Pre-trial detention in the United Kingdom was flawed prior to the COVID-19 pandemic; to state otherwise would be to re-imagine history. What COVID-19 has done, in fact, is exacerbate the cracks in an already fraught system. This article seeks to examine exactly how wide the gulf is between the UK Government’s commitment to human rights and its actions as they relate to the broken apparatus of pre-trial detention.

THE PROBLEM WITH PRE-TRIAL DETENTION

“Innocent until proven guilty” is a famed legal principle. Despite the presumption of innocence, defendants can still be “remanded” in prison after they have been arrested and charged until their trial – this is pre-trial detention. Worldwide, over three million people are in pre-trial detention. Article 5 of the European Convention on Human Rights (ECHR) details our right to liberty, stating that “no one shall be deprived of his liberty save… (as) prescribed by law”. Even so, the International Covenant on Civil and Political Rights (or ICCPR, which is a treaty adopted by the United Nations General Assembly) makes clear that it should not “be the general rule that persons awaiting trial shall be detained”. As the U.N. Human Rights Committee has made clear, pre-trial detention is appropriate only when there is no other way to mitigate against a defendant’s flight risk, the threat they pose to the public, or their potential to interfere with evidence. In essence, pre-trial detention is a measure of last resort to secure due and fair process in criminal proceedings.

Pre-trial detention is not a punishment, nor should it act as a substitute prison sentence. Whilst there may be legitimate reasons for remand, pre-trial detainees have not yet been convicted of a crime. Their access to justice, in the wider sense of the protection and promotion of their human rights, should remain sacrosanct both in detention and outside of it.

PRE-TRIAL DETENTION IN THE UK BEFORE COVID-19

Prior to the COVID-19 pandemic, pre-trial detention already denied people’s access to justice by infringing upon specific human rights. Whilst rights may be qualified and reduced in a proportional manner, the infringements outlined below are believed to be disproportionate and are thus in breach of fundamental rights.

Under the Universal Declaration of Human Rights, “everyone has the right to a standard of living adequate for [their] health and well-being”. Moreover, the International Covenant on Economic, Social and Cultural Rights details that individuals are entitled to “the highest attainable standard of physical and mental health” and article 8 of the ECHR states that “everyone has the right to respect for his private and family life… [and] there shall be no interference… with… this right except such as is in accordance with the law and necessary in a democratic society”.

Pre-trial detention in the UK, however, falls short of those standards. Indeed, in terms of physical wellbeing, the overcrowding which plagues the UK prison system poses a significant problem. Almost half of prison establishments in the UK have been formally acknowledged as overcrowded. In 2012, detainees at Bedford prison had to eat most meals in their cells with a cellmate opposite an open toilet; at Bullwood Hall, meanwhile, there was a case of twenty-six prisoners sharing only two toilets and three showers. Such overcrowding places significant pressure on already ailing infrastructure within prisons and such living conditions are not conducive to maintaining an adequate standard of health for detainees.

In terms of mental wellbeing, an international study found that those in custody are, at a minimum, three times more likely to die by suicide compared with the general population. In 2019, UK prisons recorded just under 2000 incidents of self-harm by female pre-trial detainees. In their current state, therefore, prisons almost guarantee significant harm to detainees’ physical and mental states.

Additionally, structural issues and inequalities within the UK prison system have contributed to interference with the private lives of pre-trial detainees. Over the past decade, funding for courts in England and Wales has been cut by over twenty percent. This lack of resources means that many pre-trial detention hearings last only a few minutes, with lawyers often representing a client at short notice; the lack of time to investigate the context of past acts means pre-trial detention is often incorrectly imposed. Moreover, prior criminal behaviour is taken to mean that the defendant is dangerous rather than disillusioned, vindictive rather than desperate, and does not entertain the possibility of unjust police harassment. This lack of analysis leads to what can only be described as a dismal statistic: almost half of those subject to pre-trial detention are either found innocent, or if found guilty, are not subject to a custodial sentence. Even more alarmingly, the percentage of white women subject to pre-trial detention who are not immediately convicted of a crime stands at 59%; for Black women that same figure rises to 73 %, and for Asian women the figure hits 79%.

Prior to COVID-19, pre-trial detention was subject to a six-month time limit (the “Custody Time Limit”). This is a substantial amount of time: in six months, the lives of pre-trial detainees could have been irreversibly altered, not only by what happened inside prison walls, but also by what happened outside of them. Pre-trial detainees could have lost their homes and jobs, creating economic hardship for them and their families and children. Faced with these possibilities, many innocent pre-trial detainees chose to enter false guilty pleas, in the knowledge that they would likely spend more time in jail if they chose to protest their innocence. What this all meant is that the lives of pre-trial detainees were irreparably damaged, simply because access to justice had not been deigned worthy of adequate funding.

PRE-TRIAL DETENTION IN THE UK AND COVID-19

The pre-trial detention system was already unfit for purpose; COVID-19 has merely highlighted and exploited the cracks in a failing system. Beyond imprisonment, loss of livelihood and general indignity, pre-trial detainees have faced the threat of a deadly virus over the past two years.

The overcrowding and inadequate sanitation for which prisons are infamous provided an ideal breeding ground for COVID-19. Social distancing - the easiest and perhaps most effective way to combat the virus - is virtually impossible within prison walls. That in December 2020 COVID-19 cases in prisons were almost two-thirds higher than they were among the general population is, therefore, unsurprising. Moreover, prisons have employed archaic means to control the virus. At Wandsworth prison, detainees who displayed symptoms were not permitted to either shower or exercise for 14 days. Moreover, prisoners in England had the time they were allowed to spend outside of their cells reduced from eight to ten hours per day to an average of two and a half. Such treatment is unjustifiable at best, inhumane at worst, and completely appalling when one considers that those subject to such conditions could be innocent.

In terms of unjustifiable interference with the private and family lives of pre-trial detainees, this too has only worsened since COVID-19 took hold. Six months was already too long for pre-trial detainees to be spending behind bars. In spite of this fact and knowing of the additional threat to life posed by COVID-19, the UK Government erroneously concluded that an extension of the Custody Time Limit to nearly eight months was the correct course of action. Any extension to the pre-trial detention of a suspect should only be executed after the relevant criteria for remand are re-assessed in light of the lapse in time and the harm additional time behind bars could cause a pre-trial detainee. This is especially so given that the European Court of Human Rights has ruled that pre-trial detainees must be brought “speedily” before a judicial authority. Thus, extending the Custody Time Limit en masse flew in the face of due process. Moreover, the problem of false guilty pleas only worsened with COVID-19; detainees were no longer just scared of the economic or familial consequences of pre-trial detention - they were scared for their lives.

Such fear was warranted. As an example, correctional facilities in Texas, USA, told a harrowing story of how eighty percent of those who died from COVID-19 in their facilities had not yet been convicted of a crime. The UK Government understood the risks relating to pre-trial detainees and COVID-19, which is why the Ministry of Justice announced that four thousand detainees were eligible for release in April 2020. What is unclear, however, is why by May 2020 only 57 had actually been freed.

Apparently, the existing pre-trial detention system did not do enough harm. Apparently, there was no other way to deal with pre-trial detainees than to put them directly in harm’s way. These are flagrant violations of access to justice.

ALTERNATIVES TO PRE-TRIAL DETENTION

Pre-trial detention is not the only solution to the concerns which have been used to justify remand. Human rights organisations have called for and championed various alternatives for years. They range from house arrest to electronic monitoring, or being required to appear periodically before a specified authority whilst awaiting trial.

Judges in England and Wales do have the discretion to impose these conditions instead of pre-trial detention. However, in the same way that the courts are drastically underfunded, so too are the alternatives to pre-trial detention. For example, if a condition of release is that a pre-trial detainee must not return to their usual residence, the lack of bail hostels provided by the state could render a pre-trial detainee homeless. Yet, if the alternatives are not used, there will be a lack of data to demonstrate their efficacy and so pre-trial detention will remain the default arrangement.

Access to justice is therefore not guaranteed. COVID-19 has exposed the gaps in a broken system, highlighting that the pre-trial detention system is not only painfully inadequate, but actually denies access to justice through the devastation it inflicts upon the lives of detainees. To definitively state that the pre-trial detention system constitutes a human rights violation would require a greater depth of analysis than has been provided for here, yet the fact that the question arises at all is unacceptable in itself. The UK Government can no longer turn a blind eye to the system. Without drastic intervention and the allocation of appropriate resources, it is foreseeable that the notion of access to justice will simply be a democratic ideal that was never fully realised.