UK Offence Report

Voluntary homes and registered children’s homes not to be used for restricting liberty

regulation 18(2) of The Children (Secure Accommodation) Regulations 1991

The provision has been revoked and no saving provision preserving liability for earlier conduct was found.

What the provision says

2 The contravention of, or failure to comply with the provisions of paragraph (1), without reasonable excuse, shall be an offence against these Regulations.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
a person
Conduct
contravening a requirement of the instrument
Fault element
Strict liability
Burden of proof
An element of the offence, for the prosecution to prove

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that a person meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

“Without reasonable excuse” here is an element of the offence rather than a defence, so its absence is for the prosecution to prove (R v Charles [2009] EWCA Crim 1570).

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision; qualified by reasonable excuse (an element; prosecution disproves once raised).

The defence, as drafted

or failure to comply with the provisions of paragraph (1), without reasonable excuse, shall be an offence against these Regulations.

What would breach regulation 18(2)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. Doing the thing the provision prohibits under the Children (Secure Accommodation) Regulations 1991, whatever the reason for doing it.
  2. Where the requirement is a positive duty, letting the time for performing it pass without performing it.

Penalty

Mode of trial
Not determined
Maximum fine
Not determined
Maximum prison (summary)
Not determined

no penalty is stated in this instrument; it may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence.

No penalty was determined from this instrument. It may be in the enabling Act, or in a general penalties provision this pass did not connect to the offence. Absence of a figure here is not evidence that the offence carries no penalty.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Revoked
Revoked by
The Children (Secure Accommodation) (Amendment) (Wales) Regulations 2006
Revoked on
16 November 2006
Made
30 June 1991
In force from
14 October 1991
Extent
Not stated

How this was established: the instrument was revoked by a later instrument found in this corpus.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations replace the Secure Accommodation (No. 2) Regulations 1983 and the Secure Accommodation (No. 2) (Amendment) Regulations 1986 in consequence of the bringing into force of section 25 of the Children Act 1989 and the repeal of section 21A of the Child Care Act 1980 (c. 5) which it replaces. The main changes include the extension of the secure accommodation provisions to children accommodated by health or local education authorities or National Health Service trusts or in residential care, nursing or mental nursing homes. The Regulations also prohibit for the first time the use of voluntary homes and registered children’s homes for restricting the liberty of children. The Regulations provide for approval by the Secretary of State of secure accommodation in community homes (regulation 3); the placement of a child aged under 13 in secure accommodation in community homes (regulation 4); the children to whom section 25 of the Act shall not apply (regulation 5); the modifications subject to which section 25 of the Act shall have effect in relation to detained and remanded children (regulation 6); certain children accommodated by health authorities, National Health Service trusts or local education authorities and in residential care, nursing or mental nursing homes to whom the Act shall apply and have effect subject to modifications (regulation 7); the making of applications to court (regulation 8); the duty to give information of placements in community homes (regulation 9); provision as to the maximum period in accommodation for restricting liberty without court authority (regulation 10); the maximum initial period of authorisation by any court (regulation 11); further periods of authorisation by a court (regulation 12); the maximum periods of authorisation by a court for remanded children (regulation 13); the duty to inform parents and others in relation to children in secure accommodation in a community home (regulation 14); the appointment of persons to review placements in secure accommodation in a community home (regulation 15); the review of placements in secure accommodation in a community home (regulation 16); the records to be kept in respect of a child in secure accommodation in a community home (regulation 17); the prohibition of the use of accommodation for restricting liberty in voluntary homes and registered children’s homes and breach thereof (regulation 18); and the revocation of the Secure Accommodation (No. 2) Regulations 1983 and the amendment regulations (regulation 19).

Read the full note and every offence in this instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.88.

Basis
the provision says the conduct “is an offence”; the provision says an offence is committed “if” something happens
Confidence
0.88 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source