There have been a number of attacks on the judiciary in recent weeks, all wholly unjustified and without merit. But there is one area of judicial decision making that bears scrutiny and that is the granting of bail pending trial.

Recent criticisms made in relation to Marine A, who was refused bail over Christmas, comes from those who haven’t actually read the judgement setting out why the court refused him bail pending his appeal. The judgement sets out the reasoning and rationale of the court perfectly and is almost impossible to disagree with.

However, there are many cases where the court is remanding defendants unnecessarily and this is causing further strain on the prison service.

The prisons appear to be at breaking point. Chronic understaffing appears to be a factor and the Lord Chancellor, Liz Truss, appears to have taken notice. An additional 2,500 extra staff will be recruited at prisons in England and Wales at a cost of £104 million to tackle the issue of violence in the prisons. This is good news for the prison service but will it actually solve the problem? Firstly, it will take two years for this recruitment drive to be achieved. But secondly, and more importantly, it doesn’t address the issue of overcrowding in the prisons. Our prisons are full.  Overcrowded prisons mean worsening conditions for the inmates. Worsening conditions lead to disorder and violence within the prisons.

Here at Mackrell Turner Garrett, we have recently experienced great frustration with two defendants who are currently remanded in custody awaiting trial when it is patently obvious that they do not belong in prison. In order to respect their confidentiality their names are withheld.

The two men are Pakistani nationals who have lived in the UK for a number of years and have no previous convictions. They were stopped by police in the course of a much larger police operation for possession of a sealed shoebox. Within the shoebox was just shy of £50,000 in cash. The two men were charged with Transferring Criminal Property under the Proceeds of Crime Act and were remanded overnight to the Magistrates Court. At the Magistrates Court the lay bench refused bail on the grounds that the two men might fail to appear at their next court hearing if granted bail.

At the Crown Court a full bail application was made fully addressing the concerns that the defendants may fail to appear. The Crown Court judge was satisfied that these concerns had been fully addressed but then went on to refuse bail on the grounds that the defendants may commit further offences if granted bail, despite neither of them having any previous convictions.

These men, who are nothing more than a pair of delivery boys, are now in prison awaiting trial. What was the money for? We don’t know yet…. Drugs, guns, people trafficking… it could be any of these things, and there is no doubt that these are serious crimes. But do two men who were instructed to deliver a parcel of cash really need to be in prison for the next seven months awaiting trial? I would suggest absolutely not.

What if they fled the country and returned to Pakistan? What would that mean, in practical terms? If they leave the country, then they are immediately prohibited from committing further crimes on British soil. If they return to the UK they would no doubt be picked up at the airport and forced to face the consequences of fleeing.

In all likeliness, the initial taste of prison life would be enough to deter individuals like this from re-offending while out on bail.  They are not violent men. They are not a danger to the public. If they are involved in a criminal enterprise then they are right on the bottom rung of the ladder. They do not belong in prison.

These defendants could have been granted bail with conditions quite easily and the prison would be less crowded by two people. These types of case come before the courts frequently and if the defendants are not violent or do not represent a direct threat to the public then they should be on bail. It seems as though the presumption of bail is being undermined – courts must apply thorough reasoning to ensure that it is both necessary and proportionate to remand an individual in custody pending trial.