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Ireland has a comparatively low pre-trial detention rate by European standards, at around 14 pre-trial detainees per 100,000 population. This article seeks to explore one factor which may explain a lower use of pre-trial detention in Ireland: its legal culture. Drawing on semi-structured interviews with judges, prosecution lawyers, defence lawyers and probation staff, the article finds that the constitutional protection of the right to bail (the key alternative to pre-trial detention in Ireland), an enduring legal tradition which historically prohibited the use of a risk of offending ground, and shared views and assumptions about the objectives of pre-trial detention hearings amongst judges, prosecution and defence lawyers, have influenced how such actors engage in the decision-making process about the use of pre-trial detention. The article argues that more attention needs to be given to the role of legal culture to examine why detention rates differ across Europe. [ABSTRACT FROM AUTHOR]

This editorial seeks to introduce the special issue Towards an Evidence-Based Approach to Pre-trial Detention in Europe. It explains the state of the field surrounding the legal practice of pre-trial detention and why an interdisciplinary approach is warranted. Pre-trial detention is an instrument in criminal procedure that has been reportedly overused in several European systems, but the reasons remain partly unexplored. While legal scholarship continues to focus predominantly on the legal framework, more disciplines are involved in the way this applies in practice. This special issue gathers contributions from political scientists, (forensic) psychologists, criminologists and jurists who approach this phenomenon from different angles and therefore provide a deeper and more evidence-based understanding of how its practice operates. The special issue is structured along four themes highlighting the trends in scholarship regarding pre-trial detention, namely decision-making, risk-prediction, legal culture, and harmonisation. The editorial elucidates the narrative of the special issue and briefly presents the key points of each contribution. [ABSTRACT FROM AUTHOR]

The European Commission has repeatedly attempted to introduce EU legislation on pre-trial detention but has so far met with an overwhelming reluctance of Member States to address the issue. The latest initiative proposes to adopt an EU recommendation on the rights and conditions in pre-trial detention. This article seeks to highlight gaps in the protection of fundamental rights in national arrest warrant proceedings and whether standards on pre-trial detention alone will offer a solution for the full protection of fundamental rights in a cross-border context. It draws the link between the national arrest warrant, the EAW and the responsibility of the issuing state to guarantee the legality and validity of the national arrest warrant. The article finds that currently, compliance of judicial decision-making with the existing ECHR standards on pre-trial detention cannot be presumed in practice. This compliance also cannot be verified in an adversarial and equal judicial process until after the requested person has been surrendered. In the absence of a judicial process to challenge the legality of a national arrest warrant before the execution of an EAW, protection of the requested person's rights and access to an effective remedy remains problematic. [ABSTRACT FROM AUTHOR]

Quantitative recidivism risk assessment can be used at the pretrial detention, trial, sentencing, and / or parole stage in the justice system. It has been criticized for what is measured, whether the predictions are more accurate than those made by humans, whether it creates or increases inequality and discrimination, and whether it compromises or violates other aspects of fairness. This criticism becomes even more topical with the arrival of the Artificial Intelligence (AI) Act. This article identifies and applies the relevant rules of the proposed AI Act in relation to quantitative recidivism risk assessment. It does so by focusing on the proposed rules for the quality of the data and the models used, on biases, and on the human oversight. It is concluded that legislation may consider requiring providers of high-risk AI systems to demonstrate that their solution performs significantly better than risk assessments based on simple models, and better than human assessment. Furthermore, there is no single answer to evaluate the performance of quantitative recidivism risk assessment tools that are or may be deployed in practice. Finally, three approaches of human oversight are discussed to correct for the negative effects of quantitative risk assessment: the optional, benchmark, and feedback approach. [ABSTRACT FROM AUTHOR]

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. [ABSTRACT FROM AUTHOR]

Pre-trial detention empowers criminal courts to imprison defendants before they have been convicted of an offence. This is a significant power which should be subject to a rigourous decision-making process. A 2016 study of pre-trial detention practice in England and Wales highlighted concerns about such processes, recommending changes to law and practice in that jurisdiction. In 2017, several of these recommendations became law. This article details a follow-up empirical study, conducted in 2020, which sought to examine the impact of these changes on day-to-day pre-trial detention practice in criminal courts. After analysing the data, the article concludes that the changes in fact had minimal impact on practice, and suggests that changing the law does not necessarily translate into a change in the culture of pre-trial detention practice. [ABSTRACT FROM AUTHOR]

This paper traces developments in Great Britain related to counter-terrorism during the last few years and highlights the challenges to the rule of law raised by it, in particular, for the judiciary. It portrays the British constitutional order finding its feet after the fundamental changes made by the 1998 Human Rights Act, describing the tension arising with the judicial role changing whilst facing controversial measures such as 90-days detention, detention orders, shoot-to-kill policy, etc. An analysis of case law, government action and academic debate ends with a call for a new formula to be found by which security interests can be measured against human rights. [ABSTRACT FROM AUTHOR]