Law Report: No remand of young offenders to adult prisons

The Home Secretary had no general power to detain young offenders in an adult prison or remand centre pending allocation to a young offender institution, and a policy which made that a routine practice was unlawful.

Regina v Accrington Youth Court and others, ex parte F; Queen's Bench Divisional Court (Sedley and Astill JJ) 22 August 1997

The Queen's Bench Divisional Court quashed a warrant of commitment committing the applicant, who was aged 16, to Risley Remand Centre after she had been sentenced to 8 months' detention in a young offender institution for a number of offences.

Ian Wise (Clyde Chappell & Botham, Stoke-on-Trent) for the applicant; Robin Tam (Treasury Solicitor) for the respondents.

Mr Justice Sedley said that there was no allocation centre for females in the prison system which was designated as a young offender institution, nor was there any female young offender institution as such in the country. There were five women's prisons of which parts had been designated young offender institutions, and it was to those that girls aged 15 to 17 were or should be allocated.

There was a conflict of evidence about what had happened to the applicant between her arrival at Risley and release on bail two weeks later, which the court had not been called upon to resolve. Their Lordships simply recorded their anxiety at the issues it raised about the possibility of close and unsupervised contact between a young offender who would by definition be in some measure disturbed and adult women prisoners whose range of possible deviances needed no elaboration.

Section 1C(2) of the Criminal Justice Act 1982, as amended, provided:

The Secretary of State may from time to time direct that an offender sentenced to detention in a young offender institution or to custody for life shall be detained in a prison or remand centre instead of a young offender institution, but if he is under 18 at the time of the direction, only for a temporary purpose.

It was contended for the respondents that the power contained in that section was exercised from day to day by the reception staff at Risley as delegates of the Home Secretary, against the background of the relevant circular instruction, The Allocation of Female Offenders.

Annex B to the circular instruction directed those who had been authorised to carry out the Home Secretary's functions to do so according to listed criteria. The important one for present purposes was (e), which in terms permitted young offenders following sentence to be held in a remand centre, namely a prison, for allocation purposes. Since there was nowhere else in the prison system where allocation of young offenders could take place, no discretion whatever was being delegated to the Home Secretary's officers. The question was whether that was lawful.

It was clear from the terms of section 1C that it was not. The power of the Home Secretary, and therefore that of his designated officers, to depart from the provision for allocation to a young offender institution was limited to permission "from time to time [to] direct that an offender . . . shall be detained in a prison or rem- and centre . . . for a temporary purpose" if under 18.

That phraseology made plain that Parliament was authorising the Home Secretary on occasion to place a particular offender under the age of 18 temporarily in a prison or remand centre. It did not authorise him to make it a practice to do so; it did not authorise him to give such a direction in relation to offenders generally; and it did not authorise him to keep them in a prison or remand centre for however long it took (possibly the whole length of the sentence) to make a lawful placement in a young offender institution.

The practice not only permitted but enjoined by the combination of the circular instruction and the total non-availability of any young offender institution to which newly sentenced female young offenders could be sent was a violation of the principle contained in section 1C(1) of the 1982 Act and an excess of the powers contained in section 1C(2).