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Continued Complacency: The Unforeseen Consequences of Brexit for Pre-Trial Detention

admin - November 13, 2018 - Brexit

This post is part of Fair Trials' expert blog series on Brexit, where members of Fair Trials' Legal Expert Advisory Panel highlight key human rights issues raised by Brexit. 

Dr Tom Smith is a Lecturer in Law at the University of West England, Bristol, specialising in criminal justice and procedure, legal aid, pre-trial detention, and disclosure in criminal proceedings. He has published articles and reports in these areas, and recently co-authored a book on criminal procedure and punishment.


With no deal for the UK’s withdrawal from the EU yet finalised, the impact of Brexit on criminal justice, like many areas, is deeply uncertain. Notwithstanding overtures from both the UK Government and the EU that some degree of continued cooperation is desirable in relation to security and the fight against serious cross-border crime, it is inevitable that a range of criminal justice related instruments, mechanisms, agencies, and practices will be affected post-March 2019.

One principle concern is the impact Brexit will have on safeguarding the rights of those suspected or accused of crimes – in relation to both domestic and EU suspects and defendants. Despite the ongoing commitment of the UK Government to the European Convention on Human Rights, it has been notably intransigent in relation to the implementation of EU criminal justice measures. In 2013, it opted out of 110 such measures (opting in to a select few deemed in its interest). Moreover, the UK has opted into only two of the six EU Directives contained in the ‘Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings’. It has been suggested – particularly by Fair Trials – that the UK’s failure to adopt these standards could affect its ability to participate in a future security agreement with the EU.

As important, however, will be the removal of external oversight of the development and maintenance of minimum standards (beyond the European Court of Human Rights, whose judgments are applied in retrospect). One might argue that the UK has been a leader in terms of upholding these standards and does not need a ‘big brother’ to keep it in check. Yet, when one digs a little deeper, it is evident that this stereotype rings a little hollow. One such area in which this appears to be the case is pre-trial detention (PTD) practice, specifically in England and Wales.

In 2016, Fair Trials published a regional report on PTD practice, including a country report written by the author and Professor Ed Cape. The findings are best described as mixed. On the positive side, the report found that the proportion of the overall prison population who were in pre-trial detention was low. The research also concluded that PTD practice was broadly compliant with ECHR standards. However, several findings raised concerns. The low proportion of pre-trial detainees didn’t reflect the fairly large overall number of pre-trial prisoners in England and Wales (nearly 10,000 at any given time). Particularly concerning, was that disclosure of information to the defence prior to PTD hearings was poorly regulated, and arguably breached the EU Directive on the right to information (one of the two Directives the UK did opt into). A review of prosecution case files revealed that nearly 25% of defendants who were detained at some stage prior to trial were acquitted or had the case against them dropped, whilst nearly half of defendants detained at some stage prior to trial did not receive a custodial sentence.

In the wake of the findings, some positive developments have occurred. The Criminal Procedure Rule Committee amended the Criminal Procedure Rules in early 2017 to ensure sufficient time for the defence to examine disclosed materials and for courts to make decisions regarding PTD. Yet beyond this, the UK Government has shown no particular interest in PTD. Whilst this is unsurprising in light of the distraction of Brexit, one suspects that once the UK has completed its withdrawal, the Government is unlikely to turn its attention to this particular area of criminal justice. Considering the potential impact it has on other areas of criminal justice – including the prison population, guilty plea rates, and ongoing issues related to the disclosure of evidence – this would be a missed opportunity.

Furthermore, under the new legal landscape presented by Brexit, concerns about compliance with the Directive on the right to information are increasingly unlikely to be addressed. Any threat of scrutiny by, for example, the Court of Justice of the EU will no longer exist to incentivise change. Nonetheless, upholding the substance of the Directives – important requirements designed to ensure full access to relevant information for defendants at PTD hearings – will remain an issue of concern. ECtHR jurisprudence appears to have little influence on day-to-day practice – particularly among Magistrates who are lay volunteers with no legal training or qualifications. Despite this, Magistrates make the vast majority of PTD decisions. PTD decisions are rarely challenged; they are subject to regular review by the courts (and appeal to a higher court is possible), but the research found little evidence to suggest that these forms of challenge were particularly probing or robust, and there was even some limited evidence of unlawful practice. Challenges to PTD in the highest courts are almost unheard of. As such, Brexit arguably removes one of the more potent and proactive scrutineers of practice in this area – the institutions of the EU. The burden will likely fall on a small number of researchers, NGOs, and interested executive bodies such as the Criminal Procedure Rule Committee. The latter has clout and influence – but has a wide range of competing priorities to address, and has no mandate for a broader review of PTD practice. Considering that the Ministry of Justice and the senior judiciary showed no interest in the findings of the research in 2016, it is likely that complacency regarding UK standards and inattention to PTD will continue post-Brexit.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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