BH v Norwich Youth Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice William Davis,Mr Justice Saini |
| Judgment Date | 11 January 2023 |
| Neutral Citation | [2023] EWHC 25 (Admin) |
| Docket Number | Case No: CO/1442/2022 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2023] EWHC 25 (Admin)
Lord Justice William Davis
Mr Justice Saini
Case No: CO/1442/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Philip Rule (instructed by Imran Khan and Partners Solicitors) for the Claimant
Simon Ray (instructed by CPS) for the Interested Party
Hearing date: 15 December 2022
Approved Judgment
This judgment was handed down remotely at 2.00pm on 11 Januaray 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Lord Justice William Davis and
This is the judgment of the court to which we both have contributed.
Introduction
The Claimant applies for judicial review of the decision of District Judge (Magistrates' Courts) Sheraton (“the judge”) sitting on 20 January 2022 in the Norwich Youth Court to retain jurisdiction in relation to three charges of rape and to order summary trial of those charges. At the conclusion of the hearing on 15 December 2022 we announced our decision that the claim for judicial review was dismissed. We did so in order to prevent any further delay to the criminal proceedings. These are our reasons for that decision.
As is customary the Youth Court was not represented at the hearing. We had its acknowledgment of service setting out its case in relation to the way in which the decision was reached but no other evidence from the court. The Claimant was represented before us by Mr Philip Rule. The Crown Prosecution Service as interested party was represented by Mr Simon Ray. We had written and oral submissions from both Mr Rule and Mr Ray.
Criminal proceedings are active within the meaning of that term in the Contempt of Court Act 1981. Pursuant to Section 4(2) of the 1981 Act, we ordered that nothing should be published in relation to these proceedings which might identify the Claimant. This order will continue until the conclusion of the criminal proceedings or until further order of this court, whichever is the sooner. This judgment is anonymised accordingly with the Claimant being referred to as BH.
For reasons which will be apparent from the substance of this judgment, the Claimant will not have the normal statutory protection against publication of his identity in relation to the proceedings in the Youth Court. It is neither necessary nor appropriate for us to comment on what order will be appropriate in the continuing criminal proceedings. For instance, we do not know whether identification of BH in those proceedings might undermine the statutory protection against identification to be afforded to the complainant in the case.
The factual background
BH was born on 29 March 2004. He is charged with three offences of rape alleged to have been committed between April and August 2020 when he was aged 16. The complainant in the offences alleged against him was ten months younger than him i.e. aged 15 at the time of the offences.
BH and the complainant were friends. They lived near to each other. They attended the same school. In the course of their friendship they met regularly in person. From time to time during 2020 they met secretly at night both at the Claimant's home and at the home of the complainant.
The complainant alleges that on three occasions during the summer of 2020 BH raped her. The first occasion is said to have occurred when the complainant visited BH at his house. This was in the early hours of the morning. The two of them lay on BH's bed with BH's arm around the complainant. This was consensual. The complainant alleges that BH went on to attempt to penetrate her vagina with his finger and to suggest that they had sex. She says that she said no more than once. BH began to masturbate. He then pushed her shorts to one side and inserted his penis into her vagina. He ejaculated. The next day the complainant told BH that what had happened the night before should not occur again.
The further allegations of rape relate to subsequent occasions when BH visited the complainant at her home. These visits were in the small hours of the morning when the complainant's parents were asleep. They took place on a number of occasions. On two of those occasions BH behaved in a similar fashion to the first incident alleged by the complainant. When they were together in the complainant's bedroom BH tried to touch the complainant's breasts and vaginal area. She moved his hands and told him to stop. He began to masturbate and then put his penis in her vagina. He ejaculated over her shorts or over the bed sheets.
The complainant told friends about what had happened. At the end of August 2020 she told her parents that she did not want to go back to school. When asked why, she told her parents that BH had raped her. The police were informed. On 6 September 2020 the complainant was the subject of a full ABE interview in which she set out her account of events. BH was interviewed in September and November 2020. He made no comment to all questions put to him. The complainant's pyjamas were subjected to scientific analysis. Traces of semen were found on the pyjamas. The DNA of the semen matched that of BH. This result was available in early December 2020. The mobile telephones of both the complainant and BH were examined by the police. The results of the examinations were available in early January 2021.
It was not until 6 December 2021 that criminal proceedings were commenced against BH by way of a written charge and requisition. We have no evidence about why there was such a delay. There was more than sufficient evidence available by the beginning of 2021 to justify charging BH. In a case involving a young defendant and an even younger complainant the need for expedition must have been obvious. We are well aware that delays of this kind are not uncommon in cases such as these. That does not make it any the more acceptable. Had the proceedings been commenced when they should have been, namely early in 2021, much of the basis for the claim for judicial review with which we are concerned would never have arisen. There is every prospect that the criminal proceedings would have been concluded by now rather than BH and the complainant still awaiting a trial.
The first appearance was listed on 7 January 2022 at Norwich Youth Court. The proceedings were adjourned because there was no District Judge (Magistrates' Courts) available to hear the case on that day. BH was notified in advance of the position. He did not attend court on that day.
The date for the adjourned hearing was 20 January 2022. BH attended. He was represented by a solicitor, Haroon Shah. The Crown Prosecution Service was represented by a Mr Crimp. We had evidence from Mr Shah in the form of two witness statements made by him. We had no evidence from Mr Crimp or from the Youth Court (other than what was set out in the court's acknowledgment of service). The precise course of events at the hearing on 20 January 2022 was not clear from the evidence. However, we concluded that it was appropriate to proceed on the basis that the hearing began with the judge deciding whether the Youth Court should retain jurisdiction in relation to the charges of rape. Both Mr Crimp and Mr Shah argued that the case should be sent to the Crown Court. Mr Crimp referred to the Sentencing Council Definitive Guideline in relation to offences of rape. He submitted that the offending fell into Category 2B in that guideline. An adult convicted of a Category 2B offence would be subject to a starting point of eight years' custody with a range of seven to nine years' custody. Even allowing for BH's age, the likely sentence was such that he should be sent to the Crown Court for trial. Mr Shah agreed with that submission. He further argued that the case was too complex to be tried in the Youth Court. There were issues of third party disclosure and complex scientific and electronic evidence. The judge disagreed. He considered the adult guideline but in the context of the Sentencing Council Sentencing Children and Young Persons guideline. In any event, the judge considered that the case fell into Category 3B with a category range of four to seven years' custody for an adult offender. The judge decided that the case should remain in the Youth Court. This is the decision challenged by BH. The record sheet completed by Mr Crimp recorded that BH pleaded not guilty to the charges. Mr Khan's evidence is that no plea was tendered or indicated. However, the judge gave directions for trial and completed the Preparation for Effective Trial (PET) form, the trial estimate being two days. Consent was identified as the issue in the case. It is unrealistic to suggest that these steps occurred in a vacuum. BH must have indicated a plea of not guilty. A trial date in early April 2022 was available. The judge did not fix the trial for that date because BH was due to take public examinations in June 2022 and, on his behalf, it was submitted that the trial should be delayed until after those examinations. In consequence, the trial was fixed for two days commencing on 7 July 2022.
On 30 March 2022 BH's solicitors wrote a letter before claim to the Norwich Youth Court. In the letter they repeated the arguments put before the judge on 20 January 2020. They invited the judge to reverse his decision. The judge considered that suggestion. By an e-mail dated 4 April 2022 from the court the invitation was rejected. It was said that “in the absence of any new information (the judge) declined” to re-visit the issue of jurisdiction. The claim for judicial review was made on 20 April 2022.
In due course BH was given permission to apply for judicial review on three separate grounds. These were grounds...
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