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Remand Prisoners

The UN Standard Minimum Rules for Non-custodial Measures (known as the “Tokyo Rules) state that governments should avoid detaining suspects prior to trial.

Article 6 of the Tokyo Rules reads:

6. Avoidance of pre-trial detention

6.1 Pre-trial detention shall be used as a means of last resort in criminal proceedings, with due regard for the investigation of the alleged offence and for the protection of society and the victim.

6.2 Alternatives to pre-trial detention shall be employed at as early a stage as possible. Pre-trial detention shall last no longer than necessary to achieve the objectives stated under rule 5.1 and shall be administered humanely and with respect for the inherent dignity of human beings.

6.3 The offender shall have the right to appeal to a judicial or other competent independent authority in cases where pre-trial detention is employed.

Unfortunately, there is a significant difference between those ideals and actual practice. The World Pre-trial/Remand Imprisonment List, assembled by Roy Walmesley of the International Centre for Prison Studies, reports that 2.25 million people are held in prison while they await trial. In 6 out of 10 countries the percentage of all prisoners who are awaiting trial is from 10-40%.

However, there are countries whose practice is significantly different. Those with the highest percentage of prisoners on remand are: Liberia, where the prison administration reports that 97% are so held, Mali (89%), Haiti (84%), Andorra (77%), Niger (c.76%), Bolivia (75%), Mozambique (73%), Timor-Leste (71%), Democratic Republic of Congo and India (both 70%), Bangladesh, Paraguay and Peru (all 68%).

The consequences of lengthy remand can be significant. First, because of the frequent turn-over of remand prisoners, most prisons that offer vocational, therapeutic and other activities to the sentenced prison population make those much less available to them. Their detention while awaiting trial can be lengthy, many times it ends up longer than the sentence would have been if the offender were found guilty. Detainees are removed from families, friends and work for a considerable amount of time. They may lose their jobs, and perhaps their families. They may contract an infectious disease while in prison and spread it to their family on return.

For strategies for reducing the amount of time remand prisoners must wait before they are released, see Alternatives to Remand.

Prisión Preventiva. Sistemas judiciales: Una perspectiva integral sobre la administración de justicia. Centro de Estudios de Justicia de las Américas - CEJA ● Año 7 ● Nº 14. [SP]
Con este número de Sistemas Judiciales sobre prisión preventiva, pretendemos comenzar a transitar un nuevo camino: generar conocimientos y relevar datos empíricos concretos sobre institutos específicos del sistema procesal penal con el objetivo de incrementar el nivel de protección de garantías individuales de los imputados por un delito y a la vez producir aumentos substanciales en la eficacia de la persecución penal. Entendemos que la prisión preventiva continúa siendo, en el contexto planteado, uno de los temas que debe debatirse y reflexionarse en materia de justicia penal y por ello iniciamos con él. (extracto)
Imprisonment in Australia: The Remand Population (Australian Institute of Criminology) 2000 [En]
The use of imprisonment as a punishment continues to be a serious issue for governments and the community. The use of custody on a person who has not yet been given a sentence should be of even greater concern. Official statistics indicate that about 15 per cent of prisoners in Australia are currently on remand and have not been sentenced. The decision to remand an accused in custody entails an assessment of whether the person could be considered a threat either to themselves or to the safety of others, usually the victims of the crime, or whether the accused person is likely to appear for trial. In addition, the wider protection of the community in general is also a legitimate reason for the detention of a person in custody. The possibility of the accused not appearing in trial and the seriousness of the charge are other factors affecting remand decisions. Remand practices may have an impact on the size of prison populations. This impact depends on the size of remand arrivals, the rate at which they flow into the correctional system, and the time they spend as remand prisoners. This study uses data from the National Prison Census to examine major trends in remand populations in Australia. (excerpt)
Remand in Custody : Critical Factors and Key Issues (Australian Institute of Criminology) 2006 [En]
In an attempt to identify the factors associated with high and low remand rates the researchers undertook a detailed study of Victoria (which has comparatively low remand rates) and South Australia (which has comparatively high remand rates). Factors associated with increased remand rates included increasing levels of drug and mental health issues, and the informal and formal rules that influence police, police custody sergeants and court bail authorities in their decision to grant bail. Factors associated with lower remand rates included 'enhanced police accountability for bail refusal, improved feedback loops between courts and police, higher transaction costs for custodial remand, and longer bail hearings'. The authors have concluded that the key to good practice in bail decision-making is to ensure that pre-court and non-judicial processes are given due consideration, and they point to the need for enhanced performance monitoring, data collection and research. (excerpt)
Pre-trial Detention - Guidance Note (International Centre for Prison Studies) 2005 [En]
This guidance note explains the problem of pre-trial detention, in terms of the growing number of Remand Prisoners. It also puts forth suggestions to decrease the number of Remand Prisoners, as well as detailing how they should be treated.
Pretrial Risk Assessment in the Federal Court (U.S. Department of Justice) 2009 [En]
The identification of “federal criminal defendants who are most suited for pretrial release without jeopardizing the integrity of the judicial process or the safety of the community, in particular release predicated on participation in an alternatives to detention program” is investigated. (excerpt)
Pre-Trial Legal Aid for Criminal Defendants: A Cost-Benefit Approach (Open Society Justice Initiative) 2008 [En]
The influence that legal aid has on the decision of an appropriate bail is explained. Sections comprising this report include: introduction; modeling the role of legal aid at the pre-trial detention stage; legal aid and the cost benefit analysis of PTD (pre-trial detention); legal aid in practice; evidence on "costs" and "benefits" (excerpt)
Remand in Custody (CE) 1965 [En]
This is a Council of Europe document: "Wishing to promote and extend the application of those principles relating to remand in custody already recognized in the Convention for the Protection of Human Rights and Fundamental Freedoms" (excerpt)
Concerning Custody Pending Trial (CE) 1980 [En]
This document establishes a framework on the detention of those accused before the date of their trial. It is an effort on the part of the Council of Europe to demonstrate a standard on when pre-trial detention should be either avoided or when it should be put in force. Through that understanding it becomes a valuable resource to compare with other conceptions of when pre-trial detention should be employed.
United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules). (United Nations Document.) 1990 [En]
This United Nations Document details the standards for the use of Non-custodial measures in the criminal justice system.
UN Criminal Justice Assessment Tool -- Detention Prior to Adjudication (UNODC) (2006)
This tool guides the assessment of detention during the period between arrest and sentence. It includes the time spent in the custody of police or other law enforcement agencies, as well as the period after which a court remands a suspect in custody until he or she is adjudicated, and where convicted, sentenced or released. Detention is a particularly sensitive area in the criminal justice process. It is the period most open to abuse, as documented in numerous reports by international inspection bodies. Recognizing the particular vulnerability of detainees prior to adjudication, international human rights instruments provide for a large number of very specific safeguards to ensure that the rights of detainees are not abused, that they are not ill-treated and their access to justice not hindered.
World Pre-trial/Remand Imprisonment List, Roy Walmsley, ICPS
Report on the number and distribution of pre-trial/remand prisoners in the world.
Index of Good Practices in Reducing Pre-Trial Detention
In this first ‘Index’ in a series, PRI looks at good practices in reducing pre-trial detention on the African continent which all these conference declarations highlight as a major problem to be addressed. The practices listed below are not intended as an answer or solution but ways of approaching a solution, since few persons anywhere could seriously point to any one justice system as representing the perfect model. In this paper we distinguish good from best practice since ‘best practice’ imports a value judgment and standard setting; while ‘good practice’ is less exacting and may amount to an activity that shares a number of common features. In the UK, the police prefer the phrase ‘Noteworthy practice’ to avoid any value judgment. (excerpt, document created by Penal Reform International).
Publication on Pre-trial Detention from Soros Foundation
The Spring 2008 issue of Justice Initiative, published by the Open Society Justice Initiative, features several articles discussing the use of pre-trial detention from around the world. In the foreword, by Mark Shaw of the United Nations Office on Drugs and Crime, highlights the international standards on the use and conditions of pre-trial detention as well as some of the problems associated with it. Articles in volume discuss reform efforts from around the world.
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