England and Wales High Court (Administrative Court) Decisions

The Queen on applications of AP, MD and JS v. Leeds Youth Court [2001] EWHC Admin 215 (23rd March, 2001)

Case No: CO/4306/00; 232/01 and 697/01

Neutral Citation Number: [2001] EWHC Admin 215

IN THE SUPREME COURT OF JUDICATURE

QUEEN'S BENCH DIVISION (DIVISIONAL COURT)

Royal Courts of Justice

Strand, London, WC2A 2LL

Friday 23rd March 2001

LORD JUSTICE KENNEDY :

1. This is an application for judicial review made on behalf of three boys aged 14, 12 and 11 in relation to a decision of Leeds Youth Court dated 27th October 2000.

Facts

2. The facts which are material for present purposes are as follows -

10, Victoria Road, Headingley, Leeds is a large detached house divided into six student flats. In August 2000 only two of the flats were occupied, flat A and flat D, the latter being occupied by Robin Warden. Flat B, below flat D had been unoccupied since May 2000. At about 1 pm on Saturday 5th August 2000 Robin Warden heard noises in flat B and then saw smoke. He notified the occupiers of flat A and the fire brigade. Later examination by the owner's agent showed that flat B suffered extensive smoke damage, and fire damage to roof, walls and floorboards, which will cost "a great deal" to rectify. The window of the flat had been deliberately broken, and there was a pile of combustible materials on the floor indicating that the fire was deliberately started by intruders.

The next relevant incident occurred on Thursday 10th August 2000 about 7 pm, when 3 youths were seen on top of an out building at the rear of Devonshire Hall, part of the University of Leeds. The outbuilding included two garages and shortly after the youths were seen a fire was started in that outbuilding, which the youths could be seen tending. A neighbour dialled 999, and they then ran off. MD, AP and JS were all at that time resident at Holmefield Children's Home in Leeds, and they returned there about 7.40 pm. MD was troublesome and the police were called. The other two smelt of smoke, and a care officer, Diane Roberts, asked JS if he had been lighting fires. He said -

"I didn't light it, but I was playing with it"

When asked where it was he said it was -

".... up a road, before Hyde Park, at some flats"

Their clothing was handed to police and all three boys were arrested.

3. The roof of the outbuilding, and the single door giving the access to the outbuilding were totally destroyed in the fire. Here again the fire officers opinion was that the fire was deliberate.

Police Interviews

4. When told they were being arrested on suspicion of arson no boy replied. MD was also arrested on suspicion of causing criminal damage at the Children's Home, and to that he said that the window was already broken.

5. On Friday 11th August 2000 all three boys were interviewed in the presence of appropriate adults. All three admitted involvement in the fire at the outbuilding the night before, and MD and AP also admitted involvement in the earlier fire on 5th August.

Youth Court

6. On Saturday 12th August 2000 the claimants were brought before the Youth Court. They were charged as follows -

"(1) - Not JS - On Saturday 5th August 2000 at Leeds without lawful excuse damaged by fire Flat B, 10 Victoria Road, Leeds 6, to the value of £600, belonging to Mawson and Walton intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged and being reckless as to whether the life of Robin Warden would thereby be endangered contrary to section 1(2)(3) and (4) Criminal Damage Act 1971.

(2) On Thursday, 10th August 2000 at Leeds without lawful excuse destroyed by fire a stable block at Devonshire Hall, Leeds to the value of £6000 belonging to Leeds University intending to destroy or damage such property or being reckless as to whether such property would be destroyed or damaged contrary to section 1(1)(3) and (4) Criminal Damage Act 1971."

7. Initially they were remanded until the 15th August, then to the 8th September, and unltimately to the 6th October. They remained throughout, as they had been at the outset, in the care of the Local Authority.

Issue for Youth Court

8. Section 24 of the Magistrates's Courts Act 1980, so far as is material, provides-

"(1) Where a person under the age of 18 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 sub-section (2) of section 53 of the Children and Young Persons Act 1933 (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 sub-section (3) of that section. ....."

9. Section 53(2) of the 1933 Act applies to any offence punishable in the case of an adult with imprisonment with 14 years or more, not being an offence the sentence for which is fixed by law. Arson is punishable with imprisonment for life (see section 4 of the 1971 Act) so the effective question which the Youth Court had to consider in relation to these three boys was in relation to each of them separately whether, if he were found guilty of the offence or offences with which he was charged, it ought to be possible to sentence him in pursuance of sub-section (3) of the 1933 Act. That sub-section provides that -

"... 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 of imprisonment with which the offence is punishable in the case of an adult as may be specified in the sentence; and where such sentence has been passed the child or young person shall, during that period ... be liable to be detained at such place and on such conditions (as the Secretary of State may direct)."

10. So the question which the court needed to consider as soon as possible was the gravity of the crimes. Could they be dealt with summarily, or was the only proper method of dealing with them to commit them to the Crown Court on the basis that in that court it ought to be possible for the offender if found guilty to be sentenced pursuant to section 53(3)?

Youth Court - 6th October

11. Three justices were sitting in the Youth Court on 6th October, and Mrs Hemsworth was in the chair. The court clerk was Mr Solity. The prosecution applied for an adjournment to serve papers on the defence. That application was opposed by the solicitors acting for all three defendants on the basis that the prosecution had already had time enough in which to serve the necessary papers. Nearly two calendar months had elapsed since the second offence charged and, as we were reminded serious efforts are made to ensure that cases before the Youth Court do proceed with expedition. The maximum period allowed to the prosecution for the completion of the stage beginning with the date fixed for a defendant's first appearance and ending with the start of his trial is limited to 99 days (see Prosecution of Offences (Youth Courts Time Limits) Regulations 1999).

12. The representative of the Crown Prosecution Service who was present in court on 6th October made enquiries of the Criminal Justice Support Unit and it emerged that part of the problem was that an officer had been ill. The court then agreed to an adjournment until 27th October and the clerk recorded the order as follows -

"We will allow one further adjournment. We recognise the need for people of this age to be dealt with in a timely way but recognise the seriousness of the offence involving danger to life.

All papers are to be served by 20th October 2000. The case will be adjourned to 27th October 2000. If statements are not served the case will be dismissed.

There should be evidence in court on 27th October 2000 such as a letter from the police that they have received instructions and had the notification. We acknowledge that there has been some delay from the illness of the appropriate officer at CJSU."

Service of papers

13. The order to serve papers by 20th October was not complied with. A number of statements and records of interview were served under cover of a letter from the CPS dated 21st October 2000, but the file could be said to be incomplete in that there was no scientific evidence, and there was initially no evidence from the Fire Service. The account of events which I have given earlier in this judgment is derived from documents served at this stage, supplemented by the information from the Fire Service which emerged later.

Youth Court - 27th October

14. On this occasion Mrs Hemsworth was again a member of the court, but sitting with two different magistrates, and Mrs Allison was in the chair. The clerk was again Mr Solity. The solicitors representing the defendants submitted that as the CPS had not complied with the order of the 6th October the charges should now be dismissed. It was also submitted that there had been insufficient time to consider what had been disclosed, and more information, including a fire officer's report, was needed to evaluate the gravity of the offences. Mrs Darwin for the CPS made it clear that there was no prosecution suggestion that the second offence should go to the Crown Court, but she submitted that the court could deal with gravity and thus mode of trial in relation to the first offence on the information now available.

Clerk's Advice

15. The clerk reminded the court of the order of 6th October, but also pointed out the court of 6th October could not bind the successor court on 27th October. What had been disclosed was obvious. It was for the court of 27th October to decided whether the CPS had complied with the order of 6th October as best it could, and whether there was any prejudice to the defendants. He also raised the question of whether the fire officer's statement was relevant when deciding where the case should be heard. The amount of damage might not be so important when deciding if life might be endangered.

Court's Decision

16. The court retired and after consideration decided as follows -

"We believe the Crown Prosecution Service have complied with the spirit of the previous court's direction. We recognise the age of the defendants but also recognise the seriousness of the offence involving danger to life.

We do not feel the case should be dismissed."

The prosecutor then found and disclosed a fire officer's report in relation to the second fire, hence my ability to refer to it earlier on. The clerk urged the magistrates to consider venue, but they agreed to a 12 day adjournment, no doubt to enable everyone to have sufficient time to digest the material which had already been disclosed.

These Proceedings

17. The three claimants then commenced these proceedings in which they challenge the court's decision of 27th October 2000 on the grounds that the order of 6th October gave rise to a legitimate expectation that if statements were not served as ordered by 20th October then on 27th October the charges would be dismissed, and that on 27th October the court should have given effect to that expectation.

Late Service of Papers

18. The duty of the prosecution to give advance information of the prosecution case is set out in the Magistrates Courts (Advance Information) Rules 1985 SI 601 as amended. Rule 4 provides that where a request for advanced information has been made, and I assume one was made in the present case, the prosecutor shall "as soon as practicable" furnish either -

"(a) a copy of those parts of every written statement which contain information as to the facts and matters of which the prosecutor proposes to adduce evidence in the proceedings or

(b) a summary of the facts and matters of which the prosecutor proposes to adduce evidence in the proceedings."

19. The sanction for non-compliance is set out in Rule 7(1) which provides that if the court is satisfied that a request has been made and has not been complied with -

".... the court shall adjourn the proceedings pending compliance with the requirement unless the court is satisfied that the conduct of the case for the accused will not be substantially prejudiced by non-compliance with the requirement."

20. The 1985 Rules were considered by this court in King v Kucharz [1989] 153 JP 336. In that case the prosecutor had reluctantly provided a summary which the justices found to be inadequate. They held that the prosecutor's conduct amounted to an abuse of process, dismissed the case and ordered him to pay the defence costs. Having considered the wording of the regulations this court held that the prosecutor's failure to comply with the Rules did not of itself give the magistrates' court the right to find an abuse of process and dismiss the case. The proper course, as indicated by Rule 7(1), was to adjourn, or to proceed to hear the information if satisfied that the defendant would not be substantially prejudiced by the non-compliance with the Rules. At 342E Stocker LJ said -

"Magistrates do have power to refuse to hear an information based on abuse of process of the court as was made clear in the case of R v Derby Crown Court ex parte Brooks [1984] 80 Cr App R 164....... although the magistrates might have come to the conclusion that in a proper case failure to comply with the requirements of the Rules was an abuse of the process of the court - it would be only in exceptional cases that that could be done."

21. Stocker LJ then cited from the judgment of Sir Roger Ormrod in Brooks where at 168 he summarised the effect of earlier authorities thus -

"The power to stop a prosecution arises only where it is an abuse of the process of the court. It may be an abuse of process if either (a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality or (b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable. "

22. Similarly in R v Horseferry Road Magistrates Court ex parte Bennett [1994] 1 AC 42 Lord Griffiths said at 64 C that in the case of magistrates the power to stay for an abuse of process "should be strictly confined to matters directly affecting the fairness of the trial of the particular accused with whom they are dealing, such as delay or unfair manipulation of court procedures."

23. Miss Farbey for MD and AP, and Mr Johnson for JS sought to persuade us that as a matter of domestic law since 1994 the jurisdiction of Magistrates' Courts to stay proceedings has increased. Our attention was invited to the decision of this court in R v Croydon Justices ex parte Dean [1994] 98 Cr App R 76, which was in fact decided before the House of Lords gave judgment in Bennett. In Dean a seventeen year old boy who had agreed to be a prosecution witness, and who had been treated as such, was subsequently charged. The justices refused to investigate allegations of abuse of process, and committed for trial, whereupon there was an application for judicial review. This court held that the application should have been made to the Crown Court, but as the facts were not in issue the court did go on to hold that the conduct of the prosecution was such that, as Staughton LJ put it at 84 "the justices were bound to treat it as one of abuse of process", and the committal was quashed.

24. In R v Horseferry Road Magistrates' Court ex parte DPP [1999] COD 441 a stipendiary magistrate stayed proceedings where there had been a promise not to prosecute and substantial delay. Her decision was set aside by this court, but it was accepted that she had jurisdiction to determine the application to stay the proceedings as an abuse on the grounds that it would be unfair to try the defendant, and the case was remitted to the Magistrates' Court for further consideration. The Divisional Court pointed out that the jurisdiction of the magistrates' court is circumscribed as indicated in Bennett and the case does not seem to me to indicate any change in jurisdiction since Bennett was decided.

25. The final decision which we were asked to consider in relation to this aspect of the case was the recent decision of the House of Lords in R v Leeds Crown Court ex parte Wardle 8th March 2001 as to the effect of a fresh charge on custody time limits. It was held by the majority that a fresh charge, made in good faith, does trigger a fresh time limit, and at paragraph 89 in a passage on which Mr Johnson relies, Lord Hope said -

"Like any other procedure prescribed by law, it is vulnerable to abuse if it used for improper purposes. But this is a matter which is subject to judicial control by the justices or the stipendiary magistrate. On the one hand it is open for the court, applying the approach which was indicated by Lord Bingham CJ in R v Burton on Trent Justices ex parte Ashleigh-Nicholson [1998] COD 262, to hold that the new charge is simply a reproduction of the old charge with amendments which are minor or unimportant, and on this ground to refuse to accept that the new charge has given rise to a fresh custody time limit. On the other it is open to the court to refuse to inquire into the information relating to the new charge on the ground that to do so would be an abuse of the process of the court."

That again does not seem to me to indicate any enlargement of the well recognised but limited jurisdiction of the magistrates' court to stay proceedings for abuse of process.

26. Miss Farbey submitted, rightly, that any decision made since the incorporation of the European Convention on Human Rights must be informed by the principles of the Convention, and take account of the provisions of the Human Rights Act 1998. She invited our attention to Jespers v Belgium [1981] 27 DR 61 as to the duty of prosecution disclosure, but that is not in issue here. The 1985 Rules provide for it. Those Rules ensure that the defendant will not be required to face trial without adequate disclosure, and provide for what is to happen in the event of inadequate disclosure. The court also has an interest in obtaining disclosure because, as Miss Farbey pointed out, it has a duty to make sufficient enquiry into the facts of the case to satisfy itself that its powers of punishment are adequate (see in re Gilliard [1986] 1 AC 442 at 454B). The Youth Court's Time Limits Regulations separately ensure that no young defendant can be kept waiting too long, and in those circumstances I can see no reason to conclude that, whether by reason of Article 6 of the Convention or otherwise, the magistrates' court had by October 2000 acquired any jurisdiction to dismiss proceedings for abuse of process simply on the basis that there had been non-compliance with Rule 4 of the 1985 Rules. Accordingly, in my judgment, the court on 6th October had no power to dismiss, and its assertion that if the papers were not served by the 20th October the result on 27th October would be that "the case will be dismissed" was a misrepresentation of the position in law. I understand entirely the laudable desire of the court to get on with the case, but the reality was that even if no statements had been served prior to 27th October the court on that date would have had no right to dismiss (see King v Kucharz ) and the court on 6th October should not have indicated otherwise.

Legitimate expectation

27. In support of her submission that what was said by the court on 6th October gave rise to a legitimate expectation on the part of the defendants that if papers were not served as ordered the case against each of them would be dismissed Miss Farbey invited our attention to Bingham LJ's observation in Board of Inland Revenue ex parte MFK Underwriting Agencies Ltd [1990] 1 WLR 1545 at 1569 H -

"If a public authority so conducts itself as to create a legitimate expectation that a certain course will be followed it would often be unfair if the authority were permitted to follow a difference course to the detriment of one who entertained the expectation, particularly if he acted on it."

28. She reminds us that for the purposes of the Human Rights Act a court is a public authority, and further reminds us of the importance of children who are defendants being able to understand what is happening (see Tv UK Strasbourg 6th December 1999). We were further reminded of the line of authorities starting with Gillam [1982] Cr App R (Sentencing) 267 and ending with R v Norwich Magistrates Court ex parte Elliott [2001] Cr App R (Sentencing) 152 which supports the principle that where one court gives an unequivocal indication as to the level of sentencing a subsequent court should normally honour the indication by not imposing a sentence which is more severe. As Otton LJ put it in Elliott at 157 -

" a court should not break a promise to an accused, the appearance of doing justice to an accused being part of the substance of justice in cases where courts are giving an indication of sentence."

29. But it is important to recognise that where a court acts in accordance with the Gillam principle and, in deference to an indication given by a earlier court, imposes a lesser sentence than it would have otherwise have imposed, it does not act illegally. The sentence actually imposed must be within its powers. In the present case, for reasons already given, the court on 27th October had no power to dismiss the case for failure to comply with the requirements of Rule 4, even when those requirements were reinforced by an order made on 6th October. There cannot be a legitimate expectation that a court will act illegally, and that is decisive in this case.

30. Furthermore, as everyone on 6th October must have realised, the court was simply trying to put pressure on the CPS and the police to produce sufficient material to enable -

(a) the defendants to know the case they had to meet, and -

(b) the court to assess the gravity of the offences and especially of the charge relating to the 5th August.

31. The prosecution could have discharged its obligation under Rule 4 by providing a summary, and in the circumstances it seems to me that by 27th October the court was entitled to say that the CPS had complied with the spirit of the previous court's direction. That is a further reason why at that stage even if there were power to do so it would not have been appropriate to dismiss any of the cases.

32. I would therefore dismiss these applications for judicial review.

MR JUSTICE ASTILL:

33. I agree.

LORD JUSTICE KENNEDY: For the reasons set out in the judgments which have been handed down, these applications for judicial review are dismissed. I assume there is no other applications? If there is none we shall rise.

MISS FARBY: I ask for legal aid taxation.

LORD JUSTICE KENNEDY: You may have that, thank you.