Case No: CO/4862/2001
Neutral Citation Number: [2002] EWHC 734 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Wednesday 17th April 2002
Before :

LORD JUSTICE MAY
and
THE HON. MR JUSTICE WRIGHT

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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)		
	Versus Barking Youth Court

The Crown Prosecution Service (Interested Party)		

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(Transcript of the Handed Down Judgment of
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)
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Mr S J Simblet (instructed by Kaim Todner) for the Claimant
Mr DCH Cartwright (instructed by The Crown Prosecution Service) for the Interested Party

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Judgment
Mr Justice Wright : 
1.	In this case counsel seeks to move the Court on behalf of a minor (“P”) for judicial review of a decision of Justices sitting as a youth court at Barking on 3rd September 2001, by which they purported to determine that “P” was fit to stand trial in respect of a number of offences alleged against him under the Protection from Harassment Act 1997 and the Criminal Damage Act 1971.  Permission to make  this application was granted by Elias, J. on the 14th January 2002.
2.	“P” has a history  of mental problems and learning difficulties.  In May 1997, at the age of 12 years and 11 months, an assessment by an educational psychologist estimated his full scale IQ at 52, which indicates that he was functioning intellectually at a level bettered by 99.9 per cent  of  children of his age.  In September 1998 he was referred to the Maudsley Hospital for psychiatric assessment, and was found to be demonstrating some features of an autistic disorder coupled with very severe behavioural problems.
3.	Early in the year 2001, at the age of 16,  “P” was charged with having committed, on various dates, offences against sections 2 and 3 of the Protection from Harassment Act 1997;  and also with criminal damage to the value of less than £5000 under sections 1(1) and 4 of the Criminal Damage Act 1971.  He was also charged with a breach of the conditions of his bail.  Ordinarily, the offences under section 3 of the 1997 Act are triable either way - but by reason of his young age, “P” fell to be tried by the youth court, where, by virtue of section 24 of the Magistrates’ Courts’ Act 1980, all the offences with which he was charged are required to be tried summarily.  
4.	In the light of his  history, solicitors instructed on his behalf became concerned about his mental condition, and they instructed a Mr. Dan Goldstein, a chartered educational and forensic psychologist,  to examine and report on him.  The examination took place on the 11th April 2001.  “P” was un-cooperative in the examination process, but Mr. Goldstein was able to carry out certain limited tests and was furnished with and drew upon the previous medical, psychiatric and psychological reports that had previously been obtained.  He concluded that “P” is severely intellectually impaired.  His IQ is so low that he lacks the capacity to understand the statements and questions  used on standardised assessments of personality and personality disorders so that no proper assessment of him in this context can be made.  It is Mr. Goldstein’s view that he suffers from an incomplete development of mind to such an extent that he is incapable of understanding the nature of the offence with which he is charged, and therefore unable to give any objective or rational instructions.  In Mr. Goldstein’s view he would not be able to follow the course of proceedings or understand the details of the evidence due to his impaired intellect and inattentiveness over which he has very little control, and, in two observations which are clearly directed to the classic test for fitness to plead laid down by Baron Alderson in Pritchard (1836) 7 C&P 303,  Mr. Goldstein opined  that he would not be able to understand or reply rationally to the indictment and he would not be able to challenge jurors on any rational basis.
5.	In the light of that report “P’s” solicitors indicated to the youth court that they wished to raise the issue of “P’s” fitness to plead as a preliminary issue.  Very surprisingly, any suggestion that this was not an  appropriate course was not raised either by the prosecution or by the Court itself, and the issue was accordingly heard on the 3rd September 2001.  Mr. Goldstein gave evidence in accordance with his report, a copy of which, together with copies of all the other reports referred to within it had been served  upon the magistrates and the prosecution.  In the absence of any appearance on behalf of the Justices or, any evidence as to the conduct of the proceedings from the C.P.S., we have no information as to the extent to which,  if at all, Mr. Goldstein’s opinion was challenged in cross-examination, but it does appear that no contrary evidence was called on behalf of the prosecution.  “P”, while present, took no part in the proceedings.
6.	The applicant’s solicitor’s note of the Justices decision and their reasons for it reads as follows:-
“(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. ”
7.	Counsel submits that that note demonstrates beyond peradventure that the Magistrates’ approach to the determination  of the issue that had been placed before them was flawed.  The wording of their reasons indicates clearly, he suggests, that they allowed their own subjective and lay view of the appearance and behaviour of the applicant in the dock to over-ride the expert evidence of Mr. Goldstein which was specifically directed to the clinical findings of himself and the other experts who had reported upon “P” previously.  In such circumstances they had acted perversely in the sense that they were acting on “no evidence”.  Further, the reference to the authority of Pritchard, in the context of fitness to plead, as being “irrelevant” indicated a lack of understanding of the relevant law.  Accordingly counsel submits that their determination of “P’s” fitness to plead should be brought up and quashed.  He further submits that in such circumstances that all further proceedings against “P” should be stayed.
8.	It will be plain from the narrative so far set out that counsel’s complaints have much to commend them.  Indeed, if the procedure that the justices were following had been an appropriate one in the circumstances then it would follow, in my view, that their determination would have to be quashed on the grounds advanced by counsel. However, I am entirely clear that the exercise that the justices were asked to undertake and did undertake was entirely inappropriate for the issue that they had to decide.  The procedure that they followed in response to that invitation appears to have been the procedure laid down by the Criminal Procedure (Insanity) Act 1964 sections 4, 4A and 5.  That procedure however is specifically directed to the procedure to be followed in the Crown Court where all questions of fitness to plead and the question whether the accused person did the act alleged against him are to be decided by a jury:  See R v. Metropolitan Stipendiary Magistrate Tower Bridge, ex parte Aniifowosi (1985) 149 J.P. 748.  It appears to me that the Justices at Barking did not have the guidance from their clerk or the assistance from the applicant’s solicitor that they could  reasonably have expected to receive.
9.	The procedure for dealing with matters of this kind in the Magistrates’ Court is specifically provided for by a combination of section 37(3) of the Mental Health Act 1983 when read in conjunction with the Powers of Criminal Courts (Sentencing) Act 2000  s.11(1).  Under PCC (S) Act of 2000:-
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.
10.	It will be seen that these two provisions provide a complete statutory framework for the determination by the Magistrates’ Court, itself a creature of statute, of all the issues that arise in cases of defendants who are or may be mentally ill or suffering from severe mental impairment in the context of offences which are triable summarily only.  It will also be noted that the criteria for exercising the powers vested in the Magistrates’ Court under s.37(3) are considerably less strict and more flexible than the common-law rules governing the issue of fitness to plead in the Crown Court.  It is true that in the context of cases triable either way there may be an unresolved problem when considering whether a defendant faced with such an allegation is capable of making a valid election as to the mode of trial - see R. v. Lincoln (Kesteven) Justices Ex parte O’Connor (1983) 1 WLR 335.  In the present case, however, as all the matters which “P” faces are to be tried in the youth court, and thus summarily, that problem does not arise.  Accordingly, and subject only to one final point raised by Mr. Simblet on behalf of the applicant, I would have thought it plain that the proper course to be taken in this case is to quash the Justices’ determination of the issue placed before them, and to remit the matter to Barking youth court to be reconsidered by a differently constituted bench in accordance with the machinery provided by the Mental Health Act 1983 and the Powers of Criminal Courts (Sentencing) Act 2000 - that is to say, first to determine whether “P” did the acts alleged against him, and if so, then to consider, in the light of such reports as they may think necessary,  whether the case is one for an order under s.37(3) of the Mental Health Act.  
11.	But counsel for the applicant submits that we should not follow that course because, he says, the provisions of the Acts of 1983 and 2000 do not apply to the youth court, because a youth court, properly understood, is not a Magistrates’ Court at all.  This on  its face is a startling proposition, but counsel has persisted in it, and it is accordingly necessary to deal with it.
12.	Although the term “youth court” is a comparatively recent innovation, the courts constituted under that title are by no means new.  Prior to 1992 they were known as Juvenile Courts, and were renamed as youth courts with effect from 1st October 1992 by section 70(1) of the Criminal Justice Act 1991.  The Children and Young Persons Act 1933, amended to reflect the new nomenclature, provides by section 45 - 
“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.
13.	When one turns to consider the constitution of youth courts, the second Schedule of the Children and Young  Persons Act 1933 provides that in relation to the metropolitan area (into which Barking falls):-
 “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.
14.	Under the Youth Courts (Constitution) Rules1954 (S.I. 1954 No.1711) -
“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.”
15.	When one turns to consider the procedure in the youth court the similarity between that and the procedure in an adult magistrates court is very apparent.  Section 49 of the 1933 Act imposes limitations upon the persons who are  entitled to be present at sittings of a youth court and also on the extent to which the proceedings of a youth court may be reported.  Subject to that Rules 4 to 9 of the Magistrates’ Courts (Children and Young Persons) Rules 1992 (S.I. 1992 No.2071), which are rules made by the Lord Chancellor “in the exercise of his powers conferred upon him by section 144 of the Magistrates Courts Act 1980”, make clear the similarity of the procedure to that in the adult magistrates’ court.  It is to be noted that these rules provide for the court to enquire into an offence “as examining justices”;  and apart from the provision that a parent or guardian may assist “the relevant minor” in conducting his case and the requirement for the use of simple language suitable to his age and understanding, the procedure is indistinguishable in practical terms from that which applies in the adult magistrates’ court.
16.	In my judgment, there is no warrant for the submission made by Mr. Simblet on this aspect of the matter.  A youth court is a magistrates’ court within the meaning of section 37(3) of the Mental Health Act 1933, and accordingly I would make the order set out in paragraph 10 of this judgment.
Lord Justice May:
17.	I agree that the decision of the Barking Youth Court in this case should be quashed for the reasons given by Wright J. and I agree with the order which he proposes.
18.	I would have quashed the justices’ decision on substantive grounds had it been necessary to do so.  It is evident that their decision depended on treating as determinative evidence  their perception of “P’s” behaviour in court despite the fact that he did not give evidence.  This was wrong and Mr. Cartwright does not submit otherwise.  But the procedure which the justices followed, at the suggestion of “P’s” solicitors and  with the concurrence of their clerk, was also wrong.  They should have followed the procedure in section 11(1) of the Powers of Criminal Courts (Sentencing) Act 2000 and section 37(3) of the Mental Health Act 1983, as Wright J. has demonstrated.  Those provisions apply, in my judgment, to youth courts, on the rare occasions when a young person’s mental capacity is in issue in the terms of section 37(2) of the 1983 Act.  I also agree with Wright J. that a youth court is, for the purposes of these statutory provisions, a magistrates’ court whose constitution and procedure is overlain with some provisions special to youth courts.  But those special provisions do not mean that a youth  court is not a magistrates’ court.
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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.
(Case adjourned)