QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE CRANE
|QUEEN ON THE APPLICATION OF JOSEPH CLIVE TULLET||(CLAIMANT)|
|MEDWAY MAGISTRATES COURT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
The Respondent did not appear and was not represented
MR J MARSDEN-LYNCH (instructed by the DPP) appeared on behalf of the INTERESTED PARTY
Crown Copyright ©
"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..."
"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."
"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  3 All ER 567,  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  3 All ER 367,  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,  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.
"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."
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.