The proportion of prisoners awaiting trial is high. According to the Open Society Justice Initiative, in Asia, 40.6% of the prison population were awaiting trial in 2012, 34.7% in Africa, 25% in the Americas and in Europe around 1 in 5. However, pre-trial detention rates vary hugely within regions. The length of pre-trial detention also varies greatly, with detainees held an average 4.8 months in the 27 Council of Europe countries in 2012, compared to a reported average of 3.7 years in Nigeria (2008).
Prison overcrowding, in large part fuelled by high rates of pre-trial detention, can have a damaging impact on detainees’ physical and mental health. Some prisons are dirty and unhealthy and prisoners have little or no privacy, access to fresh air, exercise, adequate sanitation facilities, healthcare or sufficient food. Diseases spread easily in such conditions and the chances of catching TB, hepatitis C and HIV/AIDS are much increased by detention.
Most developing countries have a shortage of trained lawyers, with just one lawyer per 50,000 people in some places. Without legal assistance, the chance of getting a fair trial is severely diminished. Time passes, witnesses disappear and evidence goes stale. The pressure to plead guilty increases as people want to end the uncertainty and bring the case to a conclusion.
Pre-trial detention is expensive compared with non-custodial alternatives. The rough cost of the 370,000 pre-trial detainees held in 2010 in Council of Europe states would have cost them about 12.7 billion euros. 91 countries worldwide had GDPs less than this in 2010 according to the World Bank (OSJI).
For the family left behind, the consequences of detention are also serious. They may have lost the main earner or caretaker in the family. This can lead to the break-up of the family, loss of livelihood and home.
Under international law, detention on remand is only permissible if several – cumulative – preconditions are met. Besides a reasonable suspicion of that individual having committed an offence, pre-trial detention must be reasonably necessary to prevent another offence, someone escaping from justice or interference with the course of justice. Less intrusive measures have to take precedence over detention. Pre-trial detention should only be applied for the shortest possible time and suspects are entitled to a trial ‘within a reasonable time’.