Fundamentals on Pretrial Detention and Its Alternatives

Scope and Definition of Pretrial Detention

• "Pretrial" and "remand" detention are used interchangeably, but the extent and definition of remand confinement vary depending on the criminal judicial system.

  • Remand incarceration may consist of stringent pretrial detention, trial pre-conviction detention, and trial post-conviction detention.

  • Its primary objective is to prevent a suspect from fleeing the scene or tampering with evidence.

• Two elements determine the legal position of remand prisoners: criminal procedure and the assumption of innocence.

  • The treatment of remand prisoners must differ from that of condemned convicts.

• The presumption of innocence is essential to the theoretical foundations of remand custody and the criminal justice system.

  • It ranges from a simple regulation for the burden of proof to an overarching principle to ensure the suspect's or accused's procedural rights.

  • In the majority of European nations, the presumption of innocence continues until the last and final sentence is handed down; as a result, individuals are detained in facilities other than conventional jails.

  • In England and Wales, the presumption of innocence ends upon a first-instance conviction.

  • These conceptual distinctions explain a portion of the discrepancies in the size and proportion of the remand jail population and have implications for the comprehension of alternatives.

Avoiding Pretrial Detention: Concepts and Forms of Alternatives

• Several concepts and procedures exist for evading remand confinement, which correspond to various detention imposition regimes.

• Courts around the globe must select between three choices for the suspect: complete freedom, conditional bail, and remand custody.

• Two strategies may be identified to escape remand custody: the English (or other Common Law) and Polish and French practices.

• The German model differs in that a legal hurdle must be cleared to impose remand custody (implying certain thresholds, excluding minor offences and a certain degree of risk of absconding or collusion).

• Non-incarcerative interventions are intended primarily as alternatives to confinement and should be able to avoid net-widening consequences.

• Alternatives to pretrial detention may take various forms, typically with obligations imposed on the offender, such as:

  • reporting to the police

  • depositing passports or other identity papers

  • observing orders relating to residence

  • work, leisure time

  • association with certain persons, making oneself available for inquiries and reports, submitting to supervision

  • residing in a special hostel or other institution

  • undergoing psychiatric or addiction treatment

  • participating in a rehabilitation program

• Bail is a status that permits the suspect to appear before the court or police on the condition that they return to court for their trial or forfeit the bail.

  • Overcrowding and a lack of meaningful activities for inmates are additional practical and ethical justifications for the use of unrestricted bail or alternative measures in lieu of remand custody.

The Use of (Conditional) Bail and Other Alternatives to Pretrial Detention

Grounds and Limitations

• The fundamental purpose of remand regulations, whether custodial or noncustodial, is to ensure the defendant's presence at trial.

• Legitimate motives include preventing flight or absconding, tampering with evidence, interfering with witnesses, or otherwise hindering the administration of justice.

• The European Convention on Human Rights (ECHR) protects everyone's right to liberty by limiting the reasons for detention: "[...]No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law."

• The normative justification for pretrial detention derives specifically from Article 5 (1) lit c of the European Convention on Human Rights, which permits "the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so."

• Article 5(3) of the Convention includes a number of critical safeguards to ensure that deprivation of liberty is an exception to the rule of liberty and that judicial oversight is in place.

• The European Court of Human Rights has ruled that pretrial detention must be a last option.

• The International Covenant on Civil and Political Rights (ICCPR) safeguards the liberty of every individual against arbitrary imprisonment, but does not establish lawful pre-trial detention grounds.

• Article 9 (3) of the ICCPR states that "it shall not be general the rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should the occasion arise for execution of the judgment."

  • It further provides that "everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law."

• Regarding alternatives to pretrial imprisonment, these clauses have three effects: a presumption of liberty, the right to bail, and the right to have bail evaluated in every case.

  • Pretrial supervision measures are generally limited to the same goals and objectives as pretrial confinement, and human rights protections must be applied to supervision measures that restrict personal liberties and freedoms.

  • Due process safeguards, such as judicial review and a proportionate approach to condition violation, must be provided.

  • In the field of juvenile justice, further constraints to impose pretrial detention and a broader range of options are available, although they are not always considered adequately due to a lack of resources in community-level juvenile care agencies.

Problems

• Issues with the imposition and implementation of pretrial detention are generally recognized, especially for individuals who are neither citizens or residents of the state in which they have been charged.

• This is owing to the lack of appropriate and proportionate options for supervising suspects in the community, such as probation or other supervision-capable services.

• There is evidence that bail restrictions frequently serve coercive, therapeutic, or punitive functions.

• Criminal Justice authorities may also plan a seamless transition from unconvicted to convicted status for criminals under community supervision, ignoring the fact that the affected individual is still believed innocent.

• Even if programs are meant to solve social needs, their lack of a consistent exit route might have a detrimental effect.

• Alternatives to pre-trial custody are problematic because they may overlook the reality that a considerable number of defendants are acquitted.

• Social help, as opposed to involvement with the criminal court system, would be the most effective means of assisting individuals.

• There are hints that alternatives that are carefully managed may be quite valuable.

• A growing number of jurisdictions (e.g., Australia, the United States, New Zealand, England/Wales, Scotland, and Belgium) employ electronic monitoring in various kinds of pretrial supervision.

• It lessens the risk to public safety posed by criminals living in the community and serves as a deterrent for violating curfew.

• The most crucial aspects of this article are the repercussions of electronic monitoring and other pre-trial supervision procedures on the suspects' rights and liberties.

  • Technological monitoring is viewed as very intrusive and can have disproportionate effects on other family members.

  • There is also an unanswered question regarding the crediting of conditional bail periods, especially when they are restricted.

  • This issue is exacerbated by the fact that in cases where suspects are monitored in the community, proceedings may take longer than in cases of pretrial custody since the courts are less committed to ensuring a prompt trial.

• There is the possibility of discrimination against foreigners and the impoverished.

• Commercial bail bonding has been attacked for its expansive and inadequately regulated power, as well as its prejudice against the poor.

Future Developments

• Conditional bail and other pretrial supervision measures have evolved in accordance with policy trends in certain regions of the world.

• Indicators include intrusive bail conditions, net-widening effects, privatization, and commercialization, with the presumption of innocence and due process requirements frequently disregarded.

• In other nations, both unconditional bail and pre-trial alternatives to pre-trial detention are widely utilized, which has a positive effect on remand practice and the remand prison population.

• Current scholarly interest in pretrial imprisonment has sparked comparative attention, although in many nations, criminological (empirical) research is still required.

• In 2009, the European Union enacted a Framework Decision to avoid pretrial imprisonment for EU citizens who do not reside in the state where they have been charged with a crime.

  • This Framework Decision aims to apply the concept of mutual recognition to decisions on alternative supervision measures to detention.

  • It is questioned whether it can operate in the face of various legal and practical provisions.

• The Council of Europe (2006) adopted a recommendation that protects the rights of pretrial detainees and promotes alternatives to pretrial detention.

• Both proposals require follow-up, and the Framework Decision must be implemented by EU member states. Pretrial monitoring will remain on the European agenda for the time being.