The role of adult custodial remand in the criminal justice system

We are concerned by the increasing size of the remand population, and in particular by evidence of the increasing length of time people are spending in custody on remand. Efforts need to be focused on reducing this population and bringing forward the hearing dates of trials. A significant proportion of defendants held on remand will be found not guilty, and so it is vital that they are not deprived of their liberty for long periods of time. For those found guilty and given a custodial sentence, they should be progressing on to sentence planning to prepare them for release, rather than waiting long periods of time for their sentence to be passed. The need for efforts to reduce the population are particularly pressing now, given the current capacity crisis in the prison system, and the recent activation of Operation Safeguard to allow the temporary use of up to 400 police cells to hold prisoners, with the growing remand population given as a reason for increased demand on prison spaces.

The large number of people being remanded for non-violent offences suggests that many are being remanded due to repeat offending. This repeat non-violent offending is often symptomatic of underlying vulnerabilities, such as drug abuse, homelessness and mental ill-health, for which there is currently a lack of community provision. We believe that there should be more co-ordinated investment across departments including the Department of Health and Social Care and the Department for Education in community services to divert people from this repeated criminal activity before they reach the stage where the criminal justice system sees no option but to remand them into custody.

We recognise that the pandemic led to delays in court hearings which have contributed to a growing remand population. However, it is important to stress that the remand population has been growing despite a decrease in the number of cases entering the Crown Court, and we are concerned that the impact of higher police numbers and a return to pre-pandemic case levels may lead to further increases in the remand population. In view of the risk of case levels increasing, we recommend that the Government conducts a rapid review to understand why the number of cases entering the Crown Court remains depressed, what the risks are of the number of cases increasing again, and to model the effect of changes in the number of cases entering the system on the remand population.

The growing remand population is clearly a serious concern, both in relation to the numbers being held on remand and the length of time they are remanded to custody for. Custodial remand is a severe deprivation of liberty for those not yet found guilty of a crime and should only be used for those who pose a serious risk to the public or of absconding if they awaited trial on bail, and the remand period should be kept as short as possible to ensure justice is served in a timely manner. (Paragraph 26) The role of adult custodial remand in the criminal justice system 43 Legislative framework and the courts

We have not identified significant issues with the legal framework set out in the Bail Act 1976 but have heard repeatedly that the application of the framework is becoming increasingly risk-averse when it comes to rebutting the presumption of bail. We believe this merits further investigation, and so recommend that the Government commissions an independent review into whether the application of the Bail Act 1976 is still operating as intended.

Magistrates are responsible for hearing the majority of cases that lead to remanding to custody, and we heard that, particularly during the pandemic, the focus of training was on new ways of working and the use of technology. The application of the remand principles and the latest available alternatives to remand should be a focus in magisterial training.

Magistrates are required to communicate their remand decisions to the parties in open court; however, we have heard that this is not always done in a way which is understandable to the parties involved. Pronouncement templates for magistrates should be reviewed to ensure they are as clear as possible for those being sentenced and their use should be monitored to ensure they are being used consistently

Despite there being a legal framework in place that is intended to ensure that people who are detained are brought to trial as soon as possible, in practice a large proportion of the remand population is held beyond the custody time limit of six months. We are very concerned by the recent figures showing that 770 prisoners have been held in custodial remand for over two years. The Government should review the legal framework for custody time limits to determine whether it is effective in ensuring that defendants are not deprived of their liberty for longer than is reasonable. It should be standard practice that custody time limits are strictly adhered to except in exceptional circumstances. In particular, an unconvicted defendant should not spend more time on remand than they would be likely to receive from any eventual custodial sentence, having regard to the relevant sentencing guidelines.

Those convicted but awaiting sentencing are not subject to custody time limits. It is, therefore, all the more important that the Government devotes sufficient resources to reduce delays to sentencing post-conviction. For example, the Government should ensure resources are available for the timely delivery of pre-sentence reports and sufficient judicial capacity to enable judges to sentence defendants as soon as they are able. The Government should also examine the reasons for the increase in the number of convicted defendants awaiting sentence and consider whether there are any procedural or technological reforms that could reduce delays.

We welcome the draft Mental Health Bill 2022 which legislates for the removal of using prisons as a place of safety for those with mental health difficulties. However, we call on the Government to go further, removing the provision in the Bail Act 1976 for remanding people into custody for their own protection in all situations, and providing adequate provision in the community for those people who would have been remanded to custody solely for their own protection.

We note with regret that the Government did not accept the recommendation in our Women in Prison Report to collect data on the number of women being remanded 44 The role of adult custodial remand in the criminal justice system for their own safety. As the draft Mental Health Bill means that the ability to remand for one’s own protection for reasons other than mental health will continue to exist, we reiterate our previous recommendation that the Government should collect data on the use of remand under this provision, not only for women but for all individuals detained for their own protection. (Paragraph 61) Prisons

We have not heard compelling evidence to support the creation of dedicated remand prisons in England and Wales—such prisons can be difficult to govern and run effective regimes within. However, some prisons are now at risk of becoming dedicated remand prisons by default as non-remanded prisoners are moved to other types of prison in order to cope with the capacity pressures caused by the growing remand population. The Ministry of Justice should set out whether this is its policy intention; and if it is not, then HMPPS needs to take steps to reduce the remand population in some of its prisons. We note also that Category B prisons often represent the worst of the prison estate, with poor, overcrowded conditions and staffing difficulties. We also recommend that as the Government invests in its prison- building programme, funding must also be allocated to deliver an improvement in conditions in the Category B estate.

There is clearly a need for greater support to help those on remand while in prison. Due to the average length of time defendants now spend on remand, they are more likely to lose their accommodation, employment, and custody of children, and if found guilty they are increasingly likely to be released on time served without having received the release date required to access some vital services. Support services for those remanded into custody need to be in place to help manage this. HMPPS should ensure that remanded individuals are not deprioritised for services such as mental health assessments, drug treatment, education, training, and employment due to their lack of release date.

Although we recognise that those held on remand are under no obligation to engage with prison regimes, they should be encouraged to take part in meaningful activities and HMPPS needs to ensure that prisons with high remand populations have opportunities available for those held in them to utilise if they so desire. We welcome the increasing availability of shorter courses for those not anticipated to be in prison for long periods of time to take part in, and recommend that the Ministry of Justice ensures that such courses are in place in all Category B prisons by the end of

We heard evidence that targets for the number of visits a remand prisoner is entitled to are still not being achieved as prisons are yet to fully emerge from their pandemic regimes. HMPPS should ensure this entitlement is met, including giving consideration as to whether greater use of video facilities set up to communicate with courts could be used to facilitate remote visits where in-person visits are not possible.

We are concerned by the high number of women placed on remand despite the often low risk that they pose to the public and the fact that many will not go on to receive a custodial sentence. The Ministry of Justice has acknowledged this is a problem, but more action needs to be taken to ensure that low-risk women receive the support The role of adult custodial remand in the criminal justice system 45 they need to await trial in the community rather than remanding them to custody, particularly if it is unlikely that they will receive a custodial sentence following trial. We would welcome an update on the progress on the Female Offender Strategy with regard to ensuring that custodial remand is not used as a default alternative where community provision is not available. We would also welcome an update on the commitment to provide specialist accommodation, finance and debt support for all women on remand or sentenced to custody, due to have commenced in summer 2022.

We recognise the difficulties HMPPS faces surrounding the recruitment and retention of prison staff. This is an issue we intend to explore in more depth in our prison workforce inquiry. Evidence to this inquiry has highlighted how working with remanded prisoners can pose particular challenges for prison officers. Prison officers must be given specialised training on the particular needs of remand prisoners and how to engage them in a prison regime. (Paragraph 98) Resettlement following time spent in custodial remand

We were disappointed to hear that resettlement support is not routinely available to those held on remand due to this category of prisoners being excluded from contracts agreed with providers as part of the reunification of the probation service. Those held on remand have a similar need for resettlement support as the sentenced population and it is concerning that this support is not being provided simply due to contractual issues. We agree with the Minister that it is not acceptable that, in some cases, remand prisoners are being handed tents on release in the absence of suitable accommodation. The Ministry of Justice needs to do more to ensure that all people leaving prison have the option of temporary housing if it has not been possible to find more permanent accommodation prior to release. We welcome the commitment by the Government to update contracts with resettlement teams. The work to include those on remand in the contracts for resettlement accommodation should be completed by April 2023.

It is simply wrong that those who are remanded to custody, potentially for long periods of time, and are then acquitted, have no entitlement to resettlement support. Although they may not fall technically within the responsibility of probation services, the Government must nevertheless find a way to ensure acquitted individuals are supported to return to the community in a way that is at least equivalent to those who are released having served a custodial sentence. As a minimum, they should be assisted in finding temporary accommodation following their release and be entitled to the same discharge grant as those who are sentenced and then released. The renegotiation of accommodation support contracts would appear to be a good opportunity to consider how similar support can be given to those who are acquitted. We would therefore like to see progress in relation to this matter by April 2023, the target date the Ministry gave us for the renegotiation of support contracts. This issue is now all the more acute because of the increase in time that defendants are spending on remand and the increased adverse consequences for them that accompany this. (Paragraph 111) 46 The role of adult custodial remand in the criminal justice system Alternatives to custodial remand

Custodial remand should only be used for those who are not suitable for alternatives, such as conditional bail or electronic monitoring. Greater engagement is needed between the Ministry of Justice and the Judiciary on the alternatives currently available to custodial remand. The Government should ensure that judges and magistrates are aware of the proven effectiveness of these alternatives in order to instil confidence and to increase their usage.

Conditional bail is a good alternative to remanding defendants to custody while also placing restrictions on the activity of an individual to help ensure they do not commit further crimes while on bail or abscond before their trial. However, there is no point applying bail conditions that are so onerous that it unrealistic that a defendant will be able to comply with them. We were struck by the lack of guidance on the use of bail conditions. When sentencing, judges and magistrates must apply sentencing guidelines to determine the appropriate sentence. A framework for bail conditions, with accompanying guidance, could improve the effectiveness and consistency of the use of conditional bail. The Government should engage with the judiciary on how to improve the consistency of bail conditions, for example, by introducing a framework of guidelines on bail conditions. Such a framework could also set out how these conditions can be monitored for compliance to ensure they provide an effective alternative to custodial remand.

We welcome the Government’s commitment to the use of electronic monitoring. Such technology offers opportunities to prevent the use of custodial remand through monitoring in the community and can also monitor compliance with bail conditions. We recommend that the Ministry of Justice ensure magistrates are provided with the information on the forms of electronic monitoring that are available and what they can be used for to improve awareness and confidence in the use of tagging as an alternative to custodial remand.

There should be more consistent provision of Bail Information Services in courts to give decision-makers greater confidence in the bail package being presented to them. We recommend that the outcomes of the current pilot relating to these services are published, and that the service should then be scaled up so that it is available in all magistrates’ courts if it is proven to help in putting together effective bail packages.

The Community Accommodation Service Tier-2 plays an important role in supporting the courts and prisons in making the best use of custody by providing an address for people on bail or licence who have no suitable accommodation. The Ministry of Justice should conduct an assessment of whether the 550 beds currently contracted through the Service is sufficient to meet the requirements of its core user groups, including the extent to which the absence of available accommodation may be an underlying contributory factor in defendants being remanded to custody.

Bail accommodation is a particularly acute issue for women, with shortages of appropriate accommodation and that which is available often being far from home. The role of adult custodial remand in the criminal justice system 47 The Government should look at ways of expanding the accommodation offer and emphasise the use of alternatives such as electronic tagging if suitable accommodation is not available. (Paragraph 139) Data and technology

We recognise that for routine hearings there is a benefit of using video links from prison so a remanded defendant does not have to experience frequent disruption going to and from court. However, the convenience of video technology must not affect a defendant’s access to justice, and should not become a default position because of resource or capacity pressures. It is important that trials and other key hearings continue to be heard physically in court.

The Ministry of Justice should conduct research into the potential effects on remand rates of using video links in prison and police stations to ensure that use of these technologies is not having a significant impact on the number of individuals being remanded to custody.

It is only on the basis of good quality data in respect of the use of custodial remand that there can be effective policy-making. More data needs to be collected and published on remanded defendants, particularly in relation to the reasons for refusing bail, the length of time people are spending on remand as well as demographic information, including vulnerabilities and protected characteristics amongst the remand population, to increase transparency and improve the information available to decision-makers. We recommend that the Ministry of Justice begins to collate, where it does not do so already, and publish data on the remanded population in a dedicated quarterly publication, as it does for the current Offender Management Statistics. We also welcome the current work being conducted by the Centre for Public Data on data gaps in the justice system. The issue of data is one that we routinely raise in our reports, and so we call on the Government to give urgent consideration to the Centre’s recommendations and conclusions when they are published later this year. (Paragraph 155) 48 The role of adult custodial remand in the criminal justice system