Possibilities for avoiding pre-trial detention are exceptionally
important. Prisoners undergoing pre-trial detention usually suffer the worst prison
conditions. All the international rules on the treatment of detained persons emphasise the
major distinction between people who have been found guilty, convicted by a court, and
sentenced to prison and those who have not. Prisoners who are waiting for their trial,
imprisoned on remand, are regarded differently because the law sees them as innocent until
found guilty. Therefore their rights should be especially protected. Article 9 (3) of the
Covenant on Civil and Political Rights requires that "it shall not be the general
rule" that people awaiting trial are detained. The United Rules Standard Minimum
Rules for Non-Custodial Measures (the Tokyo Rules) suggest that
"Pre-trial detention shall be used as a means of last resort in
criminal proceedings, with due regard for the investigation of the alleged offence and for
the protection of society and the victim." (Rule 6.1)
One frequently used alternative to pre-trial detention is bail. The
court releases the defendant, perhaps with some conditions that have to be obeyed.
Sometimes bail is granted when sureties are provided. Money is paid to the court which is
lost if the defendant does not appear for the trial. Sometimes the judge gives bail but
imposes some conditions, such as reporting to the police station regularly, or living at a
specified place. In the United Kingdom there are bail hostels, where the defendant is
required to live until the case comes to trial. For young people there are bail support
schemes, which require them to agree to various social measures designed to establish some
stability in their lives.
There is house arrest, used in some countries with various electronic
devices to check where the offender is at any time. Some countries, particularly in North
America and Australasia, have introduced electronic surveillance of individuals both pre-
and post-sentence. Individuals wear electronic emitters, whose signals are monitored
centrally, often through devices connected with a telephone in the offender's home. In
some programmes, surveillance is used by courts as part of a community-based sentence,
while in others it is used for offenders released from prison under surveillance after
serving part of their sentence. When it is imposed by courts as a sentence, it is often
used for stable offenders, with jobs, homes and families, who have committed non-violent
property offences or driving offences. In most other countries, such offences would have
been considered appropriate candidates for penalties such as fines, community service or
probation.
The British government has long been an enthusiast for electronic
monitoring. The first experiment with the technique was carried out in 1989. In a
six-month experiment in three courts people who might otherwise have been sent to prison
to await their trial were instead asked if they would agree to having a device fitted to
their ankles containing a low-powered radio transmitter. If they agreed they were allowed
to stay out of prison on bail. A radio signal was received from this device at a central
monitoring station through the person's telephone so long as the person was at home. The
objective was that about 150 people would go through the experiment in the six-month
experimental period. The results were disappointing. Only 50 people were monitored during
the experiment. Of these, 11 committed another offence during the time they were being
monitored and 18 broke the conditions of their bail in other ways. It was found that
defendants preferred the experience of surveillance to imprisonment. However, the system
was extremely expensive to install and operate with frequent failures of technology,
leading to unnecessary police alerts. It was also found that wearing the anklet emitter
had a stigmatising effect, publicly identifying the person as a defendant. Some defendants
noted that it was very difficult to obtain employment while under electronic surveillance,
partly because of the longer curfew hours given to unemployed defendants. The research
study of the trials (Home Office 1990) concluded
" Given the low numbers deemed suitable for monitoring during the
trials, and the moves towards individualised disposals for offenders which focus on their
specific offences, will there be enough candidates to make electronic monitoring
financially cost-effective?" (Home Office 1990) [15]
Then there are measures that take place instead of a trial, if the defendant is
prepared to admit that he or she is guilty and the victim agrees. Under these
victim-offender mediation schemes. the victim and the offender are brought together in the
presence of a competent person to attempt to resolve the conflict and arrange an outcome
agreed by both parties, without recourse to the official judicial system. These schemes
usually include safeguards for both parties, so that neither is put under undue pressure
to agree to a particular settlement. Sometimes a process of mediation is brought in and a
specialised agency tries to arrange a resolution of the problem outside the criminal
justice setting entirely. In some jurisdictions the prosecutor with the agreement of the
defendant will ask for compensation or some action to benefit society and then the matter
is closed.
