R M v Hammersmith Magistrates' Court Westminster City Council (First Interested Party) Hammersmith Youth Offending Team (Second Interested Party)

In this case, following the order of May J of 20 April 2017, the claimant makes a rolled-up application for permission to apply for judicial review followed by substantive relief if permission is granted.

The claimant is said to be Algerian and does not speak English. In essence, he claims to be a 16 year old who was wrongly assessed to be an adult by the defendant Magistrates' Court without any proper age assessment procedure. He seeks to challenge that process and his consequential sending to Southwark Crown Court as an adult to face three offences of theft and fraud.

The facts

The facts recited in this judgment are based on the claimant's statements of fact and grounds; on the supporting evidence of his solicitor, Ms Perveen Hill; his former counsel, Ms Easterbrook; and on supporting documentation.

On 4 April 2017, Dove J ordered the defendant Magistrates' Court to file and serve an acknowledgment of service by 11 April. A merely formal acknowledgment of service has been filed and served and the defendant has not made representations or appeared.

The claimant's case is that he is Algerian and 16 years old. He was arrested on 17 March 2017 for theft and attempted theft of a phone. He was later charged with two offences of attempted theft and one offence of fraud, regarding his possession of an identity card. Although the police summary indicated there was a suspicion that he was older than 16, no age assessment was conducted on behalf of the police. This was said to be due to the non-availability of qualified social workers. The police therefore treated the claimant as if he was a child for the purpose of their procedures and obligations under the Police and Criminal Evidence Act 1984. The claimant was interviewed under caution in the presence of a solicitor, an appropriate adult, and an Arabic interpreter. He gave no comment to all questions asked.

The claimant then appeared at the Hammersmith Youth Court on 20 March for a first appearance before a bench of lay magistrates. He was represented, as I have said, by counsel, Ms Easterbrook. When the case was called on, the magistrates expressed doubts about his age. According to counsel's note, which has been provided to the claimant's solicitor, and her statement, counsel made submissions to the court, on instructions, asserting that the claimant was 16, that prior to his arrival in England he had been in school in France, and if he was permitted an adjournment he could provide evidence as to his age from his mother. Counsel therefore applied for an adjournment for that purpose.

The magistrates refused the application for an adjournment. They then retired for a short period of time. They returned to court and announced their decision that they deemed the claimant to be 18 years old. In taking that decision they had no evidence on the question of the claimant's age from the police, from the youth offending team, or from any local authority. There was no "Merton-compliant" age assessment. The magistrates then declined summary jurisdiction and sent the claimant to Southwark Crown Court for trial as an adult, pursuant to section 51 of the Crime and Disorder Act 1988.

It is unclear whether the second interested party, that is the Hammersmith youth offending team, who were present, invited either the magistrates (or the Crown Court following the sending) to order an age assessment of the claimant. Nor is it clear whether the second interested party, who by statute are a component of the local authority, made an application for an age assessment or themselves sought to institute an age assessment of the claimant.

The magistrates remanded the claimant into custody as an adult on the basis there were substantial grounds to believe that he would fail to attend court and/or commit further offences. He has been held on remand in HMP Wormwood Scrubs as an adult.

The claimant's solicitor sent a letter before claim to the defendant Magistrates' Court on 27 March 2017 requesting an expedited response. There has been no reply.

The law

Section 99(1) of the Children and Young Persons Act 1933 in its relevant parts provides as follows:

"99 Presumption and determination of age.

(1) Where a person, whether charged with an offence or not, is brought before any court otherwise than for the purpose of giving evidence, and it appears to the court that he is a child or young person, the court shall make due inquiry as to the age of that person, and for that purpose shall take such evidence as may be forthcoming at the hearing of the case, but an order or judgment of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the court, and the age presumed or declared by the court to be the age of the person so brought before it shall, for the purposes of this Act, be deemed to be the true age of that person, and, where it appears to...