Session 2010 - 12
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Legal Aid, Sentencing and Punishment of Offenders Bill


Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 3 — Remands of children otherwise than on bail

60

 

(6)   

The second legal representation condition is that the child is not legally

represented before the court and—

(a)   

representation was provided to the child under Part 1 of this Act for the

purposes of the proceedings, but was withdrawn—

(i)   

because of the child’s conduct, or

5

(ii)   

because it appeared that the child’s financial resources were

such that the child was not eligible for such representation,

(b)   

the child applied for such representation and the application was

refused because it appeared that the child’s financial resources were

such that the child was not eligible for such representation, or

10

(c)   

having been informed of the right to apply for such representation and

having had the opportunity to do so, the child refused or failed to

apply.

82      

Second set of conditions for a remand to youth detention accommodation

(1)   

For the purposes of section 74(4)(a), the second set of conditions for a remand

15

to youth detention accommodation is met in relation to a child if each of the

following is met in relation to the child—

(a)   

the age condition (see subsection (2)),

(b)   

the sentencing condition (see subsection (3)),

(c)   

the offence condition (see subsection (4)),

20

(d)   

the first or second history condition or both (see subsections (5) and

(6)),

(e)   

the necessity condition (see subsection (7)), and

(f)   

the first or second legal representation condition (see subsections (8)

and (9)).

25

(2)   

The age condition is that the child has reached the age of twelve.

(3)   

The sentencing condition is that it appears to the court that there is a real

prospect that the child will be sentenced to a custodial sentence for the offence

mentioned in section 74(1) or one or more of those offences.

(4)   

The offence condition is that the offence mentioned in section 74(1), or one or

30

more of those offences, is an imprisonable offence.

(5)   

The first history condition is that—

(a)   

the child has a recent history of absconding while remanded to local

authority accommodation or youth detention accommodation, and

(b)   

the offence mentioned in section 74(1), or one or more of those offences,

35

is alleged to be or has been found to have been committed while the

child was remanded to local authority accommodation or youth

detention accommodation.

(6)   

The second history condition is that the offence or offences mentioned in

section 74(1), together with any other imprisonable offences of which the child

40

has been convicted in any proceedings, amount or would, if the child were

convicted of that offence or those offences, amount to a recent history of

committing imprisonable offences while—

(a)   

on bail,

(b)   

remanded to local authority accommodation, or

45

(c)   

remanded to youth detention accommodation.

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 3 — Remands of children otherwise than on bail

61

 

(7)   

The necessity condition is that the court is of the opinion, after considering all

the options for the remand of the child, that only remanding the child to youth

detention accommodation would be adequate—

(a)   

to protect the public from death or serious personal injury (whether

physical or psychological) occasioned by further offences committed

5

by the child, or

(b)   

to prevent the commission by the child of imprisonable offences.

(8)   

The first legal representation condition is that the child is legally represented

before the court.

(9)   

The second legal representation condition is that the child is not legally

10

represented before the court and—

(a)   

representation was provided to the child under Part 1 of this Act for the

purposes of the proceedings, but was withdrawn—

(i)   

because of the child’s conduct, or

(ii)   

because it appeared that the child’s financial resources were

15

such that the child was not eligible for such representation,

(b)   

the child applied for such representation and the application was

refused because it appeared that the child’s financial resources were

such that the child was not eligible for such representation, or

(c)   

having been informed of the right to apply for such representation and

20

having had the opportunity to do so, the child refused or failed to

apply.

(10)   

In this Chapter “custodial sentence” means a sentence under—

(a)   

section 90 of the Powers of Criminal Courts (Sentencing) Act 2000

(detention during Her Majesty’s pleasure on conviction of murder),

25

(b)   

section 91 of that Act (detention for specified period on conviction of

certain serious offences),

(c)   

section 100 of that Act (detention and training order),

(d)   

section 226 of the Criminal Justice Act 2003 (detention for life or for

public protection for certain serious offences), or

30

(e)   

section 228 of that Act (extended sentence of detention for violent or

sexual offences).

(11)   

References in this section to a child being remanded to local authority

accommodation or youth detention accommodation include a child being

remanded to local authority accommodation under section 23 of the Children

35

and Young Persons Act 1969.

83      

First set of conditions for a remand to youth detention accommodation:

extradition cases

(1)   

For the purposes of section 74(4)(b), the first set of conditions for a remand to

youth detention accommodation in an extradition case is met in relation to a

40

child if each of the following is met in relation to the child—

(a)   

the age condition (see subsection (2)),

(b)   

the offence condition (see subsection (3)),

(c)   

the necessity condition (see subsection (4)), and

(d)   

the first or second legal representation condition (see subsections (5)

45

and (6)).

(2)   

The age condition is that the child has reached the age of twelve.

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 3 — Remands of children otherwise than on bail

62

 

(3)   

The offence condition is that the conduct constituting the offence to which the

extradition proceedings relate, or one or more of those offences, would, if

committed in the United Kingdom, constitute—

(a)   

a violent or sexual offence, or

(b)   

an offence punishable in the case of an adult with imprisonment for a

5

term of 14 years of more.

(4)   

The necessity condition is that the court is of the opinion, after considering all

the options for the remand of the child, that only remanding the child to youth

detention accommodation would be adequate—

(a)   

to protect the public from death or serious personal injury (whether

10

physical or psychological) occasioned by further offences committed

by the child, or

(b)   

to prevent the commission by the child of imprisonable offences.

(5)   

The first legal representation condition is that the child is legally represented

before the court.

15

(6)   

The second legal representation condition is that the child is not legally

represented before the court and—

(a)   

representation was provided to the child under Part 1 of this Act for the

purposes of the proceedings, but was withdrawn—

(i)   

because of the child’s conduct, or

20

(ii)   

because it appeared that the child’s financial resources were

such that the child was not eligible for such representation,

(b)   

the child applied for such representation and the application was

refused because it appeared that the child’s financial resources were

such that the child was not eligible for such representation, or

25

(c)   

having been informed of the right to apply for such representation and

having had the opportunity to do so, the child refused or failed to

apply.

84      

Second set of conditions for a remand to youth detention accommodation:

extradition cases

30

(1)   

For the purposes of section 74(4)(b), the second set of conditions for a remand

to youth detention accommodation in an extradition case is met in relation to

a child if each of the following is met in relation to the child—

(a)   

the age condition (see subsection (2)),

(b)   

the sentencing condition (see subsection (3)),

35

(c)   

the offence condition (see subsection (4)),

(d)   

the first or second history condition or both (see subsections (5) and

(6)),

(e)   

the necessity condition (see subsection (7)), and

(f)   

the first or second legal representation condition (see subsections (8)

40

and (9)).

(2)   

The age condition is that the child has reached the age of twelve.

(3)   

The sentencing condition is that it appears to the court that, if the child were

convicted in the United Kingdom of an offence equivalent to the offence to

which the extradition proceedings relate or one or more those offences, there

45

would be a real prospect that the child would be sentenced to a custodial

sentence for that offence or those offences.

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 3 — Remands of children otherwise than on bail

63

 

(4)   

The offence condition is that the offence to which the extradition proceedings

relate, or one or more those offences, is an imprisonable offence.

(5)   

The first history condition is that—

(a)   

the child has a recent history of absconding while subject to a custodial

remand, and

5

(b)   

the offence to which the extradition proceedings relate, or one or more

of those offences, is alleged to be or has been found to have been

committed while the child was subject to a custodial remand.

(6)   

The second history condition is that the offence or offences to which the

extradition proceedings relate, together with any other imprisonable offences

10

of which the child has been convicted, amount or would, if the child were

convicted of that offence or those offences, amount to a recent history of

committing imprisonable offences while on bail or subject to a custodial

remand.

(7)   

The necessity condition is that the court is of the opinion, after considering all

15

the options for the remand of the child, that only remanding the child to youth

detention accommodation would be adequate—

(a)   

to protect the public from death or serious personal injury (whether

physical or psychological) occasioned by further offences committed

by the child, or

20

(b)   

to prevent the commission by the child of imprisonable offences.

(8)   

The first legal representation condition is that the child is legally represented

before the court.

(9)   

The second legal representation condition is that the child is not legally

represented before the court and—

25

(a)   

representation was provided to the child under Part 1 of this Act for the

purposes of the proceedings, but was withdrawn—

(i)   

because of the child’s conduct, or

(ii)   

because it appeared that the child’s financial resources were

such that the child was not eligible for such representation,

30

(b)   

the child applied for such representation and the application was

refused because it appeared that the child’s financial resources were

such that the child was not eligible for such representation, or

(c)   

having been informed of the right to apply for such representation and

having had the opportunity to do so, the child refused or failed to

35

apply.

85      

Remands to youth detention accommodation

(1)   

A remand to youth detention accommodation is a remand to such one of the

kinds of accommodation listed in subsection (2) as the Secretary of State directs

in the child’s case.

40

(2)   

Those kinds of accommodation are—

(a)   

a secure children’s home,

(b)   

a secure training centre, and

(c)   

a young offender institution.

(3)   

A child’s detention in one of those kinds of accommodation pursuant to a

45

remand to youth detention accommodation is lawful.

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 3 — Remands of children otherwise than on bail

64

 

(4)   

Where a court remands a child to youth detention accommodation, the court

must—

(a)   

state in open court that it is of the opinion mentioned in section 81(4),

82(7), 83(4) or 84(7) (as the case may be), and

(b)   

explain to the child in open court and in ordinary language why it is of

5

that opinion.

(5)   

A magistrates’ court must ensure a reason that it gives under subsection

(4)(b)—

(a)   

is specified in the warrant of commitment, and

(b)   

is entered in the register.

10

(6)   

Where a court remands a child to youth detention accommodation, the court

must designate the local authority that is to receive the child.

(7)   

That authority must be—

(a)   

in the case of a child who is being looked after by a local authority, that

authority, and

15

(b)   

in any other case, the local authority in whose area it appears to the

court that the child habitually resides or the offence or one of the

offences was committed.

(8)   

Before giving a direction under subsection (1), the Secretary of State must

consult the designated authority.

20

(9)   

The designated authority must receive the child.

(10)   

In this Chapter “secure children’s home” means—

(a)   

accommodation in England which—

(i)   

is provided in a children’s home, within the meaning of the

Care Standards Act 2000, in respect of which a person is

25

registered under Part 2 of that Act, and

(ii)   

is approved by the Secretary of State for the purpose of

restricting the liberty of children, or

(b)   

accommodation in Wales which is provided in a children’s home,

within the meaning of the Care Standards Act 2000—

30

(i)   

which provides accommodation for the purposes of restricting

liberty, and

(ii)   

in respect of which a person is registered under Part 2 of that

Act.

Supplementary

35

86      

Arrangements for remands

(1)   

The Secretary of State may make arrangements for or in connection with the

accommodation in secure children’s homes of children remanded to youth detention

accommodation.

(2)   

The Secretary of State may by regulations make provision about the recovery

40

from the designated authority by a person mentioned in subsection (3) of the

costs of—

(a)   

a child being subject to a remand to youth detention accommodation;

 
 

Legal Aid, Sentencing and Punishment of Offenders Bill
Part 3 — Sentencing and Punishment of Offenders
Chapter 3 — Remands of children otherwise than on bail

65

 

(b)   

the exercise of functions of the kind mentioned in paragraph 1(1)(a) to

(d) of Schedule 1 to the Criminal Justice and Public Order Act 1994

(escort functions) in relation to a child subject to such a remand.

(3)   

Those persons are—

(a)   

the Secretary of State;

5

(b)   

a person other than the Secretary of State by whom the accommodation

pursuant to the remand to youth detention is provided or the functions

are exercised (as the case may be).

(4)   

Regulations under this section may—

(a)   

make different provision for different cases;

10

(b)   

include supplementary, incidental, transitional, transitory or saving

provision.

(5)   

Regulations under this section are to be made by statutory instrument.

(6)   

A statutory instrument containing regulations under this section is subject to

annulment in pursuance of a resolution of either House of Parliament.

15

(7)   

The Secretary of State may make payments to a designated authority for the purpose of

enabling the authority

(a)   

to exercise its functions under section 75(4) (duty to receive and accommodate

child remanded to local authority accommodation);

(b)   

to exercise its functions under section 85(9) (duty to receive child remanded to

20

youth detention accommodation);

(c)   

to make payments pursuant to regulations under this section.

87      

Looked after child status

(1)   

A child that is remanded to youth detention accommodation is to be treated as

a child that is looked after by the designated authority.

25

(2)   

The Secretary of State may by regulations provide for any Act or instrument

made under an Act that applies to a child looked after by a local authority to

apply with modifications, or not to apply, in relation to a child that is to be

treated as looked after by a designated authority by virtue of this Chapter.

(3)   

Regulations under this section may—

30

(a)   

make different provision for different cases;

(b)   

include supplementary, incidental, transitional, transitory or saving

provision.

(4)   

Regulations under this section are to be made by statutory instrument.

(5)   

A statutory instrument containing regulations under this section is subject to

35

annulment in pursuance of a resolution of either House of Parliament.

(6)   

In this section “Act” includes an Act or Measure of the National Assembly for

Wales.

88      

Minor and consequential amendments

Schedule 11 (remands of children otherwise than on bail: minor and

40

consequential amendments) has effect.

 
 

 
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Revised 21 June 2011