B v Barking Youth Court [2006] EWHC 2121 (Admin)

Case No CO/2805/2006[2006] EWHC 2121 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 7 July 2006
Strand
London WC2
B E F O R E:
LORD JUSTICE LAWS
MR JUSTICE WALKER
Between
BClaimant-v-
Between
BARKING YOUTH COURTDefendant
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 BLAKE-JAMES (instructed by Panesar & Co) appeared for CLAIMANT for The defendant was not represented and did not attend
J U D G M E N T

LORD JUSTICE LAWS:

[1]This is an application brought with permission granted by Mr Justice Holman on 16 May 2006 for judicial review of a decision of the Barking Youth Court made on 3 January 2006 to send the claimant to the Crown Court for trial.[2]On that day the claimant appeared before the magistrates on two charges of robbery. This was the prosecution case:
"On Monday, 1 January 2006 at about 1800 hours the two victims were travelling on a district line London Underground train towards London from the Upminster area. They were standing in the doorway and one of them was using his mobile phone to text someone. As the train pulled into Dagenham East Station the two victims saw three males on the platform pointing at them. The three males were two mixed-race Afro-Caribbeans and the defendant who was a white European. All three boarded the train in the next carriage to the victim. As the train pulled out of the station the defendant walked through the inter-connecting carriage doors and into the carriage the victims were in. He was wearing a black hooded top on back to front, and pulled the hood up covering his face. He had two eye slits cut into the hood so he could see out. He approached the first victim and said, 'What have you got for me?' The victim replied 'Nothing.' The defendant responded by saying, 'Give me your phone.' The victim had a phone in his right-hand jacket pocket which he had placed his right hand on to try and protect. The defendant put his hand into the victim's pocket and tried removing the phone. The victim initially resisted by holding on to the phone. The defendant raised his right hand in a clenched fist and drew his hand back as if to strike the victim. The victim, fearing for his safety, let go of the phone and the defendant took this from the pocket. He walked straight over to the second victim and again said to him, 'What have you got for me?' The second victim, having seen what had happened to his friend, was also in fear of being attacked and said, 'I have only got £1,' and indicated to his left pocket. The defendant searched both jacket pockets of this victim and took a £1 coin. He then walked off back into the other carriage through the inter-connecting carriage doors."
[3]The claimant was arrested by an off-duty police officer at the station. He was 16 at the time; he is still that age. Reports which were not before the Magistrates Court show he has an IQ of 63. It was submitted to the magistrates on 3 January 2006 that the case should be sent to the Crown Court pursuant to Section 51A (3) (d) of the Crime and Disorder Act 1998. That provides that a young defendant is to be sent to the Crown Court if - "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 Sections 226 (3) or 228 (2) of the Act would be met." There is no doubt that robbery - the charge here - is a specified offence.[4]The sentencing criterion referred to in the subsection consist in the finding of a significant risk to members of the public of serious harm occasioned by the defendant committing further offences. The magistrates found that this test was met. They took into account the claimant's previous convictions. These are listed in a print-out of the claimant's antecedents showing the disposals made by the court in relation to each of the offences. They are as follows as listed in the magistrates' written submissions - not in date order, rather going back in time: 6 December 2005, possession of a bladed article, an order for a 60-day curfew was made; 2 February 2005, possession of a firearm with intent to cause fear and violence, a reparation order was made; 8 May 2003 seems to be an occasion when he was dealt with both for an offence of robbery and another offence of attempted robbery, there was a suspension order for 3 years. But for either that robbery or an attempted robbery on another occasion he was sentenced to a detention and training order for 6 months. That was his first and only experience of a custodial sentence. There were three offences of attempted robbery in all.[5]Other offences committed earlier in time were: 6 November 2001, common assault; 29 June 2001, affray; 10 January 2001, indecent assault and common assault; and yet earlier there were two cautions for attempted robberies on separate occasions. The magistrates also considered that there were aggravating features of the robberies with which the claimant was charged and for which he appeared before them on 3 January. They say this:
"The aggravated features of the alleged offences - in that the two victims were members of the public not known to [B] - the incident took place on public transport, the manner in which he approached the victims with his hooded top worn back to front and the hood with two eye slits cut into it covering his face, theft of a mobile phone and a threat of violence by the raising of his right hand in a clenched fist drawing it back."
[6]It is plain from the acknowledgement of service which is also before us that the magistrates had specifically in mind the statutory criterion of significant risk to members of the public of serious harm occurring by virtue of further offences committed by the defendant. They also had cited to them the decision of this court in Ghanbari [2005] EWHC Admin 2929, to which I will refer further in a moment.[7]On the facts placed before the magistrates, I should have thought there was at least a strong case for sending the claimant to the Crown Court. However it is said that the magistrates disregarded consistent authority that the Youth Court is the proper place to try youths; that they could not have been satisfied that the case deserved longer than a two-year sentence; and that they should have applied not section 51A (3) (d) of the 1998 Act but section 24 of the Magistrates' Courts Act 1980. That requires summary trial of a person under 18 years unless the offence is "grave" and may require a sentence of long term detention, in which case the defendant is to be sent for trial. Those points are all made in the papers.[8]Before us this morning Mr Blake-James, who has conducted his case with considerable tenacity and elegance, has placed in the forefront of his submissions the proposition that there was not here sufficient material upon which the justices could properly and lawfully conclude that the statutory criterion was met. He draws especial attention to the fact that there was no report before the justices, a matter referred to by Lord Justice Rose in Ghanbari, as we shall see. He refers to the fact that the claimant is small in stature. His crimes though deeply troublesome when one reads the list have not so far - thankfully - apparently involved serious harm to anyone; and he submits, in short, that taking the matter in the round, the magistrates were not entitled to conclude that the criterion was met and therefore not entitled to send the claimant to the Crown Court.[9]In Ghanbari it was acknowledged (at paragraph 17) that section 24 of the 1980 Act and section 51A of the 1998 Act are, on their face, inconsistent. That is, it seems to me, a lamentable state of affairs. The Vice-President

Lord Justice Rose said that justices should bear in mind:

"(i) the policy of the legislature, as correctly identified by Leveson J in R ..... v Southampton Youth Court [2004] EWHC Admin 2912, and approved by the Divisional Court in R ..... v Redbridge Youth Court [2005] EWHC Admin 1390 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 and Others, particularly in (iv) in relation to non-serious specified offences."
I interpolate, it is not with respect necessary to set out any part of the reasoning in Lang; but it is to be noted that the Vice-President there observed that robbery, while statutorily and unsurprisingly categorised as a serious offence, may nevertheless be committed in a wide variety of ways. The guidance in Ghanbari goes on:
"(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 ..... joint trial ..... and (b) the trial of youths in the Youth Court."
[10]This case is not one where there is a joint adult defendant. It is a case of a serious, not a non-serious, specified offence. We are conducting a judicial review. Our task is therefore to supervise the decision of the Magistrates' Court on conventional public law grounds. The question is: have they misunderstood the law or, if not, have they arrived at their decision in such a way as to demonstrate perversity or a conclusion outwith the margin of discretion given to them by the statute? I certainly accept that it would have been desirable if there had been a report in this case before the magistrates. Lord Justice Rose's advice in paragraph (iii) at paragraph 17 of Ghanbari, with deference, plainly is important.[11]The fact is that this matter was dealt with upon the first occasion that the claimant appeared in the Youth Court. I understand that the issue whether such a defendant should be sent to the Crown Court for trial is generally raised on the first such occasion. It is plainly desirable, as my Lord Mr Justice Walker observed in the course of argument, that criminal process against young defendants be dealt with expeditiously. It would be desirable to that end, and this would also observe Lord Justice Rose's advice, that those advising young offenders should make shift to obtain material by which the magistrates may be informed of the degree of their client's dangerousness on the first occasion of his appearance before the court.[12]In all the circumstances here however I cannot see that the magistrates can sensibly be criticised. They were not asked to adjourn for a report though I acknowledge that might have been done. On the facts before them it is inescapable in my judgment that they were entitled to conclude that there was here a significant risk to members of the public of serious harm occasioned by the defendant committing further offences. In short, this was a lawful decision by Barking Youth Court and I see no basis upon which this court should interfere with it on judicial review.[13]I accordingly would dismiss the application.

MR JUSTICE WALKER: I agree.

LORD JUSTICE LAWS: Thank you for your assistance, Mr Blake-James.

[16]MR BLAKE-JAMES: For the sake of clarity, does the anonymity order remain?

LORD JUSTICE LAWS: Yes. The case can be reported in such a way that no reference is made to the claimant's name or to any fact that might lead to his identification. ---