R (W) v Brent Youth Court
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BEAN,LADY JUSTICE SMITH |
| Judgment Date | 13 January 2006 |
| Neutral Citation | [2006] EWHC 95 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 January 2006 |
| Docket Number | CO/9889/2005, CO/9077/2005, CO/10219/2005 |
[2006] EWHC 95 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
lady Justice Smith Dbe
Mr Justice Bean
CO/9889/2005, CO/9077/2005, CO/10219/2005
MS M SIKAND (instructed by Lawrence & Co) appeared on behalf of W
MR H SOUTHEY (instructed by Wilson & Co) appeared on behalf of S
MISS C HUNTLEY (instructed by Lloyd Brennand & Associates) appeared on behalf of B
MR J WHITLEY (instructed by CPS) appeared on behalf of THE BRENT YOUTH COURT
MR A MATIC (instructed by CPS) appeared on behalf of THE ENFIELD CROWN COURT
MR R O'SULLIVAN (instructed by CPS) appeared on behalf of THE RICHMOND ON THAMES YOUTH COURT
Friday, 13th January 2006
: There are before the court three applications for judicial review, each of which raises the same issue. In each case a child or young person acting through his or her litigation friend seeks to challenge the decision of a youth court to commit him or her for trial at the Crown Court pursuant to Section 24 of the Magistrates' Courts Act 1980 as amended. In each case it is accepted that the Magistrates had the power to commit the applicant to the Crown Court, but it is contended that the Magistrates failed to exercise their discretion under Section 24 in accordance with the guidance that has been given on numerous occasions by this court, and that had the discretion been properly exercised, the Magistrates would in each case have accepted jurisdiction and dealt with the case in the youth court.
As I have said, in recent months and years this court has set out the principles which should guide youth courts when considering whether or not to accept jurisdiction in respect of young persons charged with serious criminal conduct. In R (on the application of H, A and O) v The Southampton Youth Court [2004] EWHC 2912 Admin (generally referred to as Southampton Youth Court Number 2), Leveson J set out the principles to be applied in the hope that this would stem the tide of challenges made to this court in such cases. I cannot better his exposition of the law and the principles to be applied, and shall adopt and repeat them. Beginning at paragraph 15 of his judgment, Leveson J said this:
"15. I deal first with the sentencing regime relating to young persons and, in particular, to the Youth Court. First, section 37 of the Crime and Disorder Act 1998 makes it clear that it shall be the principal aim of the youth justice system to prevent offending by children and young persons, which provision should be considered alongside section 44(1) of the Children and Young Persons Act 1933 to the effect that every court in dealing with a child or young person brought before it, shall have regard to the welfare of the child or young person. There is then the overarching statutory restriction on all discretionary custodial sentences contained within section 79(2) of the Powers of Criminal Courts (Sentencing) Act 2000 as amended ('the 2000 Act'), which provides that the court shall not pass a custodial sentence unless satisfied that the offence was so serious that only such a sentence can be justified for it, or where the offence is a violent or sexual offence, that only such a sentence would be adequate to protect the public from serious harm from him.
"16. Moving from the general to the particular, section 100 of the 2000 Act then provides:
'(1) Subject to sections 90, 91 and 93 above, and subsection (2) below, where
(a) a child or young person (that is to say, any person aged under 18) is convicted of an offence which is punishable with imprisonment in the case of a person aged 21 or over, and
(b) the court is of the opinion that either or both of paragraphs (a) and (b) of section 79(2) above apply or the case falls within section 79(3), the sentence that the court is to pass is a detention and training order.
(2) A court shall not make a detention and training order —
(a) in the case of an offender under the age of 15 at the time of the conviction, unless it is of the opinion that he is a persistent offender;
(b) in the case of an offender under the age of 12 at that time, unless —
(i) it is of the opinion that only a custodial sentence would be adequate to protect the public from further offending by him; and
(ii) the offence was committed on or after such date as the Secretary of State may by order appoint.'
"17. It is important to appreciate that the Secretary of State has never appointed a date, with the result that in the case of an offender under the age of 12 there is no power to make a detention and training order. In the case of an offender under 15 there is no such power unless the offender is a persistent offender which can include an offender of good character who has committed a series of offences (see R v AS [2001] 1 Cr App Rep (S)62) but obviously does not include any person under the age of 15 at the time of conviction without previous convictions who is convicted of a single offence.
"18. What then are the powers of the Youth Court in respect of such an offender? If convicted, the court is restricted to non-custodial options such as supervision order, attendance centre order or action plan. If such a 14 year old pleads guilty, however, the only realistic option (ignoring absolute discharge) is a referral order; that is because the effect of section 16(2) and 17 of the 2000 Act is that if he pleads guilty, has never been convicted of an offence or bound over in criminal proceedings, and assuming that referral to a youth offending team is available, such an order is mandatory.
"19. That is the background against which the court considers the other strand of legislation which concerns the circumstances in which it is possible to commit for trial and the powers of the Crown Court.
"20. Section 91 of the 2000 Act provides as follows:
'(1) Subsection (3) below applies where a person aged under 18 is convicted on indictment of —
(a) …; or
(b) an offence under section 14 of the Sexual Offences Act 1956 (indecent assault on a woman); or
(c) an offence under section 15 of that Act (indecent assault on a man committed after 30th September 1997).
(2) …
(3) If the court is of the opinion that none of the other methods in which the case may legally be dealt with is suitable, the court may sentence the offender to be detained for such period, not exceeding the maximum term imprisonment with which the offence is punishable in the case of a person aged 21 or over, as may be specified in the sentence.'
"21. In Ganley [2001] 2 Cr App R (S) 60, the Vice President, Rose LJ, said:
'The power to impose detention under section 53(3) of the Children and Young Persons Act 1933 [now section 91(3) of the 2000 Act] is unaffected. The principles set out in Mills (1998) 2 Cr App R (S) 128 in relation to such a sentence and as to the importance of avoiding, where possible, lengthy periods in detention on offenders under 18 will continue to apply. If detention for two years or less is called for, it will generally be appropriate to make a detention and training order rather than to have recourse to section 53.'
"22. It is now necessary to turn to section 24 of the Magistrates' Courts Act 1980. It reads:
'Summary trial of information against a child or young person for indictable offence
24(1) Where a person under the age of 18 years appears or is brought before a Magistrates' Court on an information charging him with an indictable offence other than homicide, 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 the Criminal Courts (Sentencing) Act 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) …;
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'."
Leveson J then considered how the interrelationship between the various statutory provisions should be resolved. He reviewed several decisions of this court, including R (on the application of D) v Manchester City Youth Court [2002] 1 Cr App R (S) 373; R (on the application of W) v Thetford Youth Justices [2002] EWHC 1252 Admin; R (on the application of W) v Southampton Youth Court [2002] EWCH 1640; R (on the application of C) v Balham Youth Court [2004] 1 Cr App R 22; and R (on the application of M and W) v West London Youth Court [2004] EWHC 1144.
Then, in an attempt to assist youth courts, he provided a succinct summary of the principles on which the court should act. This begins at paragraph 33 of his judgment.
"33. 1. 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. 2. It is a further policy of the...
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