By John-Paul MacNamara, Lecturer, City Law School, Barrister (Door Tenant), 33 Bedford Row
Many of us in criminal practice can remember the enactment of LASPO 2012 and the change it had to the test courts applied when considering a youth bail application. The relevant provisions were contained in sections 91-102 of LASPO 2012 and the first and second set of conditions for a (non-extradition) youth remand were specifically set out in sections 98 and 99 respectively. Both sections set out a number of conditions that needed to be satisfied before the court could remand a youth to youth detention accommodation.
Section 98 LASPO 2012
Section 98 set out the age condition, offence condition, necessity condition and the first and second legal representation conditions.
The offence condition meant that the relevant offence had to be either a violent or sexual offence or a grave crime (emphasis added). This meant that it could encapsulate assault by beating (a violent offence) for one defendant or Wounding with Intent (a grave crime) for another.
Furthermore, the “necessity condition” stipulated under subsection 4:
The necessity condition is that the court is of the opinion, after considering all the options for the remand of the child, that only remanding the child to youth detention accommodation would be adequate—
(a) to protect the public from death or serious personal injury (whether physical or psychological) occasioned by further offences committed by the child, or
(b) to prevent the commission by the child of imprisonable offences.
Paragraph (a) of subsection 4 seemed to set the threshold quite high in the case of a youth bail application. The court needed to be of the opinion that it was necessary to remand the youth into youth detention accommodation in order to protect the public from “death or serious personal injury (whether physical or psychological)” before bail could be refused. However, almost in the same breath, the bar was set incredibly low with preventing “the commission by the child of imprisonable offences” as an alternative consideration. It is nothing short of a paradox that such high and low thresholds were offered as alternatives when considering the liberty of a child or young person.
Section 99 LASPO 2012
Section 99 LASPO 2012 was, in my experience, used far less by prosecutors due to its more restrictive ambit. The offence subject to the bail decision must be “imprisonable”. Age, necessity and first and second legal representation conditions were also set out. Under section 99 (5) or 99 (6) the court had to also consider whether the first or second history conditions had been satisfied:
(5) The first history condition is that—
(a) the child has a recent history of absconding while subject to a custodial remand, and
(b) the offence mentioned in section 91(1), or one or more of those offences, is alleged to be or has been found to have been committed while the child was remanded to local authority accommodation or youth detention accommodation.
(6) The second history condition is that the offence or offences mentioned in section 91(1), together with any other imprisonable offences of which the child has been convicted in any proceedings, amount or would, if the child were convicted of that offence or those offences, amount to a recent history of committing imprisonable offences while on bail or subject to a custodial remand.
In addition, the court also had to be satisfied that the “sentencing condition” had been met under section 99 (3):
(3) The sentencing condition is that it appears to the court that there is a real prospect that the child will be sentenced to a custodial sentence for the offence mentioned in section 91(1) or one or more of those offences.
At page 4 of the “Sentencing Children and Young People Definitive Guideline”, the Sentencing Council explain that when sentencing children and young people the court must have regard to the principal aim of the youth justice system, namely: “preventing offending by the child or young person and should also consider the welfare of the child[1]” (emphasis added). At page 28 of the same Guideline the Sentencing Council reiterate that custodial sentences should always be used as a last resort.
PCSC 2022
Section 157 (2) of the PCSC Act 2022 adds that before making a decision to remand a child to youth detention accommodation, the court must consider the interests and welfare of the child. This is an important reminder of this essential consideration. In addition, if a court remands a child into youth detention accommodation, there is a legal requirement under section 157 (7) for the court to give a written record of its decision to the child, their legal representative and the youth offending team.
The second history condition under section 99 LASPO 2012
As mentioned above under section 99 (6), the second history condition required that the current offending, along with any other imprisonable offences for which the child has been convicted, amount, or would amount if the child were convicted of that offence or those offences, to a recent history of committing imprisonable offences whilst subject to bail or a custodial remand.
This is now enhanced under section 157 (4) of the PSCS Act 2022 to a recent and significant history that appears relevant to the court in all the circumstances. This enhanced condition should erase from consideration lower level offending that might otherwise potentially lead to a custodial remand.
The sentencing condition
By virtue of section 157 (3) and 157 (4) an enhanced sentencing condition is now added to both section 98 and section 99 remand considerations. Specifically, before a court can remand to youth detention accommodation, it must appear to the court that it is very likely that the child will receive a custodial sentence and the risks posed by the child cannot be safely managed in the community.
It is important to note that not only has the sentencing condition been added to section 98 remand considerations, but it has also been increased from a “real prospect” of a custodial sentence under section 99 to it be “very likely” that a custodial sentence will be imposed in considerations under both section 98 and section 99.
The change has been welcomed by the Youth Justice Legal Centre[2] who also point out that those under the age of 14 make up 40% of children and young people in custody. That is a staggering statistic which has been extrapolated from the government’s youth custody data. Using the same data, the YJLC also point out that in 2020/21 74% of children who were on remand at any point in the proceedings were not ultimately convicted and sentenced to custody.
The relatively low level of the necessity condition under section 98 LASPO 2012 was a source of great concern amongst practitioners at the Criminal Bar. This seems to have been addressed with reference to a higher sentencing condition threshold that now applies. Youths could have been remanded for committing such offences as multiple low level assaults that were theoretically imprisonable. This must now be considered in the context of whether such offending will be very likely to result in a custodial sentence and a sentencing guideline that reminds us that imprisonment for a youth is a matter of “last resort”.
However, could the test applied be even stricter? Arguably, a remand to youth detention accommodation should solely apply to cases where it is necessary to protect the public from death or serious personal injury from the youth. Arguably, it should also only apply to grave crimes as opposed to any “violent or sexual” offence (section 98) or any “imprisonable offence” (section 99). Notwithstanding, the application of an enhanced sentencing condition and various other considerations, this would mean that a remand to youth detention accommodation would be reserved for only the most serious of cases.
Safeguarding the welfare of vulnerable defendants is the reason why so many of us have entered defence practice. Few are more vulnerable than youth defendants, many of whom have further specific vulnerabilities. The problems posed by labelling theory and the introduction of youths to more “experienced” criminal peers in a custodial setting, are obvious. It is high time for a shakeup to the tests applied to youth remands. Hopefully, the new statutory framework will lead to fewer vulnerable young people being exposed to custodial settings and will properly bring the welfare of the youth into the foreground, as a paramount consideration.
John-Paul MacNamara, Lecturer, City Law School
Barrister (Door Tenant), 33 Bedford Row
[1] Sentencing Council, “Sentencing Children and Young People Definitive Guideline” (1 June 2017) <Sentencing Youths – Overarching Principles and Offence-Specific Guidelines for Sexual Offences and Robbery Consultation (sentencingcouncil.org.uk)> accessed 8 November 2022.
[2] Youth Justice Legal Centre, “Police, Crime, Sentencing and Courts (PCSC) Act 2022 tightens the test to be applied by the courts in order to remand children and young people into custodial remand. Will the new statutory framework reduce the use of remand for children?” Elena Papamichael <Police, Crime, Sentencing and Courts (PCSC) Act 2022 tightens the tests to be applied by the courts in order to remand children and young people into custodial remand. Will the new statutory framework reduce the use of remand for children? (yjlc.uk)> accessed 10 November 2022.
