AYJ Explains: Police, Crime, Sentencing and Courts Bill - Remand
Clause 131 of the Police, Crime, Sentencing and Courts (PCSC) Bill proposes changes to the use of remand for children. Here, the AYJ examines these changes and sets out our recommendations.
A. The current conditions that need to be met in order for a child to be remanded to custody are currently set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The PCSC bill is proposing to tighten these conditions.
Under the tighter conditions proposed in the Bill, in order to remand a child to custody the court must be satisfied that the risks posed by the child cannot be managed safely in the community. In addition, the court must provide an explanation for their decision to remand the child in question which demonstrates that it has considered the interests and welfare of that child, and that it must give its explanation in writing to the child, legal representative, and relevant Youth Offending Team.
A. The AYJ warmly welcomes the government taking steps to reform the conditions needed to remand a child to custody. We have long been concerned about the overuse of custodial remands for children, and are particularly concerned given current court backlogs, conditions in custody, racial disproportionality in remand, and the record-high proportion of children in custody who have not yet been tried at court.
A. The AYJ is glad to see some of our recommendations adopted by the government, in particular, our proposed amendments to the ‘Necessity Condition’. We recommended that this should be expanded to provide the courts with a solid framework for remand and that the court must be satisfied that there is a significant risk that the child will cause serious harm while awaiting trial for their alleged offence; and even where there is an assessed risk of serious harm, the court must be satisfied that this risk cannot be managed safely in the community.
The Bill’s proposed tightening of the ‘History Conditions’ in LASPO, which states that previous instances of breach or offending while on bail must be significant, relevant, and recent to justify remanding a child to custody is welcome but does not go far enough. The History Conditions should be removed. If they are not removed, ‘recent’ should be restricted to within the last six weeks. If we are to take a child-centred approach, we must consider how children experience time, and recognise the well-established principle that children change and develop in a shorter time than adults.
We are disappointed that the broad ‘Offence Condition’ which states that the child is charged with (a) a violent or sexual offence or (b) an offence punishable in the case of an adult with imprisonment of 14 years or more, remains unchanged. For remand to custody to be a genuine last resort as the government wishes, decisions must be based on risk of serious harm. The Offence Conditions must be strengthened such that remand to custody is only available if a child is alleged to have committed a serious offence and that they may present a danger to the public. We propose streamlining and narrowing the Condition by removing (a), which is too broad, and updating (b) to be offences for which a life sentence is available as a sentencing option.
Finally, we welcome provisions that the court must give its explanation of its decision in writing to the child, legal representative, and relevant Youth Offending Team, which demonstrates that the court has considered the interests and welfare of the child. However, we would like to see this go further and require that the court must explicitly set out how each of the LASPO Conditions are met, including:
justification for their assessment that there is a high likelihood that the child would receive a custodial sentence
why remand to custody is the only way of protecting the public
what the risks of serious harm presented by the child are
why the risks cannot be mitigated by remand to local authority accommodation
what bail package was offered and why this was not sufficient to prevent a remand
We also welcome the requirement for a written explanation in order to improve scrutiny and accountability of remand decisions, this decision-making process should be recorded and monitored. Alongside the court's justification, a recording of ethnicity, age, and offence should also be recorded - analysis of this data has the potential to be a helpful tool for identifying issues and addressing the deeply concerning and increasing racial disparity in the remand of children to custody.
For more information on remand or other measures in the Police, Crime, Sentencing and Courts Bill, read our full briefing here.
Further AYJ resources on remand: