A systematic approach to reducing custodial remands: the experience of England and Wales

Under English law, defendants awaiting trial or sentence may be remanded on bail, with or without conditions or in custody. When incarcerated, the term used is remand prisoners. The Bail Act 1976 provides the legal framework for remand decisions. It provides for a presumption in favour of bail in most cases. The fundamentals of the remand system have not changed significantly since it was overhauled in the 1970s. Pressure built during the 1960s to introduce a legal framework which promoted the use of bail and limited the use of “money” bail, thereby reducing the number of defendants remanded in custody. Although the prison remand population has fluctuated since, it continued to fall over the decade prior to the COVID pandemic. It is now one of the lowest per capita pre-trial detention populations in the world.

This chapter will examine the legal framework governing the use of bail and pre-trial detention in England and Wales and explore the reasons for its resilience and apparent success. It will also suggest that much more pervasive problems are the growth in the use of bail conditions, which can severely restrict defendants’ liberty whilst presenting a veneer of freedom, lack of opportunities to review the remand status as cases progress through the criminal process and the increasing use of technology to facilitate remote remand hearings.