Section 157 of the Police, Crime, Sentencing and Courts Act 2022 amends the relevant provisions of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 (sections 91-102) by introducing statutory duties to consider the best interests and welfare of the child in the remand decision and to record the reasons for a custodial remand. The new provisions also increase the thresholds of the sentencing condition; previous offending condition (second set of conditions) and the necessity condition. The new provisions bring the sentencing condition to both LASPO tests.
Under the current provisions, courts dealing with children and young people are required to first consider bail in the usual way. Pursuant to s.91 LAPSO, if bail is refused, the child must be remanded into local authority accommodation unless either of the sets of conditions set out in s.98 and s.99 of LASPO apply (s.100 and 101 for extradition).
PCSC amends LASPO in the following 6 ways:
- Introduces a duty to consider the interests and welfare of the child before imposing a custodial remand (s.91(4A))
This reflects section 44 of the Children and Young People Act 1933, which already required courts dealing with a child or young person to have regard for their welfare.
2. Introduces the sentencing condition to the first set of conditions for a remand to youth detention accommodation (s.98)
Under LASPO the first set of conditions previously had no sentencing condition, so this is an additional hurdle to the first set of conditions to overcome before a remand to youth detention can be justified.
3. The sentencing condition that now applies to both sets of conditions contains a higher threshold.
Prior to the PCSC amendments, the sentencing condition (that only applied to the second set of conditions under s.99 LAPSO provided that the sentencing condition was met if it appeared to the court that there is a real prospect that the child will be sentenced to a custodial sentence for the offence mentioned in section 91(1) or one or more of those offences.
The sentencing condition under PSCS is that a remand to youth detention will not be justified unless it appears to the court that it is very likely that the child will be sentenced to a custodial sentence for the offence mentioned in section 91(1) or one or more of those offences.
4. The threshold for the second history condition (second set of conditions) is increased.
Under LASPO, the second history condition (s.99(6) was met if the current offending along with any other imprisonable offences of which the child has been convicted in any proceedings, amount or would if the child were convicted of that offence or those offences, amount to a recent history of committing imprisonable offences while on bail or subject to a custodial remand.
PCSC amends the second history condition so that it is not met unless there is a recent and significant history of committing imprisonable offences while on bail or subject to a custodial remand, and this appears to the court relevant in all the circumstances of the case
5. The necessity condition threshold is increased.
Under LASPO (s.98(4) and s.99(7) the necessity condition required the court to be satisfied that after considering all the options for the remand of the child, that only remanding the child to youth detention accommodation would be adequate—
(a)to protect the public from death or serious personal injury (whether physical or psychological) occasioned by further offences committed by the child, or
(b)to prevent the commission by the child of imprisonable offences.
PCSC adds an additional requirement before youth detention is justified, namely that the court must also be satisfied that the risks posed by the child cannot be managed safely in the community.
6. PCSC introduces a statutory requirement on the court to record its reasons for imposing a custodial remand.
The new provisions and their aims of reducing the number of children and young people remanded into custody are welcomed.
Importing the sentencing condition into the first set of conditions as well as the second set of conditions should mean that only the most serious offending results in a custodial remand.
The amendment to the previous offending condition should prevent minor or irrelevant offending resulting in a custodial remand.
The requirement to take into account the welfare of the child, whilst already an overarching duty in the youth justice system, should now appear prominently in the court’s mind when making decisions on youth remand where it is now part of the remand tests.
Whilst the statutory provisions purport to make it more difficult to remand children and young people into custody, the LASPO provisions already represented a fairly stringent framework around youth remand.
The Justice Committee in a November 2020 report noted that children from Black, Asian and Minority Ethnic groups are disproportionately remanded to custody.
Physical restraint, solitary confinement and sexual abuse are still very much features of the youth custodial estate.
Children on remand make up 40% of the children and young people in custody. Most children on remand do not end up being sentenced to immediate custody. In 2020/21, 74% of children who were on remand at any point during proceedings were not ultimately convicted and sentenced to custody.
The Independent Inquiry into Child Sexual Abuse (IICSA) in 2019 recommended that the Government examine the scale and appropriateness of youth custodial remand, prompting the amendments arising out of the PCSC.
The requirement for courts to record their reasons for remanding children in custody will hopefully mean unlawful remand decisions are more amenable to judicial review challenge and that the statutory provisions are applied properly and consistently.
It is incumbent on defence lawyers to familiarise themselves with the new provisions and take the courts through each condition so that the new tests are actually applied by the courts and when they are not, appeals are promptly made to the Crown Court and if necessary the High Court.
The amendment to the necessity condition which requires the court to be satisfied that the risks posed by the child cannot be managed safely in the community means that it is even more imperative that defence lawyers liaise with the Youth Offending Service and Local Authority to put forward a comprehensive bail/remand into local authority accommodation package.
it is concerning that in 2021 almost a decade after LASPO was enacted, there are still major issues with the overuse and disproportionate use of remand into custody for children. However, the new provisions strengthen the tests for youth remand in a number of ways and should force the courts to adopt an approach where children and young people are only remanded into custody as an absolute last resort.
Written by Elena Papamichael, Barrister, Garden Court Chambers
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