THE QUEEN v On the application of W [2002] EWHC 1640 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
[2002] EWHC 1640 (Admin)Case No Case No. CO/2825/2002, CO/2829/2002Venue Royal Courts of Justice, The Strand, London
Between
THE QUEENOn the application of WSOUTHAMPTON YOUTH COURTDefendantTHE QUEENOn the application of K(by litigation friend EK)Claimant(1) WIRRAL BOROUGH MAGISTRATES' COURTDefendant(2) DIRECTOR OF PUBLIC PROSECUTIONSInterested Party
Before
Lord Chief Justice of EnglandLord Woolf of BarnesLord Justice KayAPPEARANCES:CO/2825/2002MR GARY VENTURI (instructed by Messrs Knight & Co, Hampshire SO50 9FH) appeared on behalf of THE CLAIMANTTHE DEFENDANT was not representedMR TIM DRACASS (instructed by CPS Merseyside) appeared on behalf of THE INTERESTED PARTYCO/2829/2002MR A BOSCOE (of Messrs Bell, Lamb & Joynson, Birkenhead CH41 5AS) appeared on behalf of THE CLAIMANTTHE DEFENDANT was not representedMR DAVID GEEY (instructed by CPS Merseyside) appeared on behalf of THE INTERESTED PARTYDate 23 July 2002
[2]1. THE LORD CHIEF JUSTICE: There are before the court two applications for judicial review which both raise the same issue. It is an issue which is causing some concern in youth courts generally, notwithstanding the fact that there have now been a number of decisions of this court. The issue relates to the venue for the trial of offences which could attract a custodial sentence for those who are aged under 18. The facts of the two cases can be shortly stated. The claimant W, who at the relevant time was aged 14, was jointly charged with another with an offence of robbery. The allegation was that the claimant, with an older boy aged 15, robbed a 13 year old of his push bike. The 13 year old initially refused to relinquish his push bike. It is alleged that the claimant then produced from his pocket a broken bottle with a jagged edge with which he threatened the boy. That this happened is denied but it will be observed that, if the case for the prosecution is correct, the claimant embarked on an offence where he had prepared himself at least to threaten violence to his victim.[3]On 5 April 2002, W appeared at the Southampton Youth Court for the purpose of determining jurisdiction. The matter was before District Judge Loraine Morgan. The view of the Crown was that it was a borderline case in relation to the sufficiency of the sentencing powers of the District Judge. The District Judge decided that the matter should proceed to the Crown Court. Her decision was in these terms:
"[W] is 14 years of age with no previous conviction and is not a persistent offender."
[4]The relevance of that statement will become apparent when the statutory provisions are referred to. "Jurisdiction is not retained because the Youth Court would not have power to pass a sentence of a Detention and Training Order upon the defendant [W] because of his age and lack of previous convictions. This is a serious offence involving the use of a weapon. It is unlikely a court would want to exceed the Detention and Training Order maximum [two years] but in the interests of justice any sentencing court should have the power to impose a custodial sentence if the defendant is convicted of the offence."[5]The District Judge having come to that decision, the application for judicial review was made on W's behalf. The single judge gave leave. Before this court the position adopted by Mr Dracass on behalf of the prosecution is entirely neutral, leaving it to this court to determine the outcome of the application for judicial review.[6]The second case is an application of on behalf of "K". He was born on 10 May 1989. When he was 13 he appeared before the Wirral Youth Court charged with two offences which are in these terms:
"[1]Between 1 September 2001 and 25 December 2001 at [an address] indecently assaulted a [child] aged 6 years, contrary to section 15(1) of and Schedule 2 to the Sexual Offences Act 1956. [2]On or about 2 February 2001 at [an address] indecently assaulted [the same child] ...., contrary to section 15(1) of and Schedule 2 to the Sexual Offences Act 1956."
[7]Again there was a hearing as to whether the trial should be at the Crown Court or at the Magistrates' Court. The Crown having outlined the allegations as described by the complainant in the application for judicial review, it was submitted that the offence was a grave crime which ought to be tried on indictment, despite the age of the claimant K.[8]At the Youth Court a statement was made by the Chairman that the conduct as outlined by the Crown was tantamount to attempted rape. However, Mr Geey, for whose submissions we are grateful, has made it clear that so far as the Crown are concerned, that over-states the proper description of the offence and that when the evidence is looked at there may be difficulties in establishing any more than that K placed his penis on one occasion against the bottom of the child, and on the other occasion rubbed himself against that little boy.[9]In order to understand the difficulties which have occurred in this area it is necessary to make reference to the relevant legislation. It is convenient to start with section 100 of the Powers of Criminal Courts (Sentencing) Act 2000. That provides:
"(1) Subject to sections 90, 91 and 93 above, and subsection (2) below, where -- (a) a child or young person (that is to say, any person aged under 18) is convicted of an offence which is punishable with imprisonment in the case of a person aged 21 or over, and (b) the court is of the opinion that either or both of paragraphs (a) and (b) of section 79(2) above apply or the case falls within section 79(3), the sentence that the court is to pass is a detention and training order. (2) A court shall not make a detention and training order -- (a) in the case of an offender under the age of 15 at the time of the conviction, unless it is of the opinion that he is a persistent offender; (b) in the case of an offender under the age of 12 at that time, unless -- (i)it is of the opinion that only a custodial sentence would be adequate to protect the public from further offending by him; and (ii)the offence was committed on or after such date as the Secretary of State may by order appoint."
[10]The Secretary of State has never appointed a date. In consequence the effect of section 100 is that in the case of an offender under the age of 12, there is no power to make a detention and training order. In the case of an offender under the age of 15, there is the requirement before such an order is made that the offender shall be a persistent offender.[11]There is no doubt that the general policy of the legislature is that young offenders should where possible be tried by a Youth Court. That is a policy which the courts should promote. It is obviously desirable that, where appropriate, young offenders should not be tried before the Crown Court unless this is clearly necessary. The policy is reflected in section 24(1) of the Magistrates' Courts Act 1980 which provides, so far as relevant:
"(1) Where a person under the age of 18 years appears or is brought before a magistrates' court on an information charging him with an indictable offence other than homicide he shall be treated summarily unless -- (a) .... the offence is such as is mentioned in subsection (1) or (2) of section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (under which young persons convicted on indictment of certain grave crimes may be sentenced to be detained for long periods) and the court considers that if he is found guilty of the offence it ought to be possible to sentence him in pursuance of subsection (3) of that section; or (b) ....; and accordingly in a case falling within paragraph (a) or (b) of this subsection the court shall commit the accused for trial if either it is of the opinion that there is sufficient evidence to put him on trial or it has power under section 6(2) above so to commit him without consideration of the evidence."
[12]Having referred section 24, it is necessary to refer to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 which is referred to in section 24. Section 91 provides:
"(1) Subsection (3) below applies where a person aged under 18 is convicted on indictment of -- (a) .... (b) an offence under section 14 of the Sexual Offences Act 1956 (indecent assault on a woman); or (c) .... (2) .... (3) If the court is of the opinion that none of the other methods in which the case may legally be dealt with is suitable, the court may sentence the offender to be detained for such period, not exceeding the maximum term of imprisonment with which the offence is punishable in the case of a person aged 21 or over, as may be specified in the sentence."
[13]There are two matters to be noted, in particular, in regard to the facts of the present cases in relation to section 91. First of all, the offences which were charged here in relation to K were not offences under section 14 of the Sexual Offences Act 1956. Secondly, and more importantly, the power of the Crown Court which is provided in section 91 is not restricted either to a period of more than two years' detention or less than two years' detention.[14]There are therefore circumstances where courts have to consider the view they should take of a particular offence, having regard to the statutory provisions to which I have just made reference. The most recent decision of this court on that matter is the decision in R (on the application of "W") (a child by his mother and litigation friend) v Thetford Youth Justices and the Director of Public Prosecutions and R (on the application of "M") (a child by his litigation friend) v Waltham Forest Youth Court Justices and Director of Public Prosecutions (Case Nos CO/928/2002 and CO/167/2002). In that case the first judgment was given by Gage J, in the course of which he dealt with an earlier decision where he as a single judge had given judgment. This was in R (on the application of "D") v Manchester City Youth Court [2002] 1 Cr App R(S) 573. He cited from paragraphs 22 and 23 of his judgment at paragraph 27 of his later judgment:
"Finally I must refer to R (on the application of D) v Manchester City Youth Court [2002] 1 Cr App R(S) 573. That was a decision of mine on an application precisely similar to the applications made in these cases. The facts of the offence are however slightly different. In that case I said (paragraphs 22 and 23 page 578): '22. In my judgment, the effect of section 24 is that a magistrates' court should not decline jurisdiction unless the offence and the circumstances surrounding it and the offender are such as to make it more than a vague or theoretical possibility that a sentence of detention for a long period may be passed. Although, under section 91 and pursuant to recent authority, it is no longer necessary for a court to pass a sentence of at least three years, in my judgment section 91 is primarily applicable to cases of such gravity that the court is or may be considering a sentence of at least two years. Anything less, it seems to me, falls primarily to be dealt with as a detention and training order. 23. There is no statutory restriction on a court, using its powers under section 91, passing a sentence of less than two years. But it seems to me that it will only be in very exceptional and restricted circumstances that it will be appropriate to do so, rather than making a detention and training order. The fact that an offender, as here, does not qualify for a detention and training order because he is not a persistent offender does not seem to me such an exceptional circumstance as to justify the passing of a period of detention of less than two years under section 91 of the Act of 2000.'"
[15]At paragraph 29 he went on to say this:
"My conclusion is that the authorities cited to this court do not undermine or alter my conclusions already expressed on the relationship between sections 91 and 100. I adhere to my view that in respect of offenders under 15 a custodial sentence will ordinarily only be available in the form of a detention and training order. If the court is prohibited from making such an order in general an order under section 91 will not be appropriate. Having considered the submissions made in this court, on a rather fuller basis than those before me in D v Manchester City Youth Court , I see no reason to change to any great extent the views which I expressed in that case. I remain of the opinion that where an offence or offences are likely to attract a sentence of less than two years custody the appropriate sentence will be a detention and training order. In the case of an offender under 15, who is not a persistent offender or a child under 12, the most likely sentence will be a non-custodial sentence. It follows that in most cases the appropriate place of trial will be the youth court. 30. However, I accept that there may be cases where, despite the fact that the offender is under 15 and no detention and training order can be made, the only appropriate sentence is a custodial sentence pursuant to section 91 and possibly for a period of less than two years. But I remain of the opinion that the circumstances of the offence and offender will only rarely call for a sentence pursuant to section 91, particularly if the court is dealing with an offender under the age of 12. In expressing my views, as I did, in D v Manchester City Youth Court , my use of the expression 'very exceptional' may be more restrictive than was strictly necessary or justified. But, I remain of the view that the mere fact that a youth court, unable to make a short detention and training order, considers that the option to pass a short custodial sentence should be available, does not mean that it should decline jurisdiction. It seems to me that in such circumstances the fact that a detention and training order is not available indicates that Parliament intended that generally a non-custodial sentence should be passed. Perhaps it would be better to say that cases involving offenders under 15 for whom a detention and training order is not available will only rarely attract a period of detention under section 91; the more rarely if the offender is under 12."
[16]I would respectfully agree with the approach indicated by Gage J in that case. Sedley LJ, as well as agreeing with Gage J, in his judgment drew attention to the importance, as underlined by the case of T and V v United Kingdom (2000) 3 EHRR 121, of trials for young offenders, and particularly children, being trials which fully take into account the needs of defendants of that age. That is also a factor, in my judgment, which should weigh with courts in deciding the appropriate venue for the trial of an offender of the age to which I have referred. While the need to impose the appropriate sentence is important, so is the need to ensure that wherever possible the trial should take place in the appropriate settings. That is more satisfactorily achieved in a Youth Court than in a Crown Court.[17]In the case of K, we are very much assisted by the statement together with exhibits of Mr Norman Henry Draper, clerk to the justices. He sets out with care the problems which may arise. He refers to earlier judgments of this court, and to two decisions of the Court of Appeal, Criminal Division, in RvT and K [2001] 1 Cr App R 446 and in R v Ganley [2001] 2 Cr App R(S) 60. He goes on to say that he welcomes the applications for judicial review and the decision in the case of Thetford Youth Justices to which I have just referred, in that it should provide further authority for those who advise youth justices in an increasingly complex area of the law.[18]As to the complexity of this area of the law, I have considerable sympathy for those who have to apply it. It is unfortunate that the matter is not dealt with in a more comprehensive and satisfactory manner in one piece of legislation rather than in the various sections to which I have referred. It is to be hoped that, in consequence of the recent White Paper, changes will take place to make the law clearer. I also have some sympathy for those who have to apply the statutory provisions to which I have referred because there is a clear tension between the fact that the Crown Court has a general power to impose detention, which is contained in section 91, yet there are these restrictions which are placed upon the Youth Court but which have not been expressly applied to the Crown Court. However, be that as it may, Youth Courts have to apply the law as it now is. They have to form a conclusion as to when they should try cases and when they should not. As I have already indicated, the approach which was adopted in the Thetford Youth Justices case is one with which I agree. In an attempt to underline what was said by Gage J in that case, I would indicate that justices should start off with a strong presumption against sending young offenders to the Crown Court unless they are satisfied that that is clearly required, notwithstanding the fact that the forum for trial will not be so appropriate as the Youth Court.[19]The other guidance which justices should have in mind is that they must be of the view that, if they are going to send a case to the Crown Court, it is such a serious case that detention above two years is required, or it is one of those cases where they consider that the appropriate sentence is not only a custodial sentence, but a custodial sentence which is approaching the two-year limit which is normally applicable to older offenders with whom they have to deal. To do otherwise would not comply with the intention of the legislation to which I have referred.[20]The fact that justices come to the conclusion that a case should be sent to the Crown Court does not mean that the Crown Court Judge has to take the view that detention for as long as two years is required. The judge has a discretion, as has been made clear by the authorities, to impose such period of detention as he considers appropriate. A Crown Court Judge should not impose one more day's detention than he would otherwise consider appropriate merely because the matter has been sent to the Crown Court rather than dealt with by the Youth Court.[21]Having indicated as far as possible the approach of the Youth Court, I turn to the question of whether in these two cases the Youth Court reached the right decision. In my judgment, the two cases are different. The right test to apply is to ask the question: did the Youth Court come to a decision which I would regard as being wrong? It may not necessarily be the same decision to which I would have come. Before we interfere, we have to come to the conclusion that the decision is wrong. In the case of W, we are faced with the fact that, notwithstanding W's age, this was an offence of some seriousness. l have already referred to the fact that W was armed with the broken bottle which was used for the purposes of threatening the victim. I attach importance to what was said by the District Judge as the reason for sending the case to the Crown Court. Reading the terms of her decision in the notes which are available to us, it appears to me that she did not misdirect herself in any way. We therefore have to decide whether that decision was wrong. The conclusion that I have come to is that the decision cannot be said to be wrong. The offence was within the category of cases appropriate to be sent to the Crown Court, although I do not go so far as to say that the decision was an obvious one. It is clearly a case which was close to the borderline. Accordingly, I would dismiss W's application.[22]I take a different view in relation to K's case. Having regard to the age of K and the nature of the facts to which I have made reference, it does not seem to me that that case comes anywhere near the threshold. I take the view that the case should have remained in the Youth Court. Accordingly, that application will be granted.[23]The only remaining matter I would deal with is this. I would like to commend for its clarity the document entitled "Guidance for Justices and District Judges" which has been prepared on behalf of the Justices Clerks' Society. In general it seems to me that is sets out the position perfectly satisfactorily. It explains the law with very considerable care, and I am sure that justices will find it of assistance. However, when its terms are compared with the judgment which I have just given, it will be seen that it requires amendment to make it clear that the circumstances in which it is appropriate for a Youth Court to send a case for trial to the Crown Court are more restrictive than appear in the case of a youth under 15 who is not a persistent offender, and in the case of defendants aged 10 or 11.

LORD JUSTICE KAY: I agree with the conclusions in each of the two cases. I would only wish to add my endorsement of the views expressed by the Lord Chief Justice in relation to the general principles.

[25]The simple principle underlying the current legislation for sentencing very young offenders is that, generally speaking, first-time offenders aged 13 and 14, and all offenders aged 11 and 12, should not be detained in custody. For 13 and 14 year olds, where the youth persists in offending, the position changes. Clearly some offences or offending are so serious in themselves that the court has to contemplate the possibility of sending an under 15 year old for a period in custody, despite the general approach of the legislation. That may be to protect the public or it may be that the long-term interests of the offender require such a drastic course, even though he is under 12 or under 15 but not a persistent offender. To cater for this possibility Parliament has left open to the courts the use of section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. The need in exceptional cases to make use of these powers cannot, however, have been intended to water down the general principle.[26]In those circumstances I, too, share the view that the guidance given by Gage J in the Thetford Youth Justices case properly reflects the law as it is now, and I endorse those passages to which my Lord has referred in his judgment. THE LORD CHIEF JUSTICE: Are any consequential orders required? MR VENTURI: I do not know if I need a detailed assessment order? THE LORD CHIEF JUSTICE: If you need one, you can have it. However, there is no certificate on file. MR VENTURI: My Lord, I am instructed that we have one. THE LORD CHIEF JUSTICE: Subject to that being filed. In your case, Mr Boscoe? MR BOSCOE: My Lord, I would simply ask for an order for legal aid taxation? THE LORD CHIEF JUSTICE: Again there is no certificate. MR BOSCOE: I know that we have a certificate, my Lord. THE LORD CHIEF JUSTICE: Again, subject to it being filed. Thank you very much for your assistance. I am helpfully reminded by the associate that I should make a formal order as to anonymity. I do not think there has been anything mentioned in court which gives the names or addresses of the two claimants, but I do formally make the order.

Cited in 8 later judgments