The handcuff is probably one of the most universally recognised symbols of an individual’s loss of liberty. Whilst manacles and other restraining devices had been used for the purpose of law enforcement and imprisonment for centuries, the handcuff with adjustable ratchets that we recognise today and that is used by the police first came into being in the nineteenth century.
At any given time in Crown Courts throughout England and Wales, there are defendants who stand accused of serious and violent offences. Interestingly, however, very few of those on trial, even for the most grave crimes, are restrained or handcuffed throughout the course of the proceedings. This is in stark contrast to the regime in other jurisdictions, such as the United States, where defendants are often in handcuffs and sometimes even shackled. This article will explore the notion of handcuffing a defendant in a Crown Court trial and assess whether or not handcuffs should be used more in court proceedings.
When can a defendant be handcuffed?
In line with the presumption of innocence, which all individuals who stand accused of criminal offences are afforded, there is a presumption that, during trial, a defendant should not be handcuffed unless there is a danger of violence or escape (R v Vratsides  Crim L R 251). The burden of proving that there are reasonable grounds for the use of handcuffs lies upon the prosecution.
…very few of those on trial, even for the most grave crimes, are restrained or handcuffed throughout the course of the proceedings.
There are only two reasons why a defendant may be handcuffed or restrained in court: danger of violence or danger of escape. This could include, in limited circumstances, the restraint of a defendant if his presence may intimidate a witness. In such cases, the defendant may be placed out of sight, but still in earshot, of the witness (R v Smellie 14 Cr App R 128). The use of screens may also be considered.
The reason why handcuffs are not used more liberally in criminal trials is because they prejudice the defendant in the eyes of a jury. A person handcuffed, rightly or wrongly, automatically looks guilty. Just as we associate the handcuff symbolically with punishment and therefore guilt, a jury will perhaps be more inclined to look upon a handcuffed defendant as guilty before hearing all the evidence. For this reason, handcuffs should only be used as a last resort, even though applications for the use of handcuffs are becoming increasingly common. As such, the court must consider whether there are any other less prejudicial and less intrusive means of maintaining security, thus avoiding the risk of violence or escape which the defendant may present. If there is a risk that the defendant will be violent or attempt escape, then the method adopted to counter any risk should be one which carries the least risk of causing prejudice (R v Mullen  2 Cr App R 143).
A balancing act: less intrusive methods of maintaining security
An accused has a right to a fair trial. This means that he is entitled to trial before an impartial tribunal that is free from bias or prejudice. Handcuffs may compromise this right. Having said that, public faith in the criminal justice system must also be protected and an outburst of violence in court or escape could seriously undermine public confidence in the system. As such, the rights of a defendant must be balanced against public safety and the reasons in support of an application to handcuff.
The reason why handcuffs are not used more liberally in criminal trials is because they prejudice the defendant in the eyes of a jury.
If a defendant is handcuffed or restrained during his trial, the judge should give an appropriate warning to the jury (R v Mullen).
Applications to handcuff
It is for the court to decide whether or not a defendant should be handcuffed throughout trial. An application to handcuff the defendant during trial should be heard inter partes (R v Rollinson (1996) 161 J P 107). When considering such an application, the judge may consider any hearsay evidence submitted before him and should exercise his discretion accordingly.
In the Magistrates’ Court
If there are security concerns relating to a defendant in the Magistrates’ Court, the decision as to whether the defendant is to be handcuffed lies with the magistrates, not the police (R v Cambridge Justices and the Chief Constable of Cambridgeshire, ex parte Peacock (1996) 161 J P 113).
An accused has a right to a fair trial. This means that he is entitled to trial before an impartial tribunal that is free from bias or prejudice.
If handcuffs are unnecessarily resorted to, Article 6 of the European Convention on Human Rights (the right to a fair trial and the presumption of innocence) may be engaged. Unlawful use of handcuffs may amount to a civil trespass. If appropriate directions have not been given by the judge to the jury, the conviction may be unsafe and thus liable to reconsideration by the Court of Appeal.
Should handcuffs be used more in court?
The Crown Prosecution Service has said that applications for handcuffs are becoming common. However, the courts have expressed concern that there is inconsistency in relation to the consideration of handcuff applications. Clearly, the use of handcuffs does potentially prejudice a defendant. However, it could be argued that there are certain special measures that, although accepted and widely used, equally prejudice a defendant in the eyes of a jury.
There is a need for the use of handcuffs in order to protect the public in limited circumstances, but there must also be adequate safeguards in place to ensure that this measure is not unnecessarily resorted to. A conviction will not be rendered unsafe on the basis that handcuffs were used if the judge has directed the jury not to take into account the handcuffs when considering the guilt of the defendant. Whether the jury’s view of the defendant is contaminated by the fact that he was handcuffed is a legitimate concern, but arguably it is the nature of the jury system that sometimes jurors will be influenced by elements of the trial process which they should not be. This in itself should not mean that handcuffs should never be used in court.