Pre-Trial Detention and the Presumption of Innocence

Abstract

This chapter examines the pre-trial detention of those denied bail. Pre-trial detention is problematic because it treats the defendant as guilty ahead of trial, fails to treat the individual as a responsible agent, and seems to be inconsistent with the presumption of innocence. It examines the ‘instrumental, consequentialist rationale’ for pre-trial detention. It explores whether it is possible to provide principled justifications; and, in particular, whether it is possible to reconcile pre-trial detention with the presumption of innocence. While acknowledging that becoming a defendant in the criminal process attracts ‘certain new duties or responsibilities’ that, in turn, justify different kinds of restriction of which detention is only the most onerous, the chapter concludes that pre-trial detention is morally problematic in ways we rarely acknowledge.