The Role of Adult Custodial Remand in the Criminal Justice System
By UK Parliament, House of Commons, Justice Committee
1. When a defendant is remanded into custody, this means that they are to be held in prison until the time of their trial or subsequent sentencing hearing. Schedule 1 of the Bail Act 1976 gives judges and magistrates the power to take this decision for a number of reasons, including that there are grounds for believing that the defendant might not turn up to a court hearing, that they would interfere with a witness or might commit additional crimes if released on bail. Custodial remand is intended to be used as a last resort—courts are required to justify their decision for refusing bail in line with grounds prescribed in the Act.
2. The Bail Act 1976 stipulates a presumption in favour of bail over custodial remand for all defendants awaiting trial except those on charges of murder, attempted murder, manslaughter, rape, or attempted rape. The starting point is release upon unconditional bail, where defendants await their trial in the community on the promise that they will later appear at court. Conditional bail is increasingly being used as an alternative to this, with restrictions such as curfews, limits on contact with other individuals related to a case, or geographical areas of exclusion being imposed pending trial. Failure to comply with these conditions can lead to bail being revoked and remand into custody instead.
3. Decisions on remand and bail are solely matters for the courts, with the defence and prosecution able to make submissions as to whether release on bail should be granted or denied. The defence has an automatic right to appeal against bail decisions in the magistrates’ court, as well as a right to make subsequent bail applications should circumstances change.
4. The use of custodial remand is primarily governed by the Bail Act 1976 and the Criminal Procedure Rules 2020. In addition, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 introduced the ‘no real prospect’ test, which states that defendants should not be remanded into custody if the offence is such that they are unlikely to receive a custodial sentence if convicted.
The growing remand population
5. Figure 1 below shows trends over time in the remand population in England and Wales. In the first half of the last decade, there was a decline in the remand population. However, recent years have seen a significant increase—as of 30 September 2022, the daily remand population stood at 14,507. This represented a 44% increase from 31 March 2020 when the population was 10,043. The remand prison population is currently the highest it has been for at least 50 years.
London: UK Parliament, House of Commons, Justice Committee, 2023. 55p.