R (W) v Thetford Youth Court
| Jurisdiction | England & Wales |
| Judge | Mr Justice Gage,Lord Justice Sedley |
| Judgment Date | 25 June 2002 |
| Neutral Citation | [2002] EWHC 1252 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/928/2002 |
| Date | 25 June 2002 |
[2002] EWHC 1252 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATION COURT
Lord Justice Sedley and
Mr Justice Gage
Case No: CO/928/2002
Case No:CO/1617/2002
Mr Alex Bailin (instructed by Oslers Solicitors) for the Claimant "W"
Mr Levi Peter (instructed by R J Fellowes & Son) for the Claimant "M"
Mr Hugo Keith (instructed by Treasury Solicitors) for the Thetford Youth Court
The Waltham Forest Youth Court did not appear and was not represented
Mr Neil Corre appeared on behalf of the DPP, an interested party, in the case of "M"
Mr Christopher Morgan appeared on behalf of the DPP, an interested party, in the case of "W"
The Applicants in these two cases seek judicial review of orders made by youth courts declining jurisdiction to try their cases pursuant to section 24(1)(a) of the Magistrates Court Act 1980. The Applicant "W", is aged 11 having been born in October 1990. He has no previous convictions. The Applicant "M", is aged 13 having been born in March 1988. He has one previous conviction for theft. Each case raises, once again, the issue of when it is appropriate for magistrates to decline jurisdiction in circumstances where the youth court has no power to make a detention and training order but the crown court has power to pass a custodial sentence pursuant to the provisions of section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. We have heard these applications together because each raises the same point of principle.
I shall set out first the circumstances of the alleged offences in each case. Both Applicants deny the charges made against them.
Applicant "W":
On 13 November 2001 he was charged with four offences of indecent assault. The charges arose out of alleged conduct by him during 2001 in respect of four young girls. At the time of the offences the girls were aged between 7 and 10. The oldest of these girls is now aged 11. The conduct alleged consisted of the Applicant forcing the complainant, by the use of violence or threats of violence, to engage in sexual activity with him. The allegations consist of the Applicant forcing himself against a complainant and asking for sex. In addition there are allegations that he forced three of the complainants to touch and lick his penis. The charges are said to be specimen charges of his conduct over a period of some months.
On 21 November 2001 the Applicant appeared at the Thetford Youth Court. The facts alleged were outlined to the court and, having been referred to section 24(1)(a), the court declined jurisdiction. Following that decision the Crown Prosecution Service, intervening in these proceedings in the name of the Director of Public Prosecutions as an interested party, on 8 January 2002 served a Notice of Transfer under section 53 of the Criminal Justice Act 1991. On 4 February 2002 the matter came before His Honour Judge Downes at Norwich Crown Court. By that time counsel had advised that a challenge should be made to the decision of the youth court declining jurisdiction. It appears that the judge made a comment about the unsuitability of the crown court as a forum for the trial of very young offenders. Accordingly this application for judicial review challenging the youth court's decision declining jurisdiction was instituted.
Applicant "M":
This Applicant is a schoolboy. The complainant is a girl aged 13 born on 18 January 1989. She was aged 12 at the time of the alleged offence. On 5 December 2001 the Applicant was charged with an offence of indecent assault on the complainant. The alleged facts are that on 3 July 2001 the complainant, a friend aged 13, the Applicant, his brother and another boy were all playing together close to where they lived. The complainant alleges that the Applicant and the other boys chased her into a nearby block of flats. She ran upstairs to the ninth floor and into a darkened room. The Applicant found her there and assaulted her by grabbing her from behind; undoing her trousers and putting his hand inside her underclothes. She alleges that he moved his hand up and down inside her underclothes including digital penetration. She screamed which resulted in her friend coming into the room at which point the Applicant left. The Applicant was first contacted by police on 28 August 2002 and having been charged appeared before the Waltham Forest Youth Court, the defendant, on 19 December 2001.
In a witness statement made by Jennifer Barnett, a member of the bench of the youth court, it is said that, after hearing submissions, and receiving advice from its clerk, the court declined jurisdiction announcing its decision in the following terms:
"This bench is of the opinion that the option of detention should be open to the sentencer in the event of a conviction."
The case was committed to the Wood Green Crown Court for a plea and directions hearing on 13 February 2002. On that date the judge was informed of the Applicant's intention to seek judicial review of the decision of the youth court.
In each case the Applicant submits that the youth court's decision declining jurisdiction was one which this court should quash. In each case the youth court stated that the reason for declining jurisdiction was that the offence or offences were such that the court ought on conviction to have available to it the option to pass a custodial sentence. It is agreed that in these particular cases the youth court has no power to pass a custodial sentence.
These submissions give rise first to an examination of the power of a youth court to impose a custodial sentence on an offender who is under the age of 15. It is common ground that powers of the youth court to impose a custodial sentence are confined to detention and training orders of periods up to two years pursuant to sections 100 to 107 of the Powers of Criminal Courts (Sentencing) Act 2000. Section 100 of the 2000 Act reads, so far as is material, as follows:
"Offenders under 18: Detention and Training Orders
100 – (1) Subject to sections 90, 91 and 93 above and sub-section (2) below, where –
(a) a child of young person (that is to say, any person aged under 18[21]) 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 a date as the Secretary of State made by order appoint."
At present no date has been appointed in respect of (2)(b)(ii). It is common ground between the parties that the effect of a date not having been appointed is to prohibit the court, whether a crown court or a youth court, from making a detention and training order in respect of an offender under the age of 12. "W" is in this category. So far as those between the ages of 12 and 14 are concerned, the court cannot make a detention and training order unless the offender is a "persistent offender". "Persistent offender" has been held to include an offender of good character who has committed a series of offences. In R v AS [2001] 1 Cr. App. R. (S) 62 is was held that a series of crimes committed over two consecutive days were sufficient to qualify the offender for a detention and training order as a persistent offender. However, in the case of an offender aged between 12 and 14 who is not a "persistent offender" the court has no power to make a detention and training order. "M" is in this category.
As I have said, the power to make a detention and training order is the same for both crown court and youth court. However, the crown court has a power to make an order for detention of an offender under 18 in respect of certain serious offences. That power, formerly section 53 of the Children and Young Persons Act 1933, is now provided by sections 91 and 92 of the 2000 Act. Section 91, so far as is material, reads:
"Offenders under 18 convicted of certain serious offences: power to detain for specified period
91—(1) Sub section (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) …
(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."
It is clear from decisions of the Court of Appeal Criminal Division that section 91, like its predecessor, continues to operate in respect of all offenders aged between 10 and 18. So much is clear from R v Ganley...
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