At any one time, there are around ten million people in prison worldwide. An estimated 3.2 million of these – 30 per cent of the total prison population – are behind bars awaiting trial. They are legally presumed innocent until proven guilty but may be held in conditions that are worse than those of convicted prisoners – and sometimes for years on end.
Pre-trial detention undermines the chance of a fair trial and the rule of law in a number of ways. The majority of people who come into contact with criminal law know little about their rights. Many countries do not have an adequate legal aid system, and many people cannot afford to pay for a lawyer. Even when they can, it is much harder to prepare well for a trial in a prison cell.
People in pre-trial detention are particularly likely to suffer violence and abuse. As well as the risk of violence from guards and fellow prisoners, police sometimes use illegal force or torture to gain a statement or confession. Without the protection of legal assistance, and isolated from their family and friends, it is not easy to withstand such pressure. High rates of pre-trial detention are also contributing to widespread prison overcrowding, exacerbating poor prison conditions and heightening the risk of torture and ill-treatment.
The pre-trial stage (from arrest to trial) of the criminal justice process is also particularly prone to corruption. Unhindered by scrutiny or accountability, police, prosecutors, and judges may arrest, detain, and release individuals based on their ability to pay bribes.
Pre-trial detention has a hugely damaging impact on defendants, their families and communities. Even if a person is acquitted and released, they may still have lost their home and job. They face the stigma of having been in prison when they return to the community.
Because of its severe and often irreversible negative effects, international law states that pre-trial detention should be the exception rather than the rule and that if there is a risk, for example, of a person absconding, then the least intrusive measures possible should be applied. A range of non-custodial measures are available, including bail, confiscation of travel documents, reporting to police or other authorities, and submitting to electronic monitoring or curfews.
Not only are such alternatives less expensive, but savings made could be better invested in creating a just and effective criminal justice system, with more thorough investigations, more judges, quicker procedures, and improved prison conditions. However, in many countries pre-trial detention continues to be imposed systematically on those suspected of a criminal offence without considering whether or not it is necessary, proportionate, or whether less intrusive measures could be applied.