One law for the guilty, another for the innocent

Prisoners held on remand while awaiting trial can at least console themselves that if found guilty, their time on remand will count towards their sentence. But there is no such consolation for those found not guilty, or found guilty but given a non-custodial sentence.

 They get no recompense of any sort for their time on remand. Remarkably, the judicial system in England and Wales treats the guilty more fairly and more generously than it does the innocent.
Nor are we talking about a handful of prisoners doing a few days’ bird while awaiting trial. In June, Andrew Pelling MP asked the Justice Minister Maria Eagle for the  number of prisoners held in prison on remand who are found not guilty of the charge(s) on which they had been remanded; and to the length of their remand. Her answers revealed that the days spent on remand by an average of over 12,000 not guilty defendants a year were not even counted.   
In August, Andrew therefore wrote to Jack Straw, as Lord Chancellor and Secretary of State for Justice, to find out also how many prisoners annually were held in prison on remand, who were subsequently found guilty but received only a community sentence.
Table shows the latest data (not yet available for 2008) from Criminal Statistics, England and Wales, as provided by Jack Straw’s reply in October 2009.


These answers should surely have shocked the Ministry of Justice into an urgent inquiry into just how justly, and for how long, its courts commandeer the occupancy of remand prison-places by people who are subsequently found either not guilty or guilty but given a community sentence. Not so . . Data from the Offender Management Caseload Statistics merely indicate that during 2007 "the average length of time served on remand was 55 days".

At judges’ discretion, time on remand is deducted from the custodial sentence to be served by the guilty. Also, since 2008, guilty defendants who have been tagged in the community while awaiting trial and who are subsequently sentenced to immediate custody have half their tagged days deducted from the period that they would otherwise have served in prison. Such justice and generosity to the guilty - and cost-containment, of course - are not matched by justice for the innocent.
Redress for the innocent is more tricky precisely because there is no sentence against which to offset the already-incurred costs of their remand. Should there be a form of statutory financial redress, or even apology? At present, there is pain but no gain for the innocent.
Let’s consider some simple sums. 

  • On average, during 2005-07, the courts remanded to prison each year 12,900 ultimately-innocent defendants and 10,630 (to nearest 10) who ultimately merited only a community-sentence.
  • If these two groups indeed served an average of 55 days on remand then each year they clock up 23,530 × 55 = 1,294,150 prisoner-days, or 3,543 prisoner-years.

In other words, pre-sentence incarceration of the ultimately-innocent and the community-sentenced commandeers nearly six moderately-size prisons (of around 600 inmates) at a cost of over £120 million pounds a year. Even if time on remand for subgroups A+B were half the overall average, the wasted prisoner-days, cost, and distress, would still be substantial.
The contrast between the treatment of the guilty and the innocent is striking. Let’s look at the treatment given to those who have been remanded, go to court, are found guilty and given a prison sentence. Typically, but at judges’ discretion, these convicted criminals have the days served on remand deducted from the time that they are otherwise liable to serve in jail. For example, if sentenced to 2 years’ immediate custody, a prisoner will typically serve 1 year (half the pronounced sentence) less the number of days served on remand.
Compare this with those who are found guilty, but who warrant only a community sentence. They are are given no remission of their community sentence as allowance from their time spent on remand. Where is the logic, or justice, in that?
There is a further absurdity. Those who are electronically tagged while awaiting trial can set off those tagged days against a subsequent sentence of imprisonment, should they be convicted. Typically, their sentences are shortened by half the period they have spent tagged.
But those who have been remanded in custody before trial, and subsequently given a community sentence, are given no remission of that sentence as allowance for their time spent in jail. By analogy with the incarcerated group, should they not have a tagged-community sentence reduced by twice their days they have spent on remand?  
If you are tagged before trial, therefore, you stand to gain if sentenced to prison. But if you are imprisoned before trial and then tagged, you get no allowance at all for the days you have spent in jail. This represents a gross injustice.  
Of course, to make such an allowance requires an explicit calibration of prisoner-days versus community-sentence-days: either 1-for-1; 1-for-2 tagged (as above, but only applied to the guilty); or cost-calibrated.
Let’s look at cost-calibration, which might be rational but would not be good for the tagging business. A prisoner in jail costs £95 a day, while a community sentence ranges  from £5 to £20 to £35 a day. This means that looking at costs alone, 55 days on remand could warrant remission of a community sentence by anything from 149 days to 261 up to 1,045 days: all considerably more than 55 days (1-for-1) or 110 days (1-for-2)!
Defendants who were remanded to custody, but are later found not guilty of the charges fare even worse. They are innocent of the charges, but have served a prison sentence waiting to be cleared. They receive no financial or other redress.
Joined-up justice? Law lacking in logic? Proper accounting of the bill for doing bird?  
There is a compelling case, on empirical, financial and natural justice grounds for the Lord Chancellor to think again about his department’s less-than-compelling answers.
Sheila Bird is at the MRC Biostatistics Unit in Cambridge; Andrew Pelling is MP for Croydon Central.