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Cite as: [2000] 2 Cr App Rep (S) 263, [2000] 2 Cr App R (S) 263, [2000] 2 AC 276, [2000] Crim LR 321, [2000] UKHL 4, [2000] 2 WLR 293, [2000] Prison LR 13, (2000) 164 JP 141, [2000] 1 All ER 651

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Secretary of State for the Home Department, Ex Parte A, R v. [2000] UKHL 4; [2000] 2 AC 276; [2000] 1 All ER 651; [2000] 2 WLR 293; [2000] Crim LR 321 (27th January, 2000)

HOUSE OF LORDS

Lord Nicholls of Birkenhead Lord Nolan Lord Steyn Lord Hope of Craighead Lord Clyde

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

REGINA

v.

SECRETARY OF STATE FOR THE HOME DEPARTMENT (APPELLANT)

EX PARTE A (RESPONDENT)

ON 27 JANUARY 2000

LORD NICHOLLS OF BIRKENHEAD

My Lords,

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,

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,

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,

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.

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.

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:

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.

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:

Children Act 1989

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.

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.

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.

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:

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 accommodation approved by the Secretary of State for the purpose of restricting liberty. He accepted that there were indications in other legislation such as section 25(1) of the Children Act 1989 that when Parliament used the phrase "accommodation provided for the purpose of restricting liberty" in section 67(1A) of the Act of 1967 it had in mind what has come to be referred to in the legislation as "secure accommodation." But he maintained that a distinction should be drawn between the concept of secure accommodation for the purposes of the child care legislation on the one hand and the criminal justice legislation on the other, as to which there were stronger reasons for construing the legislation in favour of persons whose liberty was restricted. He accepted that the accommodation to which the respondent had been remanded, and from which he had absented himself for a total of 37 days during the period of that remand, was not "secure accommodation" within the meaning of the Children (Secure Accommodation) Regulations 1991 (S.I. 1991 No. 1505). But he pointed out that in the present case the respondent's liberty had been restricted by the condition of curfew which was imposed on him by the magistrate, as he had been told by an official of the local authority that he would be reported to the police if he was in breach of the condition and that he was subject to the sanction of arrest.

I think that this argument fails to give proper weight to the words "and in accommodation provided for the purpose of restricting liberty" which appear at the end of section 67(1A)(c) of the Act of 1969. Two points emerge from a consideration of the words used in this phrase. The first is to be found in the use of the word "and" which links the words which I have quoted with those which have gone before. The previous words refer to the remand or committal of the person "to local authority accommodation." The words which come after the word "and" appear to have been included as an additional requirement which must be satisfied before the period in question can qualify as a "relevant period" for the purposes of section 67(1) of the Act of 1967. The second point is to be found in the use of the words "provided for the purpose of restricting liberty." These words appear to direct attention to the nature of the accommodation and the purpose for which is provided, not to the effect on the person's liberty of any conditions to which he may be subjected under section 23(7) of the Act of 1969. Thus the additional requirement indicated by the word "and" is that the accommodation to which the person was committed must have been for that purpose and of that character. I do not think that Mr. Levy's argument is consistent with the ordinary meaning of the words used in section 67(1A)(c).

It seems to me that the position in which the respondent found himself when he was remanded to local authority accommodation which was not "secure accommodation" as defined in the 1991 Regulations was analogous to that of a person who has been released on bail. Various conditions may be imposed under section 3(6) of the Bail Act 1976 which have the effect, to a greater or lesser degree, of restricting that person's liberty. They may take the form, as one of the conditions did in this case, of an express curfew on the movements of the person while he remains on bail. Or they may have that effect indirectly by requiring the person to report to a police station at certain times or not to go to certain places or addresses where trouble may be anticipated. The significant point for present purposes is that the definition of "relevant period" which is set out in section 67(1A) of the Act of 1967 for the purposes of the computation referred to in section 67(1) makes no mention of periods during which the person was under restrictions of that kind. What it refers to is periods during which the person was held in custody or in conditions which have the same effect on the person's liberty as holding him in custody. A person who is on bail is free to do what he chooses. He is bound by the conditions of bail, and he is subject to the sanction of imprisonment if he is found to have been in breach of them. But the decision is his as to whether he will comply with them, and so long as he is on bail he remains at liberty. The fact that the respondent was able to and did abscond from the local authority accommodation for so many days during the period of his remand is a powerful demonstration of this point. The local authority had no power to prevent him from absconding, because the accommodation where he was living had not been approved by the Secretary of State for the purpose of restricting liberty: see regulation 18 of the 1991 Regulations. The residents were not detained and the bedroom doors and the front door were not locked. All the staff could do was to log the movements of the residents to record any breaches of the conditions imposed on them under section 23(7) of the Act of 1969.

Mr. Levy accepted that the computation laid down by section 67(1) of the Act of 1967, which provides for an automatic discount from the length of the sentence of the relevant period defined in section 67(1A)(c), made it necessary for the institution which was responsible for detaining the person during his sentence to be provided with the information which it needed to make the computation. But in my opinion the nature of the discount, and the fact that its application has been left to the governor of the institution and not to a judge, suggest that value judgments as to whether the person's liberty was or was not restricted are inappropriate. The system which section 67(1) lays down is in sharp contrast to that which is available to the judge in the exercise of his discretion at the time when he imposes sentence, in accordance with the decision in Reg. v. Fairhurst (1986) 8 Cr. App. R. (S.) 346 which enables an allowance to be made when deciding upon the length of a custodial sentence to be served by the offender for time spent by him on remand under a regime which is comparable to a remand in custody.

Mr. Levy said that a workable system was in place which enabled local authorities to provide the necessary information to the prison authorities. I have no doubt that this is so, having regard to what had to be done to give effect to Reg. v. Collins. But the fact that there is a workable system does not mean that it is a reliable or an appropriate system. Fairness as between one offender and another suggests that it is inappropriate for the governor who has to do the computation to have to form judgments on information provided by others on matters as to which there is no precise criterion. On the Crown's argument, as Mr. Sales made clear, the only information that the governor needs is the nature of the accommodation and the purpose for which it was provided by the local authority and, if it was secure accommodation in terms of the 1991 Regulations, the number of days during which the person was held there on remand according to the records kept under regulation 17 of the 1991 Regulations. This seems to me to be more consistent with what I take to be the scheme laid down by section 67(1) and with the ordinary meaning of the words used in section 67(1A)(c).

For these reasons, and for the reasons given in the speech by my noble and learned friend Lord Clyde which I have had the advantage of reading in draft and with which I agree, I consider that Reg. v. Collins (1995) 16 Cr. App. R. (S.) 156 was wrongly decided and should be overruled. I too would allow the appeal.

LORD CLYDE

My Lords,

Section 67 of the Criminal Justice Act 1967 makes provision for the computation of sentences of imprisonment passed in England and Wales. The present appeal concerns the application of that section to a young offender. Section 67(1) provides:

It is with the construction of that reference to "accommodation provided for the purpose of restricting liberty" that the present appeal is concerned.

The facts in the case are as follows. The respondent was charged on 29 October 1998 with an offence of handling stolen goods. Bail was refused and he was remanded in custody overnight in a police station. On 30 October 1998 he appeared before a Youth Court and was committed to a local authority under section 23 of the Children and Young Persons Act 1969. The court imposed certain conditions on his remand, namely (a) that he be subject to curfew hours of 7pm to 7am, (b) that he was not to contact prosecution witnesses, and (c) that he was not to reside with his mother at the home address. The local authority placed him in a home to which I shall refer as "the Home." On 20 November 1998 he pled guilty to the charge and was remanded by the court to the Home on the same conditions pending sentence. On 18 January 1999 the court sentenced him to four months in a young offender institution on various charges including the handling charge. A request was thereafter made to the Governor of the Institution to give the respondent credit under section 67(1) of the 1967 Act for the one day spent in custody in the police station and for the period which he had spent on remand at the Home. The response to this request was that credit for the one day in the police station would be allowed, credit for the period at the Home would not. The respondent then applied for judicial review of that decision. Collins J. held that he was bound by a decision of the Court of Appeal (Criminal Division), namely Reg. v. Collins (1995) 16 Cr. App. R. (S.) 156, to hold that the period spent at the Home under the conditions imposed by the court fell within section 67(1A)(c) but granted a certificate under section 12 of the Administration of Justice Act 1969 which has enabled the matter to come directly to this House.

It is necessary next to turn to the statutory provisions relating to the remand of young persons. The respondent was a "young person" within the meaning of section 23(12) of the Children and Young Persons Act 1969. Section 23(1) of that Act provides

By section 23(4) the court remanding or committing a person to local authority accommodation was empowered, after consultation with the local authority, to "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." Provision was made by subsection (5) for defining the circumstances in which a security requirement could be imposed and by subsection (6) for imposing an obligation on the court to explain the need for the requirement. Subsection (7) provides that "A court remanding a person to local authority accommodation without imposing a security requirement may . . . require that person to comply with any such conditions as could be imposed under section 3(6) of the Bail Act 1976 if he were then being granted bail." Subsections (8) to (11) make further provisions regarding the making, securing and varying of conditions. In terms of subsection (12) as amended by section 19(1) of the Criminal Justice and Public Order Act 1994, "secure accommodation" is defined as "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."

Section 23 of the Act of 1969 thus recognises three possibilities on the making of a remand, a release on bail, a remand to local authority accommodation, with or without conditions imposed under subsection (7), and a remand to local authority accommodation with a security requirement under subsection (4), that is to say a requirement that the person in question be placed and kept in secure accommodation. In the present case the Home did not qualify as being or comprising "secure accommodation." It was not approved by the Secretary of State for the purpose of restricting liberty. So the problem raised, in terms of the issue defined in the present case, is whether a period of time spent on remand by a young offender in local authority accommodation pursuant to an order made under section 23(1) of the Children and Young Persons Act 1969 is to be counted as a "relevant period" (to be deducted from a sentence of imprisonment) pursuant to section 67(1A)(c) of the Criminal Justice Act 1967, notwithstanding the fact that the local authority accommodation is not "secure accommodation" within section 23(12) of the Children and Young Persons Act 1969.

My Lords, I have come to the conclusion that the appeal should be allowed and that the correct answer to the issue as formulated should be in the negative.

It is useful to consider the history of the two lines of legislation which come together in subsection (1A)(c). I turn first to the history of the relevant legislation relating to children and young persons, starting with the Children and Young Persons Act 1969. Two matters require to be traced here. The first is the identification of the courses open to a court where a young person has been charged or convicted but not yet sentenced for an offence and where he is not released on bail. In the original form of section 23 of the Act of 1969, where the child was not released on bail, the court was required to commit him to the care of a local authority or, if the child was unruly, to a remand centre or a prison. A revised version of the provision containing similar alternatives was made by section 108(4) and Schedule 12, para. 26, of the Children Act 1989. The present version, which I have already summarised, was introduced by section 60(1) of the Criminal Justice Act 1991 in substitution for the earlier section. In the substituted section, echoing the pattern of what had gone before, one can see the distinction between the two forms of disposal on remand. The one is a remand to the care of a local authority, with the possibility of the imposition of conditions. The other is a remand with the further provision of a security requirement.

The second matter to be traced in the history is the use of the language which came to be adopted in section 67(1A)(c) of the 1967 Act. If one starts again with the 1969 Act it can be seen that section 24(2) of that Act gave a power to a local authority, "without prejudice to the preceding provisions of this subsection but subject to regulations made in pursuance of section 43 of this Act," to restrict the liberty of a person in their care to such extent as the authority considered appropriate. Section 43 empowered the Secretary of State to make regulations. These included, in section 43(2)(c), regulations requiring his approval for "the provision and use of accommodation for the purpose of restricting the liberty of children in community homes . . .". Sections 24(2) and 43(2)(c) were replaced by sections 10(2) and 39(2)(c) of the Child Care Act 1980 but the critical language remained the same. The Act of 1980 was amended by section 25(1) of the Criminal Justice Act 1982 which introduced a new section 21A to the Child Care Act 1980 defining the circumstances under which a child might be placed or kept "in accommodation provided for the purpose of restricting liberty." That language was carried forward into the new section 21A which was substituted by section 9 and Schedule 2, para.50 of the Health and Social Services Adjudications Act 1983. Such appears to have been the position when the 1988 legislation was passed. It is of particular interest to notice that when section 21A was re-enacted in section 25(1) of the Children Act 1989 use was made of the phrase "secure accommodation." Section 25(1) of the Children Act 1989 provides that subject to the later provisions of the section "a child who is being looked after by a local authority may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty ('secure accommodation') unless it appears . . ." That phrase had certainly been used in secondary legislation, (for example, The Community Homes Regulations 1972 (S.I. 1972 No. 319) or The Secure Accommodation Regulations 1983(S.I. 1983 No. 652)). The word "provided" does not expressly appear in the definitions of "secure accommodation" given in those regulations, although it does appear in the definition given in the Children (Secure Accommodation) Regulations 1991 (S.I. 1991 No. 1505). But that does not seem to me to be of consequence. Two points from the history do seem to be of significance. First, from the 1969 Act onwards there is a recognition of a designated kind of accommodation for which the Secretary of State's approval would be required and which would be provided for the particular purpose of restricting liberty. The distinct character of the accommodation is made all the more clear by the provision in regulation 18 of the 1991 Regulations that the use of accommodation for the purpose of restricting the liberty of children in voluntary homes and registered children's homes is prohibited and may constitute an offence. Secondly, at least up until 1988, the language used in the statutes to which I have referred was that of "accommodation provided for the purpose of restricting liberty."

I turn next to a consideration of the history of section 67 of the 1967 Act. In its original form it dealt simply with custody, requiring the length of a sentence of imprisonment imposed on an offender to be treated as reduced by any period in which he had been in custody having been committed to custody by a court order in connection with particular proceedings. Section 10 of the Criminal Justice Act 1982 extended application of the provision to detention centre orders and youth custody sentences, by adding a subsection (5) to section 67. Significantly, however, it also added a subsection (6) providing that the reference in subsection (1) of section 67 to an offender being committed to custody was to include a reference to his committal to a remand centre or to prison under section 23 of the Act of 1969 (which was at that stage permitted under section 23 in the case of unruly children) "but does not include a reference to his being committed to the care of a local authority under the said section 23." The distinction being made between custody in its various forms and a committal to the care of a local authority is clearly evident. Subsection (1A), extending to paragraphs (a) and (b), was introduced by section 49(2) of the Police and Criminal Evidence Act 1984. Thereafter by section 130 of the Criminal Justice Act 1988 there was added the paragraph (c) in subsection (1A) with which this appeal is concerned. Subsections (5) and (6) were amended by section 100 and Schedule 11 of the Criminal Justice Act 1991 but the essence of the distinction which I have already noted was preserved. The new subsection (5) related to sentences of detention in a young offender institution and to determinate sentences passed under section 53(2) of the Children and Young Persons Act 1933 for serious indictable offences.

From the history the policy behind section 67 becomes clear, namely that periods of sentences to custody should be automatically discounted in respect of periods which the offender has spent in custody or in conditions equivalent to custody pending trial or sentence in the case. If that is a correct understanding of the policy and purpose of the provision then it would be consistent with such policy that a discount should be automatically made in respect of a period spent in secure accommodation, but that a remand to accommodation which is not equivalent to custody should not attract the discount. The point at issue is one of the proper construction of section 67(1A)(c). The critical words are "and in accommodation provided for the purpose of restricting liberty." One argument favouring the respondent's construction is that the word "liberty" is not defined and that it should be given a generous construction in favour of freedom. But even the language which has been used provides an answer to that suggestion. The use of the expression "accommodation provided" in the statutory phraseology is to my mind significant. The word "accommodation" refers to the place where the person is to be accommodated. The phrase designates a particular class or kind of accommodation. It is accommodation which has been provided for the particular purpose. The phrase does not refer to any accommodation where the liberty of a person may be restricted. The reference intended by the language used is in my view not simply to a regime of some kind whereby the person's liberty is restricted, but to the nature of the accommodation itself. The phrase is looking to a category of accommodation, namely accommodation which has been provided for the stated purpose. The obvious category of accommodation which can be identified as having been provided for the purpose of restricting liberty is that which came to be referred to as "secure accommodation." The same point can be taken from the repeated use of the word "in" which appears in relation to police detention in paragraph (a), to custody in paragraph (b) and to accommodation in paragraph (b). It is the place in which the person is situated, and in particular its nature, rather than any controls over his movements, to which the subsection is looking

The respondent argued that if it was secure accommodation that had been intended in section 67(1A)(c), Parliament could have used the expression "secure accommodation." This was a point which plainly weighed with the court in Reg. v Collins. No doubt if that course had been adopted, with a suitable definition, the present problem would not have arisen. But when subsection (1A)(c) was introduced in 1988, section 23 of the Act of 1969 did not yet have the reference to secure accommodation. As I have already mentioned, an amended version of section 23 was enacted by section 108(4) and schedule 12, para. 26 of the Children Act 1989, but the reference to "secure accommodation" was introduced later when section 60(1) of the Criminal Justice Act 1991 substituted a new section 23 using the phrase in subsection (4) and defining it in subsection (12). The phrase had appeared in the regulations to which I have already referred, but not yet in section 23 of the Act of 1969. The critical phrase at the end of section 67(1A)(c) comes almost immediately after a reference to section 23 of the Act of 1969. The expression which had been used in section 43(2)(c) of the Act of 1969 and more particularly in the subsequent statutes to which I have referred was "accommodation provided for the purpose of restricting liberty." In 1988 it seems to me perfectly appropriate that the phrase already established in the legislation was used. It then seems that when the section was redrawn in the Act of 1991 with the definition of "secure accommodation" in subsection (12) it was not considered necessary to alter the language used in section 67(1A)(c). The language which had been used in section 67(1A)(c) was after all the very same language as that which later appeared in the definition of "secure accommodation."

The history of section 23 shows the continuing distinction which I have already drawn between the two methods of disposal where the person is not released on bail. That distinction can be found in the language of section 67(1A) and this gives further support to the construction which I favour. In subsection (1A)(c) there is a twofold qualification which has to be satisfied: the offender must not only have been remanded to local authority accommodation under section 23, but the remand must also have been to accommodation provided for the purpose of restricting liberty. It is not every remand which will suffice. Nor does it seem as if a remand under conditions would suffice. In addition to the making of the remand, it must be to the particular kind of accommodation.

Counsel for the appellant referred to paragraphs (a) and (b) with a view to finding a common characteristic which could throw light on the character of what is to be included in (c). The earlier provisions are concerned expressly with detention and custody. But since paragraph (c) was added at a later stage than the two earlier paragraphs it may be difficult to be confident that there is necessarily an association of a common character between the groups. But it may be significant that the category with which the present appeal is concerned was added to what was plainly a grouping of cases of detention and custody.

Further assistance can be found by comparing the present case with a case where bail has been granted. That course is a possibility open to the court and if taken then the two courses of remand or remand with a security requirement do not arise. Bail may be granted subject to conditions; and the conditions which were imposed in the present case could well have been added to a bail order. Indeed in terms of section 23(7) the conditions which may be imposed on a remand to local authority accommodation without the imposition of a security requirement are "any such conditions as could be imposed under section 3(6) of the Bail Act 1976 if he were then being granted bail." But it cannot be suggested that a period spent on bail subject to conditions which in a general way might be seen in some sense as restricting liberty could ever be allowed as a discount under section 67. If the conditions imposed in the present case had been imposed in a bail order instead of the remand it could hardly be maintained that the case fell under section 67(1A)(c).

I am also persuaded for practical reasons that the construction for which the appellant has contended is sound and should be preferred. It provides a test for the application of section 67 which is at once clear and certain. Whether the offender has been in the qualifying accommodation can be readily ascertained by discovering whether it is approved by the Secretary of State as secure accommodation under the legislation. Regulation 17 of the Children (Secure Accommodation) Regulations 1991 requires records to be kept whereby the period spent in secure accommodation can readily be ascertained and provision is made for a maximum period by regulation 13. Thus an easy check is available on the length of the period to be discounted. The alternative approach requires an investigation of the precise conditions under which over the period in question the offender has been living. While not unworkable, because it evidently has in practice been worked, it plainly can give rise to difficult and delicate decisions. In a passage quoted by Collins J. from the judgment in In re K, (unreported), 6 March 1995, the Divisional Court observed that the decision in Reg. v. Collins raised a great deal of difficulty for the prison authorities, "because they will not necessarily know in any given case what is the nature of the regime at the local authority institution in which a young offender has previously been resident." The certainty of the solution proposed by the appellant seems to me obviously preferable.

Allied with that consideration is the desirability of entrusting to a court rather than to an administrative officer a decision of such a kind. It has to be remembered that the consequence of the appellant's approach is that consideration of the length of time which a person has spent on remand and not in secure accommodation does not necessarily fall out of account altogether. The issue is whether it should be automatically allowed under section 67 or taken into account by the court in determining the length of sentence. While the automatic deduction required by the statute can properly be managed by the administration, the assessment of the weight to be given to the offender's experience on remand is properly a responsibility for the sentencing court. It is properly a judicial function to evaluate that experience and to decide to what extent if at all it ought to be reflected in the sentence eventually imposed.

In this context it is convenient to make a brief reference to Reg. v. Fairhurst (1986) 8 Cr. App. R. (S.) 346. That case among other matters drew attention to an anomalous situation which existed with regard to sentences passed under section 53(2) of the Children and Young Persons Act 1933, an anomaly which was later remedied by Section 100 and Schedule 11, paragraph 3 of the Criminal Justice Act 1991. In the context of that problem Lord Lane C.J., at p. 351, stated that in the determination of sentences allowance which should be made by a judge for time spent on remand in care "where the offender is held under a regime comparable to a remand in custody, for example he is placed in secure accommodation . . . or where is held under highly structured and closely supervised conditions." Counsel for the respondent sought to use this passage to support his contention that a highly structured and closely supervised condition should fall within the scope of section 67(1A)(c). But in Fairhurst the court was not concerned with the issue which arises in the present appeal but with the different, but related, problem of the extent to which, if at all, account may be taken by a sentencing judge in respect of the situation of the offender during the period before sentence. No doubt there may be various considerations relating to the period between charge and sentence which a sentencing judge may take into account, but we are not required in the present case to touch at all upon that problem and I am not persuaded that the observations in Fairhurst are of assistance in the present appeal. In the context of this appeal it has to be noticed that committal to secure accommodation now, on the view which I have taken, falls within the automatic deduction provided in section 67. Beyond that it may be of significance to notice that in drafting subsection (1A)(c) the language used was that of the definition of "secure accommodation" and not the language used in Fairhurst.

If the appeal is to be allowed it would have to be held that Reg. v Collins, 16 Cr. App. R. (S.) 156 was wrongly decided. Waller J. in that case stated that the statutory provisions were difficult to follow and it appears that the court was not given the benefit of the more thorough review of the history of the legislation which has been presented to us. I have already commented upon the failure to use the expression "secure accommodation" in the drafting of subsection (1A)(c). It appears that the reported view of the Home Office on the point weighed significantly with the court, but, as Mr. Sales frankly pointed out, the view now taken is the reverse of the view which was then held and which the court considered to be correct. The court observed at the end of the judgment, at p. 163 "It is certainly difficult, as we see it, to conceive of a situation in which it can be said on the one hand: 'my liberty was restricted while I was held in local authority accommodation, so I am entitled to credit,' but at the same time say 'the accommodation where I have been detained was not provided for the purpose of restricting my liberty.'" But that apparent contradiction does not arise once it is recognised that it is the accommodation rather than the restrictions on which the subsection focuses attention. For these reasons I have the less difficulty in holding that Reg. v Collins was wrongly decided. In the present case Collins J. referred also to In re K which was an unreported case. It appears there the court felt itself bound to follow the decision in Reg. v Collins, and, like Collins J. in the present case, did so. It would follow from what I have said that the decision In re K should also be over-ruled.

On the whole matter I would allow the appeal.