Flow charts to guide magistrates’ decisions and greater support for legal advisers are part of a wide-ranging blueprint drawn up by legal thinktank Justice to reduce the number of people locked up before their trial has begun and reduce prison overcrowding.

Two years ago, when Justice published a report that found magistrates were not regularly following the law when jailing people awaiting trial, the remand population was rising sharply. In its latest report, Justice said the remand population now makes up a fifth of the prison population, with 11,629 of the record 17,071 people on remand awaiting trial.

Justice's research revealed divergence in magistrates' approach to remand. To improve decisions, the thinktank said unconditional bail should be the starting point for the bench, with custodial remand the last resort, noting that the onus is supposed be on the court to justify refusing bail. 

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Despite playing a crucial role in ensuring magistrates make correct decisions, Justice highlighted challenges that have made the legal adviser's job harder. For instance, legal advisers are having to spend more time on administrative matters since Common Platform was introduced in 2021, leaving them with less time to advise magistrates and conduct post-sitting reviews.

The report's wide-ranging recommendations include flow charts developed by the Judicial College that set out the steps, in the correct order, that magistrates should follow when making decisions about remand. Post-sitting reviews should be prioritised to support ongoing learning and development. 

Emma Snell, legal policy manager at Justice, said: 'Magistrates’ courts make nearly all the decisions fuelling this overuse of pre-trial prison stays - and under new government plans they will soon be making even more life-changing decisions. The quality of their decision-making is therefore key.'

Magistrates' Association chief executive Tom Franklin welcomed the recommendations but said wider system pressures, such as a shortage of legal advisers, increasing case backlogs and the rising number of unrepresented defendants, also needed to be tackled.