Guilty until Proved Innocent? The Diminished Status of Suspects at the Point of Remand and as Unconvicted Prisoners

Abstract

One of the basic principles of English criminal law is that a person suspected of committing a crime is presumed innocent until proved guilty in a court of law. Nowadays, this notion is also enshrined in international law. Arguments about further restrictions to the right of bail following a moral panic concerning so-called ‘bail bandits' have usually overlooked the fact that the detention of people charged with crimes following the refusal of bail is arguably in breach of this presumption, especially where the refusal was based on the likelihood of (further) offending while on bail. Even if such detention is considered permissible, it might reasonably be expected that special provision would be made for the incarceration of the unconvicted. However, once imprisoned, the suspect is increasingly treated as a convicted offender, and in many respects suffers even worse conditions. In the face of official rhetoric which claims that the solution lies either in the hands of the courts (in granting bail more frequently) or in the availability of greater resources (for example, to establish more bail hostels or build more prisons), this paper argues that the same view of ‘no smoke without fire’ which underlies the increasing legal restrictions placed on the right to bail also explains the indifference to the lot of the unconvicted prisoner.