Standards for making factual determinations in arrest and pre-trial detention: a comparative analysis of law and practice

Abstract

This chapter examines two of the most important and potentially dangerous aspects of criminal justice process: arrest and detention. With respect to arrest, the different approaches to factual determinations represented by the concepts of “reasonable suspicion” in England and Wales, “probable cause” in the United States of America and “flagrancy” in France are examined and compared. It is argued that international pressures on different criminal justice systems is advancing “reasonable suspicion” as a universal standard. In relation to detention, the question of the presumption in favour of release and that of preventive detention are examined comparatively and it is concluded that pre-trial detention is changing in character and becoming more focused on policing and control strategies. The problem with factual determinations in all these areas is the absence of relevant information on which decisions can be based; making these practices uniquely vulnerable to subjective bias.