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Making child remand a last resort

Penelope Gibbs
27 Jan 2022

The Police, Crime Sentencing and Courts Bill proposes legislation which will increase the prison population and criminalise more people. But it contains some gems. Perhaps the most progressive measure is one to make it more difficult to remand children.

Most under 18s year olds who plead not guilty are given bail pending their trial or sentence. They may be subject to restrictions such as curfews or having to spend 25 hours a week supervised by YOT workers or teachers. But they are not innocent behind bars.

Thousands of children are though imprisoned every year while awaiting trial or sentence. 41% of all children currently in custody are on remand. A very high proportion will not be imprisoned on sentence, which is of course a good thing, but also a bad thing. If the right sentence for them is non-custodial, why were they imprisoned while waiting for their trial?

new report from the government looks at the use of remand for children. It’s slightly perplexing in its rationale. When introducing new legal measures to make it harder to remand children, the government said “the aim is to ensure that remand to youth detention accommodation is used only when necessary. If successful, this could lead to a reduction in youth custody places… A reduction in the use of custodial remand overall would reduce exposure to the custodial environment and avoid detrimental disruption to children’s lives, which can be criminogenic, and therefore provide long-term benefits”. The implication is that remand for children is over-used and needs curbing.

But the new government review argues that remand for children is used totally appropriately, while at the same time putting forward good suggestions as to how to use it more appropriately. Maybe the change of ministers since the report was drafted has prompted this change?

The review points out the total numbers remanded in the last ten years have reduced. But then youth crime and total numbers in custody have also reduced. The proportion of the child custody population on remand has risen steadily in the same period and other indicators suggest over-use. Perhaps the strongest is the proportion of children on remand who get acquitted or receive a non-custodial sentence. The latest statistics reveal that three quarters of all children remanded do not go on to receive a custodial sentence – this rises to 86% for cases which are entirely dealt with in the magistrates’/youth court. The criteria for remand are different to those for sentencing but, as the review points out, all judges should be using the legal “no real prospect” test for child remand. If there is no real prospect of the child being imprisoned on sentence, they should only in exceptional circumstances be remanded. The “no real prospect” test is clearly not working in reality.

The new remand legislation requires judges to give reasons for their use of remand. Hopefully guidance will suggest they explain how their decision meets the “no real prospect” test in each individual case. That may encourage magistrates and district judges to challenge the prosecution a bit more. While the review says “Interviewees felt that CPS prosecutors generally had a good background in youth work and do generally understand the remand process and youth legislative framework” it also cites the CPS Inspectorate finding “that 47.3% of MG3 forms completed by CPS failed to address remand and bail, limiting the assistance given to the court on these decisions”. The latter finding rather undermines the views of interviewees and suggests that prosecution practice is having a negative effect on remand decisions.

A couple of other factors also suggest child remand is being used inappropriately. There are many short remands (22% of all youth custodial remand episodes last for 7 days or less), which suggests that prison is used as a holding pen while a bail package is being sorted out. Better a short remand than a long remand, but defence and the youth offending team should be trying to present a bail package on the child’s first court appearance to avoid any custodial remand. The report makes some good suggestions as to how to improve practice, but perhaps doesn’t put enough emphasis on police action. There is strong anecdotal evidence that any child remanded (detained after charge) by the police is particularly likely to be remanded by the court, partly because police remand suggests a child is “risky” and because police remanded children have to be seen in court as soon as possible, which puts sometimes intolerable time pressure on YOTs to produce a bail package.

The final indicator of over-use of child remand is evidence on the crimes remanded children are accused of. Y/e March 2021, 20% of the offences for which children were remanded were neither violent nor sexual. They included domestic burglary (7%), drugs (4%) and breach of statutory order (2%). That one in five children imprisoned on remand were not accused of a violent or sexual offence suggests that it’s not always a last resort. And the classification of violent offences masks huge differences. Shouting threats to a nurse counts as a violent offence, as does possession of a pair of scissors – important alleged crimes but maybe not worthy of imprisonment on remand.

Perhaps the most concerning of the statistics is not about over-use overall, but about over-use for specific groups. 4% of 15-17 year olds are black, but 34% of all children remanded are black. 60% of children in custody on remand are from minoritized communities. The report suggests some district judges and magistrates point the finger at YOTs for this disparity “we were told that courts typically follow YOT recommendations and it was suggested by some magistrates and district judges that black children, particularly boys, are perhaps unconsciously not championed by practitioners”. This is a bold claim. Surely it’s more likely that unconscious bias is present throughout the system?

There are really important suggestions for improvement in this report. But putting heads in the sand and saying there isn’t really a problem will not prompt positive change. It would be great if everybody involved in child remand acknowledged that it is too often not a last resort and that everybody can help reduce its over-use.