Handcuffing of Defendants
Updated 18/02/08
Principle
The Law
Handcuffing (<Archbold 2008, 3-205> and Blackstone's Criminal Practice 2008, D1.3 p.1168)
Defendants appearing before courts should not be handcuffed or otherwise restrained in the dock, unless there is a danger of violence or escape. These are the only two factors which may be taken into account when deciding whether or not to restrain a defendant in the courtroom: R v Vratsides [1988] Crim.L.R. 251 CA.
Where a defendant appears before a court, it is for the court not police or security staff to decide whether or not s/he should be handcuffed: R v Cambridgeshire JJ, ex p. Peacock, 161 JP 113, DC; The Times, 30 July, 1992.
The presumption is that a defendant should be unfettered unless there are reasonable grounds for restraint. The onus is on the prosecution to show reasonable grounds for the use of handcuffs.
Any application that the defendant should be restrained should be heard inter partes: R v Rollison, 161 JP 107, CA
Where handcuffs are unjustifiably resorted to, their use will constitute a civil trespass even though the arrest itself is lawful: (Taylor (1895) 59 JP, 393); (Bibby v Chief Constable of Essex (2000) 164 JP, 297.) It may also violate Articles 3 (degrading treatment) and 6 (the right to a fair trial, and the presumption of innocence) of the ECHR. The rights of the suspects need to be balanced against public safety, and legitimate reasons put forward for handcuffing in court. Any derogation from these principles must be strictly justified.
Consistent with this approach, other methods of countering any risk of escape or violence should be explored to ensure the least risk of prejudice to the suspect. This may include, for example, the presence of covertly armed police officers in court or a use of a specially protected dock.
Guidance
The Role of the Prosecutor
Applications for handcuffs are becoming common.
It is the role of the prosecutor to assist the court and make necessary representations to the court for the handcuffing of a prisoner based on information provided by the police or court security officers.
It would not be appropriate for a prosecutor to comment upon the decision, to seek an order or to advise on the safety of a particular person, other than to advise on the legal parameters of the court's discretion.
Therefore, a prosecutor should not advise whether a particular defendant should be handcuffed and may refuse to assist the police or security staff where an application would be outside the court's discretion.
A prosecutor may also refuse to make an application where s/he is not satisfied about the nature or extent of information provided by the police or Securicor when requested to make an application.
It is not appropriate for anyone other than the prosecutor to make a direct application to the court.
To maintain consistency of approach, all requests should be channeled through the prosecutor and the application should be made, wherever possible, before the defendant is brought into court. There is nothing, however, to prevent an application being made once the court is sitting or the suspect is in the dock.
Prosecutors need to carefully examine requests to make applications for handcuffs to be worn in court, and to ensure that there are sufficient grounds for making such applications.
Procedure
The courts have expressed concern that there appears to be a lack of consistency in approach to the making of handcuffing applications in courts.
As a result, CPS has agreed with the Prison authorities a national proforma to be completed by the prison authorities or by the security staff authorities before any such applications are made. A copy of this proforma is attached. <Annex 1>
ACPO has also issued general guidance on the use of handcuffs, 19 September 2006.
Useful links
Archbold 2008: 3-205
Blackstones Criminal Practice 2008: D1.3 - P.1168
http://www.acpo.police.uk/policies.asp
Case-Law and Further Information
(Lockley 91864) 4 F&F 155)
R.v. Vrastides [1998] Crim.LR.251;
R.v. Cambridge Justices, ex p.Peacock, 161 JP113, DC The Times 30July1992.
R.v. Rollison, 161 JP 107 CA.
Taylor (1895) 59 JP, 393;
Bibby v Chief Constable of Essex (2000) 164 JP 297
HM Prison Service Proforma