A new (23 December 2018) report from Transform Justice shines an important light on the often neglected issue of remanding children in custody. The report: Path of little resistance: is pre-trial detention of children really a last resort? written by Penelope Gibbs and Fionnuala Ratcliffe found that despite a large fall in remands over the last decade, figures have been rising again in the last two years.
The law and funding for child remand were changed in 2012. The LASPO Act introduced more stringent criteria for the use of custodial remand (officially remand to youth detention accommodation), the elimination of an anomaly whereby sixteen and seventeen-year olds were treated differently to other children, and the
delegation of remand budgets to local authorities.
- The child remand population continued to drop for a year after the change in legislation, flattened and then started rising in 2016. Other indicators on child remand are cause for concern.
- A very high proportion (21% in the year ending March 2017) of children in custody are on remand and this is on the rise. In June 2018, 30% of children in custody were on remand, which is the highest monthly figure for ten years.
- The number of children remanded in custody has fallen much less than the number sentenced to detention and training orders – the most common custodial sentence for children.
- Black and minority ethnic (BAME) children are significantly over-represented at 54% of those on remand. This is higher than the proportion in the sentenced population (45%) and far higher than the general 10-17 population (18%).
- Children are still being remanded for very short periods. Almost half of all remand episodes end within three weeks, with just over a quarter lasting a week or less. The average (median) number of nights on remand is just 23.9.
- Two thirds of children who are imprisoned on remand do not receive a custodial sentence. 29% are acquitted and 36% receive a non-custodial sentence. Of those dealt with entirely in magistrates/youth courts three quarters of those who are remanded do not go on to receive a custodial sentence, compared with 44% in the Crown Court.
The report isn’t able to provide definitive explanations for this worrying trend but explores a number of likely causes through interviews with youth justice professionals. Many Youth Offending Team managers and workers attributed the recent rise in remand (up to 30% of the custodial population in June 2018) to a more punitive and risk-averse reaction to knife crime. The number of offences involving possession of a knife or offensive weapon committed by children has gone up 11% since the year ending 2012, while the number committed by adults has gone down 10% in same period.
Remand becomes particularly likely if the child is said by the prosecution to be involved in a gang, particularly given that the government’s definition of gang-related violence is broad.
One YOT officer speculated:
Because it’s a group activity they use the word ‘gang’. They’re not necessarily in a gang in the way that we would say it, but once they [the police] go down a gang route then that puts them at a disadvantage in terms of getting bail.
Another issue which contributes to short remands is that the prosecution sets a temporary charge based on evidence they haven’t received yet. Once the police provide the evidence, the original charge sometimes doesn’t stick. They then reduce the charge and the case no longer meets the remand criteria.
The report also exposes the very inconsistent approach to remanding children in custody. There are considerable differences in the use of remand between one YOT area and another – the rate of remand (number of custodial remands divided by number of convictions) ranges from 1% or lower in Cumbria, Kingston and Richmond, and Portsmouth to 13% in West Mercia.
Many YOT practitioners and defence practitioners interviewed for the report thought magistrates and district judges were far more likely to use custodial remand for the equivalent offence than Crown Court judges.
Crown Court judges were seen as more understanding of the circumstances of complex crimes and more
willing to consider bail applications, to the extent that some defence advocates focus their efforts on applying for a Crown Court judge to review the magistrates’ decision in a private hearing (judge in chambers) rather than contest an application for remand at a first hearing.
The report argues that risk aversion dominates the decision to remand, rather than the best interests of the child. It is in no child’s best interests to spend a night in police cells, followed by a week in a children’s prison, then maybe to be forced to live away from their home and community pending their trial. It’s necessary to keep
some children in a secure place as they await their trial or sentence, but the number of remands which do not end up with the child getting a custodial sentence suggest that the legal criteria are either wrong, or being misinterpreted.
Transform Justice puts forward an argument for further legislative change to the custody threshold, raising the minimum age for custodial remand to 14 and reserving remand only for those accused of crimes which would be heard in the Crown Court.