Remand (detention)

Remand (also known as pre-trial detention or provisional detention) is the process of detaining a person who has been arrested and charged with an offence until his/her trial. A person who is on remand is held in a prison or detention centre, or held under house arrest. Varying terminology is used, but "remand" is generally used in common law jurisdictions and in Europe "preventive detention". Detention before charge is referred to as custody and continued detention after conviction is referred to as imprisonment.

Not to be confused with Remand (court procedure).
Lady Justice—allegory of justice—statue at court building in Olomouc, Czech Republic

Because imprisonment without trial is contrary to the presumption of innocence, in liberal democracies pre-trial detention is usually subject to safeguards and restrictions. Typically, a suspect will be remanded only if it is likely that he or she could commit a serious crime, interfere with the investigation, or fail to turn up in court. In the majority of court cases, the suspect will be outside custody while awaiting trial, often with restrictions such as bail.

Research on pre-trial detention in the United States has found that pre-trial detention increases the likelihood of convictions, primarily because individuals who would otherwise be acquitted or have their charges dropped enter guilty pleas.[1][2]

Detention before charge or trial

The pre-charge detention period is the period of time during which an individual can be held and questioned by police, prior to being charged with an offence.[3] Not all countries have such a concept, and in those that do, the period for which a person may be detained without charge varies by jurisdiction.[4]

The prohibition of prolonged detention without charge, habeas corpus, was first introduced in England about a century after the 1215 Magna Carta; the use of habeas corpus ad subjiciendum in 1305 was cited by William Blackstone.

Czech Republic
Czech Police station in Teplice

Under Article 8 of the Charter of Fundamental Rights and Basic Freedoms of the Czech Republic, which has the same legal standing as the Czech Constitution, a suspect must be immediately familiarised with the grounds of detention, must be interviewed and within 48 hours either released or charged and handed over to a court. The court then has a further 24 hours either to order a custody, or to release the person detained.[5]

Detailed rules of detention are included in the Criminal Procedural Code. The police may arrest and detain a suspect after obtaining prosecutor's consent. In an urgent case the police may detain a suspect without the consent. In both cases, however, the police detention may take place only when grounds for pre-trial detention exist (see below).[6] The statutory limits of 48 + 24 hours must be complied with and reaching the time limit should aways trigger immediate release, unless a court has ordered pre-trial custody.[7]

Anybody may detain a person, who was caught while perpetrating a crime (not a misdemeanor) or immediately after it, when capturing of the perpetrator is necessary to either ascertain the perpetrator's identity or to prevent the perpetrator from escaping or to secure evidence. The perpetrator must immediately be handed over to the police, or when that is not possible, detention of the perpetrator must be immediately reported to the police.[8]

United States

In the United States, a person is protected by the federal Constitution from being held in prison unlawfully. The right to have one's detention reviewed by a judge is called habeas corpus. The U.S. Constitution states that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it". A declaration of a state of emergency can suspend the right to habeas corpus.

No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; ... nor be deprived of life, liberty, or property, without due process of law

—Fifth Amendment to the United States Constitution

The Sixth Amendment requires criminal defendants to be "informed of the nature and cause of the accusation". The U.S. Bill of Rights thus grants some protection against being held without criminal charge, subject to the courts' interpretation of what due process means. Federal authorities have also exercised the power to arrest people on the basis of being a material witness. Involuntary commitment of the mentally ill is another category of detention without criminal prosecution, but the right of habeas corpus still applies. The scope of such detentions is also limited by the Bill of Rights.

The executive's military powers have been used to justify holding enemy combatants as prisoners of war, unlawful combatants, and civilian internees; the latter two practices have been controversial, especially with regard to the indefinite detention implied by uncertainty as to when the "War on Terror" might be declared to have ended. Administrative detention, a term applied to many of these categories, is also used to imprison illegal immigrants.

Sweden

In Swedish law, Häktning is a pre-trial supervision measure, where a suspect can be jailed for crimes that have a prison term of at least one year. There are two degrees of suspicion: reasonable suspicion is the lower level, and probable cause is the higher level.[9]

Remanding occurs if the committed crime has a statutory minimum penalty of at least one year, and includes:

  1. a risk of recidivism,
  2. a risk that the suspect will destroy evidence or otherwise affect the investigation of the crime, or
  3. a risk that the suspect will flee prosecution or punishment.

Alternatively, remanding occurs for probable cause suspicion (and lesser crimes) when:

  1. the suspect does not have permanent residence in Sweden, and can be assumed to want to leave Sweden.[10]
  2. the identity of the suspect is not established, if the suspect refuses to provide it or has given a false identity.

A person may be held in custody normally for no more than 14 days (or seven days if the degree of suspicion is reasonable suspicion). Afterwards, a new remand hearing is normally held. For suspects under age 18, "serious reasons" for detention decisions are needed and should be notified to court.

When a person is facing less serious crimes, they are given a summary penalty order by prosecutors.[11]

A person who was remanded but was not sentenced or freed after trial is entitled to financial compensation, which is determined by the Chancellor of Justice. The compensation can vary, but it is usually 30,000 SEK for the first month; 20,000 SEK for every subsequent month, up to and including the sixth month; and 15,000 SEK for every month after that.[12] Any loss of income is also compensated. In 2007, 1200 people were compensated.[13]

If a prisoner is sentenced, the remand time counts as part of the prison time, such that less time remains after the trial.

The Committee for the Prevention of Torture of the Council of Europe has repeatedly criticised pre-trial detention in Sweden for the high percentage of cases where restrictions on communication are applied.[14] In Sweden, communication restrictions include no visits, no telephone calls, no newspapers, and no TV.

Detention during trial
See also: Bail

The term "remand" may be used to describe the process of keeping a person in detention rather than granting bail. A prisoner who is denied, refused or unable to meet the conditions of bail, or who is unable to post bail, may be held in a prison on remand. Although remanded prisoners are usually detained separately from sentenced prisoners, due to prison overcrowding they are sometimes held in a shared accommodation with sentenced prisoners. Reasons for being held in custody on remand vary depending on the local legal system, but may include:

  • the suspect has been accused of carrying out a particularly serious offence
  • the suspect having previous convictions for similar offences
  • reasons to believe the suspect could leave the court's jurisdiction to avoid its trial and possible punishment
  • reasons to believe the suspect may destroy evidence or interfere with witnesses
  • the suspect is likely to commit further offences before the trial
  • the suspect is believed to be in danger from accomplices, victims, or vigilantes

In most countries, remand prisoners are considered innocent until proven guilty by a court and may be granted greater privileges than sentenced prisoners. For example, most jurisdictions that prohibit convicted criminals from voting in elections will still allow remand prisoners to vote, unless they have been disqualified from voting for some other reason. Other privileges commonly granted include:

  • wearing own clothes rather than prison uniform
  • being entitled to additional visiting hours per week
  • not being required to complete prison-related work or education

Not all remand prisons grant these privileges, in particular, remand prisoners are often forced to wear prison uniforms and denied additional visitation rights, supposedly for safety reasons, although some facilities allow remand prisoners to wear a uniform that is a different color or otherwise clearly distinguishable from the uniforms of convicted criminals. Often they are denied all visits and all newspaper and media access, for risk of interfering with the investigation, such as communicating a story with fellow remand prisoners.

Czech Republic
Seal of the Czech prison service
Olomouc remand prison
Buses of the Czech prison service are characterised by its white-violet color scheme and absence of windows in the prison section

Under Article 8 (5) of the Charter of Fundamental Rights and Basic Freedoms, which has the same legal standing as the Constitution, nobody shall be taken into custody except on the basis of a court decision, and for reasons and a detention period stipulated by the law.[5]

Detailed rules of remand custody are contained in the Criminal Procedural Code. A person may be remanded in custody by the decision of a court only when a number of preconditions is met cumulatively:

  • he or she has been charged with committing a crime which is punishable by [15]
    • more than two years of imprisonment in case of intentionally committed crime, or
    • more than three years of imprisonment in case of negligently committed crime,
(the 2/3 years rule is subject to certain defined statutory exceptions, e.g. where a suspect has already been evading the proceedings) and
  • there are reasonable grounds indicating that the alleged act was committed and it has all features of the given crime, and
  • there are apparent reasons for suspicion, that the act was committed by the charged person, and
  • because of the personality of the charged person, the nature of the crime and its gravity, the objective of the custody may not be reached by a different measure.[16]

At the same time, there must be reasonable concern, that the charged person may either

  • (a) escape or evade the criminal proceedings, or
  • (b) influence witnesses or otherwise similarly frustrate the proceedings, or
  • (c) continue criminal activity with which he or she was charged, or finish a criminal act he or she had attempted, or commit a criminal act he or she was preparing or threatening to commit.[17]

The charged person may be remanded in custody subject to maximum terms as follows:[18]

  • one year in cases of crimes which are dealt with by a single judge,
  • two years in cases of crimes which are dealt with by a panel of three judges,
  • three years in cases of felony crimes (i.e. intentional crimes punishable by a sentence with an upper jail term of at least 10 years[19])
  • four years in cases punishable by an exceptional penalty (i.e. 20 – 30 years or life imprisonment[20])

one third of the maximum detention periods time may be exhausted in pre-trial proceedings and two thirds may be exhausted during the trial.[21] Reaching the maximum time is always reason for immediate release.

An exception to the time limits above arises in cases of remand due to concern of (b) interfering with witnesses or similar frustration of proceedings, in which case the maximum pre-trial detention period may be only three months, except where the charged person has already been influencing witnesses or otherwise frustrating the proceedings.[22]

The court must review the reasons for the pre-trial custody every three months and decide either to continue it, or to release the charged person.[23] Both the prosecutor and the person in custody may file a complaint against any decision on custody, which leads to review by an appellate court.[24]

Special rules of remand pertain to persons who are processed for extradition, e.g. illegal foreigners, those detained due to international (foreign) warrant or the European Arrest Warrant.

Conditions in Czech remand prisons

In the Czech Republic, remand takes place in remand prisons or in separated sections of standard prisons. Remand prisons are often in city centres and appertain to court houses. Most remand prisons are over 80 years old, with some, like Pankrác Prison, being more than 125 years old. Men, women and juveniles are held separately. Also persons charged with committing different types of crimes (e.g. unintentional, intentional, violent, etc.) are held separately.[25]

Deficiencies of remand prisons according to 2010 Czech ombudsman's report[25]
  • insufficient daylight
  • too intensive nightlight
  • insufficient space for out-walks
  • lack of leisure activities
  • lack of working opportunities
  • presence of prison guards during health care delivery
  • restricted access to telephone

Cells have capacity varying between 1—8 beds, with most having between 2—4 beds. Some remand prisons have rooms intended for watching TV, gyms or chapels, but these are exceptional mainly due to overcrowding and lack of space. All have special areas for interviews between the inmates and their attorneys, visiting rooms and courtyards for out-walks.[25]

Each cell has a WC divided from the rest of the cell-space and running cold water. Each cell-mate has own bed, storage locker and chair.[25]

Inmates which are held due to concern of influencing witnesses are held in isolation with very limited possibility of contact with other inmates as well as the outer world (apart from interviews with own attorneys).[25]

At any given time in 2011, there were around 2.500 inmates in the Czech remand prisons (including ~170 women and ~45 juveniles), compared to some 20.500 convicted inmates (for 10,6 million population).[26] The average length of remand custody is around 100 days, with few inmates spending in remand more than 2 years.[25]

More than half of foreign inmates of the Czech remand prisons are from Slovakia, Ukraine and Vietnam. Other numerous foreigners are from Bulgaria, Moldova, North Macedonia, Poland, Romania, Russia and Serbia. When it comes to non-European states, there are numerous detainees from Nigeria, Algeria, Morocco, Uzbekistan, Kazakhstan and Mongolia. There are mostly only few individuals of other nationalities.[25]

United Kingdom

In England and Wales, a suspect may be remanded after charge if:[27]

  • The suspect has been charged with a serious crime
  • The suspect has been convicted of a serious crime in the past
  • The suspect has breached bail conditions or failed to surrender either now or in the past
  • The police believe the suspect may not appear in court
  • The police believe the suspect may commit another crime if released on bail

Remanding a suspect following arrest and until their first hearing at a magistrates' court is a decision made by the police using the criteria set above. Any such person ‘remanded in police custody’ will be transported from the police cells to the next available sitting magistrate's court. This may be the same day, or may require the remanded individual to stay in police custody overnight or over the weekend. At the first hearing, the court will decide whether it necessary to remand the suspect until the end of the trial. If the suspect is not remanded the court may issue bail conditions for suspect to abide to until the trial. Adults will be held on court remand at a regular prison, while those below the age of 18 will be held at a secure centre for young people.[27] If a remanded suspect is convicted and given a prison sentence, the time they spent on remand is deducted from the length of the sentence. In some cases, a convicted suspect has been released immediately after being sentenced, if the time they spent on remand was longer than or equal to the sentence they received.[28]

United States

The Eighth Amendment to the United States Constitution prohibits excessive bail. Under the US Code, pretrial detention of federal suspects is allowed only under certain circumstances, such as when the defendant is a danger to witnesses or jurors.[29]

Impact

Two 2018 studies in the American Economic Review and the Journal of Law, Economics, and Organization found that pretrial detention significantly increases the probability of conviction, largely because individuals who would otherwise be acquitted in trial enter guilty pleas.[1][2] The AER study found that pretrial detention also lowers the defendants' prospects in the labour market.[1] The JLEO study found that pretrial detention caused 42% longer incarceration sentence and 41% higher nonbail court fees owed.[2] The JLEO study notes that "the use of money bail contributes to a “poverty-trap”: those who are unable to pay bail wind up accruing more court debt."[2]

Criticisms

Pre-trial detention has been described as a "necessary evil".[30] A 2013 report by the Centre for Crime and Justice Studies concluded that pre-trial detention was being overused worldwide, and that most were being held for minor crimes.[31] A 2014 report by the Open Society Foundations called it a "massive and widely ignored pattern of human rights abuse". [32]

A person must be found guilty "beyond reasonable doubt" in order to be convicted at a trial. However, pre-trial detention requires a lower threshold such as "reasonable suspicion".[30] In most countries, the prosecution only need to prove that the charges are well-founded and that there is a sufficient threat that the defendant will commit another crime or undermine the judicial process. In the United States, the system of money bail means that a defendant can be detained even if neither of these threats can be identified, solely because nobody was willing or able to deposit the bail money for them.

In the Harvard Law Review, Stephanie Bibas also noted its impact on plea bargaining. Pretrial detention alters a defendant's incentives by making his or her best-case scenario not zero days in jail, but the length of time served pretrial. Therefore, a defendant may be more likely to plead guilty if the chance of acquittal is low, or if the expected sentence on a guilty plea is less than the amount of jail time that would be served pretrial. Pretrial detainees may also find it harder to mount an effective defence.[33]

The Open Society Foundation report also concluded that some detainees face worse conditions than convicted prisoners; for example the suicide rate is three times higher worldwide.[32]

gollark: In general, horribly punishing yourself for them may not *either*.
gollark: What if you download all the answers directly into your brain?
gollark: something something hyperbolic discounting
gollark: As planned.
gollark: I changed at least 10 lines of code today.

See also

References
  1. Dobbie, Will; Goldin, Jacob; Yang, Crystal S. (2018). "The Effects of Pre-Trial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges". American Economic Review. 108 (2): 201–240. doi:10.1257/aer.20161503. ISSN 0002-8282.
  2. Stevenson, Megan T. (2018). "Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes". The Journal of Law, Economics, and Organization. doi:10.1093/jleo/ewy019.
  3. Liberty Human Rights, Extension of Pre-Trial Detention (PDF), retrieved 15 February 2011
  4. Liberty Human Rights, Terrorism Pre-Trial Detention: Comparative Law Study Executive Summary (PDF), archived from the original (PDF) on 11 April 2008, retrieved 9 December 2007
  5. Czech National Council. "Charter of Fundamental Rights and Basic Freedoms". Collection of the Laws of the Czech Republic (in Czech). Prague. 2 (1993). Retrieved 14 July 2012.
  6. Czech National Council. "Criminal Procedural Code of the Czech Republic". Collection of the Laws of the Czech Republic (in Czech). Prague. 141 (1961). Retrieved 14 July 2012. §76
  7. Czech National Council. "Criminal Procedural Code of the Czech Republic". Collection of the Laws of the Czech Republic (in Czech). Prague. 141 (1961). Retrieved 14 July 2012. §77
  8. Czech National Council. "Criminal Procedural Code of the Czech Republic". Collection of the Laws of the Czech Republic (in Czech). Prague. 141 (1961). Retrieved 14 July 2012. §76(2)
  9. Rättegångsbalken, 24 ch. 1-3 § Anyone suspected on probable cause for a crime with a punishment of one year or more can be detained... Also, anyone suspected on reasonable suspicion can be detained, within the limits set in 19 §...
  10. https://lagen.nu/1942:740#K24P2 Rättegångsbalken, 24 ch. 2-3 §"1. if he is unidentified and refuses to reveal his name and residence or if his statements on this matter can be assumed to be false, or
    2. if he is without residence in the country and there is a risk that he, by leaving the country, evades trial or punishment."
  11. "Trials in criminal cases - Sveriges Domstolar". www.domstol.se. 28 November 2005.
  12. "Justitiekanseln - Frihetsberövande". www.jk.se. 15 August 2019.
  13. “More and more people get compensation after arrest”, Radio Sweden, 05 March, 2008 "close to 1,200 people were compensated last year for being häktade without being convicted of a crime."
  14. "Imposition of restrictions on remand prisoners", Report to the Swedish Government on the visit to Sweden carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 9 to 18 June 2009, 11 December 2009, archived from the original on 19 December 2010
  15. Czech National Council. "Criminal Procedural Code of the Czech Republic, §68". Collection of the Laws of the Czech Republic (in Czech). Prague. 141 (1961). Retrieved 14 July 2012.
  16. Czech National Council. "Criminal Procedural Code of the Czech Republic, §67". Collection of the Laws of the Czech Republic (in Czech). Prague. 141 (1961). Retrieved 14 July 2012.
  17. Czech National Council. "Criminal Procedural Code of the Czech Republic, §76". Collection of the Laws of the Czech Republic (in Czech). Prague. 141 (1961). Retrieved 14 July 2012.
  18. Czech National Council. "Criminal Procedural Code of the Czech Republic, §72a(1)". Collection of the Laws of the Czech Republic (in Czech). Prague. 141 (1961). Retrieved 14 July 2012.
  19. Czech National Council. "Criminal Code of the Czech Republic, §14(3)". Collection of the Laws of the Czech Republic (in Czech). Prague. 40 (2009). Retrieved 14 July 2012.
  20. Czech National Council. "Criminal Code of the Czech Republic, §54". Collection of the Laws of the Czech Republic (in Czech). Prague. 40 (2009). Retrieved 14 July 2012.
  21. Czech National Council. "Criminal Procedural Code of the Czech Republic, §72a(2)". Collection of the Laws of the Czech Republic (in Czech). Prague. 141 (1961). Retrieved 14 July 2012.
  22. Czech National Council. "Criminal Procedural Code of the Czech Republic, §72a(3)". Collection of the Laws of the Czech Republic (in Czech). Prague. 141 (1961). Retrieved 14 July 2012.
  23. Czech National Council. "Criminal Procedural Code of the Czech Republic §72". Collection of the Laws of the Czech Republic (in Czech). Prague. 141 (1961). Retrieved 14 July 2012.
  24. Czech National Council. "Criminal Procedural Code of the Czech Republic, §74". Collection of the Laws of the Czech Republic (in Czech). Prague. 141 (1961). Retrieved 14 July 2012.
  25. "Zpráva z návštěvy vazebních věznic [Ombudsperson's Remand Prisons Inspection Report]" (in Czech). Czech Omudsperson. April 2010. Retrieved 21 July 2012. Cite journal requires |journal= (help)
  26. "Statistická ročenka Vězeňské služby za rok 2011 [2011 annual statistical report of the Prison service]" (PDF) (in Czech). Czech Prison Service. 2012. Archived from the original (PDF) on 31 December 2013. Retrieved 21 July 2012. Cite journal requires |journal= (help)
  27. "Being charged with a crime". Gov.uk.
  28. "Craig Meehan sentenced to 20 weeks' jail for possessing child porn". The Guardian. 16 September 2008. Retrieved 1 November 2018.
  29. 18 U.S.C. § 3142
  30. Michels, J. D. (14 April 2010). "Compensating Acquitted Defendants for Detention before International Criminal Courts". Journal of International Criminal Justice. 8 (2): 407–424. doi:10.1093/jicj/mqq015.
  31. Martin Schönteich (29 June 2013). "The overuse of pre-trial detention: Causes and consequences | Centre for Crime and Justice Studies". Centre for Crime and Justice Studies. Retrieved 6 August 2018.
  32. "Presumption of Guilt: The Global Overuse of Pretrial Detention". Open Society Foundations. September 2014. Retrieved 6 August 2018.
  33. Stephanos Bibas (June 2004), Plea Bargaining outside the Shadow of Trial, 117, Harvard Law Review, pp. 2463–2547
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