England and Wales High Court (Administrative Court) Decisions

ADMINISTRATION COURT
IN THE HIGH COURT OF JUSTICE

		Royal Courts of Justice Strand, London, WC2A 2LL
		25 June 2002

Mr Justice Gage :

1. 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.
2. I shall set out first the circumstances of the alleged offences in each case. Both Applicants deny the charges made against them.

Applicant “W”:

3. 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.
4. 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”:

5. 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.
6. 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.”

7. 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.
8. 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.
9. 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.”

10. 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.
11. 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.”

12. 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 [2001] 2 Cr. App. R. (S) 60 and R v S.J-R and D.G. [2001] 1 Cr. App. R. (S) 377. In Ganley the Vice President, Rose LJ said:

“The power to impose detention under section 53(3) of the Children and Young Persons Act 1933 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 2 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.”

13. It is the power to pass a sentence of detention under sections 91 and 92 which the youth court in each of these applications had in mind when declining jurisdiction.
14. It is necessary now to turn to section 24(1) of the Magistrates Court Act 1980. It reads in the material parts:

“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 treated summarily unless –

(a) … the offence is such as is mentioned in subsection (1) or (2) of section 91 of the Powers of 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 pursuant of sub section (3) of that section; or

(b) … ;

and accordingly in a case falling within paragraph (a) or (b) of this sub section 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.”

15. The test which the youth court should apply when considering this section is that the words “ought to be possible” are to be understood as meaning that an order under section 91 is more than just a vague or theoretical possibility. Counsel for all of the parties in these two applications accept that it can be expressed in the terms of “a real possibility”.
16. It is submitted by the Thetford Youth Court and the interested parties that the youth court in each of these cases was entitled to decline jurisdiction because there was a real possibility that, if convicted, each of these applicants might be made the subject of a period of detention under section 91 of the 2000 Act. In considering whether there was a real possibility of such a sentence there has been considerable debate in this court as to the relationship between section 91 and section 100. Mr Bailin, in the case of “W”, submits that there is a tension between the two sections. He submits that the only way in which they can sensibly be read together is by a recognition that section 91 is apt for dealing with offences so grave as to attract more lengthy sentences than are permitted by section 100. He submits that if a court is prohibited by statute from making a detention and training order it is not permissible for a court to make a detention order under section 91 unless it be for a period of two years or more, that is to say, longer than a detention and training order can be. In support of this submission Mr Bailin relies on Articles 6 and 14 of the ECHR: he argues that any other approach discriminates on grounds of age in affording the Convention right to a fair trial.
17. Counsel for the Thetford Youth Court, counsel for the interested party in that case, and the solicitor for the interested party in the Waltham Forest Youth Court case all contend that it is perfectly proper for a court to make a detention order under section 91 where it is of the opinion that “… none of the other methods in which the case may legally be dealt with is suitable …” provided the other criteria for a custodial sentence are satisfied. Mr Keith, for the Thetford Youth Court, submits that the regime under section 91 is alternative to the regime under section 100. He submits that it is open to a court to decide that detention under section 91 is more appropriate than a detention and training order under section 100. It is also open to a youth court to preserve the option of a custodial sentence when it has no power to make a detention and training order, by declining jurisdiction.
18. Looking at the matter, without reference to the authorities, I can see force in both arguments. Mr Keith’s submission that Parliament, enacting sections 91 and 100 in the same Act, must be taken to have intended that detention under section 91 was available without restriction for offenders from the age of 10 upwards, is logical. Similarly, Mr Bailin’s argument that it is absurd and bizarre that an offender under 12 can be the subject of a section 91 order but not a detention and training order under section 100, also seems to me to have force; particularly, as in this case, if “W” was a few months older, aged 12, he could be said to be a persistent offender and thereby qualify for a detention and training order. In my view the court should seek to reconcile the regimes provided by both sections. It seems to me that this can be done without unduly straining the language of either.
19. Section 91 provides detention for those under the age of 18, as the language of section 24 of the Magistrates’ Court Act 1980 implies, in respect of serious crimes. The section itself specifies the serious crimes, which qualify for a period of detention under this section. As such it provides for punishment of offenders who have committed the most serious crimes save for homicide. Necessarily, the periods of detention passed are likely to be lengthy.
20. Section 100 provides a more restricted range of custodial sentences for offenders under the age of 18. The power to make such orders becomes more restricted by reference to the age of the offender. Between the ages of 18 and 15 detention and training orders may be made by a crown court and a youth court without restriction save for the maximum term of two years. Under the age of 15 such orders are restricted to persistent offenders. Under the age of 12 there is an absolute restriction until such time as a day is appointed for section 100(2)(b) is to come into effect. But, no doubt recognising that there may be circumstances where the offence is so serious that the offender, whether aged between 18 and 10, might require a custodial sentence, Parliament has left open the power to make an order for detention under section 91 by a crown court on indictment. However, in my view such a power must be very much a long-stop reserved for very serious offences. In general, unless after considering any potential mitigating factors, not least the youth of the offender, the offence merits a sentence longer than two years and the criteria for section 91 are satisfied the court ought to deal with an offender under 18 by means of detention and training orders provided by section 100. If such orders are prohibited by section 100, in general, in my opinion, a custodial sentence should not be considered.
21. Having reached this provisional conclusion without reference to authority, it is now necessary to turn to some of the authorities cited by counsel. Counsel for the defendant and the interested parties rely on R v AM and other appeals [1998] 1 WLR 363, [1998] 2 Cr. App. R. (S) 128. In that case Lord Bingham CJ reviewed the decision in R v Fairhurst [1986] 1 WLR 1374. After Fairhurst it had been thought that in general orders for detention pursuant to section 53 of the Children and Young Persons Act 1933 should be restricted to periods of three years or more. But reviewing Fairhurst Lord Bingham CJ said (see page 371):

“Fifthly, the court said:

“Where an offender is aged under 15 and thus ineligible for youth custody a detention sentence of less than two years may well be appropriate.”

Again we agree. For offenders under 15, detention under section 53(2) and (3) is the only form of detention available, sentences of detention are on occasion called for in the case of offenders of this age, the appropriate term should by imposed.”

22. This passage is relied upon in support of the submission that detention under section 91 is available for terms of less than two years.
23. In Attorney-General’s Reference No.61 of 1999 (Wayne B.) [2000] 1 Cr. App. R. (S) 516 Lord Bingham stated that the appropriate sentence for an offender aged 15 who had pleaded guilty to an offence of indecent assault was twelve months under section 53 of the 1933 Act. The court declined to increase the sentence to twelve months on the ground that a supervision order made by the sentencing judge could not be said to be unduly lenient. It is worthy of note that the decision in both of the above cases occurred before detention and training orders were available, although the court could make secure training orders.
24. Mr Keith has referred the court to a number of other decisions of the Court of Appeal Criminal Division where the court has imposed periods of detention under section 53 of the 1933 Act of less than two years. Again, the majority are decisions made before detention and training orders were available.
25. Mr Bailin referred the court to R v T and K [2001] 1 Cr. App. R. 446. The facts of that case were that the two defendants had been the subject of an order for transfer to the crown court pursuant to section 53 of the Criminal Justice Act 1991 for an offence of indecent assault together with offences of common assault. Allowing the appeals, on grounds unconnected with the issues in this case, Kay LJ giving the judgment of the court said (see page 455):

“35. That disposes of the appeal. However, we wish to make comment on one further aspect of the case. In our view it was highly undesirable that this case involving witnesses and defendants of such an age ended up being tried in the crown court. We are precluded by section 53(4) of the 1994 Act from considering by way of appeal the correctness of the decision to transfer the proceedings to the Crown Court. Thus it seems all the more important that decisions to transfer a case involving children to the Crown Court should only be taken for very grave offences.

36. If this matter had proceeded by way of committal, pursuant to section 24 of the Magistrates’ Courts Act 1980 (“the 1980 Act”), the magistrates would have been required to consider not only whether there was a prima facie case but also could not have committed the appellants for trail in the Crown Court unless the court considered that if they were found guilty of the offence it ought to be possible to sentence them in pursuance of section 53(3) of the Children and Young Persons Act 1933 (now section 91(3) of the Powers of Criminal Courts (Sentencing) Act 2000).

37. No Bench could properly have thought that that pre-condition was met in this case and hence would have been bound to proceed summarily. Indeed even after conviction the court concluded in each case that a supervision order was the appropriate penalty. We consider that there should be no transfer to the Crown Court for trial of a child unless the Director of Public Prosecutions (acting through those who are empowered to make such decisions) can conclude that a magistrates’ court would be likely to find the requirements of section 24 of the 1980 Act were met. To demonstrate that it had been considered, a statement to this effect should be included in the transfer notice.

38. If that had been done in this case all concerned, including importantly the prosecution witnesses, would have been spared the ordeal of a trial at the Crown Court.”

26. These observations lend support to a submission by Mr Bailin that a trial in public at a crown court before a jury is a greater ordeal for a defendant and witnesses than a trial in private in the forum of a youth court and for that reason where possible should be avoided.
27. Finally I must refer to R.(on the application of D) v Manchester City Youth Court [2002] 1 Cr. App. R. (S) 573. That was a decision of mine on an application precisely similar to the applications made in these cases. The facts of the offence are however slightly different. In that case I said (paragraph 22 and 23 page 578):

“22. In my judgment, the effect of section 24 is that a magistrate’s court should not decline jurisdiction unless the offence and the circumstances surrounding it and the offender are such as to make it more than a vague or theoretical possibility that a sentence of detention for a long period may be passed. Although, under section 91 and pursuant to recent authority, it is no longer necessary for a court to pass a sentence of at least three years, in my judgment section 91 is primarily applicable to cases of such gravity that the court is or may be considering a sentence of least two years. Anything less, it seems to me, falls primarily to be dealt with as a detention and training order.

23. There is no statutory restriction on a court, using its powers under section 91, passing a sentence of less than two years. But it seems to me that it will only be in very exceptional and restricted circumstances that it will be appropriate to do so, rather than making a detention and training order. The fact that an offender, as here, does not qualify for a detention and training order because he is not a persistent offender does not seem to me such an exceptional circumstance as to justify the passing of a period of detention of less than two years under section 91 of the Act of 2000.”

28. Mr Bailin relies on this decision in support of his submissions. However, it is fair to record that this decision has come in for some comment and criticism in legal journals.
29. My conclusion is that the authorities cited to this court do not undermine or alter my conclusions already expressed on the relationship between sections 91 and 100. I adhere to my view that in respect of offenders under 15 a custodial sentence will ordinarily only be available in the form of a detention and training order. If the court is prohibited from making such an order in general an order under section 91 will not be appropriate. Having considered the submissions made in this court, on a rather fuller basis than those before me in D v Manchester City Youth Court, I see no reason to change to any great extent the views which I expressed in that case. I remain of the opinion that where an offence or offences are likely to attract a sentence of less than two years custody the appropriate sentence will be a detention and training order. In the case of an offender under 15, who is not a persistent offender or a child under 12, the most likely sentence will be a non-custodial sentence. It follows that in most cases the appropriate place of trial will be the youth court.
30. However, I accept that there may be cases where, despite the fact that the offender is under 15 and no detention and training order can be made, the only appropriate sentence is a custodial sentence pursuant to section 91 and possibly for a period of less than two years. But I remain of the opinion that the circumstances of the offence and offender will only rarely call for a sentence pursuant to section 91, particularly if the court is dealing with an offender under the age of 12. In expressing my views, as I did, in D v Manchester City Youth Court, my use of the expression “very exceptional” may be more restrictive than was strictly necessary or justified. But, I remain of the view that the mere fact that a youth court, unable to make a short detention and training order, considers that the option to pass a short custodial sentence should be available, does not mean that it should decline jurisdiction. It seems to me that in such circumstances the fact that a detention and training order is not available indicates that Parliament intended that generally a non-custodial sentence should be passed. Perhaps it would be better to say that cases involving offenders under 15 for whom a detention and training order is not available will only rarely attract a period of detention under section 91; the more rarely if the offender is under 12.
31. With the above general observations I return to the facts of each case.

“W” v Thetford Youth Court:

32. The defendant and the interested party submit that the facts of the offences with which the applicant was charged are very serious and much different from the facts in D v Manchester City Youth Court. They rely on the following factors to support the submission that the youth court was justified in declining jurisdiction under section 24. First, the offences involved repeated indecent assaults over a period of months. Secondly, the complainants were all under the age of 11. Thirdly, one or more of the complainants was present during the offences on another complainant. Fourthly, in some instances physical restraint was used by the defendant. Fifthly, the offender threatened violence namely the use of a golf club or punching or kicking. Sixthly, some violence was in fact used during the course of some of the offences. Seventhly, one or more of the offences involved the offender forcing the complainant to lick his penis. Eighthly, there is evidence, unsurprisingly, that the complainants were very distressed by these incidents.
33. Mr Bailin submits that the prosecution’s case taken at its highest does not merit a custodial sentence. He relies on the extreme youth of the applicant. He submits that detention under section 91 for these offences is simply not a realistic option. He further submits that the court under section 24 should consider the offences individually and not collectively when deciding whether or not there is a realistic prospect of a custodial sentence.
34. In my judgment the youth court should not have declined jurisdiction. Notwithstanding, the seriousness of these alleged offences and the distress caused to the victims, in my opinion, much the most likely sentence for this very young Appellant of hitherto good character is a supervision order. As Blofeld J said in R v W [1999] 1 Cr. App. R. (S) 488, of an offender aged 13:

“… when the attacker is himself no more than a child, the overriding consideration is to do the best to see what can be done to assist him, but at the same time to mark the seriousness of the events.”

35. Even if all the offences are proved it is accepted by the defendant and the interested party that any custodial sentence would be bound to be a short one. But, in my opinion, the effect of the restriction on making detention and training orders in respect of offenders under 12 emphasise Parliament’s intention that they should be dealt with primarily by non-custodial sentences. In my view there is nothing in these offences which take them into the category of the sort of rare offences which might justify a period of detention under section 91. In the circumstances, I would hold that the decision of the Thetford Youth Court was wrong and one which this court should quash.
36. I have reached this conclusion without the necessity of considering Mr Bailin’s interesting argument in respect of Article 6 and Article 14 of the ECHR. I have also reached this conclusion without the necessity of deciding whether Mr Bailin’s submission that section 24 involves the court considering each offence separately is correct.

“M” v Waltham Forest Youth Court:

37. Mr Corre, for the interested party, submits that the youth court was justified, on the facts, in declining jurisdiction so as to preserve the option of a custodial sentence. He relies on the JSB guidelines for magistrates in respect of sentencing of young offenders and the consideration of section 24 of the Magistrate’s Court Act 1980. He submits that the decision of the youth court was not outside the range of decisions which a reasonable bench of magistrates sitting in the youth court could have reached. For reasons, explained by Sedley LJ in his judgment, which I have had the benefit of reading in draft and with which I agree, my view is that this court can properly quash the decision of a youth court in circumstances where in our judgment the decision was wrong. In my view the decision of the youth court in this case was wrong.
38. In this case the Applicant is of good character and aged 13. The complainant and other witnesses are of the same age or younger. The offence, if proved, was unpleasant and distressing for the complainant but by no means the most serious one of its type. My view is that a custodial sentence is not a real possibility. In any event, it seems to be accepted that, even if a custodial sentence was passed, it would be a very short one. In the circumstances, as I have already indicated, in my judgment this is just the sort of case where the fact that Parliament has excluded the right of a court to pass a detention and training order means that a non-custodial sentence was the only appropriate disposal.

Lord Justice Sedley:

39. I agree. In my judgment it ought not to be possible to sentence either of these boys, if they are convicted, to detention under sections 91 and 92 of the 2000 Act. I adopt in its entirety Gage J’s analysis of the legislation and his reasoning from it. What I have to add concerns the proper approach of this court, on judicial review, to the judgment of the youth court and the objects of the present penal regime for young and very young offenders.
40. Any deprivation of liberty attracts the close attention of the common law. It also engages article 5 of the European Convention on Human Rights. On both counts a court of judicial review, at least when reviewing the considered judgment of another court, is in most respects as well placed as that court to arrive at the right answer. Where it is not, this will most commonly be because findings of fact are involved; but it may also be because, say, a youth court has expertise which a higher court lacks. Here, however, the problem for the youth court only arises because it lacks any custodial sentencing power of its own. The judgment it has to form is whether a crown court might decide to use its separate powers to impose a sentence of detention. As to this, the High Court is at least as well placed as the youth court to form a view; and there is no call for any special deference on our part. The question is accordingly not whether the youth court’s judgment has crossed the bounds of rationality but whether in our judgment it is wrong. This was the approach adopted and explained by the House of Lords in R (Daly) v Home Secretary [2001] 2 WLR 1622 in relation to a policy of the Home Secretary which impinged upon legal professional privilege, and no lighter scrutiny can be apposite where the appropriate sentencing of young and very young offenders is at issue.
41. The approach of the courts to the predecessor of s.91, s.53 of the Children and Young Persons Act 1933, was to ensure that the power was reserved for genuinely serious cases by ordinarily withholding its use unless detention for at least two years was in order. While this was not a rigid rule, the 2000 Act has in substance adopted it by introducing time-limited detention and training orders for periods of up to two years. Detention and training is a specialised regime which will differ from detention under s.91 for reasons which are plain enough from the age-related threshold conditions. Until the Home Secretary appoints a date, moreover, detention and training is not available at all for an 11-year-old.
42. The fact that for all persons under 18, even those as young as 11, detention under s.91 remains a sentencing option does nothing to diminish its status as the final resort. For 12- to 14-year-olds it cannot be used if a s.100 disposal is suitable. It would be capricious if the fact that s.100 has not been brought into effect for 10- and 11-year-olds were to make a s.91 disposal possible, let alone suitable, where it would otherwise not be. In my judgment s.91 detention cannot as a matter of law be used in any case where, if a detention and training order either is or were available under s.100, it would be used. If W were now 12, or if s. 100(2)(b) were now in force, any custodial disposal would in my view take the form of detention and training under s.100. Parliament cannot possibly have contemplated that, since he is only 11 and the Home Secretary has not yet been able to bring s.100(2)(b) into effect, he should instead face the possibility of detention under the s.91 and 92 regime, albeit for a relatively short time.
43. Mr Bailin’s argument on the Convention addresses a different aspect of the case. He submits that to subject his client to a crown court trial purely because he is under 12 would constitute unjustified discrimination contrary to article 14 of the Convention. It is only in relation to the enjoyment of Convention rights that article 14 forbids discrimination on grounds which, though they do not expressly include age, in my judgment implicitly include it for present purposes in the category of “other status”. If article 14 bites, it is perhaps more on W’s article 5 right to personal liberty than on his article 6 right to a fair trial. But I would accept Mr Bailin’s submission that even with the major changes which have followed the decision of the Strasbourg court in V [and T] v United Kingdom (2000) 30 EHRR 121 it remains the trial of a child in public before a jury of adults, a far from insignificant difference from trial in the youth court. It is not necessary to decide the point, since a complete solution is afforded by the reasoning of Gage J on the statute; but my provisional view is that Mr Bailin may well be right in this regard too.
Order: Application allowed; W’s costs to be paid from central funds; public funding detailed assessment. (Order does not form part of the approved judgment)