Detention of a suspect

The detention of suspects is the process of keeping a person who has been arrested in a police-cell, remand prison or other detention centre before trial or sentencing. One criticism of pretrial detention is that eventual acquittal can be a somewhat hollow victory, in that there is no way to restore to the defendant the days already spent in jail. Pretrial detention alters a defendant's incentives by making his or her best-case scenario not zero days in jail, but the length of time served pretrial. Therefore, the defendant may be more likely to plead guilty if the chance of acquittal is low, or if the expected sentence on a guilty plea is less than the amount of jail time that would be served pretrial. Pretrial detainees may also find it harder to mount an effective defense.^[1]

Detention before charge

Pre-charge detention refers to the period of time that an individual can be held and questioned by police, prior to being charged with an offence.^[2] Not all countries have such a concept, and in those that do, the period for which a person may be detained without trial varies from jurisdiction to jurisdiction.^[3]

United States

In the United States, a person is protected by the federal constitution from being held in prison unlawfully. The right to have one's detention reviewed by a judge is called habeas corpus. The U.S. Constitution states that "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it". A declaration of a state of emergency can suspend the right to habeas corpus. The Fifth Amendment to the United States Constitution states in part:

No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; ... nor be deprived of life, liberty, or property, without due process of law

The Sixth Amendment requires criminal defendants to be "informed of the nature and cause of the accusation". The U.S. Bill of Rights thus grants some protection against being held without criminal charge, subject to the courts' interpretation of what due process means. Federal authorities have also exercised the power to arrest people on the basis of being a material witness. Involuntary commitment of the mentally ill is another category of detention without criminal prosecution, but the right of habeas corpus still applies. The scope of such detentions is also limited by the Bill of Rights, and the practice is controversial, especially when applied to sex offenders.

The executive's military powers have been used to justify holding enemy combatants as prisoners of war, unlawful combatants, and Civilian Internees; the latter two practices have been controversial, especially with regard to the indefinite detention implied by uncertainty as to when the "War on Terror" might be declared to have ended. Administrative detention, a term applied to many of these categories, is also used to imprison illegal immigrants.

Pre-trial supervision

Häktning (Swedish law)

Häktning is a pre-trial supervision measures pursuant to Swedish law, meaning that a suspect can be detained by a court in the case of crimes for which there is a prison term of one year or more. There are two degrees of suspicion:

• reasonable suspicion (the lower level of suspicion), or
• probable cause (the higher level of suspicion).^[4]

Reason for detention is if the crime is a statutory minimum penalty of at least 1 year, and one of:

1. risk of recidivism;
2. risk that the suspect will destroy evidence or otherwise affect the investigation of the crime (e.g. suppression of evidence );
3. risk that the suspect will flee prosecution or punishment, or
4. the suspect is without permanent residence in Sweden, also for lesser crimes.^[5]

A person may be held in custody for a period of normally not more than 14 days (seven days if only the degree of suspicion "reasonable suspicion" exists), then normally new remand hearing should be held. For suspect who has not yet turned 18 needed "serious reasons" for detention decisions are to be notified of the court.

A person who was häktad but was not charged (or was freed after trial) is entitled to financial compensation, with an amount determined by the Chancellor of Justice. It is usually around 500 SEK (80 USD) per day for the suffering, somewhat more if there was media attention, plus compensation for lost work income. 1200 people were compensated in 2007. ^[6] If prison is sentenced, the time as häktad counts as a part of the prison time, so that less time will remain after the trial.

The Committee for the Prevention of Torture of the Council of Europe has repeatedly criticized pre-trial detention in Sweden for the high percentage of cases where restrictions on communication are applied.^[7] Such communication restrictions means in Sweden no visits, no telephone calls, no newspapers and no TV.

Tutkintavankeus (Finnish law)

Tutkintavankeus/Häktning is a precautionary measure under Finnish law to ensure that a criminal suspect or defendant does not complicate the proceedings, continue criminal activities, flee from the trial or flee from the future execution of the sentence. Pre-trial detention is decided by a District Court. The imprisonment is possible if the suspicion is supported by probable cause and the law provided specific conditions are met.

Remand in custody prior to arrest time, which in Finland is limited to three days, in which case no later than the fourth day of the court must decide whether the imprisonment. Decide on the arrest of the investigating authority.

Pre-trial detention until the court released a remand prisoner's sentence or until the performance begins. Finland will continue in the detention of any court of appeal proceedings. Inquiry Inmates have different rights than prison inmates. Remand prisoners are allowed to wear their own clothes.

Detention after charge

Bail

Main article: Bail

The term "remand" may be used to describe the process of keeping a person in detention rather than granting bail. A prisoner who is denied, refused or unable to meet the conditions of bail, or who is unable to post bail, may be held in a prison on remand. Although remanded prisoners are usually detained separately from sentenced prisoners, due to prison overcrowding they are sometimes held in a shared accommodation with sentenced prisoners. Reasons for being held in custody on remand vary depending on the local legal system, but may include:

• the suspect has been accused of carrying out a particularly serious offence
• the suspect having previous convictions for similar offences
• reasons to believe the suspect could leave the court's jurisdiction to avoid its trial and possible punishment
• reasons to believe the suspect may destroy evidence or interfere with witnesses
• the suspect is likely to commit further offences before the trial
• the suspect is believed to be in danger from accomplices, victims, or vigilantes

In most countries, remand prisoners are considered innocent until proven guilty by a court and may be granted greater privileges than sentenced prisoners, such as:

• wearing own clothes rather than prison uniform
• voting in elections
• being entitled to additional visiting hours per week
• not being required to complete prison-related work or education

Not all remand prisons grant these privileges, in particular, remand prisoners are often forced to wear prison uniforms and denied additional visitation rights, supposedly for safety reasons. Often they are denied all visits and all newspaper and media access, for risk of interfering with the investigation, such as communicating a story with fellow remand prisoners.

The Eighth Amendment to the United States Constitution prohibits excessive bail. Under the US Code, pretrial detention of federal suspects is only allowed under certain circumstances, such as when the defendant is a danger to witnesses or jurors.^[8]

See also

• Law enforcement agency powers
• Powers of the police in England and Wales
• Nightwalker Statute

References

1. ^ Stephanos Bibas (Jun., 2004), Plea Bargaining outside the Shadow of Trial, 117, Harvard Law Review, pp. 2463–2547 
2. ^ Liberty Human Rights, Extension of Pre-Trial Detention, http://www.liberty-human-rights.org.uk/policy/reports/comparative-law-study-2010-pre-charge-detention.pdf, retrieved 2011-02-15 
3. ^ Liberty Human Rights (PDF), Terrorism Pre-Trial Detention: Comparative Law Study Executive Summary, http://www.liberty-human-rights.org.uk/issues/pdfs/comparative-law-exec-summary.pdf, retrieved 2007-12-09 ^{[dead link]}
4. ^ Rättegångsbalken, 24 ch. 1-3 § Anyone suspected on probable cause for a crime with a punishment of one year or more can be detained... Also, anyone suspected on reasonable suspicion can be detained, within the limits set in 19 §...
5. ^ https://lagen.nu/1942:740#K24P2 Rättegångsbalken, 24 ch. 2-3 §"1. if he is unidentified and refuses to reveal his name and residence or if his statements on this matter can be assumed to be false, or
   2. if he is without residence in the country and there is a risk that he, by leaving the country, evades trial or punishment."
6. ^ “More and more people get compensation after arrest”, Radio Sweden, 05 March, 2008 "close to 1,200 people were compensated last year for being häktade without being convicted of a crime."
7. ^ "Imposition of restrictions on remand prisoners", Report to the Swedish Government on the visit to Sweden carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 9 to 18 June 2009, 11.12.2009, http://www.cpt.coe.int/documents/swe/2009-34-inf-eng.htm#_Toc248053668 
8. ^ 18 U.S.C. § 3142