Deprivation of Liberty at Pre-trial Stage: The Law and the Practice of Remand in Kuwait

This thesis examines the law and the practice of remand at the pre-trial stage in Kuwait. Although the constitution of Kuwait purports to recognise and protect the rights of the accused in the pre-trial stage by subscribing to the international human rights norms and due process values (e.g., presumption of innocence), little is known about how the power of pre-trial remand is being exercised by the investigation authorities. The thesis aims to fill that gap by arguing that the due process values enshrined in the Constitution and legislation are being ignored in the interpretation and application of the remand laws by the investigation authorities. It offers a deep and comprehensive analysis of Kuwaiti law on pre-trial remand.

The analysis is informed by an exploration of the extent to which the traditional concept of bail has evolved over the centuries in England from a tool to render an accused person amenable to trial to a more malleable tool aimed at achieving broader criminal justice, managerial and security, objectives. Parallels are drawn with the development of pre-trial remand in Kuwait and these developments are critiqued using Packer's due process/crime control values and concepts of risk management.

The theoretical analysis is complemented by empirical data collected through a series of 24 semi-structured interviews with prosecutors, judges and defence lawyers all of whom have extensive knowledge of the operation of pre-trial remand in Kuwait. These interviews provide the foundation for the original critique of the law in practice and the extent to which it departs from the official orthodoxy and the formal law.

The thesis concludes that the concept/use of remand has evolved from its original purpose of facilitating the criminal trial process to serving crime control interests of the State. Thus, although remand laws appear largely compatible with due process values, their application in practice is more consistent with crime control values and risk management objectives. In particular, the thesis reveals that fulfilling bureaucratic, social and security imperatives are prioritised over maintaining accused rights that the legal text sought to guarantee in Kuwait.