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Path of little resistance: is pre-trial detention of children really a last resort?


This is a guest post written by Fionnuala Ratcliffe from Transform Justice, a charity working for a fair, humane, open and effective justice system in the UK. As with all of our guest posts, the views represented are of the author and may not reflect the views of Fair Trials.

“If they’re being remanded and then they come back and they’re not given a custodial sentence, why are you then remanding them?” (YOT officer)

Imprisoning a child before trial should be a last resort. This was the spirit behind legislative changes introduced in 2012 which aimed to reduce the number of children in pre-trial detention – or remand, as this type of imprisonment is known. The reforms placed the financial burden of custodial remand of children onto local authorities, to incentivise them to prevent children being remanded in their area. The criteria for remand were also made more stringent, to make it harder for the courts to put a child in pre-trial detention.

Over six years on from those reforms, Transform Justice has published a new report which analyses current data on the children who are imprisoned on remand, identifies the reasons why they are remanded and puts forward recommendations for practice and legislative change.

The good news is that the number of children being remanded is decreasing. But otherwise our findings raise concern.

The proportion of imprisoned children who are on remand is increasing – in June 2018, 30% of children in custody were on remand, one of the highest percentages ever.

Black and minority ethnic children comprised a shocking 54% of remanded children in 2017. This is a significant overrepresentation, even compared to the prison population. The reasons for this over-representation aren’t clear and further research into this issue is needed.

Short remands are common. Over a quarter of all remands end within a week, with almost half ending within three weeks. Even a short period of remand is traumatising for a child and given that most children in remand go on to be acquitted or to receive a non-custodial sentence, was it necessary to lock them up in the first place?

Everyone is under pressure to deal with cases quickly with limited resources. The fast-track process – which means children detained by the police overnight are automatically seen in court the next day – is necessary but also compounds the issue by limiting the time for youth offending teams and defence advocates to prepare a robust bail package. Once a child has been detained by the police overnight (a decision which itself needs greater scrutiny), they flow towards custodial remand far too easily.

A child’s chances of being granted bail by the court can stand or fall on the quality of the bail package. But it takes time to prepare a good bail package, and YOTs may not be alerted about remand hearings until an hour beforehand, if at all. With often only 45 minutes to prepare, the initial proposal sometimes fails to satisfy the court, and the child is put in detention until a full bail package is developed.  

Alternatives to pre-trial detention, such as remand to local authority accommodation, are woefully underused due to a shortage of suitable accommodation or reluctance from children’s homes to take in ‘risky’ children. Benches and professionals are unclear how remand to local authority accommodation differs from bail with supervision, and so jump straight to custodial remand rather than considering alternatives.

Court reforms are also increasing a child’s likelihood of remand. The closure of youth courts means remand hearings cannot always take place in front of a youth court. Adult courts can be more risk-averse and less au fait with youth justice principles, making remand more likely.

The legislative reforms have not brought the drastic change that’s needed, and too many children are still being remanded. Several weak points in the remand criteria make pre-trial detention too easy for those who favour it. And without proper scrutiny in place, time-pressured professionals are too often erring on the side of convenience to the detriment of the child’s needs.

The report’s recommendations include an improved audit trail for bail and remand decisions and stronger guidance on the responsibilities of all parties in promoting alternatives to remand.

Local authorities should ensure that a bail package is always offered, with scrutiny from senior management when this doesn’t happen. And to avoid children suffering the consequences of sitting in front of an adult bench, it should be mandatory for at least one youth court magistrate to be sitting on any bench deciding whether a child should be remanded.

It is occasionally necessary to keep a child in a secure place while they await their trial. But given most remand periods end in a non-custodial sentence or acquittal, it looks as if remand is not just a last resort. Our report challenges the attitude of inevitability and identifies ways in which all agencies can stem the flow of children towards pre-trial detention.

If you are a journalist interested in this story, please call the media team on +44 (0) 7749 785 932 or email [email protected]

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