R v LM
| Jurisdiction | England & Wales |
| Judge | HIS HONOUR JUDGE GORDON,LORD JUSTICE TUCKEY |
| Judgment Date | 04 December 2002 |
| Neutral Citation | [2002] EWCA Crim 3047 |
| Docket Number | No: 200205421/W2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 04 December 2002 |
[2002] EWCA Crim 3047
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Lord Justice Tuckey
Mr Justice Douglas Brown
His Honour Judge Gordon
(Sitting as a Judge of the CACD)
No: 200205421/W2
MR ELWICK appeared on behalf of the APPLICANT
This appellant, who was born on 1st July 1987, was originally charged with an offence of wounding, later changed to causing grievous bodily harm, with intent to do grievous bodily harm, contrary to section 18 of the Offences Against the Person Act 1861. In a sentence, having cornered another youth he struck him with a branch to the side of the head, connecting with an eye with considerable force which in fact caused such damage that the victim had to have the eye removed. That occurred on 28th March 2002, when the appellant was 14. In the light of the charge and the potential application of section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, which provides for the long-term detention of young offenders for certain grave crimes, including causing grievous bodily harm with intent, the magistrates committed the case under section 24 of the Magistrates' Court Act 1980 to the Crown Court at Nottingham. The plea and directions hearing took place there, on 28th June 2002, three days before the appellant's 15th birthday. He pleaded not guilty to the single count in the indictment. Prosecuting counsel indicated that, at trial, the Crown would apply to add a count containing the alternative offence of inflicting grievous bodily harm contrary to section 20 of the 1861 Act.
It seems, and Mr Elwick tells us so today, that the Crown Prosecution Service had originally intended this to be done for the plea and directions hearing, as it should have been, to enable a full plea to have been entered but, unfortunately, particularly in view of subsequent events, this did not happen.
The trial started on the indictment by then two count, on 1st July 2002. Although the appellant had pleaded not guilty to count 2 in addition to count 1, Mr Elwick informs us that, with the approval of the trial judge, and the agreement of the Crown, he invited the jury to convict on that count and that is what they did. The appellant therefore stood convicted (by now aged 15) of an offence to which section 91 of the Powers Criminal Courts (Sentencing) Act 2000 had no application. Had that been the offence that he had faced from the beginning he would have been dealt with by the magistrates and, assuming a guilty plea at least, convicted well before his 15th birthday.
Since he was, until conviction, of good character and therefore not a "persistent offender" within the meaning of section 100(2)(a) of the Powers of Criminal Court (Sentencing) Act 2000 that court would not have had the power to impose a Detention and Training order or any other custodial sentence. In the light of the history Mr Elwick submitted to Her Honour Judge Hampton at the sentencing hearing on 15th August 2002 that it would be wrong in principle, even though legally the power now existed, to pass a custodial sentence. The power existed because the relevant date for the purposes of section 100(2)(a) is the date of conviction and not the date of offence.
The learned judge, in sentencing, recognised that the court was placed in a dilemma and expressed herself as the "troubled being by the way in which the court's powers are limited in a case such as this." She went on to express the view that it would be wrong in principle not to impose a custodial sentence in view of the appellant's behaviour and its dreadful effects. She went on to impose an 18 month detention and training order—the maximum permissible in the light of the appellant's plea.
The learned judge was clearly troubled by the situation, as she indicated to counsel, and in the event she issued a certificate under section 11(1)(a) of the Criminal Appeal Act 1968 that the sentence was fit for appeal. The certificate was in these terms:
"Had the defendant pleaded to...
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