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Pre-trial detention
Right now, over three million people around the world are being held in prison while they wait for a trial. Many have been detained for months, or even years, even though they have not been convicted of a crime. Fair Trials campaigns for states to use pre-trial detention only as a last resort and for people to be detained for as short a time as possible before a trial.
What is the problem?
Pre-trial detention, also known as remand or preventative detention, is when someone is detained by the state while they are waiting for a trial to determine whether they are innocent or guilty of a crime.
Pre-trial detention restricts the right to the presumption of innocence and the right to liberty. It is one of the harshest actions that a state can take against someone and can have devastating consequences. Detained people are separated from their family and friends, at risk of losing their job and home, and can have their reputation ruined.
Discrimination
Pre-trial detention reflects and reinforces discrimination and racism within criminal justice systems as there are often disparities in who is detained and who is released on bail.
In many EU Member States, foreign nationals who are accused of a crime can be routinely held in prison because they are perceived to be a flight risk even if there is no evidence that this is the case.
In the UK, a disproportionate number of people who are Black, Asian and from other racially minoritised groups are held on remand. In 2020, 50% of Black defendants were remanded in custody in England and Wales, compared to 40% of white defendants.
Unfair outcomes
Being held in pre-trial detention can affect how a judge or jury perceives someone and this can have an impact on the outcome of a case. Prison has a physical, mental and emotional impact on an individual, which in turn can have a negative effect on how they are perceived by a judge or jury. When sentencing, judges may also feel the need to retrospectively justify the decision to hold someone in pre-trial, and may therefore be more likely to give a custodial sentence.
Plea bargaining
Putting someone in prison before their trial puts pressure on them to waive their rights, including their right to a trial. It can lead some people to plead guilty even if they are innocent just to get out of detention as soon as possible. Pre-trial detention can be used as a tool to exert pressure, and will undermine how voluntary someone’s consent is to waiving their rights, ultimately undermining the fairness of the proceedings. Read more about plea bargaining.
Flight Risk
Flight risk is one of the most common grounds on which a judge relies to decide on pretrial detention. It refers to someone who is accused of a crime and is considered likely to try to escape out of the country or area before their trial or bail hearing begins. To date, there is no universal terminology to the concept of flight risk.
Prison conditions
Excessive pre-trial detention leads to overcrowding and declining conditions in prison.
In Europe, there is an overcrowding crisis in prisons, which is being driven by excessive pre-trial detention. In many EU countries, a third of people in prison are waiting for a trial. Countries, including France, have been criticised for their appalling prison conditions.
People on remand in the UK told us about the inhumane conditions they had been forced to endure during the Covid-19 pandemic. Read about their experiences in our report, Locked up in Lockdown.
What do we want?
We want states to use pre-trial detention only as a last resort and for people who are accused of a crime to be detained for as short a time as possible. We want states to:
- make the right to liberty the default position;
- only use pre-trial detention as an exception if it is strictly necessary and put measures in place to ensure this;
- move towards alternatives to the carceral system; and
- reduce the number of people being held in pre-trial detention overall.
Having access to a lawyer shortly after arrest can help to reduce pre-trial detention, which is why we are campaigning for the right to counsel in police stations.
What are we doing?
EU
In 2020, pre-trial detention rates rose across Europe, despite the health risks of detaining people in prison during a pandemic. We are calling for EU Member States to review their use of pre-trial detention and implement measures to reduce its use. These measures include:
- making sure that PTD decision-making considers all the procedural safeguards, including the right to legal assistance and legal aid, to ensure the right to a fair trial;
- using alternatives to the carceral system; and
- not extraditing people until their cases are trial ready.
We continue to advocate for the EU to monitor state practices and use of pre-trial detention, through the adoption of common standards on pre-trial detention. In our latest briefing, we highlighted why rising pre-trial detention is a sign of the decline in the rule of law across Europe. We’re asking the European Commission to get Member States to provide information about pre-trial detention as part of the Rule of Law monitoring report.
United Kingdom
In the UK, we have been investigating and raising awareness of the increasing numbers of people who are being held on remand awaiting trial, and for longer. This problem has been made worse by increasing court delays during the Covid-19 pandemic.
We uncovered that thousands of people were being held on remand awaiting trial beyond Custody Time Limits.
In 2021, we asked people being held on remand to tell us about their experiences of prison during lockdown. Published in our report, Locked up in Lockdown, they revealed that people are being held in inhumane conditions for excessive periods of time, leading some respondents to say that they had considered pleading guilty to crimes they hadn’t committed.
Impact
EU
Fair Trials has built an EU-wide network of fair trials defenders who are now working with us to analyse the problems in practice with pre-trial detention in their own countries. Informed by their experience, we have helped to secure new laws that will give defence lawyers access to the information they need to challenge detention.
We have also led the calls for EU-wide action to tackle unjustified pre-trial detention. In 2011, the European Commission carried out a consultation on detention in the EU, with widespread support for action from civil society and member states. The European Parliament has also called for reform of pre-trial detention in the EU. We are confident that our work gathering evidence, training local defence practitioners, and producing comprehensive reports will provide a strong foundation for the ongoing campaign to enact legislative changes to pre-trial detention decision-making in the EU.
United Kingdom
We called for an end to the extension of Custody Time Limits (CTLs) in the UK, which temporarily extended the time that people could be held from six to eight months. We raised awareness of the discriminatory impact of this policy, which was subsequently not renewed.
