A Multi-disciplinary and Comparative Approach to Evaluating Pre-trial Detention Decisions: Towards Evidence-Based Reform

Abstract

The decision to remand a defendant into custody pre-trial is one of the most controversial criminal justice decisions because it deprives individuals of their liberty while they are presumed to be innocent of a crime. Indeed, pre-trial detention decisions can have significant consequences for defendants, which need to be balanced against the potential implications of bail for public safety and the course of criminal proceedings. Despite this, court-based bail and remand decision-making remains relatively underexplored. In this paper, we compare court-based bail/remand decision-making in England and Wales and The Netherlands. We focus on (i) the procedure and structure of decision-making, (ii) the substantive relevant legal frameworks, (iii) the courts in which the decisions are made and the decision-makers in those courts, (iv) the conditions characterizing the decision task, and (v) the court’s reasoning of bail and remand in custody decisions. Using a comparative and multi-disciplinary approach, relying on Law, Criminology, and Psychology, we make predictions about bail and remand in custody rates in the two jurisdictions as well as the decision performance of court-based decision-makers. These predictions are then evaluated using available (official) statistics and past research. We identify the need to collect more nuanced statistical data on bail and remand in custody rates and point to potentially fruitful avenues for future research. A comparative, multi-disciplinary, evidence-based approach can underpin remand reform in England and Wales, The Netherlands, and beyond.

Towards an Evidence-Based Approach to Pre-trial Detention in Europe

“…It is our hope that the various contributions in this special issue (e.g. Dhami & Van den Brink 2022;Wermink et al, 2022;Fazel et al, 2022;Van Dijck, 2022) dealing with the aspects of decision-making process and risk assessment could be an inspiration for future EU measures.…”

“…A first group of contributions addresses the topic of pre-trial decision-making. The work of Wermink, Light and Krubnik (Wermink et al, 2022) and the article by Dhami and Van den Brink (Dhami & Van den Brink, 2022) deal with the biases and the risks behind the use of pre-trial detention, which may infiltrate judicial deliberations.…”

“…In a similar vein, the article by Dhami and Van den Brink (Dhami & Van Den Brink, 2022) provides insights into the decision-making process, through a comparative overview of remand/bail cases in England and Wales and the Netherlands. This contribution efficiently explores current literature concerning the way Dutch and English decision-makers operate, trying to further extract relevant findings from a comparison between the two jurisdictions.…”

“…in England and Wales, decision-makers mostly rely on the same specified risk predictors, thus reducing inter-individual variability), substantive and procedural legal constraints are per se insufficient to avoid subjective interpretation and 'heuristic' decision strategies. Dhami and Van den Brink add on an existing body of literature (Dhami & Van den Brink, 2022) by illustrating that behind an officially stated rationale to deny bail, a court's reasoning may easily hide further extra-legal reasons. After all, as the authors convincingly show, it is probably unrealistic to expect decisionmakers to accurately articulate their reasoning and/or self-report the actual consideration underlying their decisions.…”