Justice calls for bail to be magistrates’ starting point as remand cases hit record levels
Legal reform group Justice has unveiled a comprehensive plan to reduce the number of people held in custody before trial, as the remand population reaches record levels and overcrowding continues to strain prisons across England and Wales.
The blueprint, published on Monday, includes proposals for new decision-making tools for magistrates, better training and guidance, and improved support for court legal advisers. The aim, the organisation said, is to promote more consistent and lawful bail and remand decisions and ensure pre-trial detention is used only as a last resort.
Justice’s report comes two years after it warned that magistrates were frequently failing to follow the law when remanding defendants into custody. The group said that despite those earlier findings, the problem has worsened. According to the latest figures cited in the report, 11,629 of the record 17,071 people currently on remand are awaiting trial — meaning one in five people in prison has not been convicted.
The thinktank found significant variation in how magistrates approach remand decisions, with some courts applying stricter thresholds for custody than others. To improve consistency, the report recommends that unconditional bail should always be the starting point, with remand to prison considered only when all other options have been exhausted. It also emphasises that courts, not defendants, bear the burden of justifying the refusal of bail.
Embed from Getty Images
Among its most practical proposals are new flow charts, developed in collaboration with the Judicial College, to guide magistrates step by step through the remand process. The charts are designed to help benches apply the law correctly and to ensure that decisions are recorded transparently. Justice also proposes regular post-sitting reviews to support judicial reflection and continuous learning.
The report highlights mounting pressures on legal advisers, who play a crucial role in supporting magistrates but are struggling to manage rising workloads. Since the rollout of the Common Platform case management system in 2021, advisers have been spending more time on administrative tasks, leaving less capacity to provide timely legal advice and feedback. Justice warns that these operational challenges are undermining the quality of decision-making in court.
Emma Snell, legal policy manager at Justice, said: “Magistrates’ courts make nearly all the decisions fuelling this overuse of pre-trial prison stays — and under new government plans they will soon be making even more life-changing decisions. The quality of their decision-making is therefore key.”
Snell said the report’s recommendations aimed to provide “simple, practical tools” to help magistrates apply the law fairly and consistently, while ensuring that pre-trial detention remains a measure of last resort.
The blueprint has been welcomed by the Magistrates’ Association, though it warned that systemic pressures are compounding the problem. Tom Franklin, the association’s chief executive, said: “We strongly support measures that help magistrates make fair and lawful decisions. But broader issues such as shortages of legal advisers, increasing case backlogs, and the rising number of unrepresented defendants all need to be addressed if meaningful change is to happen.”
The report also calls for the restoration of adequate post-release support for defendants who are remanded and later freed directly from court — a problem identified in earlier reviews, including the Owers report on remand prisoners. Justice says too many individuals are released from custody without access to housing, healthcare or rehabilitation services, increasing the likelihood of reoffending or homelessness.
The thinktank’s recommendations are part of a broader push to reform the use of remand and ensure compliance with human rights standards. It argues that custody before trial should never be the default and that excessive reliance on remand undermines both fairness and public confidence in the justice system.
With prison overcrowding at its highest recorded level, Justice says its proposals could make a measurable difference if adopted swiftly. The group’s message is clear: magistrates must be equipped — and supported — to make better, more informed decisions that balance public protection with the fundamental presumption of innocence.