R v Secretary of State for the Home Department, ex parte A

JurisdictionEngland & Wales
JudgeLORD NICHOLLS OF BIRKENHEAD,LORD NOLAN,LORD STEYN,LORD HOPE OF CRAIGHEAD,LORD CLYDE
Judgment Date27 January 2000
Judgment citation (vLex)[2000] UKHL J0127-4
Date27 January 2000
CourtHouse of Lords

[2000] UKHL J0127-4

HOUSE OF LORDS

Lord Nicholls of Birkenhead

Lord Nolan

Lord Steyn

Lord Hope of Craighead

Lord Clyde

Regina
and
Secretary of State for the Home Department
(Appellant)

Ex Parte a

(Respondent)
LORD NICHOLLS OF BIRKENHEAD

My Lords,

1

I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead and Lord Clyde. I agree that, for the reasons they give, this appeal should be allowed.

LORD NOLAN

My Lords,

2

I have had the advantage of reading in draft the speeches prepared by my noble and learned friends Lord Hope of Craighead and Lord Clyde. I agree that, for the reasons they give, this appeal should be allowed.

LORD STEYN

My Lords,

3

I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Hope of Craighead and Lord Clyde. For the reasons they have given I would also allow the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

4

Part III of the Criminal Justice Act 1967 introduced a number of important reforms of the law relating to the treatment of offenders. We are concerned in this case with the rules which section 67 of that Act, as amended by section 49(2) of the Police and Criminal Evidence Act 1984 and section 130 of the Criminal Justice Act 1988, has laid down to enable account to be taken of periods spent by the offender in custody while awaiting trial or sentence for the offence. The broad principle to which it seeks to give effect is that periods spent in custody before trial or sentence which are attributable only to the offence for which the offender is being sentenced are to be taken into account in calculating the length of the period which the offender must spend in custody after he has been sentenced.

5

The application of rules for this purpose to children and young persons is complicated by the nature and the variety of the measures which are available to the court for their remand or committal on their being brought before the court charged with an offence. The point of principle around which these rules have been structured is that a child or a young person should not, so far as practicable, be detained in an prison, a remand centre or a young offender institution on committal or while on remand. The current legislation contains detailed provisions to enable such persons to be held in appropriate conditions, if not released on bail, while they are awaiting trial or awaiting sentence after conviction.

6

The system which has been laid down by section 23 of the Children and Young Persons Act 1969, as substituted by section 60 of the Criminal Justice Act 1991, gives effect to this principle by providing in subsection (1) that, where the court remands a child or young person charged with or convicted of one or more offences or commits him for trial or sentence and he is not released on bail, the remand or committal shall be to "local authority accommodation." Subsection (4) of section 23 is in these terms:

"Subject to subsection (5) below, a court remanding a person to local authority accommodation may, after consultation with the designated authority, require that authority to comply with a security requirement, that is to say, a requirement that the person in question be placed and kept in secure accommodation."

7

Subsection (5) of section 23 provides that a court shall not impose a security requirement except in the case of a young person who has attained the age of fifteen, and then only if he is charged with or has been convicted of the serious offences referred to in paragraph (a) of the subsection or has a recent history of absconding while remanded and is charged with an imprisonable offence alleged or found to have been committed while he was so remanded. In either case the court must also be of opinion that a security requirement is necessary to protect the public from serious harm from him. Subsection (12) of section 23 provides that the expression "secure accommodation" means accommodation which is provided in a community home, a voluntary home or a registered Children's home for the purpose of restricting liberty, and is approved for that purpose by the Secretary of State. It also provides that the expression "young person" in that section means a person who has attained the age of fourteen years and is under the age of seventeen years.

8

Section 37(3) of the Magistrates' Courts Act 1980 , which was inserted by section 60(2)(c) of the Criminal Justice Act 1991, deals with the committal of young persons to the Crown Court for sentence. It provides:

"Where a person committed in custody under subsection (1) above is less than seventeen years old -

(a) he shall be committed to accommodation provided by or on behalf of a local authority (within the meaning of the Children Act 1989) and

(b) the court by which he is so committed shall impose a security requirement within the meaning of section 23 of the Children and Young Persons Act 1969."

9

The system which has thus been laid down by section 23 of the 1969 Act, as amended, provides the court with the following options. A child or young person may either be released on bail or may be remanded to local authority accommodation. If a young person who has attained fifteen years is remanded to local authority accommodation, the court has the power, but only if the case satisfies the stringent requirements of section 23(5), to impose a security requirement on the local authority. The effect of that requirement is that the young person must kept in secure accommodation while he or she remains so remanded. The accommodation in which he or she is to be kept is accommodation provided in a home approved by the Secretary of State "for the purpose of restricting liberty": see the definition in section 23(12). If the court decides to remand the child or young person in local authority accommodation without imposing a security requirement, it has power to impose such conditions on that person as it could have imposed as conditions of bail under section 3(6) of the Bail Act 1976.

10

The respondent in this case was a young person within the meaning of section 23(12) of the Act of 1969 when he appeared before Balham Youth Court on 30 October 1998, as he was then aged 15 years. He had been detained the previous day and remanded overnight in Streatham Police Station. The offence with which he was charged, which was handling stolen goods, was not one of the serious offences mentioned in section 23(5) of the 1969 Act, and there was no suggestion that he had a recent history of absconding. Nevertheless the circumstances of the case were such that the magistrate decided not to release him on bail. He remanded the respondent to local authority accommodation and imposed the following conditions on his remand. He was to be subject to curfew during the hours of 7pm to 7am; he was not to contact prosecution witnesses; and he was not to reside with his mother at his home address. These conditions were imposed under section 23(7), and they were all conditions which it would have been competent for the court to impose as conditions of bail. It is not unusual, for example, for a person who is released on bail either to live at home or to reside in a bail hostel to be subjected to a curfew while he remains on bail when this is necessary to secure that he does not commit an offence while on bail: see section 3(6)(b) of the Bail Act 1976.

11

The respondent was placed by the local authority in a registered children's home. The home was not approved by the Secretary of State as accommodation for the purpose of restricting liberty. He subsequently pled guilty to the offence with which he had been charged. He came before the Youth Court for sentence on 18 January 1999. He was a "young offender" for the purposes of section 1A of the Criminal Justice Act 1982, inserted by section 123 of the Criminal Justice Act 1988, as he was still under the age of twenty-one. So he was sentenced to detention for a period of four months in a young offender institution.

12

The question was then raised as to whether the length of the respondent's sentence was to be treated as reduced under section 67(1) of the Criminal Justice Act 1967. It was agreed that he should be credited with the one day which he had spent in Streatham Police Station. But he also asked for credit to be given for the time which he had spent in the home during the period of his remand to local authority accommodation under section 23 of the Act of 1969. The governor of the institution decided that he was not entitled to this, so the respondent applied for judicial review of his decision to refuse him credit for this period. Collins J. held that he was bound by the decision of the Court of Appeal in Reg. v. Collins (1995) 16 Cr. App. R. (S.) 156 to hold that the period while the respondent was in the care of the local authority subject to the conditions which were imposed under section 23(7) of the Act of 1969 fell within the description of the expression "relevant period" in section 67(1A)(c). That subsection includes within that expression, in addition to the periods spent in police detention and in custody which are mentioned in paragraphs (a) and (b) of the subsection, the following:

"(c) any period during which, in connection with the offence for which the sentence was passed, he was remanded or committed to local authority accommodation by virtue of an order under section 23 of the Children and Young Persons Act 1969 or section 37 of the Magistrates' Courts Act 1980 and in accommodation provided for the purpose of restricting liberty."

13

Mr. Levy Q.C. for the respondent submitted that the effect of section 67(1A)(c) was that the sentence of detention should be reduced by the time which the respondent spent in local authority accommodation notwithstanding the fact that it was not...

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