THE QUEEN ON THE APPLICATION OF v DIRECTOR OF PUBLIC PROSECUTIONS [2001] EWHC 615 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
[2001] EWHC 615 (Admin)Case No Case No. CO/1179/2001Venue Royal Courts of Justice, Strand, London WC2
Between
THE QUEEN ON THE APPLICATION OFDIRECTOR OF PUBLIC PROSECUTIONSSTRATFORD YOUTH COURT
Before
Lord Justice SedleyMr Justice NewmanMR J McGUINNESS QC (instructed by the Crown Prosecution Service, East London Branch, Stratford, London E15 4LJ) appeared on behalf of the Applicant.MR D COLEMAN (instructed by Hardings, 59A The Broadway, Stratford, London E15 4BQ) appeared on behalf of the Interested Party Nikita Harding.MR R MENON (instructed by Dowse & Co, 23/25 Dalston Lane, London E8 3DF) appeared on behalf of the Interested Party Matthew Oshin.The Respondent did not attend and was not represented.Date 26 July 2001
[1]Thursday, 26th July 2001 JUDGMENT LORD JUSTICE SEDLEY: The Director of Public Prosecutions applies by permission, through Mr McGuinness QC, for an order quashing a decision of Deputy District Judge Vickers, sitting at Stratford Youth Court on 7th February 2001.[2]There had been listed for trial a three-handed robbery. The accused were the present respondent, Nikita Harding, Owen Ikhinmwin and Matthew Oshin. Harding has been represented before us today by Mr Coleman, who also represented him below; Oshin, as an interested party, has been represented by Mr Menon, who did not appear below. The three were, putting it briefly, alleged to have mugged a young man and stolen his mobile telephone. There was identification evidence from the loser which may or may not by itself have been sufficient to bring the charge home against any one or more of the accused, but there were also interviews containing both admissions and cross-accusations upon which the Crown wanted to rely.[3]Mr Coleman, for Mr Harding, took the point that the interview record concerning his client should be excluded either under section 76 or under section 78, or both, of PACE. Both other counsel stood by and kept their powder dry. They neither adopted the submission nor made submissions of their own, but intended plainly to seek a similar decision if the decision in Harding's case went in Harding's favour.[4]It did go in Harding's favour, and I will read the reserved decision of the Deputy District Judge, which is short and clear:
"A preliminary point has been raised on behalf of Nikita Harding by Mr Coleman with regard to the admissibility of the interview and admission said to be made, without the accompaniment of an appropriate adult. The Court has been addressed on the requirement of the Lord Chief Justice's Practice Direction of the procedure for such challenges. That, at present, is confined to the Crown Court. With regard to the admissibility of the interview conducted with Nikita it is accepted that he was 17 at the relevant time, had not been in a police station before and had been in police custody for some 24 hours before interview commenced. It is also accepted that he was offered the opportunity to be represented and to have the assistance of an appropriate adult. The issue is focused on whether a 17 year old suspect should be provided with the assistance and protection of an appropriate adult as the police are under a duty to do so for a juvenile as defined in the Code. We are in a era of equality of arms and an awareness that there must be a level playing field when the State is investigating criminal offences so that a suspect is able to deal with the investigation and questioning fairly. After a period of some 24 hours in custody, the Court cannot be satisfied that Nikita was able to make a balanced judgment about the interview he was to undergo. The Court must view the European Convention, Article 6, as ensuring that suspects have a fair trial, including the preparation of the case against them, and that the jurisdiction of the Youth Court, up to age 18, should colour and affect the procedure of investigating authorities dealing with juveniles. The Court is satisfied that there was a breach of the Code and that as a consequence of the particular judgments in Moor and Blake , an appropriate adult should be available to a juvenile, including a person over 17 but under 18 (unless the exceptions are present, which in this case they were not), and that by virtue of the decision in Walsh this breach of the Code is sufficiently serious to prevent the prosecution adducing the evidence from the interview. I rule that either under S.76(2) or S.78 that the said interview evidence is inadmissible."
[5]It needs initially to be said that at the end of the third paragraph there is an error of fact. It was not accepted, indeed it was not asserted, that Nikita Harding had been offered the assistance of an appropriate adult. It was common ground that he had not.[6]The nub of Mr McGuinness's criticism, however, is that among the elements in this decision is a finding that there was a breach of the Code. The Code in question is Code C to PACE. Code C, by paragraph C1.5 says:
"If anyone appears to be under the age of 17 then he shall be treated as a juvenile for the purposes of this code in the absence of clear evidence to show that he is older."
[7]Upon that simple footing, it is manifest that Code C did not apply to the case of any of these three young men, all of whom were 17. I will come in a moment to what may nevertheless be the materiality of the Code to a case such as the present.[8]If, Mr McGuinness submits, the Code did not apply, then the fact that for a younger person there would have been a breach does not mean that there was a breach in the case of Nikita Harding. Mr Coleman, with some initial resistance, accepts that that is a correct criticism of the decision; but he submits that the other facts all spoke with a single voice, so that even shorn of its error, this decision of the Deputy District Judge must have gone the same way. Mr Menon has sought briefly, in his client's interests, to support this submission.[9]In my judgment, one cannot be so confident. That there is material that requires the most anxious consideration both under section 76(2) and under section 78 is clear. Mr McGuinness makes no attempt to deny it; but that the decision must come out the same way is not something which, it seems to me, this court is in a position to say. It must be a matter for the judgment of the District Judge.[10]Moreover, it seems to me that there is no excuse (and I say this because we have had the advantage of one of two other young men being represented before us today) for the failure of all three representatives of the defendants to make their submissions so that the Deputy District Judge had the benefit of all of them and indeed was able, insofar as one reacted upon the other, to consider them in combination. In the light of the conclusion I have come to as to the proper disposal of this case, that is something which ought now to happen.[11]What I would, however, say before coming to the question of disposal is this. It is clearly relevant, if the point is taken, as it needs to be under section 76 though not under section 78, that a young man of 17, who, although not a juvenile for Code C purposes, is a juvenile for other legal purposes, has been interviewed both at his own election without representation and without an appropriate adult (because Code C does not apply to him) at a distance of time of 24 hours from his arrest. in at least two of these cases we know that the youth in question had not been in a police station before. Nobody should underestimate, any more than they should overestimate, the kind of pressure to get things over and done with that such a youngster may experience. This is part of the picture. So is the note for guidance under Code C, note C11(b), to which Mr Menon has helpfully drawn our attention. I will not read it out, but it reminds everybody in the criminal justice process, not least those responsible for initiating and conducting interviews, that young people may be particularly prone in certain circumstances to provide information which is unreliable, misleading or self-incriminating.[12]All of that, it seems to me (and Mr McGuinness does not resist this proposition), is material to the broad judgment which the District Judge should have been called upon and will now be called upon to make under PACE. Putting it another way, the question is not has there been an identifiable departure from proper practice, and if so what is it? It is whether, in all the circumstances brought to the court's attention under section 76 or known to the court under section 78, it is possible in the former case that any confession is unreliable or in the latter case that the admission of the interview record would adversely affect the fairness of the proceedings.[13]In these circumstances, it seems to me that the Director is entitled to the quashing order which is sought. This case should, therefore, go back to the Youth Court so that, if it is thought appropriate to do so, a fresh submission may be made, heard and adjudicated upon on behalf of any or all of the three accused. Whether that takes place at a fixed preliminary hearing or at trial is entirely a matter of case management for the court concerned.[14]For these reasons, for my part I would grant this application. MR JUSTICE NEWMAN: I agree with everything my Lord has said, and there is nothing I can usefully add. LORD JUSTICE SEDLEY: Do we have any applications? MR MENON: Mr Oshin has the benefit of a legal aid certificate in this case, so we apply for legal aid taxation. LORD JUSTICE SEDLEY: You would like an assessment. You shall have that. MR COLEMAN: I make a similar application for Mr Harding, my Lord. LORD JUSTICE SEDLEY: Yes, you shall have an assessment too, Mr Coleman. I would add for my part that I think it is a great shame that this matter had to come up here. I do not think this error needed to enter the decision in the first place. But there it is.

Cited in 4 later judgments