When a defendant appears in court for the first time following charge, you must decide whether to remand on bail or in custody, unless the case is dealt with at the first hearing or is discontinued.
The major exceptions to the use of bail are where there are substantial grounds for believing that the defendant, if released on bail, would:
- fail to attend trial
- commit an offence while on bail
- interfere with witnesses
- otherwise obstruct the course of justice.
The Legal Aid, Sentencing and Punishment of Offenders Act (2012) introduced significant changes to the remand framework for adults and children under 18 years of age. Under the new ‘no real prospect’ test, most people will be released on bail if they would be unlikely to receive a custodial sentence.
Vulnerable defendants have the same right to bail as anyone else. However, Lord Bradley noted that magistrates may be inclined to view prison as ‘a speedy and reliable “place of safety” for vulnerable individuals presenting at court’ (Department of Health, 2009). Research has shown that due to the difficulties courts face in obtaining full and accurate information about defendants’ needs, there is significant overuse of custodial remand for the purpose of facilitating psychiatric assessments (Rickford and Edgar, 2005).
Liaison and diversion services should increasingly be able to assist in obtaining timely information about defendants' support needs. This can include referrals for support while defendants await subsequent court appearances. This should reduce the perceived need for custodial remand for vulnerable defendants.
When a defendant is granted bail, there may be conditions attached, such as residence at ‘approved premises’. Approved premises may be suitable for vulnerable defendants who might otherwise be remanded in custody. However you will want to reassure yourself that local approved premises are suitable for individual defendants as there is evidence that the provision of appropriate support is inadequate (Department of Health, 2009).
The Mental Health Act 1983 includes provisions for remanding a mentally disordered defendant in hospital as an alternative to custody. This can be so that either a report on his or her mental condition is prepared (section 35), or for treatment pending trial or sentence (section 36; only the Crown court can remand for treatment). In practice the limited availability of hospital places has resulted in mentally disordered defendants being inappropriately remanded to custody, because ‘prisons are one of the few institutions that cannot turn their service-users away when resources are stretched’ (Player, 2007).
Prison can exacerbate mental health conditions, as there is often limited access to treatment for short stay prisoners. Similarly, prison is ill-equipped to deal with prisoners with learning disabilities (Talbot, 2008).
Film clip 10 (01:45 mins)
A magistrate talks about his experience of sitting in a Saturday court and being faced with a difficult decision regarding a defendant with a mental health condition.