Magistrates are failing to follow the law when they send thousands of people to prison on remand, exacerbating England’s prison overcrowding crisis, a report has found.
The remand population is at a record high, with one in five people in prison awaiting trial or sentencing, up from one in nine in 2019. Police cells are being used to hold prisoners, and the government is planning to hire cells abroad because of a 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 refer to the relevant law and give full reasons with reference to the facts of the case, as required by the Bail Act 1976.
Justice said this undermined fairness and increased the likelihood that remand would be imposed unnecessarily. In two cases, the decision to remand took as little as two minutes.
Fiona Rutherford, chief executive of Justice, said: “We should all be able to trust the courts to follow basic legal procedures when making life-changing decisions. The decision to imprison someone who has not yet been charged or convicted can shatter lives, leading to job loss, homelessness and severed links with family and support services.
“Many of these people will have spent months, if not years, in an inappropriate cell while their lives fall apart. All too often, magistrates’ courts fail to take the correct legal steps when making these important decisions.”
The report says that despite the strict test for remanding someone in custody or imposing conditions on bail under the Bail Act, unconditional bail was granted only 21% of the time. Defendants charged with low to medium level offences were remanded in custody 31% of the time.
According to Justice, people held in custody while awaiting trial often experience some of the worst conditions in the prison estate, are denied access to rehabilitation programmes and are often held in increasingly overcrowded local prisons.
They are more likely than other prisoners to have problems accessing mental health care, are at increased risk of suicide and can spend months or even years awaiting trial.
The report also suggests that prejudices about race, nationality and the use of video link or secure dock – which can be arbitrary and unrelated to the risk posed by the defendant – can significantly influence decisions not to grant bail.
Emma Snell, senior legal fellow at Justice and author of the report, said: “It is time for the government to examine these disparities and what drives them, and to take steps to ensure fair and accountable decision-making in magistrates’ courts.”
Bob Neill, the Conservative chairman of the justice select committee, said the report revealed serious problems in the way decisions were made.
Mark Beattie, the national chairman of the Magistrates’ Association, said bail decisions were some of the most complex magistrates had to make.
He said: “The findings of this report are worrying 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 considerable volume of good and effective decisions magistrates make every day. The report suggests practical steps to increase the use of alternatives to custody, which we fully support.
The Ministry of Justice declined to comment.