Legal Commentary
| Published date | 01 December 2003 |
| Date | 01 December 2003 |
| Author | Nigel Stone |
| DOI | 10.1177/147322540300300305 |
| Subject Matter | Articles |
‘Detention by YOT Workers’, ‘YOI Segregation Conditions’
and ‘DTO Enforcement’ – A Cluster of Custodial Concerns
Nigel Stone
Correspondence: Nigel Stone, School of Social Work and Psychosocial Studies,
Elizabeth Fry Building, University of East Anglia, Norwich, NR4 7TJ.
Email: n.stoneVuea.ac.uk
Abstract
This Legal Commentary reports some recent High Court decisions on a range of issues
with regard to the scope of, and limits upon, various powers relating to young persons’
liberty and integrity when subject to custodial orders, pre-sentence, during sentence and
post-detention.
Remand to Local Authority Accommodation: Detained by YOT and in
Lawful Custody?
As noted in a recent Legal Commentary (Stone, 2003), where a young defendant is
remanded to local authority accommodation under the Children and Young Persons
Act 1969 s.23(1), with a requirement under s.23(4) that s/he is placed in secure
accommodation, and the defendant absconds while in local authority control, albeit in
circumstances of comparative liberty, s/he may properly be charged with an offence
of escaping from lawful custody (E. v Director of Public Prosecutions [2002] Crim. L.R.
737). In the subsequent case of R (on the application of H.) v DPP [2003] EWHC 878
Admin., the same issue was posed where the defendant had been remanded to local
authority accommodation without a security requirement and, like E., was at the
relevant time being managed (but not directly accompanied) by a Youth Offending
Team (YOT) member.
On being remanded by a youth court H., aged 15, had been taken to the cells to
await the arrival of a YOT worker and was subsequently released into her care. Having
taken him back to the YOT office, she was unable to gain immediate access to the
building and so left him outside unsupervised, telling him not to move, while she
sought entrance by another door. Left to himself, he absconded. The youth court
subsequently convicted him of the imprisonable common law offence of escaping from
custody, a crime usually arising from escape from police or prison detention. Like E.
he appealed by way of ‘case stated’, arguing that he had not been in custody and that
although the YOT worker had power under s.23(3) to detain him, she had not done
so, because ‘detaining’ requires something more than simply telling him not to move.
As the YOT worker had acknowledged that he had ‘seemed confused’ at the time, he
claimed that he had not appreciated that he was being detained. He drew attention to
CYPA 1969 s.32 (1A) and (1B):
184
Legal Commentary
(1A) If a child or young person is absent without the consent of the responsible person . . .
(a) from local authority accommodation . . .
(b) to which he has been remanded or committed under s.23(1) he may be arrested by a constable
. . . without a warrant.
(1B) A person so arrested shall be conducted to
(a) a place of safety;
(b) the local authority accommodation; or
(c) such other place as the responsible person may direct, at the responsible person’s expense
and further argued that this indicates the proper remedy for dealing with absconders,
rather than prosecution for escape.
In support of his argument that he had not been in custody, H. sought to rely on
the House of Lords judgement in R v Secretary of State for the Home Department, ex p. A.
[2000] 2 A.C. 276. This had concerned whether time spent on s.23 (1) remand qualified
for credit when determining the time to be served in respect of a sentence of detention
in a young offender institution. The House of Lords had determined that a s.23 (1)
order without a secure requirement did not amount to a form of custody for this
purpose and time so spent could not count towards sentence.
Gage J.’s judgement can be summarised as follows:
(a) Ex p. A. was not decisive because it did not consider the power to detain
provisions of s.23 (3) which were not relevant to the issue the House of Lords was
dealing with.
(b) As determined by E., whether a person is in custody is a question of fact to be
decided in the light of the circumstances of the individual case. In this instance, H. had
been represented by a solicitor before the youth court. Thereafter he had been taken
to the cells temporarily. The YOT worker had explained to him that he was remanded
to local authority accommodation. Accordingly:
It is unrealistic to suggest that (when told to wait) he did not know that he was being detained.
He must have known that he was to accompany (the YOT worker) and remain with her until
arrangements had been organised for his placement and that he was not entitled simply to run off.
(c) There was thus ample evidence to enable the magistrates to conclude that, in the
light of all that had happened in court that morning, H. knew perfectly well that he
was in the YOT worker’s charge, that his immediate freedom of movement was under
the direct control of that person and the order he was subject to was custodial in
nature. It followed that by absconding he was guilty of the offence of escaping from
lawful custody.
With the ambit of YOT workers’ custodial responsibility thus clarified, relevant
questions are posed as regards the valid use of reasonable restraint in pursuit of power
to detain under s.23(3). In regard to Human Rights law, it is worth noting the European
Court’s decision in D.G. v Ireland [2002] 35 EHRR 1153, a case involving a
hard-to-place, very needy boy in the care of a local authority who had been located in
a custodial institution as a last resort in light of his history of violence, arson and
absconding. When he sought judicial review of the local authority’s placement decision
he had been brought to court in handcuffs. Given that he had presented a danger of
Youth Justice Vol. 3 No. 3
185
self-harm and violence to others, the Strasbourg Court followed the lead given in
Raninen v Finland [1997] 26 EHRR 563 (a case that also concerned handcuffing, of an
adult who had been detained following his refusal to comply with conscription into the
army) and found that this precautionary action had not amounted to a breach of either
his Article 3 or Article 8 rights (outlined below).
Segregation Conditions and Human Rights
What safeguards apply when a young offender detained in a YOI is subjected to
segregation? This issue has recently been tested in R (on the application of B.P.) v Secretary
of State for the Home Department [2003] EWHC 1963 Admin, proceedings brought by the
Howard League for Penal Reform on behalf of a boy, aged 17 at the relevant time.
The boy was sentenced to a DTO and removed twice to the Segregation Unit of
Warren Hill YOI for periods...
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