Criminal law

Bail for young offenders

Offenders who are 17 years of age, though dealt with in the youth court, continue to be treated for remand purposes as adults.

However, the law on bail for those younger than17 has undergone a series of changes.

Most of those younger than 17 will continue to receive unconditional bail.

However, if conditions of bail are required, there is now a wide range of possibilities available to the court.

Apart from traditional conditions, electronic tagging is now available nationwide.

For an electronic tag to be used:

- The young offender must be at least 12;

- He must have been charged with or convicted of a violent or sexual offence, or an offence carrying 14 years or more in the case of an adult or been charged with or convicted of an imprisonable offence which together with other imprisonable offences amounts or would amount to a recent history of repeatedly committing imprisonable offences while remanded on bail or to local authority accommodation; and,

- The youth offender team must have confirmed that the physical arrangements can be made for that individual.

The Youth Justice Board is determined that, whenever possible, conditional bail should be used in preference to custodial remands.

Bail with supervision and support and bail with supervision and support and tagging are now available.

In at least 'street crime' areas, bail with intensive supervision and surveillance is available, including intensive supervision and surveillance with voice identification and with tagging.

It is significant that under section 23(5AA) of the Children and Young Persons Act 1969, the court must consider all possible options for bail, including conditional bail before moving on to consider a custodial remand.

If bail is to be refused, the normal remand would be to local authority accommodation with the local authority deciding the address at which the young person shall live.

For many years, the courts have had power to add conditions to such a remand (although they may not direct the address at which a young person may live).

That power now includes the power to impose electronic monitoring on the same three conditions as set out above.

However, the most significant recent changes are in relation to the group of offenders who fall within the provisions of section 23(5) (as amended) of the 1969 Act.

If this provision applies, then for 12-16-year-old girls; 12-14 year-old-boys and 15-16-year-old boys who are vulnerable, the court makes an order for a remand direct to secure accommodation.

For 15 and 16-year-old boys who are not vulnerable the remand is to a remand centre or prison.

Section 23(5) (as amended) now applies if either:

- The young person is charged with or convicted of a violent or sexual offence or an offence carrying 14 years or more in the case of an adult; or

- The young person has been charged with or convicted of an imprisonable offence which together with other imprisonable offences of which they have been convicted in any proceedings amount to or would amount to a recent history of repeatedly committing imprisonable offences while remanded on bail or to local authority accommodation.

And, in addition, (whichever of those two conditions is satisfied) the court must be satisfied that either the public is at risk of serious harm from the young person or that the remand is necessary to prevent the commission by him of further imprisonable offences.

These amended provisions hugely widen the group of young people for whom a secure remand can be ordered.

If the Crown's objection to bail is that further offences will be committed, the commission of three relatively minor imprisonable offences in a short period, while on bail, will be sufficient to allow the secure remand.

The box here summarises the various outcomes available to courts considering the issue of bail and the extent to which conditional bail appears in the list is particularly significant.

In E v DPP (2002) Crim LR 737 a youth was remanded by the court to secure accommodation.

In fact, no place could be found and the local authority kept him in other accommodation and produced him to court.

However, he made off without appearing in court.

Because he had been the subject of a custodial remand it was not possible to prosecute him under the provisions of section 6 of the Bail Act 1976.

Instead, a charge was preferred of escape from lawful custody.

The defence argued that he had in fact never been detained.

The court held that this was not a conclusive argument.

It was a matter of fact in the particular case whether there had been sufficient control of the defendant by the local authority to amount to 'custody' and the immediate restriction on his freedom of movement was sufficient to make out the requirements for the offence.

It would appear that this decision need not be limited to decisions on secure accommodation subject to the degree of control being exercised in an individual case by the local authority over a young person.

Remand options - degree of restriction of libertySource: Home OfficeRestriction of risk:Secure remand;Remanded to local authority accommodation with tagging;Remanded to local authority accommodation;Bail with intensive supervision and surveillance (where available) with tagging;Bail with intensive supervision and surveillance (where available) with voice verification;Bail with intensive supervision and surveillance (where available);Bail with supervision, support and tagging;Bail with supervision and support;Conditional bail with tagging;Conditional bail;Unconditional bail

By Anthony Edwards, TV Edwards, London