Remands into Custody
Length of Remand into Custody
It should be remembered that these provisions should always be viewed as being subject to Custody Time Limits.
In the magistrates’ court, a defendant can only remand a person in custody for a maximum of eight days, except where it has previously remanded him in custody and it has a set a date for the next stage of those proceedings. In those circumstances, having heard representations from the defendant’s representatives, he can be remanded in custody for a period ending in that date or for a period of 28 days, whichever is the less – s. 128A of the Magistrates Courts Act 1980.
There is no maximum period of remand into custody in the Crown Court, where the judge is able to adjourn cases to the next stage in the proceedings.
Appearance by Live Link
Preliminary hearings, including those considering bail, may be held via live video link and where live link is used, the defendant is deemed to be present – s. 57A(2) of the Crime and Disorder Act 1998 (CDA).
There is no requirement that the defendant be in custody in relation to the offences to which the preliminary hearing relates. As such, prosecutors should consider the savings in time and cost that might result from using the live link where a prisoner serving a sentence in relation to another offence needs to be produced in court. In these circumstances, it is important to liaise with any Defence solicitors, where known.
The court may require an initial hearing to determine whether to make an order for the proceedings to be heard via live link, at which the defendant may be required to attend via live link, and in relation to which he (or those representing him) should be able to make representations – s. 57B(4)(5) CDA.
Warrants of further detention – pre-charge: s. 43 PACE
An arrested person must be charged or released within 24 hours of his arrest or arrival at the police station (s. 41 PACE). This can be extended to 36 hours on authorisation of a police superintendent (s. 42 PACE). Thereafter, a police officer may apply on oath (supported by an information) to the magistrates’ court for that period of detention to be extended where the court is satisfied (s. 43(4) PACE) that:
- His detention without charge is necessary to secure or preserve evidence relating to an offence for which the suspect is under arrest or to obtain such evidence by questioning him;
- The offence is an indictable one, and;
- The investigation is being conducted diligently and expeditiously.
The application must be made before the 36 hour period has expired and the police may apply for the warrant of further detention to be extended up to a period of no more than 96 hours from the time of arrest or arrival at the police station (s. 44 PACE). For the detailed requirements as to the timing of applications, prosecutors should have regard to the provisions of ss. 43 and 44 PACE.
Prosecutors may find that, since it is usually the investigating police officer who makes the application on oath and that these applications are often made outside of normal court sitting hours, the officer will make the application to the court. However, if the court is sitting and, especially if the suspect is represented, the prosecutor may be required to assist the court by questioning the officer to establish that the grounds (above) are made out.
If so, the prosecutor must ensure that the information in support of the application accords with the requirements of s. 43(14) PACE in that it contains:
- The nature of the offence for which the suspect was arrested;
- The general nature of the evidence;
- What enquiries have been made and what further enquiries are proposed;
- The reasons for believing that the suspect’s continued detention is necessary for the purpose of such further enquiries.
Detention in a police station – post charge: s. 128(7)(8) Magistrates Court Act 1980 (MCA)
Prosecutors may also hear this provision referred to as a “lay down” and it is commonly used where a defendant has been charged for one or more offences and has been remanded in custody by the court for that matter, but the police wish to detain him in police custody for a short period to question him in relation to other offences.
Section 128 (7) MCA states that a magistrates’ court having power to remand a defendant in custody may, if the remand is for no more than three days, commit him to be detained at a police station. He may only be detained at a police station if there is a need for him to be so detained for the purposes of enquiries into other offences and he shall be brought back to court as soon as that need ceases (s.128(8)(a)(b) MCA). His detention will be kept under continuous review, in accordance with PACE, whilst in police detention.
In the case of a person aged less than 18 years, the maximum period of the “lay down” is 24 hours – s. 91(5) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Prosecutors need to approach this application by firstly satisfying themselves that a remand in custody on the offence charged is justified, having regard to whether one or more of the exceptions to bail are made out. Only at this point, will they have to address the necessity for detaining him in the police station for further enquiries to be made.
If so satisfied, the application for a remand in custody will be made by way of a two stage application – for the remand into custody, and, if granted to police custody. Many defendants will be keen to go straight to prison and their advocates may argue that it is open to the police to bail the defendant to be produced at the police station, once the further enquiries are complete.
As such, it is vital that prosecutors are provided with sufficient information to justify the necessity for this type of detention – in addition to the remand file.
Detention in police custody for drug offenders: s. 152 Criminal Justice Act 1988
Where a defendant is brought before a magistrates’ court charged with possession of a controlled drug or a drug trafficking offence, the Magistrates have the power to remand the defendant into the custody of a police officer or customs officer for a period not exceeding 192 hours, if the court considers it appropriate to do so.
In practice, this application will only be made in circumstances where the police are in a position to charge the offender and it is anticipated the maximum period of 96 hours under PACE will not be sufficient for the defendant to pass swallowed or concealed drugs from his body.
The prosecutor will first consider and apply for a remand in custody and, thereafter ask the court to remand initially for up to 192 hours into police custody. The police will be expected to provide evidence to support their assertion that the defendant has concealed drugs in his body and this will usually be in the form of an X-ray or other medical opinion, or observations of his conduct both before and after arrest.
Prosecutors are instructed not to consent to technical bail at magistrates’ court or Crown Court hearings.
Technical bail is where bail is granted to a defendant in circumstances where there are substantial grounds for believing that a remand into custody is justified but the defendant is either serving a custodial sentence, or is remanded in custody for other matters before the same or other courts. Unconditional bail under these circumstances is granted on a technical basis, thereby avoiding the need to bring the defendant back to court unnecessarily for interim remand hearings. It also means that only one set of custody time limits needs to be monitored.
The risks inherent in agreeing to technical bail are:
- If the defendant is released from his sentence or custodial remand before the conclusion of the proceedings for which technical bail is granted, a person who is likely to re-offend, abscond or present a risk to witnesses is released into the community without even the safeguards offered by conditions of bail being in place.
- The risks are heightened in cases where the defendant is subject to recall to prison because the recall process can be lengthy, and it may not always be clear whether the defendant has been recalled for his original offence(s) when technical bail is being considered for the later matters. Furthermore, a decision to recall may be successfully challenged before the conclusion of the criminal proceedings.
Public safety and public confidence in the criminal justice system must not be compromised by administrative convenience. While the decision to grant bail is ultimately for the court, prosecutors should be prepared to object to technical bail where satisfied that one or more grounds for withholding bail has been made out.
In objecting to bail, prosecutors should point out to the court that:
- A defendant need not be granted bail if he is in custody in pursuance of the sentence of a court or of any authority acting under any of the Services Acts (see Schedule 1 Part I paragraph 4, Part IA paragraph 6 and Part II paragraph 4 of the Bail Act 1976) ;
- The use of remands by prisoner to court video link (PCVL) will avoid the need to transport the defendant;
- There is no guarantee that defendants who are remanded in custody on other matters or who are serving prisoners would not be released before the conclusion of the instant proceedings.
In a case where he is satisfied that there are no grounds for opposing bail, a prosecutor can still invite the court to impose conditions to take effect, should the defendant be released from custody.
The prosecutor’s reasons for adopting this course of action should be recorded fully on the file.
Given the importance of this advice to maintaining public safety, the Justices’ Clerks’ Society and the office of the Senior Presiding Judge has been made aware of this advice.
The question of a remand will only arise where an adjournment is sought and therefore the first point to consider is whether or not the adjournment is necessary. Prosecutors should be aware of the necessity of dealing with youth offenders in an expeditious manner.
The Bail Act 1976 applies to youth offenders and there is a presumption that the defendant has a right to bail.
The court must also have regard to the welfare of the youth (s. 44 of the Children and Young Persons Act 1933). This includes a specific obligation to consider a bail application, even if the court has refused bail twice and there is no change of circumstances nor any considerations which were not before the court when the youth was last remanded (R (on the application of B) v Brent Youth Court  EWHC 1893 Admin.). Prosecutors should be mindful of their corresponding duty to have regard to the interests of the youth and the principal aim of the youth justice system which is to prevent offending (s. 37 CDA), when considering representations in respect of bail.
The best interests of the child shall be a primary consideration in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies: Article 3 United Nations Convention on the Rights of the Child 1989 (UNCRC).
In dealing with a person aged under 18 years, prosecutors are reminded that they should first satisfy themselves that the exceptions to the right to bail are made out (see Annex 4, Annex 5 and Annex 6) and that conditions of bail will not allay their fears.
If so satisfied, the prosecutor should seek a remand into local authority accommodation (s. 91(3) of the Legal Aid and Punishment of Offenders Act 2012 (LASPO)). A remand into youth detention accommodation should only be sought where one of the sets of conditions set out in ss. 98 and 99 LASPO are met (s. 91(4)(a) LASPO).
Remands to Local Authority Accommodation
If bail is refused to a child the court must remand him or her to local authority accommodation, (s. 91 LASPO).
A remand to local authority accommodation is a remand in custody and custody time limits will apply (s. 23(11)(b) Prosecution of Offences Act 1985).
The remand is for a maximum of eight days as the remand in absence procedure not applying to youth offenders. If the remand is after conviction, then the maximum period is three weeks.
The Court shall designate the local authority that is to receive the youth offender (s. 92(2) LASPO).
Local Authority Remand with Conditions
The Court may impose any condition on the local authority remand that could be imposed under s. 3(6) of the Bail Act 1976 (s. 93(1) LASPO).
An electronic monitoring requirement may only be imposed if the criteria in s. 94 (2) to (6) LASPO are satisfied, namely:
- the child is at least 12 years old;
- one or more of the offences for which the child is remanded is imprisonable;
- one or more of the offences for which the child is
- remanded is a violent or sexual offence (as defined in Parts 1 and 2 of Schedule 15 Criminal Justice Act 2003) or
- punishable in the case of an adult with imprisonment for a term of 14 years or more or taken together with any other imprisonable offences of which the child has been convicted in any proceedings,
- amounts (or would, if the child is convicted of the offence(s) for which he or she is remanded) to a recent history of committing imprisonable offences while on bail or subject to a custodial remand;
- electronic monitoring is available and the youth offending team have informed the court that electronic monitoring is suitable for the child.
The court may also impose requirements on the authority itself for securing compliance with any conditions imposed on the child or stipulating that the child shall not be placed with a named person (s. 93(3) LASPO).
The authority itself may ask the Court to impose conditions on a remand to local authority accommodation (s. 93(5) LASPO) and both the local authority and the child can apply to the court to vary or revoke any conditions previously imposed (s. 93(6) LASPO).
The court must consult the designated local authority before imposing conditions on the child or the local authority (s. 93(4) LASPO).
“Consultation” with the local authority is defined as such consultation (if any) as is reasonably practicable in all the circumstances of the case (s. 93(9) LASPO).
Prosecutors should know something of the local authority’s arrangements for accommodation of youth offenders on remand. In all applications, it will be advisable to talk to the representative from the youth offending team before addressing the Court on the need for any conditions to be imposed on the remand, or for a stipulation that the defendant should not live with a named person.
Remands to Youth Detention Accommodation
Youths aged 10 and 11 can only be remanded to local authority accommodation.
The Court may remand a youth aged between 12 and 17 to youth detention accommodation, rather than local authority accommodation if the youth satisfies either the first or second set of conditions set out in ss. 98 and 99 LASPO 2012. These provisions are set out in Annex Seven: Youth Remand Provisions.
Prosecutors are advised to consult the Youth Offending Team to explain the objections to bail and the reasons for seeking a remand to youth detention accommodation and to ascertain whether they can offer a suitable alternative such as ISSP or bail support. You should only make an application for a remand to youth detention accommodation when you have considered all of the alternatives and decided that they would be inadequate to protect the public from serious harm or to prevent the commission of further offences. Prosecutors should not use the mere existence of an offence or history condition to make an application for a remand to youth detention accommodation.
The court no longer has a power to remand a 15 or 16 year old boy to secure accommodation rather than a young offenders’ institution. All children remanded to youth detention accommodation will be placed in a secure children’s home, secure training centre or young offenders’ institution.
Prosecutors should advise the defence solicitor, the Court and the youth offender team and of any information on the CPS file that indicates that a youth remanded to youth detention accommodation has any physical or emotional maturity issues or a propensity to self- harm to enable the child to be placed appropriately.
Secure Accommodation Orders
If a youth offender is remanded to local authority accommodation, the authority can separately apply to the Court for a Secure Accommodation Order. The application is made under s. 25 Children Act 1989, where the remand has been made by the Youth Court or magistrates’ court, the authority must apply to that Court and not to the Family Proceedings Court.
The maximum period for which a Court can make a Secure Accommodation Order on a youth offender who has been remanded to local authority accommodation is the period of the remand. If the authority intends to make this application, then it may well be advisable for Prosecutors to delay any application for remand to local authority accommodation until the local authority application has been heard. If the application is successful you can consider seeking a remand on bail with a condition of residence where directed by the local authority. In cases where the offender is likely to be remanded for a considerable period of time, it will obviate the need for the offender to be produced at court every seven days.
If the offender is not already in care, then the remand must be dealt with first and a remand to local authority accommodation granted before the local authority has power to seek a Secure Accommodation Order. Time that is spent remanded or committed in custody (including Police detention, or in secure accommodation), is deducted from the final sentence. Time spent remanded or committed to local authority accommodation does not count against the final sentence.
A custody officer, after charge, is under a duty to ensure that an arrested youth is moved to local authority accommodation, unless it is certified in the case of:
- a child who is aged 12 to 17 inclusive, that no secure accommodation is available and that keeping him in other local authority accommodation would not be adequate to protect the public from serious harm from him; or
- any child that, for the reasons specified on the certificate, it is impracticable to make the transfer (s 38(6) PACE).
Although the sub-section uses the word “impracticable” in relation to those under 12 years, the construction of the statutory provision makes clear that the type of accommodation in which the local authority propose to place the youth is not a factor which the custody officer may take into account in considering whether the transfer is acceptable. As the detention of children under 12 in youth detention accommodation would not be available to the Court, other than at the instigation of the local authority itself under s. 25 of the Children Act 1989 it would be improper to try and use s.38(6) PACE to achieve it.
The 2017 Concordant on children in custody contains guidance for police forces and local authorities in England on their responsibilities towards children in custody.
Source: Modified from CPS
Categories: Law of England