15.21 Pan Sussex Protocol on Transfer of Young People to Local Authority Accommodation from Police Custody

Children and young people should not be kept in police custody following charge and if they cannot go straight to court must be transferred to Local Authority Accommodation. The only exception is where the young person is assessed as likely to cause serious physical or psychological injury to someone before they appear at court. This only relates to murder or Schedule 15 offences such as manslaughter, grievous bodily harm, robbery or rape (see https://www.legislation.gov.uk/ukpga/2003/44/schedule/15 ). Then a request should be made for the provision of secure accommodation. However, the Local Authority does not have to provide secure accommodation and if it cannot (or does not accept the need) then the young person must still be transferred unless serious harm to the public would occur.  The Local Authority can place a young person at home or anywhere they decide is suitable.

In Sussex the aim is that no young people are held in the cells overnight where bail or transfer is an option. In terms of young people transferred to the Local Authority for appearance in Court the following day. The aim is that Police will give strong consideration to only refusing the bail for the reasons set out under Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). See Appendix 1. 

The law already recognises that police cells are not a suitable place for young people. The Police and Criminal Evidence Act 1984 requires the transfer of young people who have been charged and denied bail to more appropriate Local Authority Accommodation, with a related duty in the Children Act 1989 for local authorities to accept these transfers. In 1991 the UK ratified the UN Convention on the Rights of the Young person, agreeing that custody be used “only as a measure of last resort and for the shortest appropriate period of time”.

Despite this, failings have been identified by Her Majesty’s Inspectorate of the Constabulary (The welfare of vulnerable people in custody, March 2015), the All Party Parliamentary Group for children (“It’s all about trust”: Building good relationships between children and the police, October 2014), the Criminal Justice Joint inspection and the Inspection of Youth Offending (Who’s looking out for the children?: A joint inspection of Appropriate Adult provision and children in detention after charge, December 2011) and the Howard League for Penal Reform (The overnight detention of young person in police cells, 2011). It is clear that, in many cases, the law is not being followed and young people are not receiving the support to which the law entitle them.

As a result,  the Home Office have developed a Concordat that recognises that we must work together to ensure that legal duties are met.

Under section 21 (2) (b) of the Children Act 1989 every local authority must provide accommodation for children whom they are requested to receive under section 38(6) of the Police and Criminal Evidence Act 1984. There is an absolute duty on the Local Authority to provide accommodation where it is sought by the Police^[1].

1 R (on the application of M) v Gateshead Council (2006).

The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, D and H) Order 2017came into effect on 27 February 2017. The Order brought into force three revised codes of practice under the Police and Criminal Evidence Act 1984 (“PACE”), which supersede the pre-existing Codes of Practice. The revisions to Code C and Code H implement amendments to PACE made by the Criminal Justice and Courts Act 2015 (“CJCA”), which defines a “juvenile” for the purpose of detention as a person who is under the age of 18, rather than under the age of 17. This now requires a 17 year-old to be treated as would be a 16 year-old rather than an adult of 18 years or over.

Under section 38 (6) of the Police and Criminal Evidence Act 1984, (which deals with police detention of arrested ‘juveniles’), a young person must be transferred to Local Authority Accommodation unless it is impracticable to do so^[1]. ‘This applies as much to those young people charged during the daytime as it does to those to be held overnight, subject to a requirement under section 46 of the Police and Criminal Evidence Act 1984 to bring the young person before a Court.’ (PACE Code of Practice C note 16D).

2 PACE Codes of Practice C note 16.7 When a juvenile is charged with an offence and the custody officer authorises their continued detention after charge, the custody officer must try to make arrangements for the juvenile to be taken into the care of a local authority to be detained pending appearance in court unless the custody officer certifies it is impracticable to do so or, in the case of a juvenile of at least 12 years old, no secure accommodation is available and there is a risk to the public of serious harm from that juvenile, in accordance with PACE, section 38(6). See Note 16D

The circumstances giving rise to being ‘impracticable’ are narrow. It does not:

a) relate to the availability of local authority accommodation or transport;

b) relate to the nature of the accommodation offered by the local authority;

c) relate to the young person’s behaviour or the nature of the offence, or;

d) mean ‘difficult’ or ‘inconvenient’

Rather, ‘impracticable’ should be taken to mean that exceptional circumstances render movement of the young person impossible. This must be judged on a case-by-case basis, and a decision of no transfer due to impracticability should be cleared by a Duty Inspector. Home Office circular 78/1992 states this would include extreme weather and repeated efforts to contact the Local Authority with no response but not lack of accommodation or staff.

If the decision is made that transfer is impracticable, the Custody Officer must carefully record the reasons behind this decision on the PACE 38(7) certificate (a standard template of this form is attached at Annex C). The completion of this certificate is a requirement under section 38 (7) of the Police and Criminal Evidence Act 1984. It must be presented to the court before which the young person appears. Courts have a duty under PACE to receive and review this certificate, and are now able to flag apparent or suspected failures to the responsible police force via an Online Flagging Mechanism (more information on this mechanism can be found in Annex D). This sends the relevant Arrest Summons Number (ASN) to a dedicated inbox at the responsible force, allowing the force to review the case and determine whether failures took place. Neither a young person's behaviour nor the nature of the offence provide grounds for the Custody Officer to decide it is impracticable to arrange the ‘juvenile's’ transfer to Local Authority care. 

The exception to the duty to transfer young people aged 12-16 involves requests for secure accommodation where placement in non-secure Local Authority Accommodation ‘would not be adequate to protect the public from serious harm’^[1]. (‘Serious harm’ in this context is taken to mean ‘death or serious personal physical or psychological injury’.)

[1] Note 16D Except as in paragraph 16.7, neither a juvenile’s behaviour nor the nature of the offence provides grounds for the custody officer to decide it is impracticable to arrange the juvenile’s transfer to local authority care. Similarly, the lack of secure local authority accommodation does not make it impracticable to transfer the juvenile. The availability of secure accommodation is only a factor in relation to a juvenile aged 12 or over when the local authority accommodation would not be adequate to protect the public from serious harm from them. The obligation to transfer a juvenile to local authority accommodation applies as much to a juvenile charged during the daytime as to a juvenile to be held overnight, subject to a requirement to bring the juvenile before a court under PACE, section 46.

The risk of serious harm must relate to the specific period prior to the Court hearing in which case the police should request the Local Authority to provide secure accommodation. If this is not available, the young person may then be detained at the Police Custody Centre pending their Court appearance.

There is no absolute duty on the Local Authority to provide secure accommodation if such accommodation is requested by a Custody Officer when discharging their duty under section 38(6) of PACE. The Custody Officer should explain why the young person poses a risk of death or serious injury to the public. The lack of secure Local Authority Accommodation does not make it impracticable to transfer the juvenile.  Transfer is impracticable only in circumstances making it physically impossible. The availability of secure accommodation is only a factor in relation to a juvenile aged 12 or over when the Local Authority Accommodation would not be adequate to protect the public from serious harm from them.  (The Local Authority does not have to provide secure accommodation and, if it cannot, the young person must still be transferred unless serious harm to the public would occur).

A young person transferred under these provisions for more than 24 hours is ‘looked after’ for the purposes of the Children Act[1] and leaving care legislation. Placement is at the discretion of the Local Authority and there is nothing precluding a return to the family home, although in determining how such young people are to be accommodated, the Local Authority needs to have regard to the fact that the Custody Officer has not authorised the young person’s release. Also the young person remains detained and it is the responsibility of the placement to report unauthorised absence immediately.

[1] S22 Children Act 1989

Where secure accommodation is available, the Local Authority must also satisfy itself, independently of the police assessment, as to the risk of serious harm and that the statutory provisions (section 25 (1) Children Act 1989) which allow placement in secure facilities are met.

Where a young person is detained in custody pending their court appearance the reasons must be recorded on the custody record and the custody officer must complete a certificate (Appendix 2) to be produced before the court. The Local Authority must be spoken to about this decision and acknowledge it. The certificate must be emailed to the relevant YOS/YOT email address upon completion as well as saved onto the relevant Niche record.

Young people arrested for breach of bail or on a warrant are not eligible for transfer to local authority accommodation.

When the Police decide whether to request secure accommodation for a young person, they employ their own test: Does the young person pose a risk of serious harm to the public?

Under section 25 of the Children Act 1989, Local Authorities also have minimum criteria that a young person must meet in order to be placed in secure accommodation. The young person may only be lawfully detained in such accommodation if the Local Authority believes:

            (a) that -

(i) they have a history of absconding and is likely to abscond from any other description of accommodation; and

(ii) if they abscond, they are likely to suffer significant harm; or

(b) that if they are kept in any other description of accommodation they are likely to injure themselves or other persons.

Although the tests employed by Police and Local Authorities vary slightly, a young person who meets the Police criteria is also likely to meet the Local Authority criteria, due to the risk of causing harm. (It should be remembered that the assessment is not of whether the young person is generally capable of causing harm, but of whether they are likely to cause harm in the period between being charged and appearing at Court).

If a situation arises where a Local Authority disagrees with a Custody Officer’s assessment of risk and feels the local authority cannot lawfully meet the criteria for secure accommodation under the Children Act, the matter should be escalated as quickly as possible under whatever local arrangements are in place. A decision must be reached as to the required accommodation.

There may also be circumstances in which the Police request non-secure accommodation but the Local Authority feels that secure accommodation is needed. After accepting a request for non-secure accommodation, it is for the Local Authority to determine which type of accommodation is most appropriate: secure accommodation is one of the options available. However, the law does not recognise a situation where the Police request non-secure accommodation but the Local Authority refuses to provide any accommodation because they believe secure accommodation is more appropriate. Police requests for non-secure accommodation must always be accepted regardless of the type of accommodation the Local Authority then decides to place the young person in.

• Young people should not be held in custody for court the next day unless there is a risk to the public of serious harm from the juvenile or it is for their own protection.

• Young people aged 18 or under should be transferred to Local Authority Accommodation unless it is impracticable to do so.

• Impracticable circumstances do not include the young person’s behaviour or the nature of the offence.

• There is no absolute duty on the Local Authority to provide secure accommodation.

• If the Custody Officer request secure accommodation for reasons other than the risk of serious harm; then the young person should still be transferred to Local Authority Accommodation, even when secure accommodation is not available.

• If the young person meets the criteria to require secure accommodation due to the risk of serious harm, and secure accommodation is not available, the young person may then be detained at the Police Station.

• The exception for this is where there is a request for secure accommodation where the placement in non secure Local Authority Accommodation would not be adequate to protect the public from serious harm. The final decision on this would be a Police decision. If the young person meets the criteria to require secure accommodation due to the risk of serious harm, and secure accommodation is not available, the young person may then be detained at the Police station

• It is the Local Authority’s decision as to where the young person is placed. This will at times include placing the young person back home with their parents/carers.

• Young people arrested for breach of bail or on a warrant are not eligible for transfer to Local Authority Accommodation.

When a young person comes into Police Custody the Custody Sergeant should let the YOT or Children’s Services EDS know as soon as possible where there is likely to be an accommodation issue at the conclusion of the investigation. This is not making any judgement on the case or the outcome. It will however enable the YOT/S and Children’s Services to start to identify potential placements if there is a necessity for the young person to be transferred to Local Authority Accommodation. This will also allow the time to assess whether returning the young person home will be a suitable option.

In Sussex we are looking to bail young people to the next Youth Court whenever possible. Young people have historically been kept overnight in Police Custody and presented to the next Remand Court the following morning. In the majority of cases the young person is then given either conditional or unconditional bail to the next Youth Court.

The Sussex YOTs may be able to offer a bail package to the police to support their decision to bail the young person to the next Youth Court. This would only be considered as an alternative where there is a potential for the young person to be refused bail after charge. The package must be discussed and agreed with the YOT/S. The bail package will include reporting to the YOT office the next working day, receiving an assessment of their needs and risks, and reporting as required. The consequences of not complying with this package will be explained to the young person and their parents i.e. Breach of Court Bail condition. Compliance will be reported to the youth court and is likely to have an impact of the courts future bail decisions.

When a Police Officer believes that the young person cannot be bailed to the next Youth Court and instead decides to charge and transfer the detention to the Local Authority when they hand over the young person, they also transfer the power to lawfully detain that young person to the Local Authority:

Simultaneously, section 39(4) emphasises that, at the point of transfer to the Local Authority, Police Custody Officers’ responsibility for the young person ceases entirely.

It is important that Local Authority staff remain conscious of the level of responsibility that this transfer of power places upon them. A Custody Officer has taken the decision that this young person must be held in lawful custody until their appearance at Court; following the transfer, Local Authority staff are accountable for ensuring that this lawful custody is upheld. They become the custodians, with the same legal responsibility toward the young person as a Police Custody Officer has toward a detainee in a Police cell. This includes the duty to transport the young person to Court.

When transferred from Police Custody to Local Authority Accommodation (especially non-secure accommodation), the opportunities for a young person to abscond are likely to increase. It may also appear to the young person that the nature of their detention has become less serious and that absconding from Local Authority Accommodation is different to escaping from a police cell. Legally, this is not the case. If the young person absconds they are committing the serious offence of “escaping lawful custody”.

It is important that the young person is made to understand this: firstly in order to prevent genuine misunderstandings leading the young person into more difficulties, and secondly to ensure that any subsequent charge of escaping lawful custody is justifiable, as it will likely rely on evidence that the young person understood the terms and nature of their detainment.

It is therefore essential that the nature of the detainment is clearly emphasised and explained to the young person when the handover from Police to Local Authority takes place.

As the young person is transferred from the Police to the Local Authority, the Police Officer should – in the presence of Local Authority staff – inform the young person of the following:

You have been charged with [offence] and you have to appear at court on [date]. You have been refused bail, which means that you have to stay in custody until your court date. If you were an adult, you would stay in the police cells until then, but because you are under 18 years of age, the local authority is going to look after you until your court appearance. The local authority will decide where you will stay until then.

It is very important that you understand that you are still in custody: this means that you must stay where you are told to go by the local authority and can only go out with their permission. If you do leave without permission, the local authority will tell the police and you will get into more trouble, just as if you had run away from the police station. Do you understand?

The Police Officer and the Local Authority staff should be satisfied that the young person has understood these points, offering further explanation if necessary.

The request for transfer will be made to the YOT. The YOT will then liaise with Children’s Services regarding potential placements and arrangements.

Phone numbers

East Sussex YOT                   

• 01323 466633
• YouthOffendingTeam.EastSussex@sussex.pnn.police.uk

West Sussex Youth Justice Service                      

• 0330 2223336
• Youth.OffendingTeamWestSussex@sussex.pnn.police.uk
• youthoffendingteam@westsussex.gov.uk.cjsm.net

Brighton and Hove YOS          

• 01273 296169 
• YouthOffending.TeamBrightonAndHove@sussex.pnn.police.uk

The request for transfer will be made to Emergency Duty Service (EDS). As a result of the early communication between Police and YOT/S during office hours, EDS should have been passed information from YOT/S of the possibility of a young person needing to be accommodated.

Where a transfer to Local Authority Accommodation is not made a copy of the certificate should be produced to the Court and sent by secure email (see 7.1) to the relevant YOT at the address contained in the certificate (see Appendix 2).

Where a young person is transferred to Local Authority Accommodation it is the responsibility of Children’s Services staff or their representatives to ensure that the young person is escorted to Court the following day. The YOT Court Officer should ensure that the young person is dealt with by the Court as soon as possible.

When a young person is refused bail and transferred to the responsibility of Local Authority into non secure accommodation they must be reminded that it is a requirement for them to remain with the placement until they are taken to Court the next day and that if they abscond from the placement they will be considered as ‘escaping lawful custody’. It will be the responsibility of the placement to notify the Police as soon as the young person absconds. The carer will need to report the matter to the Police by calling 999 immediately.

If the young person is placed at home or with family, they must report this in the same way. It will be explained to them that failure to do this will have an impact of whether this arrangement would be assessed as suitable in future bail arrangements. A written agreement will be drawn up and signed by the family.

Should the young person abscond and not return or be located before the Court appearance the following day, the YOT officer will report the circumstances to the Court and an arrest warrant may be considered.

Where a young person aged 17 or under is detained in custody overnight and produced to Court, a copy of the certificate should be made available to the Court stating the reasons why a transfer to Local Authority Accommodation was not made.

Where a detained young person is produced to Court from Local Authority Accommodation the Court should ensure that the young person is dealt with as soon as possible.

There will be situations where children and young people who are not the responsibility of one of the local Children’s Services are arrested and held in Police Custody overnight. Their welfare needs to be considered by the local Children’s Services in consultation with their home Local Authority. This is another reason why the early notification of the possibility of bail being refused is essential.

Sussex also hosts a large number of residential accommodation units whom provide homes for children and young people from other Local authorities. Many of these children and young people are vulnerable with complex needs. We are aware that a high proportion of young people being held overnight are CLA to other authorities. The placing Local Authority will be contacted as soon as possible to ensure they are involved with the potential transfer options and responsibilities.

The delivery and effectiveness of these protocols will be overseen by the YOT Management Boards. Pan Sussex audits will be undertaken by quarterly scrutiny panels.

Where the young person is 12 years old.

• Section 98(1)(a) Age – 12
• (b) Offence condition – violent or sexual or grave crime (14 years or more for adult)
• (c) Necessity –after considering all remand options only adequate means of protecting public from death or serious personal injury (whether physical or psychological) or prevent commission by child of imprisonable offences.
• (d) Legal Representation condition

Where the young person is over 12

• Section 99(1)(a) If age over 12 (2)
• Sentencing condition 99(1)(b)- 'real prospect' of receiving a custodial sentence (3)
• Offence condition 99(1)(c) one or more imprisonable offences (4)
• History condition 99(1)(d) recent history of absconding on remand and one of alleged offences is while child is on remand or recent history of committing imprisonable offences on remand(5)
• Necessity condition 99(1)(e) as above (6)

Certificate of Detention of a Juvenile

Flowchart - Young People in Custody