Handcuffing of Defendants
Unless there is sufficient reason (which means a real risk of either violence or escape), a defendant ought not to be visibly restrained by handcuffs or otherwise either in the dock or in the witness box.
Even if there is some relevant risk, alternative forms of avoiding it ought to be investigated before resort is made to visible restraint: R v Vratsides  Crim. L. R. 251 CA, R v Horden  2 Cr. App. R. 24. These might include a secure dock; the interposition of prison officers between defendants or either side of a single defendant; police officers inside or outside the courtroom; and in an extreme case, authorisation from the Senior Presiding Judge for armed officers to be in the court building are all alternatives which may be employed.
Best practice guidance for Custody Management Directions was issued by the Lord Chief Justice in April 2010. The objective of the 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. The jury must be free to decide upon the guilt or innocence of the defendant without the risk of being influenced against him by sight of restraint which in their minds suggests that he is regarded with good cause as being a dangerous criminal. Even at hearings where no jury is present, applications for restraint must be scrutinised and strictly justified.
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.
The Role of the Prosecutor
It is the role of the prosecutor to assist the court and to make appropriate representations to the court for the handcuffing of a prisoner based on information provided by the police, court security officers or others responsible for the custody of the defendant.
Applications should not be made without proper investigation or simply so that it can be said that the application has been made and the responsibility for a refusal can be fixed upon the court. A degree of judgment needs to be exercised before an application is lodged or made, to assess the evidence on which it is to be made, in order to see whether or not it is properly justified: Horden.
A prosecutor may refuse to assist the police or security staff where an application would be outside the court's discretion, where the real risk of violence or escape if plainly not made out, or where the prosecutor is not satisfied about the nature or extent of information provided by the police or escort authority e.g. warning markers with no indication of the material on which they are based. .
It is not appropriate for anyone other than the prosecutor to make a direct application to the court.
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 should carefully consider requests to make applications for handcuffs to be worn in court, and to ensure that there are sufficient grounds for making such applications.
The proforma application should be completed by the prison or escort authorities before an application is made, (see Annex 2 of the Best Practice Guidance for Custody Management Directions). This form should be used at court to support an application.