Magistrates are not following the law when sending thousands of people to jail on remand, exacerbating the prison overcrowding crisis in England, a report suggests.
The remand population is at a record high, with one in five people who are in jail awaiting trial or sentencing, up from one in nine in 2019. Police cells are being used to hold prisoners, and the government plans to rent cells overseas because of the lack of capacity.
A report by the legal reform charity Justice says “poor quality decision-making” by magistrates – including in two-minute hearings – may be playing a part.
It sent observers to 742 magistrates court hearings in England and found that four out of five decisions to remand in custody or impose bail conditions did not reference the relevant law and give full reasons with reference to the facts of the case, as is required under the Bail Act 1976.
Justice said this undermined fairness and increased the likelihood of custodial remand being imposed unnecessarily. In two cases, the decision to impose custodial remand took just two minutes.
Fiona Rutherford, the chief executive of Justice, said: “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.”
The report says that despite the stringent test for custodial remand or imposing conditions on bail under the Bail Act, unconditional bail was the outcome just 21% of the time. Defendants accused of offences of low to moderate severity were remanded in custody 31% of the time.
Justice says people jailed while awaiting trial often experience some of the worst conditions in the prison estate, are denied access to rehabilitative programmes and are frequently held in increasingly overcrowded local prisons.
They are more likely than other prisoners to have problems accessing mental health care, are at an increased suicide risk and can spend months or even years awaiting trial.
The report also suggests that biases around race, nationality and the use of video link or a secure dock – which can be random and unrelated to the risk posed by the defendant – may significantly affect decisions not to grant bail.
Emma Snell, a senior legal fellow at Justice and the report’s author, said: “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.”
Bob Neill, the Conservative chair of the justice select committee, said the report revealed serious problems in the way decisions were being taken.
Mark Beattie, the national chair of the Magistrates Association, said decisions around bail were some of the most complex that magistrates had to make.
He said: “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.”
The Ministry of Justice declined to comment.