Skip to main content
15 November 2010

The cruellest wait

Far from toughening up on bail, we should limit the use of jail for people on remand: they are, after all, innocent until proven guilty.

The Conservatives are planning to “get tough with the bail system”. But shadow justice minister Nick Herbert’s view that bail is too easily granted is contradicted by the shocking fact that each year in England and Wales many thousands of innocent people are remanded in prison. Thousands more are held for offences too minor for a jail term.

Each year around 54,000 people are remanded in prison awaiting trial. When their case reaches court, up to one in five will be acquitted, usually with no compensation. Up to half will be convicted and receive a community penalty because their offence was not considered serious enough to warrant imprisonment. Two-thirds of women who enter prison now do so on remand and there is a marked increase in the number of children sentenced to await trial in jail.

Magistrates typically reach decisions about whether to grant bail inside 10 minutes. Decisions can appear to the defendant to be the result of ticking the right box, rather than applying the explicit exceptions to the presumption in favour of bail individually and in detail. This often needless use of custody could be reduced simply by ensuring first that courts receive in good time the information they need, such as mental health assessments, to make sensible decisions about bail and remand and secondly that, for someone with no fixed abode, safe, supervised accommodation is available.

Meanwhile remand prisoners continue to be accommodated in some of the worst conditions in overcrowded local jails, conditions which were condemned by former chief inspector, Sir David Ramsbotham, in his report, Unjust Deserts. In Scotland, presumption of innocence status is recognised by reserving the best accommodation for those awaiting trial. In England and Wales many remand prisoners are held two to a cell designed for one, often with a convicted prisoner. They usually have to share a cramped space where they must sleep, eat their food and see their cell mate use the toilet in front of them. Some are locked up for 22 hours a day.

Many remand prisoners are vulnerable individuals with serious drug and mental health problems. Imprisoning them can have disastrous consequences. A combination of uncertainty, poor conditions and high levels of mental illness combine to increase risk and lead to a situation where 45% of prison suicides last year were committed by people awaiting trial. An email received by the Prison Reform Trust’s advice and information service attests to this:

I am very sad to hear the tragic news of one of my good friends death who died in prison on Saturday. He (like myself) had a history of drug abuse problems. I’ve known a lot of my friends who get out of prison say there is no support for their addictions when they get “locked up”. What I find hard to take is that he was on remand for minor shoplifting charges. He was a very nice person who had personal problems. He worked hard for most of his adult life until he lost his job a couple of years ago with his dependency problems hence getting in debt from a mortgage and having to move to be with his parents. Wouldn’t it be better to have urgent support for people like my friend who get remanded? Why are they locking people up for petty crime?

Nick Herbert’s determination to toughen up the law in relation to bail and remand runs counter to his party’s principled opposition to unlawful imprisonment and the extension of powers to detain people for up to 42 days without charge. What little is left in law of the Magna Carta plainly asserts the fundamental importance of presumption of innocence, trial by jury and habeas corpus. Rather than increase fear of crime by flagging up the few tragic cases in which someone on bail committed a serious offence, it would be more helpful for him to turn his attention to those held on remand who are, as it turns out, unjustly imprisoned.

Far from being goaded into further toughening of an already unfair process, the government should act urgently, both to improve the conditions for people awaiting trial in prison and to reduce any unnecessary use of imprisonment. Holding so many people who should be deemed innocent until proven guilty is unjust, uneconomic and puts undue pressure on an overstretched prison system.

This article appeared in Comment is free on the Guardian’s website.