Guidance

How to manage bail and remands: section 3 case management guidance

Published 1 May 2019

1. Introduction

This guidance describes how to run bail and remand services. It is for youth offending team (YOT) practitioners and managers.

1.1 Why bail and remand services are important

Bail and remand services are an important part of your work, in order to ensure that children:

• are detained by police for the minimum necessary time
• are not detained in a police cell overnight unnecessarily
• are not subject to unnecessary or inappropriate police bail
• attend court as required
• minimise the use of custody, to only those cases which you cannot safely manage in the community
• reduce the likelihood of further offending on bail

1.2 Appropriate adults

Effective local appropriate adult arrangements are an important part of an effective bail and remand strategy in relation to children in police custody.

Statutory duties

Whenever the police detain a child (under 18), or interview them as a voluntary attender, they must inform an appropriate adult of where the child is and why they have been detained, and ask them to come to see the child. This must be done as soon as is practicable and without delay. This is defined in the Police and Criminal Evidence Act 1984 (PACE) and its Codes of Practice.

There are a range of people who can act as the appropriate adult. As the police must also inform a child’s parents or social worker, they are usually the first choice for the appropriate adult role. However, sometimes there are reasons why people cannot be the appropriate adult.

Under the Crime and Disorder Act 1998 s.38(4), you must ensure the provision of appropriate adults in your area. It applies at all times of the day and night and to children who are not from your area originally.

Ensuring effective provision

The statutory duty to ensure provision can be achieved in a wide variety of ways. For example, it may involve one or more direct, commissioned and out of hours services. The YJB has worked in partnership with the National Appropriate Adult Network (NAAN) to ensure detailed standards and guidance are in place to support local decision-making.

• the standards for children in the youth justice system 2019 require that provision is in line with NAAN’s national standards for England and Wales, which have been approved by the YJB
• the YJB’s Appropriate adults: guide for youth justice professionals provides a guide for youth justice professionals who are managing appropriate adults and appropriate adult services.
• NAAN’s development and commissioning guidance is aimed at individuals and teams who have responsibility for researching and developing plans for appropriate adult provision for their local area.

Organisations that hold NAAN membership have access to additional resources, including:

• detailed knowledge bases for appropriate adult coordinators and frontline practitioners
• a national appropriate adult training pack and resources
• a national appropriate adult accredited qualification (Level 2) service
• regular email updates and professional development events
• individual advice and support

1.3 Police and Criminal Evidence Act 1984 transfers

If it is necessary to detain the child overnight, they must be transferred to local authority accommodation and the responsibility for their care transfers to the local authority. Transfers cannot be used for children detained for breach of bail or under a warrant.

The custody officer will liaise with the local authority to arrange accommodation. You must assist with the process of identifying a placement and contribute information on risk and vulnerability. Transfers must take place unless extreme circumstances such as severe weather conditions make it physically impossible to do so. Transfers may not be refused because of difficulties finding a placement, or concerns about behaviour or the offence.

If a transfer is agreed, there should be a local agreement on how the child is physically transferred to the accommodation. This responsibility may fall to the police, YOT or local authority, depending on local arrangements.

It is important that the transfer of children takes into account the:

• health and safety of staff
• safety and wellbeing of the child and others
• risk management issues

There should be a clear handover to the Youth Custody Service (YCS) Placements Team, which includes providing:

• relevant personal information
• assessments of risk of harm to themselves or from others or at risk of serious harm to others
• arrangements for transporting the child to court.
• information to parents/carers and the home YOT (if placed away from here) on the transfer and arrangements to attend court

Read the placing young people in custody guide for more information on this process.

2. Bail

2.1 Reduce the likelihood of police bail being denied

You can improve the chances that children get bail by providing information and support. The appropriate adult should let you know immediately if they notice that the police have concerns about granting bail. Once they have done this you should speak to the custody officer to find out what their concerns are, and identify a bail supervision and support package which could address them.

The police may consider refusing bail if:

• there are doubts about the child’s identity
• there is a realistic risk of further serious offending
• there is a risk the child may not attend court
• there is reason to believe that the child may attempt to interfere with witnesses and the administration of justice

It is important that the packages of supervision and support recognise these risks and minimise them.

2.2 Unscheduled court hearings

Every court day, you should check to see whether any children are detained overnight. This may be by:

• Police and Criminal Evidence Act transfer
• arrest as a result of a warrant, who will be dealt with by the court that day

In these cases you should use the information you gather to reduce the chances of remand to youth detention accommodation.

Your court staff will see the child in the court cells to:

• assess them
• ensure their welfare needs are met
• start to identify a suitable bail supervision and support package

Discussion with the Crown Prosecution Service as to any representations they may make to the court will also inform the design of the bail package.

2.3 Assessment

The Bail Act 1976 gives a presumption that children will be given bail from court unless:

• they are serving a custodial sentence and were produced at court for a new matter
• they previously breached, or absconded whilst on bail (where this is the case, the time lapse, current circumstances and child’s willingness to comply should inform the assessment of the likelihood of recurrence)
• it is an imprisonable offence and there is reason to believe that the child would fail to surrender, commit a further offence or seek to obstruct the course of justice
• the offence was committed on bail and could have been heard at either a magistrates’ or Crown court

If any of these circumstances apply, you must seek to propose a bail supervision and support programme (including intensive supervision and support) which will:

• reduce the risks
• protect the public
• promote the justice processes

In cases where the assessed risks are too high for safe management in the community, you may choose to not propose a bail support package to the court.

The Bail and Remand section of AssetPlus helps you make an assessment to respond to objections to bail, and to recommend the most suitable bail package.

If the child is previously known, you should use information from past assessments to ensure that the assessment reflects current circumstances and is accurate. If the child is not previously known, all sections must be completed to give a detailed picture of their situation, history and risks.

At this stage, it is vital that you establish whether the child is currently, or has previously been looked after by any local authority. If the responsible local authority is not the one in which the child is appearing in court, the ‘host’ area YOT must ensure that the home authority is informed and consulted.

You need be particularly aware of the impact of the accommodation needs of children who are looked after. This will affect the likelihood of the court granting bail and you should work with local authority housing services to ensure that an appropriate bail address can be provided to court.

Due to time constraints at court, the assessment for bail needs to be short and simply expressed.

The sections of AssetPlus that are most relevant for consideration of the child’s ability to comply with a bail package are:

• substance misuse
• lifestyle
• peers and networks
• personal, family and social factors

Potential risks to self and others must also be clearly assessed. The Community Package Bail Proposal section of AssetPlus will then form the basis of your proposal to the court.

2.4 Bail Supervision and Support programmes

The court can choose to make bail unconditional (no conditions other than returning to court on the required date) or conditional.

Conditions may include:

• living and sleeping at a specific address
• an electronically monitored curfew, if the child is 12 or over
• reporting to a police station at specific times
• reporting to the YOT as required (anything from once a week to a number of times daily, depending on the assessment)
• restrictions on entering a specific area (a map should be supplied to the child)
• restrictions on directly or indirectly contacting named individuals, such as victims or witnesses
• attending appointments required to produce a Pre-Sentence Report

Electronic monitoring in London has had GPS capability since November 2019. This has introduced additional flexibility and functionality. From 30 March 2020, Electronic Monitoring with GPS will be available across England and Wales for all sentences. Read this desktop guide from HMPPS for more information.

If the court imposes a Bail Supervision and Support package you have case management responsibility. The case should be allocated within 24 hours, and if the parent or carer was not present in court there should be a home visit within 24 hours of allocation. If the child is currently on a statutory order you can use the appointments associated with this as contacts for the bail supervision.

The case manager should ensure that the child and parents and carers understand the requirements of the bail package. The programme should be agreed and signed, and a copy provided to the child. Contact with the YOT may be with the case manager directly or with other specialist workers if necessary to address the needs identified in their AssetPlus assessment. Bail Support and Supervision cases should not be held on duty, nor should the majority of appointments be with a duty worker.

If a child is fitted with a GPS tag, the case manager responsible for the child must contact the provider (EMS) and supply their contact details. This is so in the event of a breach the YOT can be notified.

YOTs should continue to manage young people who turn 18 while on bail for under-18 offences. This will help to ensure the stability of Bail packages, supervision and risk management. Once the young person has been sentenced, you should follow the relevant guidance:

• Joint national protocol for transitions in England
• Wales Youth to Adult Transition Principles and Guidance
• Location monitoring desktop guide

This will help to establish which agency will continue supervision of the young adult.

2.5 Reports for court

Reports for court will be based on AssetPlus and any other relevant assessments available. They will be prepared for court in an agreed local format, but should contain the following at a minimum:

• suitability for conditional bail supervision and support
• the child’s informed agreement to comply and participate with the proposed package
• details of the bail address, checked by seconded YOT police staff for suitability
• the level, timing and nature of the support and supervision provided
• any other bail conditions assessed as necessary to manage risk
• details of the enforcement measures to be applied in the case of any non compliance

The bail condition you ask the court to impose should usually be “to comply with the requirements of the bail supervision and support programme” and so give you the scope to amend the programme content as the needs and risks presented by the child vary.

You should prepare reports in writing wherever possible to ensure clarity of communication and for review at future court hearings. If custody is being considered, section 12 of the Criminal Justice and Immigration Act 2008 mandates that the report must be in writing. Your court staff should provide the report to court alongside the bail application by the defence solicitor. If the child is the responsibility of a different local authority and the host YOT is presenting the package to court, the agreement with the home authority should be both confirmed and acknowledged for accuracy within the report. The report must be shared promptly with any responsible colleagues from other areas.

Read the national protocol for case responsibility for more information

2.6 Bail Intensive Supervision and Surveillance

A condition of Intensive Supervision and Surveillance can be added to a child’s bail package as an alternative to secure remand. This must provide a minimum of 25 hours structured time over 7 days each week, including the core elements of:

• education, training or employment - 15 of the 25 high intensity hours should be timetabled in this category
• family support: sessions with the parents or carers to ensure that they understand the child’s licence requirements and are doing what they can to encourage compliance
• interpersonal skills - work to support the factors which can increase resilience and desistance
• an electronically monitored curfew

In addition, programmes should include access to support with universal and specialist services for individual issues such as homelessness, drug misuse or mental health problems. As the child will not yet have been convicted, the restorative justice element of Intensive Supervision and Surveillance must not be included in the timetable, and while general discussions around offending behaviour can take place, specific offending behaviour work must not be carried out.

Bail Intensive Supervision and Support packages can be in place for substantial timescales where there is a delay in the case coming to court. An application can be made to the court to vary the condition, reducing the hours to a minimum of 5 hours a week, where there has been consistent compliance.

2.7 Increase the use of bail

You should take action to ensure the courts are aware of and confident in Bail Intensive Supervision and Surveillance packages, and other alternatives to custodial remand. As well as explaining these clearly to the court in individual cases, they may wish to invite youth court magistrates to meet supervising officers and ask questions.

You should also consider the following actions to reduce unnecessary remands:

• tackle disproportionality, with regard to sex and ethnicity, and ensuring that bail packages identify measures to address this
• provide community-based alternatives and consortia arrangements such as enhanced bail support, tracking systems and specialist remand fostering
• further reduce the length of secure remands by pro-actively securing further listings and informing legal representation of resources available
• improving assessments and bail information

2.8 Compliance and enforcement

If a child fails to comply with Bail Supervision and Support conditions, you should follow up by a phone call or home visit within 24 hours, to determine whether there is a reasonable excuse.

It is up to you, with oversight by an operational manager, to agree the terms of a reasonable excuse. Where there is no reasonable excuse, a written warning must be issued. Written warnings may also be issued when a child attends an appointment but behaves in an unacceptable manner.

Once two written warnings have been issued, further instances of non compliance will lead to breach. You may also proceed straight to breach if there is one instance of serious behaviour that warrants this.

When you decide whether or not to breach the child you should make a balanced appraisal of what is being achieved with them as well as their failure to comply with specific requirements.

Breach proceedings are instigated by making a Witness Statement to police. The child should be advised that breach has been instigated and that they should present to their nearest police station or to the court early the next day. You will then prepare a breach report giving full details of the non compliance including:

• the circumstances of prior warnings
• any reasons given by the child
• the progress made to date and recommendations

As with all forms of monitoring, location monitoring does not remove the possibility of non-compliance. If there is non-compliance (a “breach”), EMS will notify the YOT as quickly as possible, within the agreed timescales. The response timescales are not designed to provide an immediate response, so location monitoring would not be appropriate, for example, for cases where the impact of a breach would create a risk of serious harm .

3. Remand

3.1 Considerations for court

The court will ask the YOT officers in court which is the designated local authority for the child. If a remand to youth detention accommodation is being considered, it is important that this designation is correctly made. For looked-after children, the designation must be to the ‘home’ authority, regardless of where they are living or where the offence took place. If the designation is unclear, for example if a child divides their time equally between parents living in different areas, or if they are a newly arrived unaccompanied minor, the court decide on the designation.

If a local authority believes that the designation has been incorrectly made, it can ask the court to change this, giving reasons. Any changes of designation can be from the new court appearance or may be retrospective, from the start of the remand.

You should inform the Ministry of Justice of any changes of designation, to avoid incorrect charging and ensure correct contact details are recorded for the safe management of the child during their periods within secure accommodation.

When there is a possibility that a child will be remanded into youth detention accommodation, you should alert the YCS Placement Team immediately by sending an AssetPlus assessment via Connectivity which includes an updated Custody module, using the Placement Notification stage.

The custody module enables the YOT worker to make a placement recommendation and includes specific information relevant to their placement. If the child has been securely remanded an AssetPlus Post Court Report stage, including an updated custody module must be completed and sent by 5.30pm via Connectivity that working day. The Placement Team will review the child’s documents and make a placement decision. If a secure children’s home (SCH) or secure training centre (STC) is recommended, the Placement Team will make a referral to the identified accommodation unit.

Once the placement has been confirmed, the Placement Team will issue a placement confirmation form to you, the escort contractor and the accommodation unit.

3.2 Remands to local authority accommodation

Local authorities have a legal duty under Section 21 of the Children Act 1989 and in Wales, the Social Services and Wellbeing Act 2014 to provide accommodation for all children remanded to local authority accommodation.

The Children’s Services department of the local authority decides what the most appropriate placement will be. This may be with:

• a family member
• remand foster placement
• children’s home

If a child appears in a court beyond their ‘home’ area, the YOT officers present will need to liaise with the home authority when making any decisions related to this type of remand. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 makes this type of remand available for all children under 18.

A court that remands a child to local authority accommodation must designate which local authority will receive the child. If the child is looked after, the designated local authority will be the ‘home’, regardless of where the child is placed, or where the offence took place. The designated authority must provide or arrange for accommodation for the child for the duration of the remand, and during this time it is lawful for any person acting on behalf of the designated authority to detain the child.

In situations where a curfew tag is issued, YOTs should consider if a GPS tag would be appropriate for children remanded to the local authority.

3.3 Remands to youth detention accommodation

The court must give consideration to the legal ‘test’ for referring children to youth detention accommodation, i.e. the seriousness of the offence and the likelihood that they will receive a custodial sentence. Youth Offending Service court officers should also be aware of the relevant legislation in this regard.

If a child is remanded into youth detention accommodation, you must ensure that the correct documents are completed and sent securely to the YCS Placement Team using Connectivity.

If the child is in court away from their home, or ‘designated’ area, the documents should be completed in liaison with the home area wherever possible to ensure an accurate assessment. As soon as you are aware that there is a possibility of a secure remand being imposed, you must prepare in advance the Bail and Remand module of the AssetPlus assessment, and ensure it is sent.

On the day of court, the Post Court section must also be completed, ensuring it takes account of the child’s reaction to the court’s decision and the information available on the Person Escort Record, and sent before the end of that working day. This section provides the most up-to-date assessment of the child’s demeanour and potential state of mind. It is critical that where a child is known to another area’s YOT that the Post Court section is completed in conjunction with them.

If the child is produced from court and given a custodial sentence for the offence, the worker completing the Post Court section of the Custody module of AssetPlus should also consider the most appropriate type of placement and discuss this with the YCS Placement Team. Boys may be accommodated in under-18 young offender institution (YOI), STC or SCH, depending on the assessed level of risk and need. Girls may be accommodated in STCs or SCHs only.

The cost of the accommodation is charged to the local authority and levels of cost vary between the different types of accommodation, but the decision as to which should be informed by the child’s safeguarding needs and not the cost. Factors which influence the decision as to placement include:

• the child’s safety and wellbeing and any additional safeguarding needs the YOT has highlighted
• the level and nature of risk the child is assessed to pose to others
• the child’s previous history within the secure estate, including any positive experiences in particular institutions
• any specific needs, for example the requirement for a specific programme of intervention, health education or welfare needs which can best be met at a specific setting
• the current availability of places across the secure estate
• any gang or territory affiliations which may cause clashes with other children in youth detention accommodation, and make particular placements undesirable for that individual

The decision is a shared one between the YCS and the YOT, and if agreement cannot be reached, this should be escalated to the YCS Placement Team.

Read the placing young people in custody guide for more information on this process.

You should:

• ensure that the case is allocated within two working days

• inform parents, carers, education establishments, accommodation providers and any other relevant organisations or individuals

• have established liaison and referral pathways with Children’s Services to ensure that Looked After assessments and duties are initiated promptly

• work with the secure establishment to put remand plans in place which meet the child’s needs

• consider whether an application should be made for bail, and if so list this as soon as possible

3.4 Remand management

An initial planning meeting should take place no more than five working days from the date of the remand, and agree the programme of work the child will undertake during their time in youth detention accommodation.

This will be based on the needs set out in their AssetPlus assessment. If you are a manager, you are responsible for liaising with:

• the home education authority where the child is of school age, to ensure that their statutory duties continue to be met
• the relevant education or training provider, employer or careers advice agency if they are above school age

The initial review should have the child, case manager from the home designated YOT, the child’s parents or carers, the allocated social worker and any other relevant individuals invited to attend.

At the initial planning meeting consider if the child is approaching 18 years old. If so, you should begin planning for their possible transition to the adult prison estate, NPS or CRC. This will be dependent on the custodial or community sentence they may receive.

Where possible, young people who turn 18 while on remand should remain in the under-18 estate. This will be until the court case has concluded and their sentence given by the court. Consideration should be given to the length of time the young person is likely to remain on remand and, if convicted, the type of custodial sentence they would receive. At no time should these young people move to the adult estate straight from a court hearing. If the young person receives a custodial sentence, they should return to the remand facility. You should follow this with a planned move as part of their transition plan. The young person will be transported from the secure establishment to the adult prison.

Because all children and young people remanded to youth detention accommodation automatically achieve looked-after status (see below) it is recommended that you use a single detention and placement plan instead of separate sentence planning and looked-after child documents . You can use this template to help you do this.

You should then review the plan on at least a monthly basis to review progress against targets and progress within the institution. Review meetings should also consider whether an application for bail is appropriate.

Remand hearings may be conducted by video link to reduce disruption to the child or young person’s placement. In the case of re-remands to the same institution, the placement paperwork does not need to be repeated.

Your case manager should also visit monthly to see the child or young person individually and discuss their welfare needs. This meeting may take place on the same day as the remand review but be separate

3.5 Looked-after child status

All children remanded to secure accommodation automatically become looked after by their home local authority. If they were looked after prior to going into youth detention accommodation, they continue to receive services under the Children Act 1989, and children not previously looked after acquire this status. This includes situations where a child is serving a custodial sentence, during which they are charged and remanded for other offences – known as a ‘technical’ remand, although in this situation the local authority will not be charged for the remand nights.

The Children’s Services social worker schedules the looked-after child reviews are to assess their welfare needs and take action to ensure these are met. Your detention placement plan should be agreed, based on the local authority’s assessment of their needs no more than 10 working days after the remand. You should make every effort to combine looked-after reviews with remand reviews, so that the relevant staff can be present and take a holistic view of the child’s needs.

If the remand lasts for 13 weeks or longer, the child becomes eligible for leaving care services. This means that they will get advice and support for particular needs including accommodation and financial assistance (including for higher education) by the responsible local authority.