England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		30 April 2003

1. MR JUSTICE PITCHFORD: This is an application to quash a decision of Brighton Youth Court made on 16th August 2002 declining jurisdiction to try this applicant upon charges of burglary and criminal damage and committing him instead to Lewes Crown Court for trial.
2. I shall call the applicant C, the single judge having made an order under section 39 of the Children and Young Persons Act 1933.
3. C was born on 9th July 1987. The prosecution case against him is that on 2nd June 2002 (when he was still aged 14) he and three others, aged between 11 and 15, entered as trespassers a dwelling house in Brighton and stole property to a value of £125. While inside the house, for upwards of an hour, they caused substantial damage by a variety of means; most distressing to the occupiers was the destruction of goldfish and defecation upon the living room carpet. In short, the culprits engaged in the despoilation of a family home, the occupants of which were known to them and known by them to be away on holiday.
4. On 16th August 2002 C, together with two co-accused, appeared before Brighton Youth Court. The prosecution represented that these were grave crimes, the damage serving to aggravate the burglary of a dwelling house at night. Drawn to the justices' attention were the authorities of Winn [1995] 16 Cr App R (S) 53 and Brewster and Others [1998] 1 Cr App R (S) 181. In Winn the Court of Appeal (Criminal Division) upheld the sentence of five years' imprisonment upon a 26-year-old man for burglary and theft of property worth £2,500 at a dwelling. Damage of the kind which accompanied this burglary was also committed. The appellant had seven previous court appearances, none for burglary, and had served a previous custodial sentence.
5. Brewster was the guideline case in which Lord Bingham, CJ, gave guidelines in sentencing burglary cases. After a trial an adult defendant could expect a sentence of three years' imprisonment for burglary of an unoccupied dwelling.
6. Notwithstanding objections from advocates for the defendants, the justices were persuaded to decline jurisdiction under section 24(1)(a) Magistrates' Court 1980. When C and others appeared in the Crown Court on 27th September 2002 for a plea and directions hearing, HHJ Brown granted an adjournment for consideration of this application. Permission to proceed was granted by Lightman J on 5th December 2002. The Crown Prosecution Service, having been served with the papers, indicated that it did not wish to contest the application. Section 24(1)(a) of the Act of 1980 reads as follows:

"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 subsection (1) or (2) of section 91 of the Powers of Criminal Court (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 pursuance of subsection (3) of that section."

"Grave offences" for this purpose are defined by section 91(1) of the Powers of Criminal Courts (Sentencing) Act 2000, they include:

"... (a) an offence punishable in the case of a person aged 18 or over with imprisonment for 14 years or more, not being an offence the sentence for which is fixed by law ...."

Burglary is such an offence. That being the case, the justices were empowered by section 1A Magistrates' Court Act 1980 to commit both the charge of burglary and the charge of criminal damage for trial at the Crown Court, provided the justices were satisfied it ought to be possible to sentence under section 91 of the Act of 2000.

7. Section 91(3) provides:

"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 a person aged 18 or over, as may be specified in the sentence."

The correct approach to the exercise of the power under section 24(1) Magistrates' Court Act 1980 has been considered by this court in several previous cases, recently and notably R (On the Application of D) v Manchester City Youth Court [2002] 1 Cr App R (S) 573; R (On the Application of W) and Thetford Youth Justices v Director of Public Prosecutions, together with R (On the Application of M) v Waltham Forest Youth Court Justices and the Director of Public Prosecutions [2002] EWHC 152 Admin, and R (On the Application of W) v Southampton Youth Court, together with R (On the Application of K) v Wirral Borough Magistrates' Court [2002] EWHC 1640 Admin

8. The latter was a decision of the Lord Chief Justice, Lord Woolf, and Kay LJ of 23rd July 2002. The court agreed with the reasoning of Gage J in both the Manchester and Thetford cases; justices 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. It would be in very exceptional and restricted circumstances that it would be appropriate to pass a sentence of less than two years under section 91 rather than a detention and training order under section 100 of the Powers of Criminal Courts (Sentencing) Act 2000.
9. At paragraph 16 of his judgment in the Southampton case, the Lord Chief Justice drew attention to the effect of the legislation in the light of T and V v United Kingdom [2003] EHRR 121 in the European Court of Human Rights. He said:

"While the need to impose the appropriate sentence is important, so is the need to ensure that wherever possible the trial should take place in the appropriate setting. That is more satisfactorily achieved in a Youth Court than in a Crown Court."

He continued:

"18.... In an attempt to underline what was said by Gage J in that case [the Lord Chief Justice was referring to Thetford Youth Justices], I would indicate that justices should start off with a strong presumption against sending young offenders to the Crown Court unless they are satisfied that that is clearly required, notwithstanding the fact that the forum for trial will not be so appropriate as the Youth Court.

19. The other guidance which justices should have in mind is that they must be of the view that, if they are going to send a case to the Crown Court, it is such a serious case that detention above two years is required, or it is one of those cases where they consider that the appropriate sentence is not only a custodial sentence, but a custodial sentence which is approaching the two-year limit which is normally applicable to older offenders with whom they have to deal. To do otherwise would not comply with the intention of the legislation to which I have referred."

It seems to me that the Youth Court should have been assisted further by reference at least to the Manchester and Thetford cases, certainly if the justices were to be faced with a submission, as they were by the Crown, that committal was appropriate. The test is whether there is more than a theoretical or vague possibility that the Crown Court would impose a sentence approaching two years' detention or more. If the defendant's guilt is established, he committed a serious and deeply unpleasant offence. Were he an adult with a criminal record, it is almost certain he would face a significant period of imprisonment. He is, however, aged 15 years and of good character. Notwithstanding the decision in Winn and the guidance in Brewster, it was in my view highly improbable that the Crown Court would have sentenced this youth to a period of detention under section 91.

10. Furthermore, on 18th December 2002 Lord Woolf, CJ, sitting with Silber J and Grigson J handed down judgment in the appeals of McInerney and Keating [2002] EWCA Crim 2003. The court issued fresh guidelines upon sentencing in cases of burglary in consequence of advice from the Sentencing Advisory Panel of 9th April 2002. It is unnecessary to consider the guidelines in detail, but sufficient to identify the offence alleged in this case as "a standard, first time domestic burglary with the high level aggravating feature of vandalism of the premises and the mitigating feature that, if proved, this is a first offence." Paragraphs 32 and 34 of the judgment indicate that the starting point for an adult committing such an offence would be 18 months' imprisonment, subject to discount for a plea of guilty; the principle of discount for youth in such circumstances is well known. At paragraph 50 of his judgment Lord Woolf issued a reminder that the Youth Justice Board is spearheading effective punishment in the community and the importance of juvenile offenders being dealt with in the Youth Court where appropriate.
11. Mr Selby's submissions, which lost nothing in their brevity, correctly drew our attention to two further decisions in the Court of Appeal (Criminal Division) upon the correct approach to sentencing young offenders who pass a relevant age threshold between the date of commission of the offence and the conviction. In Ghafoor [2002] CLR 739, [2002] EWCA Crim 1857, decided on 19th July 2002, the court identified and explained the principle as it applied to defendants who passed the age threshold of 18 between commission of the offence and conviction.
12. The court recognised the fact that, as a matter of law, the sentencing regime which applied to a defendant was that which applied to his age as at the date of conviction. However, in delivering the judgment of the court, Dyson J said:

"31. The approach to be adopted where a defendant crosses a relevant age threshold between the date of the commission of the offence and the date of conviction should now be clear. The starting point is the sentence that the defendant would have been likely to receive if he had been sentenced at the date of the commission of the offence. It has been described as 'a powerful factor'. That is for the obvious reason that, as Mr Emmerson points out, the philosophy of restricting sentencing powers in relation to young persons reflects both (a) society's acceptance that young offenders are less responsible for their actions and therefore less culpable than adults, and (b) the recognition that, in consequence, sentencing them should place greater emphasis on rehabilitation, and less on retribution and deterrence than in the case of adults. It should be noted that the 'starting point' is not the maximum sentence that could lawfully have been imposed, but the sentence that the offender would have been likely to receive.

32. So the sentence that would have been passed at the date of the commission of the offence is a 'powerful factor'...

33. That is not to say that the starting point may not be tempered somewhat in certain cases. We have in mind in particular cases where there is a long interval between the date of commission of the offence and the date of conviction. By the date of conviction, circumstances may have changed significantly."

13. This reasoning was applied by the court, differently constituted, in R v LM [2003] Crim LR 204, [2002] EWCA Crim 3047. A boy aged 14 at the time of the offence was convicted on indictment of wounding contrary to section 20 of the Offences Against the Person Act 1861 as an alternative to section 18, causing grievous bodily harm with intent. He was sentenced by the trial judge to a detention and training order for 18 months. The Court of Appeal (Criminal Division), applying Ghafoor, took note of the fact that had the appellant been convicted at the age of 14, he could not have received a custodial sentence. Adopting that starting point the appeal was allowed and a supervision order imposed in substitution.
14. Mr Selby submits, correctly in my view, that similar considerations faced the Youth Court in this case, but they were missed.
15. It seems to me that there was no prospect that the Crown Court would have exercised its power to sentence this applicant under section 91 of the Act of 2000. Accordingly, the committal should not have occurred. I would allow this application.
16. LORD JUSTICE SCOTT BAKER: I agree. The order is that the case should be remitted to the Youth Court and dealt with as expeditiously as possible. The section 39 order maintains in the meantime.