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Government moves to tackle rise in child remands

Work with offenders on the detail of the changes to the youth remand framework

Yesterday the Youth Justice Policy Unit with the Ministry of Justice published a new circular setting out the amendments to the youth remand framework introduced by the Police, Crime, Sentencing and Courts (PCSC) Act 2022. The circular was only just in time as the implementation of the new measures also started yesterday.

The main objective of the proposals in the PCSC Act 2022 is to ensure custodial remand is always used as a last resort. The PCSC Act 2022 strengthens the tests the courts must apply when deciding to remand a child to custody, where remand into the community is not appropriate. The amended framework is published in the context of growing concerns about the increasing numbers of children being remanded in custody.

The most recent official data (for April this year) shows that children on remand form the biggest group in secure accommodation. In April there were 202 children on remand, 135 serving a Detention Training Order, 119 children detained under Section 91 (the indeterminate section 91 sentence is for young people convicted of an offence other than murder for which a life sentence may be passed on an adult, it is used for serious crimes) and 45 children serving other sentences.

The changes 

The PCSC Act 2022 amends the relevant provisions of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012, commonly known as the ‘LASPO’ tests. The new Act introduces a statutory duty for the courts to consider the best interests and welfare of the child when making their decision, in line with section 44 of the Children and Young People Act 1933, the principal aims of the youth justice system and the principles in the sentencing guidelines for children and young people.

The PCSC Act 2022 tightens the sentencing condition, also known as the ‘real prospect test’, to encourage consistency in decision-making. Essentially, the wording of the test has been amended to raise the threshold for custodial remand for cases which appear so serious – on the basis of the facts available to the court – that custody seems ‘very likely’.

The sentencing condition is extended to apply to both the first and second set of conditions (previously, it only applied to the second set of conditions).The sentencing condition is met if it appears to the court that it is very likely that the child will be sentenced to a custodial sentence for the offence for which they are before the court.

The PCSC Act also amends the second set of conditions to ensure that only a history of breach or offending while on bail, which is relevant in all the circumstances of the case and is both ‘recent and significant’ can result in custodial remand. This is to avoid instances of an isolated or minor breach resulting in custodial remand being used to justify remanding a child in custody.

The Act goes further still, stating that even when bail is refused, courts should remand the child in the community unless the risk they pose cannot be safely managed there. This requires the court to be satisfied that there is no alternative mechanism for adequately dealing with the risk presented by the child in the community.

Perhaps the most important change is the introduction of a statutory obligation for the courts to record their reasons for imposing custodial remand. This provision requires the courts to indicate that they have considered the welfare of the child in their decision and will also reinforce the existing presumption of non-custodial remand by ensuring the courts consider remand to Local Authority Accommodation as a first step. This requirement to be transparent and accountable will enable the Ministry of Justice and/or the Youth Justice Board to track whether courts are following the new requirements.

Readers who need chapter and verse of the changes can find a copy of the circular here.

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