Pre-trial detention and its over-use: Evidence from ten countries

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11 Nov 2019

A new report, Pre-trial detention and its over-use: Evidence from ten countries, is published today by the Institute for Crime & Justice Policy Research (ICPR), at Birkbeck, University of London. The report was authored by Catherine Heard (Director of ICPR’s World Prison Research Programme) and ICPR Research Fellow Helen Fair. It examines policies and practices that can lead to the over-use of pre-trial detention and makes recommendations for reform.

The misuse of pre-trial imprisonment is a major, but preventable cause of prison overcrowding; and a severe infringement of fundamental rights. It causes economic and social harm, puts pressure on prison conditions and increases the risk of crime. Pre-trial detention statistics held on ICPR’s World Prison Brief database show that, since 2000, pre-trial prison populations have grown substantially across much of the world. This is despite increased availability of cheaper, less restrictive measures like electronic monitoring.

This new report looks at pre-trial detention in ten jurisdictions: Kenya, South Africa, Brazil, the USA, India, Thailand, England & Wales, Hungary, the Netherlands and Australia. All but one of these (the Netherlands) currently run their prison systems over-capacity. The research included analysis of national legal systems followed by interviews with 60 experienced criminal defence lawyers across the ten countries. The research found:

  • There is a gulf between law and practice relating to the use of pre-trial imprisonment: although legal systems (in line with international standards) refer to pre-trial detention as an exceptional measure it is, in practice, more often the norm. The problem is rarely the law itself, but wider socio-economic and systemic factors that influence its (mis)application.
  • People from backgrounds of disadvantage are more likely to be arrested, often don’t have money to pay bail, are less likely to have good legal representation – and for these reasons, are more likely to be detained pre-trial. 
  • Aspects of the wider criminal justice ‘machinery’ are also part of the picture: under-resourced police and prosecution services that can’t investigate quickly and effectively; inadequate legal aid; lack of judges and court staff; unmodernised court infrastructure and technology; too few alternatives to custody. All these factors lead to misuse and prolongation of pre-trial imprisonment.
  • Judicial culture and practice are problematic, with judges described as being too ready to make unsupported assumptions about risk; too quick to dismiss defence arguments about weak evidence or ways to mitigate risk; overly influenced by fear of media (and social media) criticism; and disinclined to give concrete, evidence-based reasons for their decisions to remand in custody. 

Catherine Heard, Director of ICPR’s World Prison Research Programme and the author of the report, said:

‘All over the world pre-trial detainees are being held for months or years in prison, waiting for their cases to reach trial or final sentence. The needless use of pre-trial imprisonment carries huge social and human costs and is fueling unprecedented prison population growth and prison overcrowding. There are cheaper, less restrictive ways of ensuring someone turns up to court – and governments serious about safety and justice must now prioritize their use.’

The full report can be found here

A briefing paper setting out the main findings and recommendations on the use of pre-trial detention from the research can be found here