Magistrates are regularly not following the law when jailing people awaiting trial, according to a report being published by legal thinktank Justice today.

Analysing data from 742 hearings, the report found that processes for determining bail did not appear to be properly followed and decision-makers rarely provided reasons for their decision, despite being required under the Bail Act and Criminal Procedure Rules.

The relevant law was referred to by decision-makers in only two out of five cases where objections to bail were raised by the prosecution. Two out of 10 decisions to remand in custody or impose bail conditions referenced the relevant law and gave full reasons with reference to the facts of the case. 

Analysis found ‘notable disparities’ in outcomes for non-white defendants, non UK-nationals, defendants without legal representation, defendants who appeared by video-link, and defendants who appeared in a secure dock.

For high to high severity offences, non-white defendants were more than 50% less likely to be granted unconditional bail than their white counterparts. Non-UK nationals were almost 50% more likely to be denied bail than their UK national counterparts. Those accused of high to very high severity offences who were unrepresented were 44% more likely to be remanded in custody than their represented counterparts.

Emma Snell, a senior legal fellow at Justice and author of the report, said: ‘If you are locked up before being tried, the least you should expect is that this decision was made following correct legal processes and was explained to you.’

Mark Beattie JP, national chair of the Magistrates’ Association, said: 'Decisions around bail are some of the most complex that magistrates make in court. Creation of a viable bail package involves numerous services and agencies across government, the balancing of sometimes conflicting factors, and input from defendants’ representatives.

'The findings of this report are troubling, 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 substantial volume of good and effective decisions magistrates make daily.'

Beattie said the association fully supported practical steps proposed in the report to increase the use of alternatives to remand, such as magistrates being given full information about available alternatives and the suitability of bail addresses by the probation service, and the roll out of the Bail Information Service to assist in speedily indentifying suitable bail conditions.

Law Society president Nick Emmerson said: ‘The research demonstrates the importance of defendants being represented from the very start of their case and ensuring they have full knowledge of the potentially life-changing decisions that are taking place. Investment is needed to make sure there are enough criminal defence solicitors to represent all those who need them.’

 

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