Review of Custodial Remand for Children
In recent years, one third of children and young people in custody have been there on remand, with this figure reaching as high as 45% in 2021. This statistic has attracted scrutiny and, in 2019, the Independent Inquiry into Child Sexual Abuse recommended that the Government examine the scale and appropriateness of youth custodial remand in England and Wales.
On 26 January 2022, the Ministry of Justice (“MOJ”) published a policy paper responding to that recommendation (the “Review”). Although the Review questions the narrative that custodial remand is regularly being “overused” and refers to the larger fall in the overall numbers of children in custody (which has seen children on remand as a proportion of the total custodial population increase) it does recognise that there are a number of issues with the current system that need to be addressed, including the lack of viable alternatives to custody and the scope for meaningful action to improve practice.
Details
The first objective of the Review was to look at the data and key trends in child custodial remand. The data reveals that although the number of children in custody on remand has fallen between 2009 and 2017, before remaining generally steady through to 2020, the number of children in custody generally has fallen more substantially. Accordingly, remanded children now make up a higher proportion of the overall custodial population. The data also reveals that changes in the offence profile of children brought before the courts has shifted to a higher proportion of more serious offences, with violence against the person offences (including murder) now making up 58% of all custodial remand cases.
Interestingly, the Review also notes that in 2019/2020, of those children that were remanded to custody, around one third went on to receive a custodial sentence. The remainder were either acquitted (30%) or received a non-custodial sentence (36%). However, the MOJ argues that this should not be interpreted as meaning that too many children are remanded to custody unnecessarily. The bail/remand decision is taken at an early stage of proceedings when many of the factors which come to light during the trial process are unknown and the court can only take a decision based on the information available to it at the time.
Finally, the Review acknowledges that, although custodial remand is more likely to be ordered: (i) for more serious offences; (ii) if there is re-offending; or (iii) there is a risk of serious harm to the child or others; the likelihood of custodial remand also increases for older, male children and for children from ethnic minorities. The Review suggests that further research and analysis is required to understand fully what contributes to these outcomes.
The second objective of the Review was to consider whether any recommendations for improvement should be made. The Review makes a number of such recommendations, both legislative and procedural, to ensure that the guiding principle of remand as a last resort for children is followed.
Legislative recommendations
Under the current legislative framework there is a general presumption of bail, with custody being a last resort for children. This recognises the strong evidence base that contact with the criminal justice system can be criminogenic and have an otherwise detrimental impact on the child – ranging from harm whilst detained to missed development opportunities.
If bail is refused, children may be remanded to the Local Authority or to youth detention accommodation. To be remanded to youth detention accommodation the child must be aged between 12-17 and: (i) have been charged with a violent or sexual offence or an offence where an adult may receive a custodial sentence of 14+ years; or (ii) have a recent history of absconding or of committing offences whilst on bail or remanded (the “Recent History Condition”) and there is a real prospect of them receiving a custodial sentence for the offence for which they have been charged (the “Real Prospect Test”); and (iii) it is necessary to protect the public or to prevent the commission of further imprisonable offences by the child (the “Necessity Test”).
The Government has already proposed a number of small amendments to this regime in its PCSC Bill, aimed at ensuring that custodial remand is always a last resort. These proposals are:
- To introduce a statutory duty for the courts to consider the best interests and welfare of the child when making remand decisions;
- To tighten-up the existing Recent History Condition to ensure that only recent history of breach or offending whilst on bail which is significant and relevant in all the circumstances of the case can be considered by the court;
- To tighten the Real Prospect Test so that remand is only considered where the alleged offence committed would most likely warrant a custodial sentence;
- To amend the Necessity Test to ensure that remand can only be imposed where the risk posed by the child cannot be safely managed in the community and no alternative is available; and
- To introduce a requirement to state, in open court, that the court has considered remand to the Local Authority as an option in reaching its decision and to provide reasons for a decision to remand to custody.
Procedural recommendations
Outside of incremental legislative reform, the MOJ has identified a number of ways in which frontline delivery and practice from the multi-agency networks involved in the provision of services for children might improve. The Review acknowledges that children involved with the justice system often have complex needs and may already be known to social services. In addition, the child can be both a perpetrator and a victim, and the victim-offender overlap must be taken into consideration when making decisions about the child’s future. Amongst other things, the Review identifies that:
- Effective information sharing procedures and partnership working between agencies are not always in place and this can lead to particular difficulties when there is only a short period of time between a child’s arrest and their first bail hearing. If the court cannot be presented with alternatives to custodial remand in a timely fashion, then the court is more likely to fall back on custodial remand and this can sometimes lead to a child being held on remand for only a short period whilst alternative arrangements are made. The Review encourages the development of better information sharing procedures in this regard.
- Inexperience amongst defence advocates and the courts in dealing with questions of bail for children, given the relatively few cases that come before them and the decline in the use of the Youth Courts, may lead to poor-decision making. The Review suggests improved training and sharing of best practice materials amongst agencies, and in particular encourages a “child-centric” view of best practice.
- In order to ensure high-quality decision making which promotes the “child-centric” approach, there must be enhanced scrutiny of outcomes and improved, joined-up oversight over the remand process. Existing local criminal justice structures and Youth Justice Boards should be used to monitor remand trends and share evidence-based practice, with local agencies intensifying efforts to understand the diverse needs and backgrounds of the children that come into contact with it, with effective participation from those children.
- Alternatives to custodial remand are under-utilised and not well-understood by decision-makers. In particular:
- Bail Intensive Supervision and Surveillance (Bail ISS) programmes are underutilised by Local Authorities due to resourcing and financial pressures which mean it is not routinely available. More flexibility in how Bail ISS programmes are structured and funded could encourage more use of this alternative to custodial remand whilst providing tailored and structured support for the child; and
- Remand to the Local Authority is often misunderstood by decision-makers, particularly where the Local Authority then places the child with a family member as opposed to in secure Local Authority accommodation, as it does not appear to be a distinct alternative from bail with supervision. As such, there needs to be more clarity on this alternative to custodial remand to make sure it is properly utilised. However, even where the option is well-understood, lack of available accommodation options (particularly at short notice) can make this option unfeasible. Demand for placements in children’s homes is far outstripping supply, and driving up costs. Accordingly, in the medium to longer term the government will consider options to review existing arrangements for providing Local Authority Accommodation.
Overall, the MOJ proposed to ensure that there are suitable and robust alternatives to custodial remand available so that children are not remanded to custody for lack of service provision in the community.
Finally, the Review notes a need to collect reliable and relevant data to improve analysis capability and drive the changes suggested in the Review.
Commentary
Although the MOJ’s engagement with the issues raised by the Inquiry into Child Sexual Abuse is encouraging, the proposals suggested by the Review are unambitious in scope and, as the Review itself acknowledges, will not represent any transformative change in approach to custodial remand for children.
Children who come into contact with the justice system will, in many cases, have highly complex needs and may have previously come into contact with social services or educational authorities. They may be victims of crime or subject to exploitation, as well as an alleged perpetrator. Accordingly, when these children do come into contact with the justice system, a multi-agency response is required. The Review, whilst recognising all of these issues, does little to guide Local Authorities and other agencies to solutions, rather inviting those agencies to seek solutions themselves through multi-agency co-operation. Whilst the Review covers a lot of ground, it is the agencies on the ground who will be driving change in this area, whether that be incremental or transformative change.
Written by
Alison Morris, Associate, Paul Hastings LLP