Legal Commentary - Developments in Determining Mode of Trial for Grave Allegations
| Author | Nigel Stone |
| Published date | 01 April 2010 |
| Date | 01 April 2010 |
| DOI | http://doi.org/10.1177/1473225409356761 |
| Subject Matter | Articles |
Youth Justice
Legal Commentary
10(1) 73–83
© The Author(s) 2010
Reprints and permission: sagepub.
Developments in Determining
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DOI: 10.1177/1473225409356761
Mode of Trial for Grave Allegations
yjj.sagepub.com
Nigel Stone
The policy issues and procedural intricacies posed in determining the appropriate venue
for cases featuring allegations against young defendants of graver crimes, often featuring
serious sexual offending, have been addressed in various previous Commentaries, most
recently in detail in Stone (2005), though also touched on in Stone (2006 and 2007). This
Commentary seeks to update this coverage in light of a sequence of recent judgments that
have grappled with additional dimensions of the debate.
The core statutory provisions are set out in the Magistrates’ Courts Act (MCA) 1980
ss.24–25 (as amended), as follows (words in square brakets added by author):
s.24(1) Where a person under the age of 18 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 [i.e. homicide or designated firearm offences], 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 (PCC(S)A) 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) he is charged jointly with a person who has attained the age of 18 and the court considers it
necessary in the interests of justice to commit them both for trial;
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.
Corresponding author:
Nigel Stone, School of Social Work and Psychology, Elizabeth Fry Building, University of East Anglia, Norwich, NR4 7TJ, UK.
Email: n.stone@uea.ac.uk
74
Youth Justice 10(1)
s.25(5) Where a person under the age of 18 appears or is brought before a magistrates’ court on
an information charging him with an indictable offence other than homicide, and the court –
(a) has begun to try the information summarily on the footing that the case does not fall
within paragraph (a) or (b) of section 24(1) above and must therefore be tried summarily, as
required by the said section 24(1); or
(b) has begun to inquire into the case as examining justices on the footing that the case does
so fall, subsection (6) or (7) below, as the case may be, shall have effect.
(6) If, in a case falling within subsection (5)(a) above, it appears to the court at any time before
the conclusion of the evidence for the prosecution that the case is after all one which under the
said section 24(1) ought not to be tried summarily, the court may discontinue the summary trial
and proceed to inquire into the information as examining justices and, on doing so, shall adjourn
the hearing.
(7) If, in a case falling within subsection (5)(b) above, it appears to the court at any time during
the inquiry that the case is after all one which under the said section 24(1) ought to be tried sum-
marily, the court may proceed to try the information summarily.
Some broad procedural features of these provisions are worth reiterating at this initial
stage of exposition:
• In determining mode of trial, magistrates can consider (a) the seriousness of the
alleged offence in the light of alleged ‘associated’ offences (as defined by PCC(S)A
2000 s.161(1)), and (b) previous findings of guilt against the defendant.1
• A sequence of decisions in the Divisional Court has established that s.24(1)
provides for a single decision on the mode of trial. It does not permit serial
reconsideration of the same question, whether or not new material emerges, save as
permitted by s.25. Though observations made by the Court in R v Newham Juvenile
Court, ex parte F (A Minor) [1986] 1 WLR 939 suggested that there should be
scope for flexibility in the interests of justice, those comments were merely obiter
dicta (i.e. expressed without being essential to the issue that fell to be determined
in the case in question and thus non-binding in weight), the weight of authority has
been to the contrary. The attraction of flexibility can present itself whether the
initial decision was to retain jurisdiction or not. For example, the justices may
become aware subsequently of other charges against the accused young person and
so wish to reverse their decision to proceed summarily. Alternatively, magistrates
may (in the hypothetical example given by the Court in ex parte F.) ‘learn facts
about the defendant’s background, character, and antecedents, which indicate that
if he is found guilty there will be no need after all’ for sentencing to extend to use
of PCC(S)A 2000 s.91. The Divisional Court has been unenthusiastic in conclud-
ing against flexibility, a constraint deemed ‘technical and unattractive’ and
Stone
75
‘cumbersome’ in various judgments. In revisiting the authorities in R. (on the
application of the Director of Public Prosecutions) v Camberwell Green Youth
Court [2003] EWHC 3217 (Admin) (where further and more serious sexual
allegations had come to the magistrates’ attention following their mode of trial
decision) Jackson J. observed:
I think it desirable as a matter of policy that magistrates should have the power to change
decisions concerning mode of trial (when good grounds exist to do so) even before the cir-
cumstances specified in section 25 of the Act have come into existence. It is to be hoped that
Parliament, which devotes a great deal of time to the reform of criminal justice, will find an
opportunity to make the sensible and beneficial reforms… One would have thought that
those reforms may well not be controversial.
• The statutory exception, afforded by s.25(5)(a) and s.25(6), allowing the justices to
rescind their decision to proceed summarily and to send a case to the Crown Court,
applies only where the court has embarked upon a summary trial in the narrow
sense of determining guilt or innocence on the basis of evidence: R v Dudley
Justices, ex parte Gillard [1986] AC 442, applied in R v Herefordshire Youth Court,
ex parte J. (1998) The Times, 4 May 1998. There is thus no scope to reconsider
venue following guilty plea, say in light of further information presented regarding
the defendant’s circumstances, attitudes or antecedents.2
As regards the policy dimension of s.24(1) decisions, the...
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