London, WC2A 2LL
B e f o r e :
THE HON. MR JUSTICE WRIGHT
| In the matter of an application for Judicial Review
The Queen on the application of P (a minor)
(by the Official Solicitor, his litigation friend)
|Barking Youth Court
The Crown Prosecution Service (Interested Party)
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr DCH Cartwright (instructed by The Crown Prosecution Service) for the Interested Party
Crown Copyright ©
Mr Justice Wright :
"(P) fit to plead. Capable of understanding proceedings. Indicated by his behaviour. Only a 30 minute examination from Mr. Goldstein. All reports are at least 3 years old. Did not feel Pritchard relevant. When case comes to court we will be looking at particular incidents. "
S.11(1). If on the trial of a Magistrates' Court of an offence punishable on summary conviction with imprisonment, the Court -
(a) is satisfied that the accused did the act or made the omission charged, but
(b) is of the opinion that an inquiry ought to be made into his physical or mental condition before the method of dealing with him is determined,
the court shall adjourn the case to enable a medical examination and report to be made, and shall remand him....
Under the Mental Health Act 1983:-
Section 37(3). Where a person is charged before a Magistrates' Court with any act or omission as an offence and the court would have power, on convicting him of that offence to make a [Hospital or Guardianship] order under sub-section (1) above in his case as being a person suffering from mental illness or severe mental impairment, then if the court is satisfied that the accused did the act or made the omission charged, the court may, if it thinks fit, make such an order without convicting him.
"Courts of summary jurisdiction constituted in accordance with the provisions of the second Schedule to this Act and sitting for the purpose of hearing any charge against a child or young person or for the purpose of exercising any other jurisdiction conferred on youth courts by or under this or any other Act shall be known as youth courts and in whatever place sitting shall be deemed to be petty sessional courts"
By section 46(1) of the same Act -
"Subject as hereinafter provided, no charge against a child or young person and no application whereof the hearing is by rules made under this section assigned to youth courts shall be heard by a court of summary jurisdiction which is not a youth court."
The inference to be drawn from this wording is that such matters are to be heard by a court of summary jurisdiction which is a youth court.
"15. Subject to the following provisions of this Schedule -
(a) each youth court shall either consist of a metropolitan stipendiary magistrate sitting alone, or consist of a Chairman and two other members and .........have both a man and a woman among its members.
(b) The Chairman where applicable shall be a person nominated by the Lord Chancellor to Act as Chairman of youth courts for the metropolitan area and shall be either a metropolitan stipendiary magistrate or a lay justice for the Inner London area selected in such a manner as may be provided by an order of the Lord Chancellor from a panel of such justices from time to time nominated by him; and
(c) The other members where applicable shall be justices so selected from that panel.
16. If at any time by reason of illness or other emergency no person nominated under paragraph 15(b) of this Schedule is available to act as Chairman of a youth court, any metropolitan stipendiary magistrate or, with the consent of the Lord Chancellor, any justice of the peace selected as aforesaid from the said panel, may act temporarily as Chairman."
It is apparent from these provisions that all persons sitting as members of a youth court must be magistrates, whether stipendiary or lay.
"1(1) The justices for each petty sessions area shall at their meeting held..... for the purpose of electing a Chairman of the Justices, and thereafter at the said meeting in every third year, appoint in accordance with these rules justices specially qualified for dealing with juvenile cases to form a youth court Panel for that area.
1(2) The panel for a petty sessions area shall, except as provided in paragraph 4 of this rule (which provides for the appointment of justices from another division to form a panel of the required size) be appointed from amongst the justices for that area.
12(1) Subject to the following provisions of these rules, each youth court shall consist of either -
(a) a District Judge (Magistrates Courts) sitting alone;
(b) not more than three justices who shall include a man and a woman.
It is plain from the foregoing that members of youth courts must be magistrates. However, not all magistrates are qualified to sit in youth courts. By paragraph 2 of Schedule 2 of the 1933 Act, a justice shall not be qualified to sit as a member of a youth court unless he is either a District Judge (Magistrates' Court), or a member of a youth court Panel, that is to say a panel of justices specially qualified to deal with juvenile cases. That does not alter the fact that a youth court is a court composed of magistrates and as such, on the face of it, is properly to be regarded as a magistrates' court. That interpretation is supported by the wording of section 148 of the Magistrates' Court Act 1980 which provides-
"The expression "Magistrates' Court" means any justice or justices of the peace acting under any enactment or by virtue of his or their commission or under the common law."
Lord Justice May:
LORD JUSTICE MAY: Wright J is unable to be here today. For the reasons given in the judgments, which have been provided to the parties and are now available, the decision of the Youth Court will be quashed and the order proposed by Wright J in paragraph 10 of his judgment will be made. That is to say, that the matter is remitted to the Barking Youth Court to be reconsidered by a differently constituted bench in accordance with the statutory machinery there set out. Thank you very much. Does anything else arise?
MISS O'DONNELL: I do have two applications to make, my Lord. I appear for the claimant in this matter. In the light of the decision your Lordship have handed down, we have, firstly, an application for costs. Firstly, as part of that, an order for a detailed assessment of the claimant's costs through public funding.
LORD JUSTICE MAY: You can have that.
MISS O'DONNELL: And, secondly, even though the normal rule on costs is that costs follow the event, it is obviously the case that costs are not awarded against justices as there is a presumption against the order of costs. However, I would submit that in this case that costs, certainly of these proceedings, should be ordered. The principles set out recently in the Queen on the application of Boxall v Mayor and Burgesses of Waltham Forest sets out that in principle costs may be recovered by publicly funded clients in judicial review proceedings.
The presumption against costs being awarded against justices is set out in The Queen v Newcastle Justices ex parte Massey. However, although in this case this is not a case where the justices have attended and have actively opposed the applications, there has been, we would submit, a significant non-engagement by the justices in this case, in the sense that the justices have not responded to any of the claims at any stage in the proceedings and that their non-engagement in this way has added to the costs of the claimant, given that this was a case in which the justices as well decided this was how the matter in their court was to be decided. They have not put forward any defence at any stage, or argument, against the applications which have been made. They were invited to reconsider their decision and have it reviewed at the outset before proceedings were begun in this court. As I have submitted, no response was received by the claimant to any of the points made.
It is, therefore, I would submit, the possibility that the costs of these applications, certainly these proceedings, was not necessary if agreement could have been reached on some of the points. On that case I would submit that this is a proper case for costs being awarded, certainly for the proceedings in this court. The actual hearings themselves --
LORD JUSTICE MAY: Against the justices?
MISS O'DONNELL: Against the justices. I would also submit, my Lord, that to a certain extent the Crown Prosecution Service has complicated this matter in a way which may not have been necessary. They again did not acknowledge service on these matters and skeleton arguments were filed only a day before the hearing in which the matter of the quashing of the decision was contested, although when the hearing actually went ahead that point was not taken further.
Again, on those grounds, I would submit that these matters have been complicated in the hearing, the length of the hearing and perhaps the appearance at a hearing. In that case I would submit this would be a case where unnecessary costs have been incurred. I would therefore apply for costs to be awarded for the claimant.
LORD JUSTICE MAY: Are you content that I decide this without Wright J being here?
MISS O'DONNELL: Yes.
LORD JUSTICE MAY: Thank you very much. I don't think it is an appropriate case for costs to be awarded either against the justices, or against the prosecution, in particular because the basis upon which the decision has been quashed was a basis, which, to put it bluntly, was engendered by the way in which those representing the claimant conducted the case before the magistrates. All involved, as we have decided, got it wrong. The submission that was made in front of this court was contrary to our decision. That is to say that the Youth Court was not a Magistrates' Court and the provisions which we held did apply did not.
In those circumstances, it seems to me inappropriate to award costs against the magistrates, or the Crown Prosecution Service, not least in the case of the justices because they have not participated and that is the normal thing to happen in those circumstances. I entertain the application but refuse it.
As to the detailed assessment, yes, of course you can have a detailed assessment.
MISS O'DONNELL: My Lord, I have a further application. That is that your Lordship grant leave to appeal to the House of Lords by certifying the questions which I have submitted. As a matter of public importance your Lordships have found that the procedure that appears to have been followed in the Youth Court was the wrong procedure, insofar as they chose the procedure which is to be followed in the Crown Court, and, further, that the correct procedure in a youth court is that provided for in dealing with cases in the Magistrates' Court, that is a combination of section 37(3) of the Mental Health Act 1983 and section 11(1) of the Powers of Criminal Courts (Sentencing) Act 2000.
I would submit, my Lord, that this is a matter of public importance, that these issues are dealt with in the youth court, and that the appropriateness of these orders was argued at paragraph 9 of the further submissions by counsel in this case. I would submit there is still an element of an unresolved problem which is recognised at paragraph 10 of your decision with regard to whether either way cases to be decided, or whether or not there is -- although I accept the decision that this does not apply to a youth court where that election would not take place.
LORD JUSTICE MAY: It doesn't apply, does it? Given the first decision, these matters are not either way matters and therefore the question doesn't arise.
MISS O'DONNELL: That question I would submit -- I would accept does not arise. However, it does show there may be some ambiguity between the magistrates' jurisdiction on that point.
In reference solely to the issue of youth courts the appropriateness of the orders under the Mental Health Act, I would submit, there are matters of public importance. In this particular case it may not have caught the particular claimant. However, in youths who are younger than the particular claimant there may be an issue there as to the appropriateness of the provision.
LORD JUSTICE MAY: There is the question of guardianship as well.
MISS O'DONNELL: In those circumstances, my Lord, I would submit this is a matter of public importance.
LORD JUSTICE MAY: Again Wright J is not here and on this matter I think it appropriate that I should consult him. Mr Cartwright, do you want to say anything about this application?
MR CARTWRIGHT: My Lord, no.
LORD JUSTICE MAY: This is not a decision because I propose to consult Wright J and will give a formal decision in writing which will be communicated to the parties. But I think it only right to say that my own view is that we should not certify, and having necessarily discussed this matter with him, I am fairly confident he will agree with it. He may not. But in order to make the decision, I will communicate with him and let you know. Thank you very much.