1. R (ON THE APPLICATION OF W) v 2. R (ON THE APPLICATION OF S) [2006] EWHC 95 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

[2006] EWHC 95 (Admin)

Case No CO/9889/2005, CO/9077/2005, CO/10219/2005

Venue Royal Courts of Justice, Strand, London WC2

Between

1. R (ON THE APPLICATION OF W)

2. R (ON THE APPLICATION OF S)

3. R (ON THE APPLICATION OF B)

(CLAIMANTS)

1. THE BRENT YOUTH COURT

2. THE ENFIELD CROWN COURT

3. THE RICHMOND ON THAMES YOUTH COURT

(DEFENDANTS)

Before

Lady Justice Smith

Mr Justice Bean

MS M SIKAND (instructed by Lawrence & Co) appeared on behalf of W

MR H SOUTHEY (instructed by Wilson & Co) appeared on behalf of S

MISS C HUNTLEY (instructed by Lloyd Brennand & Associates) appeared on behalf of B

MR J WHITLEY (instructed by CPS) appeared on behalf of THE BRENT YOUTH COURT

MR A MATIC (instructed by CPS) appeared on behalf of THE ENFIELD CROWN COURT

MR R O'SULLIVAN (instructed by CPS) appeared on behalf of THE RICHMOND ON THAMES YOUTH COURT

Date 13 January 2006

[1]Friday, 13th January 2006 LADY JUSTICE SMITH: There are before the court three applications for judicial review, each of which raises the same issue. In each case a child or young person acting through his or her litigation friend seeks to challenge the decision of a youth court to commit him or her for trial at the Crown Court pursuant to Section 24 of the Magistrates' Courts Act 1980 as amended. In each case it is accepted that the Magistrates had the power to commit the applicant to the Crown Court, but it is contended that the Magistrates failed to exercise their discretion under Section 24 in accordance with the guidance that has been given on numerous occasions by this court, and that had the discretion been properly exercised, the Magistrates would in each case have accepted jurisdiction and dealt with the case in the youth court.

[2]As I have said, in recent months and years this court has set out the principles which should guide youth courts when considering whether or not to accept jurisdiction in respect of young persons charged with serious criminal conduct. In R (on the application of H, A and O) v The Southampton Youth Court

[2004] EWHC 2912

Admin (generally referred to as Southampton Youth Court Number 2), Leveson J set out the principles to be applied in the hope that this would stem the tide of challenges made to this court in such cases. I cannot better his exposition of the law and the principles to be applied, and shall adopt and repeat them. Beginning at paragraph 15 of his judgment, Leveson J said this:

"15. I deal first with the sentencing regime relating to young persons and, in particular, to the Youth Court. First, section 37 of the Crime and Disorder Act 1998 makes it clear that it shall be the principal aim of the youth justice system to prevent offending by children and young persons, which provision should be considered alongside section 44(1) of the Children and Young Persons Act 1933 to the effect that every court in dealing with a child or young person brought before it, shall have regard to the welfare of the child or young person. There is then the overarching statutory restriction on all discretionary custodial sentences contained within section 79(2) of the Powers of Criminal Courts (Sentencing) Act 2000 as amended ('the 2000 Act'), which provides that the court shall not pass a custodial sentence unless satisfied that the offence was so serious that only such a sentence can be justified for it, or where the offence is a violent or sexual offence, that only such a sentence would be adequate to protect the public from serious harm from him. "16. Moving from the general to the particular, section 100 of the 2000 Act then 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.' "17. It is important to appreciate that the Secretary of State has never appointed a date, with the result 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 15 there is no such power unless the offender is a persistent offender which can include an offender of good character who has committed a series of offences (see R v AS [2001] 1 Cr App Rep (S)62) but obviously does not include any person under the age of 15 at the time of conviction without previous convictions who is convicted of a single offence. "18. What then are the powers of the Youth Court in respect of such an offender? If convicted, the court is restricted to non-custodial options such as supervision order, attendance centre order or action plan. If such a 14 year old pleads guilty, however, the only realistic option (ignoring absolute discharge) is a referral order; that is because the effect of section 16(2) and 17 of the 2000 Act is that if he pleads guilty, has never been convicted of an offence or bound over in criminal proceedings, and assuming that referral to a youth offending team is available, such an order is mandatory. "19. That is the background against which the court considers the other strand of legislation which concerns the circumstances in which it is possible to commit for trial and the powers of the Crown Court. "20. Section 91 of the 2000 Act provides as follows: '(1) Subsection (3) below applies where a person aged under 18 is convicted on indictment of -- (a) ...; or (b) an offence under section 14 of the Sexual Offences Act 1956 (indecent assault on a woman); or (c) an offence under section 15 of that Act (indecent assault on a man committed after 30th September 1997). (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 imprisonment with which the offence is punishable in the case of a person aged 21 or over, as may be specified in the sentence.' "21. In Ganley [2001] 2 Cr App R (S) 60, the Vice President, Rose LJ, said: 'The power to impose detention under section 53(3) of the Children and Young Persons Act 1933 [now section 91(3) of the 2000 Act] is unaffected. The principles set out in Mills (1998) 2 Cr App R (S) 128 in relation to such a sentence and as to the importance of avoiding, where possible, lengthy periods in detention on offenders under 18 will continue to apply. If detention for two years or less is called for, it will generally be appropriate to make a detention and training order rather than to have recourse to section 53.' "22. It is now necessary to turn to section 24 of the Magistrates' Courts Act 1980. It reads: 'Summary trial of information against a child or young person for indictable offence 24(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 tried summarily unless - (a) ... the offence is such as is mentioned in subsection (1) or (2) of Section 91 of the Powers of the 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'."

[3]Leveson J then considered how the interrelationship between the various statutory provisions should be resolved. He reviewed several decisions of this court, including R (on the application of D) v Manchester City Youth Court

[2002] 1 Cr App R (S) 373

; R (on the application of W) v Thetford Youth Justices

[2002] EWHC 1252

Admin ; R (on the application of W) v Southampton Youth Court [2002] EWCH 1640; R (on the application of C) v Balham Youth Court

[2004] 1 Cr App R 22

; and R (on the application of M and W) v West London Youth Court

[2004] EWHC 1144

[4]Then, in an attempt to assist youth courts, he provided a succinct summary of the principles on which the court should act. This begins at paragraph 33 of his judgment."33. 1. The general policy of the legislature is that those who are under 18 years of age and in particular children of under 15 years of age should, wherever possible, be tried in the youth court. It is that court which is best designed to meet their specific needs. A trial in the Crown Court with the inevitably greater formality and greatly increased number of people involved (including a jury and the public) should be reserved for the most serious cases.

"34. 2. It is a further policy of the legislature that, generally speaking, first-time offenders aged 12 to 14 and all offenders under 12 should not be detained in custody and decisions as to jurisdiction should have regard to the fact that the exceptional power to detain for grave offences should not be used to water down the general principle. Those under 15 will rarely attract a period of detention and, even more rarely, those who are under 12.

"35. 3. In each case the court should ask itself whether there is a real prospect, having regard to his or her age, that this defendant whose case they are considering might require a sentence of, or in excess of, two years or, alternatively, whether although the sentence might be less than two years, there is some unusual feature of the case which justifies declining jurisdiction, bearing in mind that the absence of a power to impose a detention and training order because the defendant is under 15 is not an unusual feature."

[5]I repeat and adopt his words with respectful approval. They appear to me to encapsulate the principles which should be applied.

[6]In the course of his judgment Leveson J also drew attention to the fact that in the case before him the court had not received assistance from the advocates or the Court's legal adviser. That is also a feature of two of the cases before us. In two of the three cases, the court was not referred to the Southampton Youth Court Number 2 case or to any of the previous authorities, nor was the court referred to any guideline cases on sentencing. It also appears that, in two of the cases before us, the defence representative made no submissions to the court at all. If the Youth Court is to make a satisfactory decision it must have all the necessary information before it. The facts of the case as alleged, which must be assumed to be true unless manifestly not, should be accurately put before the court. For that reason, the summary of the facts must be scrupulously fair and balanced, and it is the duty of both advocates to ensure that that is so. The court should be told of any undisputed mitigation that will be available to the defendant including, if one has already been made, an indication of an intention to plead guilty. Also the defendant's previous record must be accurately described. The court should be advised of the correct approach, for example as set out in the Southampton Number 2 case, and should be assisted by the provision of any relevant sentencing guideline case, or, if available, any relevant publication of the Sentencing Guidelines Council.

[7]In cases where there is no guidance from the Sentencing Guidelines Council it is permissible and helpful for the court to consider any relevant publication of the Sentencing Advisory Panel. In R (DPP) v Camberwell Youth Court

[2005] 1 Cr App R page 6

, Kennedy LJ said, at paragraph 26 of his judgment, that although the Sentencing Advisory Panel's advice has no legal force, as it is yet to be acted upon, it is helpful as an indication of a considered response to a sentencing problem. In short, providing that the court recognises that the advice does not carry legal force, it is legitimate and helpful to consider such a publication.

[8]With that material, the court will then be in a position to assess whether or not this is a case in which (and I quote Leveson J):

"... there is a real prospect ... that this defendant whose case they are considering might require a sentence of, or in excess of, two years or, alternatively, whether although the sentence might be less than two years, there is some unusual feature of the case which justifies declining jurisdiction, bearing in mind that the absence of a power to impose a detention and training order because the defendant is under 15 is not an unusual feature."

[9]Where several defendants are charged together I would stress the need mentioned by Leveson J for the court to consider the position of each defendant separately. Where all the defendants are under the age of 18 there is no power to commit a young person to the Crown Court in the interests of justice, as there is where one defendant is over the age of 18 and must be committed to the Crown Court. If all are under 18, the court must make an appropriate decision for each defendant, even if this results in one defendant being tried in the Youth Court and others in the Crown Court.

[10]I turn to the facts of the first case, that of R (on the application of W) v Brent Youth Court , in which the Crown Prosecution Service appears as an interested party. W is charged with a single offence of robbery which is alleged to have occurred on 3rd June 2005 when he was aged 16 and a half. It is alleged that, in the company of two other youths, he boarded a bus and intimidated a 17 year-old youth so that that youth handed over his mobile telephone, wallet and iPod. No actual violence was used; nor were direct threats issued. The other two youths were not arrested.

[11]At the time of this alleged offence, W had received a reprimand for a similar offence. However, by the time of the decision on mode of trial at the Youth Court, he had also been covicted for an offence of aggravated vehicle taking for which he had received a referral order for nine months. W appeared at the Youth Court on 25th August 2005 when the prosecution applied for committal to the Crown Court. The Court declined jurisdiction on the grounds that the offence was a group action on a targeted victim. It must be presumed that the Court thought that this meant that there was a real prospect that, if convicted, a sentence of two years would be warranted.

[12]Committal proceedings were fixed for 6th October. By that time, however, W's representatives had persuaded the Court that the issue of mode of trial be reopened. That occurred on 9th November 2005. On this occasion the Crown submitted that the issue of whether there should be committal to the Crown Court was "borderline". For W, it was submitted by counsel that there was no real prospect of W being sentenced to custody for two years or more. Counsel relied on a number of authorities to which we will later refer. The Court again declined jurisdiction saying that, in their view, the proper sentence would be in the region of three years' custody. Again they referred to the allegation that the offence involved a group attack and a targeted victim. There had been some physical and verbal intimidation and the theft was of high value property.

[13]By his litigation friend, W applied for judicial review and permission was granted by Bennett J. Before this court, Miss Maya Sikand submitted that the circumstances of this case could not possibly result in a two year custodial sentence. The real thrust of her argument was that, since the publication of the draft guidance of the Sentencing Guidelines Council in November 2005, it could be seen that this offence was what is there described as a Level 1 offence; that is an offence at the lowest level of seriousness. She pointed to the absence of any weapon or any actual injury. The recommended sentence for a young offender for a Level 1 offence ranges from a community order to a 12-month detention and training order. She accepted that there were some aggravating features to the allegation. More than one offender was involved; the goods were of quite high value. However, she submitted that those factors could not take the case out of Level 1. W should not be tried at the Crown Court.

[14]The difficulty with that submission is that the draft guidelines had not yet been published at the time of the Youth Court's decision. Indeed they have still not yet been formally endorsed. The advice of the Sentencing Advisory Panel was in the public domain at the time of the Youth Court's decision, and in the context of a mode of trial decision, this court, as I have indicated, has said that it is proper for the Youth Court to have regard to that published advice. Although not identical to the later draft Sentencing Guideline Council guidance, the Panel's advice would suggest that, on these facts, a young offender should receive a community sentence, and that it would be most unlikely that he would receive a custodial sentence of two years or more.

[15]The defendant court did not appear in this court and was not represented at the hearing. However, Mr Jonathan Whitley appeared for the Crown Prosecution Service and submitted a helpful skeleton argument. The essence of his submission was a concession: that if the draft guidelines had already been in the public domain, it was unlikely that the Crown Prosecution Service would ever have applied for committal to the Crown Court. He accepted that the circumstances made this a Level 1 case, in which for a youth of 16 and a half who was not a persistent offender, it could not be said that there was a real possibility of a two year custodial sentence. However, he reminded the court that, when the decision was taken, the leading guideline case on street robberies was Attorney General's Reference Nos 4 and 7 of 2002

[2002] EWCA Crim 127

, usually referred to as Lobban and Sawyers . In that case, the court had said that the appropriate sentence for the robbery of mobile phones was in the bracket of 18 months to five years in custody. Lord Woolf said that the upper limit would be three years where no weapon was used. He also observed that, where several people were involved and the offence was more intimidating, this would be an aggravating feature. Mr Whitley submitted that this aggravating feature was present in the instant case. There was also an element of targeting in that the victim had been followed on to the bus, and the value of the goods was about £350 to £400. While some reduction in sentence must be allowed for the fact that W was only 16, this reduction should be limited, in his submission. Those were the reasons why it had been the Crown's submission that this was a borderline case but one which warranted trial on indictment.

[16]Mr Whitley accepted that, in the light of the new guidance on sentence, judicial review should be granted and the decision of the Youth Court set aside. However, he urged us not to criticise the Youth Court, and suggested that rather than making a mandatory order, we should remit the matter for reconsideration by the Youth Court. He thought that the CPS might well not apply for committal.

[17]I am grateful for Mr Whitley's realistic approach to this case. In my view it is highly likely that, when this case is next considered, there will be no real prospect of a custodial sentence of two years or more. It may be that there will be some alteration before publication to the draft guidelines of the Sentencing Guidelines Council, but the likelihood is that something close to the draft published guidelines will be endorsed. Judges and magistrates will then be obliged to pay heed to that guidance. In my judgment, for that reason this decision should be quashed.

[18]I would add that, in my view, the Youth Court's opinion that this offence warranted a sentence of three years was wrong even on the basis of Lobban and Sawyers . However, I would not have said that it was unreasonable for them to take the view that there was a real possibility that a sentence of two years might be imposed. Although Lobban was dealing with adult offenders and a significant reduction would have to be made for W's youth, I can understand why the CPS submitted that the case was borderline. If it were not for the near certainty that for young offenders at least Lobban will be in effect superseded by the Sentencing Guidelines Council guidance, I do not think that I would have quashed this decision.

[19]Because the draft guidance has not yet been formally endorsed, I consider that the right course in this case is to remit the matter to the Youth Court. If the CPS decides not to apply for committal, there will be no need for any further mode of trial hearing. If the CPS does apply, the Youth Court must reconsider its decision in light of the available guidance on sentence. It is to be hoped that this would include the final endorsed guidance from the Sentencing Guidelines Council. If not, then the draft guidelines should be considered, although of course they do not carry the same authority as will the final endorsed version.

[20]I turn now to the second case, that of R (on the application of S) v Enfield Youth Court . S, a girl aged 13 years, challenges the decision of the Youth Court to commit her for trial at the Crown Court in respect of four charges of robbery and two of attempted robbery. All the allegations relate to two incidents which occurred on 21st May 2005. At about 3.20 pm on that day, a group of three girls, all about 13 years old, whom I shall call "the defendants", of which group S is said to have been one, began to follow another group of three girls of about the same age. I shall call this group "the first group of victims". After a while, the defendants caught up with the first group of victims. It is alleged that S pushed one of the victims against a wall, took her handbag, emptied it and kept a purse with some money. This was to become the third charge, later Count 3. Meanwhile or shortly afterwards, the other two defendants managed to take mobile phones from the other two victims. Those were charges or counts 1 and 2. There was no physical violence but there was intimidating conduct. The prosecution allege that S was a party to that conduct in respect of the first and second charges, although she did not do anything specific.

[21]About ten minutes later, the defendants were seen to approach another group of three girls, again all of about 13 years of age. I shall call this group "the second group of victims". It is alleged that S grabbed one of these victims and took her mobile phone. That was the fourth charge or count. An independent eyewitness watching from the other side of the road said that S slapped this victim. However, the victim herself has not alleged that. Mr Hugh Southey for S pointed out that the victim of this robbery did not allege that it was S who had taken her mobile phone. Nonetheless, that was the Crown case.

[22]The two offences of attempted robbery, counts or charges 5 and 6, were attempts to take mobile phones from the other two girls in the second group of victims. No specific role was attributed to S in these offences. She is said to be guilty by reason of joint enterprise. There was said to have been much intimidatory jostling, pushing and pulling of clothing. One victim alleged that one of the defendants, not S, threatened to stab her. In interview, one of the defendants said that one of the other defendants, not S, had had a knife with her. So far as I can see, that evidence could not be admissible against any defendant. In short, in none of the offences was a weapon used; nor was any injury caused to the victims. S had had one reprimand previously for an offence of shoplifting.

[23]The charges came before the Youth Court on 18th August 2005, when the prosecution applied for committal to the Crown Court. S's representative did not oppose the application. The magistrates declined jurisdiction giving as reasons that there were multiple offences, threats had been made to stab the victims, and offences of this kind were prevalent and that there was a need for deterrent sentences to be passed. Those reasons were confirmed by a letter dated 6th September 2005 in which it was said that the reasons were that there were six robberies and two attempted robberies. That is plainly an error as there are six charges in all. It was repeated that the offences had been carried out by a gang of young women on other young women; threats had been made to "shank" or stab the victims; that robberies of this nature are prevalent and merit a deterrent sentence. The court was of the opinion that there was a real prospect of a custodial sentence in excess of two years being imposed for these offences on conviction.

[24]As Bean J pointed out in the course of argument, it appeared that the court had not given separate consideration to the cases against each defendant.

[25]In November 2005, S sought judicial review. Permission to apply was granted by Mitting J. The defendant court did not appear or submit evidence. The Crown Prosecution Service appeared as an interested party and a skeleton argument was lodged. Mr Southey for S submitted that since the publication of the draft sentencing guidelines on robbery, it was clear that, on conviction, there was no real prospect that S would receive a custodial sentence of two years or more. These were all Level 1 offences. The bracket for Level 1 offences ranged from a community order to a 12-month detention and training order.

[26]Mr Southey acknowledged that a 12-month detention and training order was not available to the Youth Court in this case. No such order can be made against a girl of 13 unless she is a persistent offender. S is not a persistent offender and it has not been suggested that conviction of these offences could make her so the only sentencing powers available to the Youth Court are non-custodial measures. Mr Southey accepted that it was alleged that S was involved in six offences but he submitted that this was really a continuing course of conduct over a short period of time. He accepted that it was alleged that S was one of a gang or group, as he preferred to put it. However, they had not targeted girls who were much younger than themselves; nor had the victims been outnumbered. The value of the goods taken was not great. He did not suggest, of course, that these were not serious allegations but he submitted that, if one of these offences (say the most serious) standing alone were to be considered, it would have to be dealt with by means of a non-custodial measure. The number of them in his submission was not sufficient to warrant the leap to the imposition of a two year custodial sentence.

[27]Mr Southey readily acknowledged that the sentencing options available to a Youth Court were unsatisfactory, or at any rate might appear so to the magistrates. It was entirely understandable that the magistrates would feel that a non-custodial disposal was inadequate for S if convicted. But that in itself could not justify the conclusion that there was a real prospect of a sentence of two years.

[28]Miss Qureshi for the Crown Prosecution Service was anxious to ensure that we fully understood the gravity of the offences. She felt that it had been understated by Mr Southey. Maybe that was so. Nonetheless, after outlining the offences in considerable detail Miss Qureshi had to accept that under the draft Sentencing Guideline Council guidance, these were Level 1 offences. She was driven to contend that the number of offences and the other aggravating features, such as they were, took this offending on to an altogether more serious plane.

[29]Miss Qureshi submitted that, if the court had had the case of Lobban in mind, it was understandable that they had concluded that a two year custodial sentence was a real prospect. Their decision, she submitted, should not be quashed. However she had to accept that Lobban was dealing with adult offenders and that young offenders should be treated less severely. She accepted that the court should have the advice of the Sentencing Advisory Panel in mind. Their advice would have suggested a non-custodial sentence for these offences.

[30]In my view, the position of youth courts considering mode of trial for street robberies during 2005 was not an entirely easy one. They had the guidance of the court in Lobban relating to adult offenders and they had the advice of the Sentencing Advisory Panel which points clearly towards a non-custodial sentence for young offenders. One can see that the court may have perceived some conflict. However, the application of the general principles of sentencing young offenders, as referred to by Leveson J in Southampton Youth Court Number 2, should in my view have led this Youth Court to the conclusion that S should not be committed for trial to the Crown Court. The policy of the legislature is that a 13 year-old should only receive a custodial sentence for very serious crimes.

[31]In my view, this course of conduct in a 13 year-old who has not committed offences of this kind before is not so serious that it requires committal to the Crown Court. Even before the draft Sentencing Guidelines Council guidance was published, it seems to me that it could not be said that there was any real prospect that S would be sentenced to two years in custody. In my view, the order of the Youth Court must be quashed, and I for my part would issue a mandatory order directing the Youth Court to proceed to summary trial.

[32]I turn now to the third case, R (on the application of B) v the Richmond on Thames Youth Court . B was born on 17th May 1992 and is now age 13. He was charged with two offences of rape said to have been committed on 23rd April 2005 when he was still 12 years old, although almost 13. The victim of the alleged rape was a girl aged 13 at the time, LS. She and two other girls, all friends, had spent part of the afternoon and evening at B's home where his parents were present. They passed the time mainly in his room. In the middle of the evening, the other two girls left B's house leaving LS there alone with B in his room. At some stage when the two friends had not returned to collect LS, as she had apparently expected, she decided to stay the night at B's. With the connivance of B's parents what had happened she told lies to her mother on the telephone claiming that she was staying at the house of a girlfriend. LS claims that some time later B made a sexual approach to her which she reject ed. She says that then B suddenly got on to her and pushed her down. He pulled her trousers down and had intercourse with her. She objected verbally and tried to kick him off. She claims that afterwards she felt unable to tell B's parents or to leave the house because the doors were locked. Accordingly she stayed in the room with B after this event. She claims that, some time late,r, B raped her again. She objected and certainly did not consent, as he claimed.

[33]The following morning, when the house had been unlocked, she left and went home. She immediately complained of rape to her mother. Her mother called the police. Subsequently, LS was medically examined. She was found to have some minor injuries consistent with her account. In interview, B denied that there had been any sexual contact at all. However, subsequent DNA testing with swabs from LS's vaginal area apparently matched a DNA sample provided by B.

[34]The matter came before the youth court on 13th September 2005. The prosecution invited the court to decline jurisdiction not on the basis that the claimant was dangerous - that was expressly disavowed - but on account of the serious nature of the allegations. No representations were made on behalf of B.

[35]The court's decision and reasons were noted as follows:

"The court having heard the facts decline jurisdiction ... the Crown Court would pass a sentence in excess of two years if convicted given the gravity of these charges."

[36]B was duly committed for trial and appeared in the Crown Court on a plea and case management hearing. That hearing was adjourned pending an application for judicial review. Permission to apply for judicial review was granted by Hooper LJ and Cresswell J following an oral hearing at which the Crown was not represented. On that application it was submitted that the Youth Court's attention had not been drawn to the relevant statutory provisions or to the appropriate sentencing authorities. It was also submitted that B had been recognised as having special educational and/or behavioural needs since the age of 5 to 6 years. In the event, neither of those assertions was well-founded in evidence.

[37]Before this court, Miss Tessa Howell, a solicitor and the legal advisor to the Youth Court, submitted a witness statement in which she asserted that the court had indeed been advised as to the relevant statutory provisions and the required approach to their task. She claimed that the justices had been told that rape was a grave crime and had been reminded of their sentencing powers in respect of B if he were convicted. The Court had been directed to the Youth Court Bench Book published by the Judicial Studies Board. They had this publication with them when they retired. We have seen the relevant extract from the Bench Book. As might be expected it gives succinct advice as to the right approach.

[38]Before this court, Miss Davey, who appeared for B, again asserted that B was known to have educational and behavioural problems. This she submitted was relevant to the question of whether he might be sentenced to custody if convicted. I for my part would accept that that would be so. However, she had to concede first that this submission had not been made to the Youth Court. Indeed, as we have said, no submissions of any kind were made on that occasion by B's representative. Moreover there was still no evidence available of B's alleged difficulties. Miss Davey explained to us that she advanced this submission on instructions. She understood that B was presently undergoing assessment of his special educational needs. However she accepted that this court could not take that into account.

[39]Miss Davey then submitted that although plainly the allegations of rape were serious, there were no aggravating features. Following the guideline case of the R v Millberry & ors

[2002] EWCA Crim 2891

, she submitted that if B had been an adult he could have expected a sentence of about five years following conviction. She submitted that taking account of his age, the sentence in his case could not be as much as two years.

[40]Mr O'Sullivan for the Crown Prosecution Service who appeared as an interested party submitted that there were some aggravating features to this case. First there were two separate acts of rape. There were some injuries, albeit he accepted that they were minor. LS had told the police that there had been a threat to kill her. Moreover he submitted that the mitigation which is sometimes found in cases of sexual misconduct between young teenagers was not available to B. It is sometimes the case that the act of intercourse has followed from consensual sexual experimentation which has gone too far. That was not the case here. He submitted that the starting point for an adult would be above five years. Where an appropriate reduction was made for age, there was still a real prospect that the court would impose a sentence of two years or more.

[41]We were referred to a passage from Millberry in which Lord Woolf said:

"We agree with the panel [that is the Sentencing Advisory Panel] that even in the case of young offenders, because of the serious nature of the offence custody will normally be the appropriate disposal. Like the panel we nonetheless conclude that the sentence should be 'significantly shorter for young offenders'."

[42]The problem as it seems to me is to know what is meant by "significantly shorter", and how the reduction for age should operate in the case of a very young offender such as B. We were greatly assisted in this regard by the research conducted by both counsel into the range of sentences imposed for rape and indecent assaults on very young offenders. As might be expected, there are not many such reported cases. As might also be expected, very few indeed relate to offenders as young as B. However, it appears to me that in general, custodial sentences are imposed on young offenders of about 14 who areconvicted of rape. That being so, it seems to me that the conclusion of the Youth Court in this case cannot be criticised.

[43]I would not wish it to be thought that I am suggesting that, if he is convicted, B will or should be sentenced to a custodial sentence. I am only saying that the Youth Court's conclusion is not unreasonable, and that there is indeed a real prospect that B might be sentenced to a two years' custodial sentence. For that reason, I would refuse this application for judicial review.

[44]I would like to add that it was drawn to our attention that a footnote to Section 24 of the Magistrates' Courts Act 1980 in Stones Justices Manual, the dicta of the court in R V Billam

[1986] 1 All ER 985

to the effect that a Youth Court should never accept jurisdiction in the case of a minor charged with rape. There is, I hasten to add, no suggestion that this youth court was referred to that note. However, I doubt that there should be such a hard and fast rule in the case of a child aged 12. We were reminded that, at the time of Billam , the offence of rape could be committed only by a male of 14 years or over. At that time a boy of 12 or 13 could not be charged with rape. It appears to me that now that a boy of 12 or 13 can be charged with rape, there may well be some cases in which it will not be appropriate to commit such a defendant to the Crown Court. I suggest perhaps that the rule set out in Billam and noted in Stone Justices' Manual could now properly be modified so as to indicate that in the case of very young defendants it may be appropriate to accept jurisdiction.

MR JUSTICE BEAN: I agree.

LADY JUSTICE SMITH: There will be orders accordingly. Are there any ancillary matters?

[47]MS SIKAND: My Lord, there are some ancillary matters. If I need to make an application for an order as to anonymity then I do so. Certainly it was granted by way of interim relief. I suspect I speak on behalf of all claimants.

LADY JUSTICE SMITH: In respect of all three claimants, there must an order for anonymity, and of course it follows an order forbidding any publication of any material which might result in the identification of a claimant.

[49]MS SIKAND: My Lady, also in the case of W, I know your Ladyship said about the level of assistance that should be given to the Youth Court in the future. In the case of W in particular it should be noted that certainly at the mode of trial hearing, the fullest assistance was given by way of a written skeleton argument which was not before this court.

LADY JUSTICE SMITH: It was. If I have not given that impression I shall ensure that I correct the transcript to ensure that is clear, because certainly at the second hearing, assistance was given.

[51]MS SIKAND: I am grateful, my Lady. The final matter is a application for detailed assessment of cost. The claimant W is publicly funded so I make that application. My Lady, it may be appropriate in this case, given -- there are cases of this nature when a claimant is successful, one cannot recover costs against the defendant in court. But I do make an application that the costs be recovered from central funds. The Divisional Court does have the power to make that order if it feels it appropriate. I make it simply out of principle, because as your Ladyship will know, the Criminal Appeal Services is cost limited, and given that in theory this is a successful claim, there is a power for those costs to be borne by central funds. So in the circumstances I do make the application. It is not an unusual one, my Lady, and there is some support for it.

LADY JUSTICE SMITH: Yes. We will bear that application in mind and hear any other ancillary applications in the other cases before we make a decision on whether you should have your costs from central funds.

[53]MS SIKAND: Thank you very much.

LADY JUSTICE SMITH: Yes.

[55]MISS HUNTLEY: My Lady, simply one application on behalf of B. I have been asked in the same way as my learned friend to ask for a detailed assessment as to costs.

LADY JUSTICE SMITH: You must have those. There is no application for costs from central funds in your case?

[57]MISS HUNTLEY: Not that I am aware. I know that a funding certificate was provided to the court clerk.

LADY JUSTICE SMITH: You represent B, who failed?

[59]MISS HUNTLEY: Yes.

[60]MR SOUTHEY: My Lady, I also seek to make an application for costs from central funds. I endorse the submissions made by my learned friend. Certainly I have appeared in similar or at least one similar case to this where costs were awarded from central funds on the basis that the Legal Services Commission is a cash limited fund, and as a result, in principle, if costs were not awarded from central funds, somebody else will be deprived of legal aid funding.

[61]The other point I raised in that case, although it was rejected by the judge, but I would make this point, is that under the current arrangements, the funds received by those who instruct me are considerably lower if they do not recover costs. That is intended to penalise unsuccessful applications, I am sure that --

LADY JUSTICE SMITH: Perhaps not penalise them, but limit them.

[63]MR SOUTHEY: Yes.

LADY JUSTICE SMITH: You are saying it is a more generous assessment from central funds than it is --

[65]MR SOUTHEY: Absolutely, and it reflects the fact that my instructing solicitors have essentially won.

LADY JUSTICE SMITH: It is closer to a party and party assessment.

[67]MR SOUTHEY: Yes.

LADY JUSTICE SMITH: Or it is a party and party assessment. We are both of the view that in the case of S and W, there should be costs from central funds. Is that all? Good.