No one thinks that holding a child in prison while they await their trial is a good thing. It deprives children of their liberty, disrupts education, severs positive social relationships with family and friends, and is a traumatic experience. But when it comes to actually reducing remands, progress is sluggish. There is a fatalistic feeling from the youth justice system that it is doing all it can do to avoid remands, and that those children who are now being remanded are for crimes so serious and situations so complex that it is impossible to look after them in the community.
So it was refreshing to read a new report by three inspectorates (probation, prisons and schools) which unequivocally said that the system is remanding too many children unnecessarily. The report highlighted several areas where custodial remands could have been avoided and how practice could be changed to improve things in the future.
The most astounding finding was that for three quarters of first remand hearings, the youth justice service does not even put forward a case for the child to be bailed or looked after by the local authority. We looked at this in 2021 and balked then at our finding that a bail package was not put forward 50% of the time. This new report’s more extensive research showed the problem is even worse than we thought.
Since bailing a child should be the default, how has this happened? One explanation in the report comes from the weirdly high proportion of children remanded to custody who have no previous convictions or cautions. You would think this makes a child less likely to be remanded, because they don’t have a previous history of offending. But actually their ‘unknown’ness seemed to increase likelihood; in the absence of information, youth justice actors defaulted to remand to custody until they could find out more. This raises two questions: if there are gaps in knowledge about a child’s situation, should the fallback position really be remanding them to custody? And secondly, how can these gaps in information be filled as soon as possible, before the first remand decision is made?
The report identifies some shortcomings with social services here: “very few social workers and youth justice workers collaborated to consider what additional services and support could be provided to strengthen bail proposals”. We found some excellent practice in London (see more in our good practice guide) to improve relationships between youth justice and social services: for example having a dedicated remand social worker, and running joint supervision and training. In one area, the director of social services had to appear in court any time a child was facing the threat of remand. This kind of senior ownership helped send the message that children facing remand were a top priority.
Improvements can also be made earlier in the process, for example at the point where the police decide whether a child can be bailed post-charge or whether they need to be detained until court (police remand). We have long thought that the police remand too many children and that this is a driver of custodial remand. It puts time pressure on youth justice services getting a bail package together because there is an obligation to produce the child at the next court day. It also indicates to the court that the child is risky. The report found that more could be done by youth justice services to support police to bail children prior to court: less than half of youth justice services provide support to children on police bail. Our hunch is that some legislative change would help here too: we are campaigning for the police post-charge bail remand criteria for children (PACE section 38) to be strengthened to bring them more in line with the court criteria.
It’s on the massive issue of racial disparities in remand decision making where the report is a bit light. Racial disparities are mentioned, and the report calls for “analysis at the national and local level” to identify and address these. But isn’t it time to move from analysis to action? We know children from racially minoritsed communities are over-represented in the remand population, that that over-representation is increasing, and that defendants from minoritised communities are more likely to be acquitted or their cases discontinued than other defendants. Youth Justice Board research last year found that youth justice service staff were judging Black and Mixed Heritage children to be more risky than White children with similar offence profiles.
Our impression from speaking to youth justice service staff last year is that many are either defensive about the existence of racial bias or disparities, or at a loss as to what to do about it. More analysis is fine, but when remand numbers are small it’s easy for senior leadership to explain disparities away as a result of a small sample size. The youth justice system needs some leadership here on practical steps that services can take to counter racial bias and stem increasing disparities. In the current political climate it does not seem like this will come from the government; can the inspectorates do more here?
Having said that, inequalities outside of the remand process mean that even a ‘fair’ remand decision making process would likely see more children from racially minoritised communities remanded. One of the best ways to address racial disparities in the criminal justice system is to reduce the use of remand for children overall. With this report, HMIP has shown bold leadership in drawing attention to remand’s overuse. We hope that the report’s recommendations, combined with the new legislation introduced last year which made it more difficult for the court to remand a child, will be implemented properly and bring an end to unnecessary remands of children.