Locked up without charge: why we need better data on custodial remand
This post is the first output from our project to map and fill data gaps in criminal justice.
Imagine the worst has just happened - you’ve been arrested, and you’re in the back of a police car. After a few hours waiting, you’re taken into a room and told that you’re being charged with an offence. Worse, the police don’t feel comfortable letting you go home, so now you are essentially incarcerated. This is custodial remand - when defendants are kept in custody while they wait for a court date or subsequent sentencing.
Being remanded in custody is a catastrophic change to your rights - although courts may have not yet deemed you guilty, you’re fundamentally in prison and unable to hold down a job or do family duties. So making sure that the state is using remand only when it should is pretty important.
Right now, the number of people held in remand is the highest for 50 years - partly because more people are being remanded, but also because of wider court backlogs. Over 14,500 people were held on remand in September 2022, a 40% increase since 2019. And charity Fair Trials found recently that over a quarter of remand prisoners have been in prison longer than the legal time limit.
This is all obviously worrying, because of:
The effect on people: Remand prisoners are held in some of the worst conditions in prison, in a state of uncertainty associated with a higher risk of suicide. Two-thirds of the remand population are not yet convicted (and thus should still be presumed innocent), and many will go on to be acquitted.
The effect on the prison system and public safety: The rising remand population adds pressure to already overstretched prisons. In November, the Government announced it would start using police cells to hold prisoners, due to overflowing jails.
Why is CfPD studying remand?
At first glance, this crisis might seem to have little to do with data. But again and again, as part of our current work on data gaps in the criminal justice system, we found experts saying that a lack of data on remand was a concern.
And worries that the remand system might not be working correctly are no secret. Concerns have escalated to such a level that Parliament has started to pay attention. In March 2022, the Justice Select Committee began an inquiry to look at the use of custodial remand.
Along with numerous other organisations, we submitted evidence to the committee, focused, of course, on our domain of government data shortcomings.
What did we discover about data and remand?
When the inquiry was held, several expert witnesses mentioned data gaps specifically as a worry. Charlie Taylor, HM Inspector of Prisons, raised concerns about data on the remand population, while Tom Franklin, chief executive of the Magistrates’ Association, described the lack of remand data available to magistrates as “grappling in the dark to understand what is going on”.
Two key gaps highlighted by the people we spoke to when gathering our evidence, and that we discuss in our full briefing note, are:
Data on how long people are held on remand. Despite the alarming findings above, there aren't any official statistics on how long people have been held. (Fair Trials brilliantly used FoI requests to establish the number of people held beyond the time limit.)
This data matters because we don’t have a clear understanding how remand is changing over time, and remand decision-makers can’t estimate the consequence and proportionality of placing a defendant in custody - as experts like JUSTICE, Fair Trials and others point out.Data on why people are held on remand. Remand can only be used under specific legal grounds, such as if a defendant is a risk to others. Our research tells us that these reasons are recorded. Yet no data is made public on how often each reason is used, so we don’t know why police and courts are using remand.
This data matters because without it, experts (and MPs too) can’t analyse why the use of remand has increased, or scrutinise decision-making - as experts like Professor Anthea Hucklesby, Dr Tom Smith, the Howard League for Penal Reform and others all point out.
Other major gaps include remand rates by specific types of crime, and demographic data about who is held in remand. This data would help experts understand if remand is being over- or under-used, help allocate resources more efficiently, and help keep the public, victims and defendants safe.
How these data gaps can be filled
A key part of our evidence was technical research to establish the data sources available about remand prisoners. And happily, our research suggests that the Ministry of Justice holds most if not all this information already:
How long people are held on remand: HMPPS’s prisoner management system (Prison-NOMIS) records entry dates and offence type, according to our FoI requests. MoJ already extracts data from this routinely, so it should be straightforward to add statistics on the length of time that defendants have been held in remand.
Why people are held on remand: Our research suggests that HMCTS’s court systems record digitally why a court refuses bail, as do police forms. MoJ should therefore be able to extend its statistical publications to include this, by extracting more information from these systems to its reporting databases. Our full briefing note has more technical details.
Work will still need to be done to establish the quality of this data. But imperfect data can still be published as management information, with the appropriate caveats.
Latest developments
Last week the Justice Select Committee published the findings of its inquiry, flagging up data gaps as a concern, highlighting our work and recommending the MoJ publish better statistics on remand. We’re very pleased to see this.
We’re delighted to see that the Committee included data as a first-order chapter of their report, and recommended that the Government should “improve the collation and publication of data on remand” and publish a new statistical report on the remand population, including:
the length of time people are spending on remand
the reasons for refusing bail
demographic information.
Our research suggests all of this is possible, inexpensive - and vital. As the Committee says, “it is only on the basis of good quality data on this issue that there can be effective policy-making”.
The Ministry of Justice must now reply to the recommendations by mid-March. We hope there will be good news.
Download the full briefing note to read our findings in detail.
This is the first in a series of deep dives from our justice data gaps project and is funded by the Justice Lab, an initiative of the Legal Education Foundation, as part of their ongoing programme of research and advocacy to improve the quality and availability of justice system data. If you’re interested in this or any of our other work, please get in touch.
Special thanks to Professor Anthea Hucklesby, Griff Ferris at Fair Trials, Penelope Gibbs from Transform Justice, Dr Tom Smith and others for sharing their expertise with us. Any errors are our own.