Crown Prosecution Service v South East Surrey Youth Court [2005] EWHC 2929 (Admin)

Case No CO/8722/2005[2005] EWHC 2929 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Thursday, 8th December 2005
Strand
London WC2
B E F O R E:
LORD JUSTICE ROSE
MR JUSTICE CRANE
MR JUSTICE OPENSHAW
Between
THE CROWN PROSECUTION SERVICEClaimant-v-
Between
SOUTH EAST SURREY YOUTH COURTDefendantMILAD LEON GHANBARIInterested Party
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR H KEITH appeared for CLAIMANTMISS DE SILVA appeared for DEFENDANT
J U D G M E N T
[1]THE VICE PRESIDENT: This is the judgment of the Court.[2]In R v Lang & Ors [2005] EWCA Crim 2864 the Court of Appeal (Criminal Division) considered many, though by no means all, of the issues arising from sections 224 to 229 of the Criminal Justice Act 2003 in relation to the sentencing of dangerous offenders. The Court described the statutory provisions as "labyrinthine".[3]Today's application takes this Court to a related but different area of this legislation, namely the obligations of a Youth Court when dealing with a potentially dangerous offender. Here the provisions are not merely labyrinthine, they are manifestly inconsistent with each other and we have every sympathy with lay Justices, their clerks and District Judges who are having to grapple with them. The Court is grateful to Mr Keith for the claimant and Miss De Silva for the interested party for their help in the task of navigating these choppy and uncharted waters.[4]The application before the Court, brought by the Crown Prosecution Service with the leave of Collins J, is for judicial review of a decision of the South East Surrey Youth Court, on 24th August 2005, declining to commit or send for trail at the Crown Court the interested party, Milad Leon Ghanbari, for an offence of assault occasioning actual bodily harm.[5]Before plunging into the relevant legislative morass, the material facts and chronology can be briefly stated. Ghanbari was born on 16th September 1987. On 2nd July 2005 he allegedly assaulted a Mr Phillips, causing him actual bodily harm. It is said that he struck his victim in the face with a beer bottle causing a wound which required five stitches.[6]On 28th July he was interviewed by the police and claimed to have been acting in self-defence. Pending receipt of advice from the Crown Prosecution Service, he was bailed until 18th August. On the same day, 28th July, he was arrested for an unrelated offence of robbery, said to involve the use by him of a knife on 25th July. On 29th July, after he had been identified by a witness, he was charged with that offence of robbery and remanded in custody to the Youth Court. On 3rd August the Youth Court sent him to the Crown Court for trial for robbery, under section 51A(3)(d) of the Crime and Disorder Act 1998. On the same day, he was charged at Court with assault occasioning actual bodily harm. In relation to this offence he appeared before the Youth Court on 17th August and was remanded in custody. On 24th August the prosecution invited the Youth Court to send Ghanbari to the Crown Court for trial for assault occasioning actual bodily harm, under section 51A(3)(d), on the basis that such an offence is a specified violent offence within section 224(3) of the 2003 Act, being, No 20 in Schedule 15 to that Act and there was a real possibility that the criteria for the imposition of an extended sentence under section 228(2) would be met.[7]The clerk to the justices provided the parties with a copy of guidance which had been distributed to clerks in that area by the justice's clerk for South East Surrey. The guidance identifies a conflict between section 51A(3)(d) and section 24 of the Magistrates' Courts Act 1980. The guidance was as follows:
"A Practical Compromise. As a result of the conflict, an interpretation of the provisions has developed that provides a compromise solution. It has received fairly wide support amongst CJS practitioners including the Judicial Studies Board and some parts of the Justices Clerks Society. It can be summarised as follows: Consider whether it is a grave crime. If so, consider whether the offender is dangerous. If so, send him to the Crown Court using section 51A(3)(d). If not, commit him for trial using section 6 and 24 Magistrates' Courts Act (if the test in the Southampton Justices (No 2) case is satisfied. If it is not a grave crime, do not consider dangerousness at this stage. The venue for trial will be the youth court. On conviction consider dangerousness and if the offender is dangerous then commit him for SENTENCE under the new section 3C PCC(S)A 2000 ['Powers of Criminal Courts (Sentencing) Act 2000'] (see Schedule 3 paragraph 23 of the Criminal Justice Act 2003)"
That guidance having been disclosed, submissions were made by both sides to the Justices. The Justices, following the guidance, determined that assault occasioning actual bodily harm was not a grave crime, so that the provisions of section 24(1) of the Magistrates' Courts Act 1980 were not met, declined to consider the provisions of section 51A(3)(d) and concluded that the case remained within their summary jurisdiction. The defendant entered a not guilty plea and the case was adjourned for a pre-trial review. The present proceedings were then instituted.[8]We turn to the relevant statutory provisions. The Criminal Justice Act 2003 (Commencement No 2 and Saving Provisions) Order 2004 brought into force, on 22nd January 2004, section 42 of the 2003 Act. This amended section 24 of the Magistrates' Courts Act 1980 in a manner said by the headnote to section 42 to be transitory, though one searches in vain in the 2003 Act for any scheme for repeal of the transitory provisions. Section 24, in presently amended form, provides as follows:
"(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 one falling within subsection (1B) below, he shall be tried 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 ... and accordingly in a case falling within paragraph (a) ... of this subsection the court shall commit the accused for trial if either it is of opinion that there is sufficient evidence to put him on trial, or it has power under section 6(2) above so to commit without consideration of the evidence."
Subsection (1B) which relates to homicide and certain Firearms Act offences is not of present relevance.[9]Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 provides in its present form:
"(1) Subsection (3) below applies where a person aged under 18 is convicted on indictment of- (a) an offence punishable in the case of a person aged 21 or over with imprisonment for 14 years or more, not being an offence the sentence for which is fixed by law ... ... (3) If the court is of the opinion that [neither a community sentence nor a detention and training order] 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."
Although "18" will be substitute for "21" in subsections (1) and (3) by paragraphs 160 and 181 of Part II to Schedule 7 to the Criminal Justice and Court Services Act 2000, that amendment has not yet been brought into force.[10]Paragraph 9 of Schedule 3 to the 2003 Act, when in force, will provide for section 24 to be further amended so that it will read:
"(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 he shall, subject to sections 51 and 51A of the Crime and Disorder Act 1998 and to sections 24A and 24B below, be tried summarily."
[11]The effect of this further proposed amendment to section 24(1) will be to ensure that all provisions which specify, in relation to children and young persons, which offences must go to the Crown Court will no longer be contained in the provisions under section 24(1) of the Magistrates' Court Act 1980, but will be found in the "sending for trial" provisions in section 51A of the Crime and Disorder Act 1998.[12]However, paragraph 9 of schedule 3, and therefore the further amendment to section 24(1) of the 1980 Act, is not yet in force. But section 51A of the Crime and Disorder Act 1998, as substituted by paragraph 18 of schedule 3 to the 2003 Act, to which section 24(1) in its amended form will refer, has been brought into force, save in relation to subsections (3(a) to (c), from 4th April 2005, by paragraph 29 of schedule 1 to the Criminal Justice Act 2003 (Commencement No 8 and Transitional Saving Provisions) Order 2005 SI No 950. As presently in force, section 51A provides as follows:
"Sending cases to the Crown Court: children and young persons. (1) This section is subject to sections 24A and 24B of the Magistrates' Courts Act 1980 (which provide for certain offences involving children or young persons to be tried summarily). (2) Where a child or young persons appears or is brought before a magistrates' court ... charged with an offence and any of the conditions mentioned in subsection (3) below is satisfied, the court shall send him forthwith to the Crown Court for trial for the offence. (3) Those conditions are- ... (d) that the offence is a specified offence (within the meaning of section 224 of the Criminal Justice Act 2003) and it appears to the court that if he is found guilty of the offence the criteria for the imposition of a sentence under section 226(3) or 228(2) of that Act would be met."
[13]As Mr Keith points out, there are other anomalies not relevant to the present case. For example, section 24(1)A of the Magistrates' Courts Act 1980, as currently in force, refers to subsection 91(2) of the Powers of Criminal Courts (Sentencing) Act 2000, albeit that that has now been repealed, as from 5th April 2005, by section 332 and part 7 of Schedule 37 to the 2003 (see paragraph 2(2) (1) (iii) of the Criminal Justice Act 2003 (Commencement No 3 and Transitional Provisions) Order 2004 SI 829). And the sending for trial provisions of section 51A(3) of the Crime and Disorder Act do not yet apply to offences concerning firearms and homicide or offences concerning serious or complex fraud.[14]So, yet again, the courts are faced with a sample of the deeply confusing provisions of the Criminal Justice Act 2003, and the satellite Statutory Instruments to which it is giving stuttering birth. The most inviting course for this Court to follow, would be for its members, having shaken their heads in despair to hold up their hands and say:
"the Holly Grail of rational interpretation is impossible to find"
. But it is not for us to desert our judicial duty, however lamentably others have legislated. But, we find little comfort or assistance in the historic canons of construction for determining the will of Parliament which were fashioned in a more leisurely age and at a time when elegance and clarity of thought and language were to be found in legislation as a matter of course rather than exception.[15]In our judgment, as sensible an approach as can be achieved to the part of this legislation presently under consideration is as follows. Section 24(1) of the Magistrates' Courts Act 1980, in its form as presently amended, requires summary trial of a person under 18 unless the offence is grave andmay require a sentence of long-term detention, in which case the defendant must be committed for trial. (We note, in passing, that the definition of "a grave offence" under this Act is different from that of "a serious offence" under the Criminal Justice Act 2003).[16]Section 51A of the Crime and Disorder Act 1998, as presently in force, requires a child or young person to be sent to the Crown Court for trial if the offences is specified in Schedule 15 of the Criminal Justice Act 2003 and, if convicted, it appear the criteria for the imposition of an indeterminate sentence under section 226 or an extended sentence under section 228 would be met.[17]It is not open to a Youth Court to ignore either of these provisions. But, pending the implementation of paragraph 9 of Schedule 3 of the 2003 Act, which we understand is not contemplated for many months, in considering the applicability of these two inconsistent sections in a particular case, justices should bear in mind:(i) the policy of the legislature, as correctly identified by Leveson J in R (On the application of H, A and O) v Southampton Youth Court [2004] EWHC 2912 Admin, and approved by the Divisional Court in R (On the application of the Crown Prosecution Service) v Redbridge Youth Court [2005] EWHC 1390 Admin paragraph 11(2), is that those who are under 18 should, wherever possible, be tried in a Youth Court, which is best designed for their specific needs;(ii) the guidance given by the Court of Appeal (Criminal Division), in particular in paragraph 17 of the judgment in Lang & Ors, particularly in (iv) in relation to non-serious specified offences.(iii) the need, in relation to those under 18, to be particularly rigorous before concluding that there is a significant risk of serious harm by the commission of further offences: such a conclusion is unlikely to be appropriate in the absence of a pre-sentence report following assessment by a young offender team;(iv) in most cases where a non-serious specified offence is charged, an assessment of dangerousness will not be appropriate until after conviction, when, if the dangerousness criteria are met, the defendant can be committed to the Crown Court for sentence - a procedure with which the Crown Court has, for many years, been familiar.(v) When a youth under 18 is jointly charged with an adult, an exercise of judgment will be called for by the Youth Court when assessing the competing presumptions in favour of (a) joint trial of those jointly charged and (b) the trial of youths in the Youth Court. Factors relevant to that judgment will include the age and maturity of the youth, the comparative culpability in relation to the offence and the previous convictions of the two and whether the trial can be severed without either injustice or undue inconvenience to witnesses.[18]In the light of these considerations, although this Youth Court's approach, in so far as the justices declined to consider the provisions of section 51A(3)(d) was flawed, the conclusion that summary jurisdiction should be accepted for purposes of trial is unimpeachable. The sooner this case is dealt with by the Youth Court in accordance with the guidance which we have proffered the better. In the meantime we decline to quash the Youth Court's decision.

Cited in 4 later judgments