• New evidence suggests thousands are being imprisoned awaiting trial without proper legal reasons given for the decision to hold them.
• Biases around race, nationality, and the use of a secure dock (which can be random), may be significantly impacting magistrates’ courts’ decisions about bail.
• Lack of public data is letting these problems flourish unchecked.

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New data out today from the cross-party legal reform charity JUSTICE suggests magistrates’ courts’ may be sending thousands of people to prison to await trial without giving proper legal reasons for these decisions.  

One in five people in prison are being held awaiting trial or sentencing – up from one in nine in 2019. This jump – largely caused by increasing numbers in custody awaiting trial – has been a key driver of prison overcrowding. But, until now, a serious lack of public data has obscured its causes.

Today’s report (Remand Decision-Making in the Magistrates’ Court: A Research Report), based on the observation of over 740 hearings across England, opens this black box of bail decision-making. It finds that most decisions to either jail people awaiting trial or add conditions to their bail did not follow the correct legal processes.

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Fiona Rutherford, Chief Executive of JUSTICE, says, "We should all be able to trust that courts follow basic legal steps when making life-changing decisions. 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.”  

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Those jailed while awaiting trial often experience some of the worst conditions in the prison estate, denied access to rehabilitative programmes and frequently held in increasingly overcrowded local prisons. They are more likely than other prisoners to have problems accessing mental health care and are at an increased suicide risk. They often spend months or even years awaiting trial – as of 2022, more than 2,000 people had spent over a year in prison before being tried.

The increase in the remand population has placed significant strain on prisons; in 2022, the Government responded by allowing prisoners to be housed in police cells. Not only is police custody an unsuitable place to house prisoners, doing so costs around £3,500 per person per night (27 times the average prison cost).

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Most decisions breached correct legal processes

The law says defendants should be released on unconditional bail to await trial unless there are substantial reasons not to. Any decision to override this is supposed to be made with reference to the relevant law (the Bail Act 1976); give reasons in language the defendant can understand; and refer to the facts of their particular case.

Yet the large majority of decisions to either imprison people or impose conditions on their bail observed by JUSTICE did not follow this correct legal process:

• In only two out of five cases where objections to bail were raised by the prosecution was the relevant law referred to by decision-makers.  
• Just two out of every 10 decisions to remand in custody or impose bail conditions referenced the relevant law and gave full reasons with reference to the facts of the case.
• More than one in ten defendants were reported as having limited, very little, or no understanding of proceedings. Only two of every ten defendants for whom English was not their first language and who were reported as having a poor understanding of English were provided with an interpreter in court.

Taken together, this data suggests thousands of people may have been imprisoned without magistrates’ courts following correct legal process, and without people fully understanding the proceedings they were subject to.

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Emma Snell, Senior Legal Fellow at JUSTICE and the author of today’s report, says, “If you are locked up before being tried, the least you should expect is that this decision was made following correct legal processes and was explained to you. Yet this is frequently not happening. This lack of due process invites biased outcomes. Non-UK nationals, and those placed in a secure dock (often for reasons entirely unrelated to their case) are getting sent to jail to await trial far more often than others. Racialised people charged with serious offences are less likely to be granted bail without conditions than white people charged with similar offences. 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.”

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Evidence of bias

The data shows non-legal factors such as race, nationality, and the use of secure docks and video links for defendants are impacting court choices about whether to either grant people unconditional bail, impose conditions on their bail, or jail them while they await trial.  

• People appearing in a secure dock were more than eight times as likely to be jailed awaiting trial compared to those sitting in the central courtroom area, even though this placing often appeared to reflect court-specific rather than defendant-specific factors (for example, because an earlier case called for a secure dock).
• Non-UK nationals were almost 50% more likely to be denied bail than their UK national counterparts, despite little evidence they are more likely to fail to surrender to court.  

• Non-white defendants accused of high to very high severity offences were more than 50% less likely to be granted unconditional bail than white defendants accused of comparable offences.

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Sir Bob Neill MP, Chair of the Justice Select Committee and Conservative MP for Bromley and Chislehurst, says, “This report reinforces concerns raised by the Justice Committee in our own report on remands in custody, published earlier this year.

“Understanding why and how decisions to remand people in custody are made is vital to easing prison overcrowding. It is shocking that no data has existed to shed light on remand decision-making until now. This data reveals serious problems in the way decisions about people’s liberty are currently being taken. It is deeply concerning that such decisions are being made without regard to due legal process. Clearly more needs to be done to investigate and address poor decision-making in the magistrates’ courts.”

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Notes to editors

1. You can read the full report here: Remand Decision-Making in the Magistrates’ Court: A Research Report. The report uses data on remand decision making in 742 magistrates’ courts’ hearings collected by JUSTICE between January 2020 and December 2022. Most court bail decisions in England and Wales are made in the magistrates’ courts by either a bench of usually three lay magistrates or a district judge.  
2. As of September 2023, there were 87,576 prisoners in England and Wales, 16,196 of whom were on remand. In September 2019, there were 83,810 prisoners in England and Wales, 9,602 of whom were on remand.
3. A 2022 freedom of information request by Fair Trials revealed that more than 2,000 have been held for over a year awaiting trial.
4. Please direct media queries to press@justice.org.uk