R (on the application of BB) v West Glamorgan Youth Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice William Davis |
| Judgment Date | 29 October 2020 |
| Neutral Citation | [2020] EWHC 2888 (Admin) |
| Docket Number | Case No: CO/1304/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 2888 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
COURT SITTING REMOTELY
Cardiff Civil Justice Centre
2 Park Street Cardiff CF10 1ET
Lady Justice Andrews DBE
and
Mr Justice William Davis
Case No: CO/1304/2020
and
Ms Nicola Powell (instructed by Goldstones Solicitors) for the Claimant
The Defendant and The Interested Party did not appear.
Hearing dates: 23 rd October 2020
Approved Judgment
At the hearing of this application for judicial review on 23 October, we announced that we would allow the claim and quash the decision challenged by the claimant, BB, and that we would give our reasons later. These are our written reasons.
BB is now aged 14 having been born in June 2006. On 13 February 2020 when he was still aged 13 he appeared before West Glamorgan Youth Court charged with one offence of robbery (of a pouch of tobacco) and one offence of attempted robbery (of a moped). The offences were alleged to have occurred on 20 January 2020. Three other young people, to whom we shall refer as Z, L and H, were charged with various offences arising out of the same incident. Their precise ages were not clear from the material provided to us, but they were all under 18. Ms Nicola Powell, who presented BB's case with clarity and succinctness, informed us that they were older than BB. Z was aged either 16 or 17.
The justices were required to determine the correct venue for the trial. The prosecution argued that these offences were caught by the grave crimes procedure and that, pursuant to s. 51A of the Crime and Disorder Act 1998 (the 1998 Act, formerly s. 24(1)(a) of the Magistrates Courts Act 1980), the court should conclude that it ought to be possible to sentence BB to detention under s. 91(1) of the Powers of Criminal Courts (Sentencing) Act 2000 (the 2000 Act) with the result that he should be committed for trial. The defence submitted that the youth court should retain jurisdiction. In the event the justices sent BB (and the other three defendants) for trial at the Crown Court. At the first hearing in the Crown Court, the judge came to the view that BB should not have been sent for trial and remitted the case to the youth court. The Crown Court had no jurisdiction to take that course. On 5 March 2020 the court again sent BB for trial for the same reasons it had done so in February 2020. With the leave of Julian Knowles J, BB seeks to challenge the ruling in his case by way of judicial review.
As is customary West Glamorgan Youth Court has taken a neutral stance to BB's application. The Crown Prosecution Service have been served as an interested party. They have not taken any part in the proceedings.
The circumstances of the alleged offences were put before the justices in a police report. We have the same document. The alleged victim was a 16-year-old to whom we shall refer as BA. BA is a friend of Z. At around 6.00 p.m. on 20 January 2020 BA agreed to meet Z at a regular meeting place in Neath in order to sell Z a small quantity of cannabis. BA went from his home on his moped and met Z. Initially everything was friendly. However, within a few minutes L and H together with another male approached. L produced an imitation handgun, pointed it at BA and said “give me your keys”. BA was surrounded. Z showed BA a knife tucked into his waistband and said that he would not be afraid to use it. H punched BA on the nose causing it to bleed. The other male (said to be BB) took a pouch of tobacco from BA's pocket. BA began to walk away pushing his moped. As he did so, he was punched from behind and he felt a stab to his left upper arm. A little further on BA, by now having got onto his moped, stopped at traffic lights. He was attacked again by more than one person and he went to the floor. In the course of the attack he was stabbed to the left thigh and sustained a puncture wound. His attackers ran off when a passer-by shouted at them. The police report, beyond stating that BB had taken a pouch of tobacco after others had produced an imitation firearm and had made threats with a knife, gave no clear indication as to the part played by BB in the incident as a whole.
The legal adviser who was in court on 13 February 2020 has provided a note of the proceedings. Although it is not a formal response from the Defendant court, it is appropriate to receive it as the most accurate account of how the justices approached their determination. Z, L and H appeared the same day as BB but were called into court before him. The prosecution submitted that the offences were grave crimes and that the case of each defendant should be sent to the Crown Court. No representations were made by the defence. The justices accepted the submissions of the prosecution and sent the cases of Z, L and H to the Crown Court. When BB was called into court, the prosecution made the same submission in relation to him i.e. that the allegations against him amounted to grave crimes and that his case should be sent to the Crown Court. The prosecution also argued that it was in the interests of justice for BB to be sent to the Crown Court in order to avoid BA being required to give evidence twice. Those representing BB submitted that he should not be treated in the same way as his co-accused and that the allegations in his case did not amount to grave crimes.
When considering the competing representations, the justices had regard to the Sentencing Council guidelines for street robbery both in relation to youths and to adults. Looking at the adult guideline the justices concluded that the offences involved high culpability because of the use of and threat with a weapon. Though they had no evidence about the effect of the incident on BA, they considered that harm fell between Category 1 and Category 2 on the basis that BA must have suffered significant psychological harm. They noted that the starting point for a Category 1A offence was 8 years' custody with 5 years' custody being the starting point for a Category 2A offence. Looking at the youth guideline in relation to robbery the justices considered that at least two of the three factors justifying custody or a youth rehabilitation order with intensive supervision and surveillance were present, namely use of or threat with a weapon and use of significant force.
With those matters in mind, the justices, noting that a youth rehabilitation order was not available to them, considered the adult guideline and arrived at an adult custodial term in the range of 5 to 8 years. Because of the age of BB, they halved that term to arrive at the approximate sentence for the offence. Thus, they concluded that a sentence in excess of 2 years' custody would be appropriate in BB's case. The justices also took account of the fact that the co-accused had been sent for trial and that, in the interests of justice, there should only be one trial. This was the basis on which they sent BB for trial at the Crown Court.
The power to send a child or young person to the Crown Court for trial is set out in Section 51A of the 1998 Act, the relevant part of which is as follows:
(2) Where a child or young person appears or is brought before a magistrates' court (“the court”) charged with an offence and any of the conditions mentioned in subsection (3) below is satisfied, the court shall send him forthwith to the Crown Court for trial for the offence.
(3) Those conditions are—
….(b) that the offence is such as is mentioned in subsection (1) of section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (other than one mentioned in paragraph (d) below in relation to which it appears to the court as mentioned there) 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;….
Section 91(3) of the 2000 Act gives the Crown Court a general power to detain a child or young person. It is not a power exercisable by the Youth Court. It is a power to be exercised when no other disposal is suitable i.e. the maximum period of a detention and training order (2 years) is not sufficient.
The principles to be applied by the Youth Court when assessing whether “it ought to be possible to sentence” a child or young person to a period of detention in excess of 2 years were explained by this court in R (H, A and O) v Southampton Youth Court [2005] 2 Cr App R (S) 30 at [33] to [35]:
33. 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. 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. In each case the court should ask itself whether there is a real prospect, having regard to his or her age, that this defendant...
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