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Handcuffing of Defendants

Principle

The Law

There is a presumption that a defendant should be unfettered in court unless there are reasonable grounds for restraint. The onus is on the prosecution to show reasonable grounds for the use of handcuffs.

Best practice guidance for Custody Management Directions was issued by the Lord Chief Justice in January 2006, a copy of which can be found at www.judiciary.gov.uk. This guidance is to ensure that wherever possible the risk of escape or violence by prisoners is identified in advance of a court appearance and is managed by introducing appropriate arrangements that do not unnecessarily prejudice the prisoner.

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.

A warning from a prison to prison escort and dock security contractors that there might be some risk of escape does not automatically mean that the risk is great enough to justify handcuffing in court. Before ordering such measures, alternative means of guarding against risk of violence or escape must be investigated e.g. having officers positioned in or outside the court: R v Horden [2009] 2 Cr. App. R. 24.

Where a defendant appears before a court, it is for the court not police or security staff to decide whether or not she/he should be handcuffed: R v Cambridgeshire Justices, ex p. Peacock, 156 JP 895, DC; The Times, 30 July, 1992.

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.

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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 she or 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 channelled 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.

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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.

The proforma application at Annex 2 of the Best Practice Guidance for Custody Management Directions should be completed by the prison or escort authorities before an application is made. This form will be used at court to support an application.

In May 2009, ACPO updated general guidance on the use of handcuffs: http://www.acpo.police.uk/documents/uniformed/2009/Handcuffs_Guidance_Amended_08x05x09_website.pdf.

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