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
		22nd August 2003

1. MR JUSTICE CRANE: This is an application for judicial review to quash a decision of the Medway Youth Court, to commit this claimant for trial under the Magistrates' Court Act 1980, section 24(1)(a). Such a committal may arise if a sentence under section 91 of the Powers of Criminal Courts Act (Sentencing) ought to be possible. Since there is a previous decision of the Divisional Court on this topic, the case, although originally listed before me alone, has now been placed before a Divisional Court.
2. The claimant was 17 at the time of the committal although he is now in fact 18. He was charged with a single domestic burglary of premises that were not locked, allegedly committed on 13th February 2003. The owner's mother was cleaning on the lower floor of the premises, the burgled premises being situated on three floors with entry from the street on the middle floor. He is alleged to have entered premises and stolen a purse from a handbag in the kitchen and a mobile telephone from a dining room table. The stolen items are valued at some £514. At no point was there any contact between the owner's mother and the burglar.
3. After arrest, he admitted in interview that he had committed this offence. At the mode of trial hearing, there were submissions about whether the Youth Court should commit. In due course the legal adviser advised the magistrates that they should see, and they were given, a copy of the previous convictions of the claimant. The principal point in the case is whether that was a permissible course to take. Can the magistrates and should they, when considering a committal under section 24, know of the previous convictions, if any, of the defendant?
4. Section 24(1) reads as amended and as far as relevant:

"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 should be tried summarily unless-

(a) the offence is such as is mentioned in subsection (2) of section 53 of the Children and Young Persons Act 1933 (under the young persons convicted on indictment of certain grave crimes namely 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..."

5. There is no dispute that the offence of burglary was an offence within section 53(2). Therefore the remaining issue was whether the Youth Court considered that, if he was found guilty of an offence, it ought to be possible to sentence him in pursuance of subsection (3) of that section. Section 53 has, of course, now been replaced by section 91 of the Powers of Criminal Court (Sentencing) Act 2000.
6. There is a series of previous decisions on the present question. In R v Colchester Justices ex parte the North Essex Building Company Limited [1977] 3 All ER 567, the Divisional Court were considering whether previous convictions could be relevant on a decision to commit for trial relating to a company. In that case, the view was expressed by Eveleigh J, with whom the other members of the Court agreed, that:

"However, be that as it may a matter of general principle and our approach in my opinion the principle to which I have already referred, that the justices should not move forward any way the antecedent of an accused one that should be preserved."

7. The decision was followed in the case of South Hackney Juvenile Court ex parte RB and Others [1983] 77 Cr App R 294, in this Court, a case relating to young offenders. The next case was Newham Juvenile Court ex parte F (1987) 84 Cr App R 81. In that case, at page 89, McCullough J, in the course of his judgment, expressed himself in terms that indicated that, in certain circumstances, the defendant's antecedents could be relevant to such a committal. But they were, at the most, obiter dicta, not required for the decision of that case.
8. The principal authority, to which we must have regard, is R v Hammersmith Juvenile Court ex parte O (1988) 86 Cr App R 343. That was a case involving a young person of 17, in which a committal under section 24 was in point. The Court, after being referred to the authorities, expressed a clear view, page 348 and 349 in the judgment of May LJ:

"I turn to the third committal which took place on December 10 on the attempted robbery charge. It had not been before the bench on August 6. Consequently, no trial of that alleged offence had started. Prima facie, therefore, the bench on the second occasion were entitled under section 24(1) of the Act to decline jurisdiction and to commit the applicant for trial on indictment. However Mr Sutton submits that in deciding whether or not to accept jurisdiction to try the matter summarily, the bench on the second occasion ought not to have been told of the applicant's criminal record. As appears from the two paragraphs of the chairman's affidavit which I have read, that was one of the factors which the bench did take into account in deciding not to accept jurisdiction to try the case summarily but to commit the applicant for trial on indictment.

In this connection, we were referred in the first place to the decision of Colchester Justices, ex parte North Essex Building Co Ltd [1977] 3 All ER 567, [1977] 1 WLR 1109. It is unnecessary to go into the facts of that case in any detail. The question whether a defendant's past record was material in considering the method of trial was under consideration. In the course of delivering the leading judgment, with which Wien J and Lord Widgery CJ agreed, Eveleigh J (as he then was) said at p 568F and at p 1110E respectively: 'It is the policy in cases before magistrates' courts that the bench shall not be given, in any form, information which discloses previous convictions of the accused before them. That is a policy that has been established and followed over the years.'

At p 569E and p 1111E-F respectively the judge said: 'However, be that as it may, we are here dealing with a matter of general principle in our approach to this problem. In my opinion the principle to which I have already referred, that the justices should not be informed in any way of the antecedents of an accused, is one that should be preserved.'

That decision was referred to and followed in the later case of South Hackney Juvenile Court, ex parte RB (A Minor) and CB (A Minor) (1983) 77 Cr App R 294. Once again, it is unnecessary to go into the facts of that case. I merely comment that it was a case in which the provisions of sections 6, 24 and 25 of the Magistrates' Courts Act 1980 were under consideration. Having dealt in detail with other points in the case, McNeill J, delivering the judgment of the Court with which Nolan J agreed, said this at page 302:

'There is one further matter. It is this. In the course of the submission, counsel invited the Court to give consideration to the fact that one applicant was of good character and the other had one minor conviction. There is no doubt that from the point of view of the prosecution, it is well-recognised that the decision to commit for trial should not be influenced by previous bad character on the part of the defendant. This is clear from a decision of this Court which Colchester Justices, ex parte North East Essex Building Co Ltd [1977] 3 All ER 367, [1977] 1 WLR 1109. I particularly refer to the judgement of Eveleigh J.'

which is the passage I have already read.

On that authority, Mr Sutton submits that it was wrong in law and contrary to the principle stated by Eveleigh J in the Colchester case (supra), to have drawn the juvenile court's attention the this applicant's criminal record on October 23 when it was deciding whether or not to accept jurisdiction to try summarily the attempted robbery count. I, for my part, think that is a sound submission on the authorities to which I have referred. It is in accordance with the general principle which I generally applicable in criminal trials, namely that the previous criminal record of an accused is an irrelevant matter until one has reached conviction and is considering the question of sentence.

I appreciate that the view which I have expressed conflicts with certain remarks of this court in the case to which I have already referred, Newham Juvenile Court, ex part F (A Minor) (1987) 84 Cr App R 81, [1986] 3 All ER 17. In that case, the Court in comments which were clearly obiter, indicated that the additional circumstances to which a second bench could have regard when deciding whether to refuse jurisdiction where an earlier bench had accepted jurisdiction in a particular case, might include not only fresh charges but also the criminal record of the accused which had not been before the first bench. I respectfully disagree. I accept Mr Sutton's submission that the acceptance of jurisdiction to commit this applicant on the attempted robbery charge was flawed for the reasons I have given."

It is quite clear that May LJ, with whom Nolan J agreed, was expressing the view that on such a committal it was contrary to principle for the justices to learn of the previous convictions of the defendant. Understandably, Mr Peter puts that authority in the forefront of his argument. Indeed, unless that authority were not to be followed by this Court it would decide this case in his favour.

9. For my part, I would conclude that that principle, as expressed in the case of O, is no longer good law for a series of reasons.
10. First of all, it seems to me, if one was approaching this anew, that as a matter of logic it would not be contrary to principle to take into account the previous convictions of a defendant, where the criteria for committal relate specifically to what the possible sentence might be. Section 24 itself requires a consideration of what the possible sentence might be and it seems to me that it is illogical ignore for that purpose matters that would be relevant to the sentencing court, if the matter were committed.
11. Secondly, it is clear that the Crown Court, when it is considering whether to impose a sentence under section 29, and if so for how long, is entitled to take into account previous convictions. Mr Peter conceded that, but it is clear from the principal authority on the application of section 91, namely the case R v AM & Ors [1998] 2 Cr App R(S) 128. If one examines the way in which the Court of Appeal in that case reviewed the sentences of the particular appellants, that was plainly part of their consideration in the case of Mills (at page 135) King (at page 136) and Howe (at page 148).
12. Thirdly, at the time when the decision in O was reached, there was a somewhat different regime in relation to committals for sentence. The possibility existed, in certain circumstances, for a Juvenile Court which had tried a young person summarily to commit for sentence under the Magistrates' Court Act 1980, section 37. Mr Peter submits that that should not alter the approach of the court because, as he points out, the powers of the magistrates sitting in what is now the Youth Court have been increased and indeed they have; they can now impose a sentence of 2 years in certain circumstances.
13. The fourth reason which would influence me, if indeed it does not create a binding decision for the purposes of today, arises from the passages in R v McInerney & Keating [2003] 1 Cr App R 627. This is the case in which the Court of Appeal, presided over by the Lord Chief Justice, laid down guidelines for domestic burglary offences. At paragraphs 49 and 50 juvenile offenders were dealt with:

"49. As to juvenile offenders, the Panel stated its advice in the following terms:

'36. Exceptionally, since domestic burglary is one of the offences which may attract a sentence of long-term detention under s.91 of the Powers of Criminal Courts (Sentencing) Act 2000, a young offender may be committed by the youth court for trial in the Crown Court with a view to such a sentence being passed. As sentence of long-term detention is available in respect of any offender aged 10 to 17 inclusive who is convicted of domestic burglary.

37. Where an offender who is now aged 18 or over has two qualifying previous convictions for domestic burglary as a juvenile, a third alleged domestic burglary must be tried in the Crown Court, and the presumptive minimum sentence is a custodial sentence of three years. Although s. 111 does not apply until the offender has attained the age of 18, it would seem to follow that for an offender who is under 18 but is charged with a third domestic burglary, a custodial sentence in excess of 24 months (the maximum term available for a detention and training order) will be the likely sentence and so the youth court should generally commit the case to Crown Court for trial with a view to sentence under s 91.'

50. We generally endorse this approach subject to reiterating more strongly in relation to juveniles what we have already said. The Youth Justice Board is spear-heading effective punishment in the community and it is important that, where appropriate, juvenile offenders are dealt with in Youth Court and not in Crown Court."

14. Without in any way disagreeing with that general principle, I think it is clear from the Court of Appeal's endorsement of what the Panel had said that in certain circumstances the Court of Appeal envisaged the magistrates taking into account previous convictions in deciding whether to commit. Indeed the Panel took the view that in cases which were analogous to the section 111 cases for those over 18 there should generally be, said the Panel, a committal.
15. Thus, part of the reason for the decision in O has disappeared and, in my view, in the light of the developments of the legislation and in McInerney in the Court of Appeal the case of O should not be followed on this point. I would hold that part of the material that should be available to the Youth Court, when considering the section 24 issue, are the previous convictions of the defendant. It follows that it was correct for these magistrates to know and to take into account the previous convictions of the claimant.
16. It remains, of course, important that those under 18 should not be sent to the Crown Court, unless it is clearly necessary. We have been referred to R v On the application of v Southampton Youth Court [2002] Crim LR 750, a decision of the Divisional Court, presided over by the Lord Chief Justice, in which as in McInerney it was stressed that, in general, those under 18 should be dealt with in the Youth Court, and that it should be the exception rather than the rule for those under 18 to proceed to the Crown Court. I fully accept that principle.
17. Here, I accept that the alleged offence of burglary is, if taken on its own, plainly not the most serious offence of domestic burglary, although it has its unpleasant aspects. However, when one looks at the previous convictions of the claimant it becomes apparent that he has appeared before the Youth Court on nine previous occasions between 6th September 1999 and 10th December 2002. On four of those occasions he was dealt with for dwelling-house burglary. On one of those occasions the person had been subjected to violence or a threat of violence. There were two other offences of thefts from a dwelling. Finally, in this respect, the claimant was, at the time of the present alleged offence, under a conditional discharge of 12 months from the Medway Youth Court imposed on 10th December 2002 for burglary and theft, although that was not a dwelling.

In my view, once the previous convictions were before the court, this was a clear case for committal and it was not only possible but proper that the Crown Court should have been given the option of a sentence under section 91. What sentence of course the Crown Court would impose is another matter on which I express no view.

18. THE VICE PRESIDENT: I agree. In particular I agree that, for the reasons given by my Lord, Ex parte O and the authorities of Ex parte North Essex Building Company and ex parte RB and CB, to which the judgment in O, at pages 348 to 349, cited by my Lord, refers, can no longer be regarded as authoritative in relation to the disclosure to justices of a juvenile's record when they are deciding whether to accept or decline jurisdiction under section 24 of the Magistrates' Courts Act 1980. Any other conclusion would be contrary to the endorsement by the Lord Chief Justice, giving the judgment of the Court of Appeal (Criminal Division) in McInerney, of the views of the Sentencing Advisory Panel in paragraphs 49 and 50 of the judgment. The Court of Appeal (Criminal Division)'s judgment in that case is, of course, binding on this Court. Accordingly this application is refused.