Bail or jail? : the magistrates' decision

  • Anthea Hucklesby

    Student thesis: Doctoral Thesis


    The importance of the remand decision cannot be overstated as by definition it deals with, in the main, legally innocent people. On the one hand, a remand in custody can adversely affect the defendants private life and preparation for trial and may result in an increased likelihood of conviction and receiving a custodial sentence and, on the other, a remand on bail may result in further offences being committed.

    This study is a comprehensive analysis of the remand process in magistrates' courts in England and Wales as it operated in the early 1990s. The thesis provides an extensive analysis of the law relating to bail as well as a detailed picture of its operation in three South Wales magistrates' courts through the use of four data collection methods (observations of remand hearings, an examination of court registers and questionnaires and follow-up interviews with participants). Both national statistics and previous research studies are used to assess the impact of changes which have been made both to the law and policy on bail

    The findings of the research suggest that the law and policy relating to remand and the operation of the remand process have conflicting aims. However, the dominant principles of its operation are those of crime control. The findings also suggest that the majority of remand decisions are not judicial decisions but are taken executively by other participants in the process (predominantly the prosecution). However, these executive decisions are tempered by the culture of the court in which the participant operates and it is this that explains the variation in court practice and decision making found in the study.

    The focus of concern of participants was the inconsistent and inappropriate application of the law on bail which they perceived to be a product of the system of lay magistrates. On the whole, they were uncritical of the law on bail. This was exemplified by the problem of offending on bail which many participants believed could be tackled under the existing exception to the right to bail of 'risk of further offences' rather than requiring a change in the law.
    Date of AwardAug 1994
    Original languageEnglish

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