistrates’ courts,” said Ms Snell.

“We should all be able to trust that courts follow basic legal steps when making life-changing decisions,” added the charity’s chief executive Fiona Rutherford.

“The choice to imprison someone not yet tried or convicted can shatter lives leading to job loss, homelessness and severed connections to family and support services. Many of these individuals will have spent months if not years in an unsuitable cell whilst their lives fall apart.

 "All too often, magistrates’ courts are not taking the proper legal steps when making these important decisions. A dearth of data has allowed this problem to flourish unchecked and hidden; better public data is the first step to fixing it.”

Nick Emmerson, president of the Law Society of England and Wales, said it was “extremely concerning” that the investigation suggested “the law is not being properly applied and that defendants do not understand the decisions being made”.

Speaking amid a crisis in legal aid, Mr Emmerson said the findings stressed the importance of defendants being represented from the very start of their case and ensuring they have full knowledge of the potentially life-changing decisions being made, adding: “Investment is needed to make sure there are enough criminal defence solicitors to represent all those who need them.”

The Judicial Office said it was examining the report and will consider its findings.

Mark Beattie JP, national chair of the Magistrates’ Association, said: “Decisions around bail are some of the most complex that magistrates make in court. Creation of a viable bail package involves numerous services and agencies across government, the balancing of sometimes conflicting factors, and input from defendants’ representatives.

“The findings of this report are troubling, and more work needs to be done to get to the bottom of the reasons for the disparities highlighted. This would shed light on both the challenges and the substantial volume of good and effective decisions magistrates make daily.

“The report proposes practical steps to increase the use of alternatives to remand, which we fully support.

“Firstly, magistrates must be given full information about available alternatives and the suitability of bail addresses by the probation service. Secondly, the required safeguarding checks for curfews need to be conducted quicker. Finally, the roll out of the Bail Information Service to magistrates’ courts should happen as soon as possible as it will greatly assist in speedily identifying suitable bail conditions so that fears of further offending or failure to attend court can be overcome.”