Policy paper

Youth custodial remand: Police, Crime, Sentencing and Courts Act 2022 factsheet

Updated 20 August 2022

1. What are we going to do?

These proposals aim to ensure custodial remand is a last resort for children when courts refuse bail.

The Act will introduce a consideration of the welfare and best interests of the child when making remand decisions, reinforce the presumption that children should be remanded in the community unless there is no other suitable alternative, and will amend the tests to be met by the courts to remand a child into custody where remand into the community is not appropriate.

2. How are we going to do it?

The Act will amend the relevant provisions of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012, knowns as the ‘LASPO tests’ by:

• Including a statutory duty to consider the welfare of the child when making remand decisions (to echo the Sentencing Guidelines for Children and Young People and reinforce a ‘child-first’ approach to decision-making);
• Strengthening the ‘real prospect of custody’ test and make it applicable to both ‘offending’ and ‘history’ conditions;
• Amending the history condition so that previous instances of breach or offending while on bail must be significant, relevant and recent, to avoid instances of an isolated breach resulting in custodial remand;
• Strengthening the necessity condition so that remand to Youth Detention Accommodation can only be imposed when the child’s risk cannot be safely managed in the community and in the absence of a viable alternative; and
• Introducing a statutory obligation for the courts to record their reasons for imposing custodial remand. This provision requires the courts to indicate that they have considered the welfare of the child in their decision and will also reinforce the existing presumption of non-custodial remand by ensuring the courts consider remand to Local Authority Accommodation as a first step.

3. Background

In 2019, the Independent Inquiry into Child Sexual Abuse (IICSA) noted an increase in remand numbers and recommended that “research [be conducted] into why the child remand population is as high as it is”. The Government consequently publicly committed to undertake further work to review the use of custodial remand for children in greater detail and identify options to reduce numbers where appropriate. The report was published on 26 January 2022.

The review identified that the legislative provisions governing custodial remand could be amended to make the tests more stringent than they already are. These reforms were included in the Government’s White Paper, A Smarter Approach to Sentencing, published in September 2020, which set out a number of proposals for strengthening the youth justice system, and were well received by stakeholders.

4. Frequently asked questions

4.1 How does remand decision making work at the moment? What are you changing?

The courts currently have to satisfy one of two sets of conditions to remand a child into custody. These proposals aim to raise the threshold for those tests by, for example, applying the ’real prospect test’ across both sets of conditions (it is currently only applicable to s.99, which is about a history of breach, absconding or offending while on bail). This will ensure that, even where the alleged offending is serious, a child can only be remanded into custody if the court believes it is very likely they would get a custodial sentence.

4.2 How will this impact children?

By tightening the tests used by the courts and requiring them to record their rationale, we aim to ensure it is only used where absolutely necessary. Remand decisions are, however, individualistic and ultimately down to judicial discretion due to having to balance the welfare of children and public protection. Estimating likely impact is therefore difficult.

4.3 What else is the government doing to reduce the use of custodial remand for children? 

These legislative proposals are only one facet of the Ministry of Justice’s review of custodial remand for children that was published on 26 January 2022. The review highlights areas of best practice and makes proposals to strengthen frontline delivery. It explores issues affecting accommodation and community provision to ensure robust alternatives to custody are available, where risk can be managed effectively in the community. The report also explores racial disparity in remand outcomes and identifies steps that can be taken across Government and youth services to improve current practice and enhance scrutiny and oversight.