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A report on the use of custodial remand for children

Path of little resistance: is pre-trial detention of children really a last resort? Penelope Gibbs and Fionnuala Ratcliffe, December 2018

Transform Justice have published a report on the use of custodial remand for children.  It acknowledges that since the introduction of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), the number of children on remand has reduced, however the figure has been rising since 2016 (p.6). The report suggests that the use of remand for children could be reduced from 21%, to 5%.

Details

In examining the reasons for high rates of remand, the report found that the criteria for remanding a child is being interpreted differently across England and Wales. For instance, the interpretation of ‘gang’ and ‘violent’ could vary depending on the local exposure to certain types of crime.  Subsequently, the rate of remand in Cumbria, Kingston, Richmond and Portsmouth was found to be 1%, whereas West Mercia had a rate of 13% (p.11).

A child refused bail must automatically be remanded to local authority accommodation unless the conditions for a secure remand are satisfied. In practice, a remand to local authority accommodation is sometimes only considered if proposed by the defence. A lack of local authority accommodation also poses a problem.  There have been cases which have resulted in children being placed in inappropriate accommodation such as one child who was placed in the side room of a homeless shelter (p.19).

Communication between the police and Youth Offending Teams (YOTs) was also found to have an impact on the process of finding potential accommodation which may avoid a secure remand. YOTs are frequently only informed that a child is in the police station on the morning of the first appearance (p.13). In order to provide a fair and effective bail package and examine all alternatives to custody, YOTs need to meet with the prosecution, the defence and the child’s family and have time to prepare. The report found there is currently not sufficient time to do so, and suggests stronger communication between police station based Liaison and Diversion teams and YOTs.

The report further suggests that there may be a subconscious prejudice to children who are detained in police custody and then transported to court cells.  Remanded children appear in a secure dock, giving the impression of being ‘dangerous’. In addition,  the recent closure of youth courts and the restriction of days on which youth court sits has made things worse. As a result, when a child is detained by the police and must appear in court the next day, the likelihood is that they will be seen in an adult magistrates’ court. The report found that 41% of the decisions to remand children in the year ending March 2017, were made by an adult court (p.22).

As a result, the report makes a series of recommendations (p.27):

  1. Police should reduce the number of children whom they remand in police custody and the number for whom they recommend opposing bail at court.
  2. Defence advocates need to be better training on the law surrounding the remand of children.
  3. CPS should subject police requests to oppose bail to more scrutiny, ensure that all non-custodial avenues including Remand to Local Authority Accomodation (RLAA) have been explored, and meet with the defence and the YOT before the hearing.
  4. CPS to alert defence and the YOT to their decision to oppose bail as early as possible and to disclose all relevant evidence at the same time.
  5. Judges, magistrates, prosecutors and legal advisors need better training in child rights, child welfare and in the spirit as well as the letter of the law on child remand. This includes being more open to granting bail, even without a change of circumstances.
  6. Courts should be allowed to slow down for child remand hearings- both to allow for adjournments during the day and for as much time as is required when the parties are in court.
  7. Make it mandatory for at least one youth court magistrate to be sitting on any bench deciding whether whether a child should be remanded.
  8. A better audit trail needs to be created of why bail and/or RLAA is opposed to improve understanding of the use of child remand and help YOTs and defence advocates to provide alternatives.
  9. Update the Youth Court Protocol to make it the default for children to sit with their defence lawyer and family rather than in the secure dock.
  10. YOTs and defence solicitors need to focus more on promoting RLAA as the default legal option when they think a custodial remand is a risk.
  11. YOTs should try to present a bail/RLAA package at every first hearing where bail is opposed. If time constraints make this impossible, consider reworking the staff rota so bail package preparation starts earlier.
  12. YOTs should develop protocols with liaison and diversion teams, police, emergency duty teams and others to receive earlier alerts of children at risk of remand.
  13. Local authorities should review the availability of PACE beds and specialist accommodation for those remanded in police custody and work with neighbouring authorities to increase the provision.
  14. Children’s services staff need a better understanding of the role they could play in reducing custodial remand.
  15. Re-examine the formula for delegating remand budgets to local authorities to ensure it is fair and incentivises the reduction of short remands.
  16. Strengthen the role of the custody case workers in supporting remanded children to get bail.
  17. Develop succinct strong guidance on the process and duties of all parties focused on promoting bail/RLAA.

Commentary:

The experience of being remanded in custody is extremely damaging to children. The situation is particularly regrettable for the one quarter of remanded children who have committed non-violent and non-sexual offences, and for the two thirds of children remanded who are subsequently not given a custodial sentence (p.1).

Further training for all professionals working in the with children in the criminal justice system is essential to ensure all children are treated equally and in line with legislation.