QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| The Queen on the application of
|C and D
|- and -
|Sheffield Youth Court
|Director of Public Prosecutions
|The Queen on the application of
|- and -
|Sheffield Youth Court
|Director of Public Prosecutions
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Stephen John (instructed by the Director of Public Prosecutions)
for the Interested Party in each case.
The Defendant Court did not appear and was not represented.
Crown Copyright ©
Mr Justice Stanley Burnton:
(a) the matters to be taken into account by the Youth Court when making its decision under section 24(1) of the Magistrates' Courts Act 1980 as amended ('the MCA'); and
(b) the test to be applied by the High Court on an application for the judicial review of such a decision.
"Reasons: 'prosecution case at its highest involves violence; pushing and kicking whilst on the floor. The LCJ's Guidelines in case referred to indicates a starting point of 3 years. We acknowledge offender mitigation and circumstances of case might resolve in a sentence less than that. We feel that we must leave the option custody open, particularly as this court has very limited powers. Our rational is based on the guidelines of the LCJ'."
The guidelines of the LCJ referred to are in the judgment of the Court of Appeal Criminal Division, in Lobban  EWCA Crim 127.
"Such cases never easy. We must consider each case. The alleged offence leads us to believe you should be committed to the Crown Court."
"The alleged offence, taking the Prosecution case at its highest, together with the relevant authorities, leads us to believe that this matter should be committed to the Crown Court."
According to the chairman of the court, by 'the relevant authorities' they meant the judgment of the Court of Appeal Criminal Division in Lobban.
"24. I confirm that, in reaching our conclusion that N's offence merited well in excess of two years, … we took into account the fact that his age and absence of meaningful previous convictions would inevitably mean that the likely sentence would be reduced.
25. I can properly say that the fact that we should not send cases to the Crown Court simply because the Youth Court has no power of a Detention and Training Order was not a feature in our deliberations. Whether the Justices could sentence N to custody or not was not an issue for us. I am absolutely certain on this point.
26. This was an unprovoked attack. It involved two assailants onto one. It occurred in the street, a factor of increasing prevalence and concern in the City of Sheffield. A number plate is torn off the bike with the potential consequence of a jagged edge. This number plate is subsequently thrown and hits the Complainant. The Complainant is punched 10-20 times on the evidence of an independent witness. Finally, he is head-butted. Moreover, the defendant approaches the witness when she tries to put a stop to the violence.
27. These are over and above the features that local judges recommend should persuade us to send cases to the Crown Court. This was a sustained offence lasting several minutes. Violence was used to such an extent that a sentence in excess of two years was appropriate."
"Transcripts of AG's reference 4 & 7 and Thetford case handed in. Magistrates retire with cases. Clerk does not advise magistrates in open court. After a period of retirement clerk joins magistrates. After his return further periods until magistrates return to court."
"These (guidelines) make specific reference to actual violence being used rather than threatened and the aggravating nature of group action. These local guidelines are well known to practitioners in the Sheffield Youth Court, and to my knowledge, have not been the subject of any challenge, legal or otherwise, on the grounds that they are out of step with existing law."
"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 Courts (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; or
(b) he is charged jointly with a person who has attained the age of 18 and the court considers it necessary in the interests of justice to commit them both for trial;
and accordingly in a case falling within paragraph (a) or (b) of this subsection the court shall commit the accused for trial if either it is of opinion that there is sufficient evidence to put him on trial or it has power under section 6(2) above so to commit him without consideration of the evidence."
"Offenders under 18 convicted of certain serious offences: power to detain for specified period
91. - (1) Subsection (3) below applies where a person aged under 18 is convicted on indictment of –
(a) an offence punishable in the case of a person aged 21 or over with imprisonment for 14 years or more, not being an offence the sentence for which is fixed by law; or
(b) an offence under section 14 of the Sexual Offences Act 1956 (indecent assault on a women); or
(c) an offence under section 15 of that Act (indecent assault on a man) committed after 30th September 1997.
(2) Subsection (3) below also applies where a person aged at least 14 but under 18 is convicted of an offence under –
(a) section 1 of the Road Traffic Act 1988 (causing death by dangerous driving); or
(b) section 3A of that Act (causing death by careless driving while under influence of drink or drugs).
(3) 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 21 or over, as may be specified in the sentence.
(4) Subsection (3) above is subject to (in particular) sections 79 and 80 above."
"Counsel for the parties have sensibly agreed that four aspects of legislative intention can be inferred from those statutory provisions. First, it can be inferred that the primary venue for trial of the young person should be the Youth Court. Second, it is intended that only custodial sentence available to the Youth Court is to be a detention and training order with a maximum sentence of two years. Third, it is to be inferred that such a sentence is not ordinarily to be available in relation to an offender under the age of 15 at the time of conviction, and in any event it is certainly not available in the case of this applicant. Four, Parliament intended that the use of a committal for trial on indictment for a person aged under 15, so that the court could exercise its power to impose a sentence of up to the maximum available for an adult, should be saved for 'grave crimes'."
In terms of section 24(1), "grave crimes" are crimes punishable, in the case of an adult, by a sentence of imprisonment of 14 years or more, other than those for which the sentence is fixed by law: i.e., those to which section 91 of the PCCSA applies.
"The Chairman of the Magistrates had sworn a helpful affidavit in which he indicates that he was satisfied that in a case of an adult the maximum imprisonment for the offence with which they were charged, which was false imprisonment, was 14 years or more. He said that Mr Broudie had submitted to the court the relevant question for it to ask itself would be whether these defendants were likely to receive a sentence in excess of two years detention. He indicated that this was not the correct question.
He states that he and his colleagues were unanimously of the view that following any conviction on the allegation before them, any of the defendants, given the respective allegations against each, might well face a sentence of detention. They were aware that if they accepted jurisdiction no custodial sentence could be passed, given the ages of the defendants. They came to the conclusion that committal was the right course.
Section 53(2) of the Children and Young Persons Act of 1933 says this:
'(a) where a person of at least 10 but not more than 17 years is convicted on indictment of –
(i) any offence punishable in the case of an adult with imprisonment for fourteen years or more, [subsection 3 below applies]'."
Schiemann LJ summarised the position as follows:
"[Counsel for the applicant] drew our attention to the fact that amongst the powers available to the Youth Court was an attendance centre order and a supervision order. But his problem is this, as it seems to me, that the Magistrates have discretion. Mr Wise accepts that there can be cases where it is appropriate, even with a 13 year old child, to commit the child for trial at the Crown Court. He also accepts that there can be cases where a sentence of detention under section 53 of less than two years could be imposed by the Crown Court.
He does not wish to take issue with the statement of Lord Lane LCJ in the leading case of Fairhurst and others (1986) 8 Cr.App.R (S) 346 at page 349, where the Lord Chief Justice said:
'Where an offender is aged under 15 and thus ineligible for youth custody, a detention sentence of less than two years may well be appropriate.'
In those circumstances this court would only interfere with the committal order if it were satisfied that the decision to commit was one to which no reasonable bench of magistrates could come. For my part, I am not satisfied.
Of course there is absolutely no obligation on the Crown Court to sentence under section 53, but the discretion of the Magistrates has to be exercised if the court considers that if the accused is found guilty of the offence it ought to be possible to sentence him in pursuance of that subsection.
These magistrates thought this ought to be a possibility; that is a conclusion which betrays, in my judgment, no error of law and is not outwith the possible reasonable outcomes in a case such as the present.
In those circumstances, as it seems to me, this application is bound to fail and the application for judicial review should, in my view, be refused."
(a) A Youth Court may decline jurisdiction under section 24(1) of the MCA although the sentence of detention which it "considers that if (the defendant) is found guilty of the defence it ought to be possible to sentence him" is one of less then two years' detention; and
(b) Absent an error of law on the part of the Youth Court, their decision may be quashed only if it is one to which no reasonable bench of magistrates could come: i.e. it is Wednesbury unreasonable.
"Held (dismissing the appeal): Where a youth court decides that a custodial sentence (where that is only available in the Crown Court) or a longer period of custody needed to be an option available to the sentencing court, the youth court had no option but to commit the youth for trial. There is no substance in the argument that the Crown Court is not a suitable place to deal with a case against a youth. Relevant provisions of international conventions affect the way in which the trial is conducted and not the decision as to whether the case is dealt with in the Crown Court or the youth court."
"… Parliament has made it clear that this is a matter for the justices to form the appropriate judgment, and that if the justices do form the judgment that if the defendant is found guilty of the offence it ought to be possible to sentence him to detention under the 1933 Act under section 24(1), they are bound to proceed with a view to transferring the proceedings against the accused for trial. On this leg of the argument, having read the reason given on behalf of the justices, I am of the view that this was a conclusion to which they were entitled to come."
"… It appeared to me that [Counsel for the applicant] was seeking to rewrite the statute by giving the justices a discretion, if the condition precedent was satisfied, as to whether to send the child to the Crown Court for trial for not. Parliament has made it clear that if the condition precedent is satisfied, then a child shall be sent for trial, and there is no question of any discretion at that stage. I am, therefore, of the clear view that as a matter of English law, if unaffected by international considerations, the justices' decision is not impugnable as a matter of law in this court."
"I see nothing in the international texts to qualify the way in which justices ought to carry out their obligations imposed upon them by Parliament. By section 24 this was a case in which a bench of justices, who properly are considering the facts and the law, could properly reach the conclusion that it ought to be possible to sentence this child to a period of detention. In those circumstances, they were bound to take the course they did take."
"Held, dismissing the application, that the magistrates had been within their discretion to commit since the commensurate adult penalty was imprisonment of 14 years or more. …
That summary was not very informative.
"22. In my judgment, the effect of section 24 is that a Magistrates' Court 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. Although, under section 91 and pursuant to recent authority, it is no longer necessary for a court to pass a sentence of at least three years, in my judgment section 91 is primarily applicable to cases of such gravity that the court is or may be considering a sentence of at least two years. Anything less, it seems to me, falls primarily to be dealt with as a detention and training order.
23. There is no statutory restriction on a court, using its powers under section 91, passing a sentence of less than two years. But it seems to me that it will only be in very exceptional and restricted circumstances that it will be appropriate to do so, rather than make a detention and training order. The fact that an offender, as here, does not qualify for a detention and training order because he is not a persistent offender does not seem to me such an exceptional circumstance as to justify the passing of a period of detention of less than two years under section 91 of the Act of 2000.
26. There are in this case no such exceptional circumstances as would justify a sentence under section 91 of less than two years in order to circumvent the provisions of section 100(2)(a) of the Act of 2000. This is a case in which, in my view, it is far more appropriate for it to be heard in the youth court than in the Crown Court. My conclusion is that the decision of the Deputy District Judge declining jurisdiction was one which no District Judge, acting reasonably, could have made. Accordingly that decision is quashed and I direct that the case be heard in the Manchester Youth Court."
It can be seen that the test applied by Gage J was the traditional judicial review test, of Wednesbury unreasonableness.
"29. My conclusion is that the authorities cited to this court do not undermine or alter my conclusions already expressed on the relationship between sections 91 and 100. I adhere to my view that in respect of offenders under 15 a custodial sentence will ordinarily only be available in the form of a detention and training order. If the court is prohibited from making such an order in general an order under section 91 will not be appropriate. Having considered the submissions made in this court, on a rather fuller basis than those before me in D v Manchester City Youth Court, I see no reason to change to any great extent the views which I expressed in that case. I remain of the opinion that where an offence or offences are likely to attract a sentence of less than two years custody the appropriate sentence will be a detention and training order. In the case of an offender under 15, who is not a persistent offender or a child under 12, the most likely sentence will be a non-custodial sentence. It follows that in most cases the appropriate place of trial will be the youth court.
30. However, I accept that there may be cases where, despite the fact that the offender is under 15 and no detention and training order can be made, the only appropriate sentence is a custodial sentence pursuant to section 91 and possibly for a period of less than two years. But I remain of the opinion that the circumstances of the offence and the offender will only rarely call for a sentence pursuant to section 91, particularly if the court is dealing with an offender under the age of 12. In expressing my views, as I did, in D v Manchester City Youth Court, my use of the expression "very exceptional" may be more restrictive than was strictly necessary or justified. But, I remain of the view that the mere fact that a youth court, unable to make a short detention and training order, considers that the option to pass a short custodial sentence should be available, does not mean that it should decline jurisdiction. It seems to me that in such circumstances the fact that a detention and training order is not available indicates that Parliament intended that generally a non-custodial sentence should be passed. Perhaps it would be better to say that cases involving offenders under 15 for whom a detention and training order is not available will only rarely attract a period of detention under section 91; the more rarely if the offender is under 12."
"1. There are before the court two applications for judicial review which both raise the same issue. It is an issue which is causing some concern in youth courts generally, notwithstanding the fact that there have now been a number of decisions of this court. The issue relates to the venue for the trial of offences which could attract a custodial sentence for those who are aged under 18."
He set out the facts of the two cases before the Court:
"2. The facts of the two cases can be shortly stated. The claimant W, who at the relevant time was aged 14, was jointly charged with another with an offence of robbery. The allegation was that the claimant, with an older boy aged 15, robbed a 13 year old of his push bike. The 13 year old initially refused to relinquish his pushbike. It is alleged that the claimant then produced from his pocket a broken bottle with a jagged edge with which he threatened the boy. That this happened is denied but it will be observed that, if the case for the prosecution if correct, the claimant embarked on an offence where he had prepared himself at least to threaten violence to his victim.
6. The second case is an application on behalf of "K". He was born on 10 May 1989. When he was 13 he appeared before Wirral Youth Court charged with two offences which are in these terms:
' Between 1 September 2001 and 25 December 2001 at [an address] indecently assaulted a [child] aged 6 years, contrary to section 15(1) of and Schedule 2 to the Sexual Offences Act 1956.
 On or about 2 February 2001 at [an address] indecently assaulted [the same child] …, contrary to section 15(1) of and Schedule 2 to the Sexual Offences Act 1956.'
8. At the Youth Court a statement was made by the Chairman that the conduct as outlined by the Crown was tantamount to attempted rape. However, Mr Geey, for whose submissions we are grateful, has made it clear that so far as the Crown are concerned, that over-states the proper description of the offence and that when the evidence is looked at there may be difficulties in establishing any more than that K placed his penis on one occasion against the bottom of the child, and on the other occasion rubbed himself against that little boy."
"16. I would respectfully agree with the approach indicated by Gage J in that case. Sedley LJ, as well as agreeing with Gage J, in his judgment drew attention to the importance, as underlined by the case of T and V v United Kingdom (2000) 3 EHRR 121, of trials for young offenders, and particularly children, being trials which fully take into account the needs of defendants of that age. That is also a factor, in my judgment, which should weigh with courts in deciding the appropriate venue for the trial of an offender of the age to which I have referred. 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.
18. … In an attempt to underline what was said by Gage J in that case, 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.
21. Having indicated as far as possible the approach of the Youth Court, I turn to the question of whether in these two cases the Youth Court reached the right decision. In my judgment, the two cases are different. The right test to apply is to ask the question: did the Youth Court come to a decision which I would regard as being wrong? It may not necessarily be the same decision to which I would have come. Before we interfere, we have to come to the conclusion that the decision is wrong. In the case of W, we are faced with the fact that, notwithstanding W's age, this was an offence of some seriousness. I have already referred to the fact that W was armed with the broken bottle which was used for the purposes of threatening the victim. I attach importance to what was said by the District Judge as the reason for sending the case to the Crown Court. Reading the terms of her decision in the notes which are available to us, it appears to me that she did not misdirect herself in any way. We therefore have to decide whether that decision was wrong. The conclusion that I have come to is that the decision cannot be said to be wrong. The offence was within the category of cases appropriate to be sent to the Crown Court, although I do not go as far as to say that the decision was an obvious one. It is clearly a case which was close to the borderline. Accordingly, I would dismiss W's application.
22. I take a different view in relation to K's case. Having regard to the age of K and the nature of the facts to which I have made reference, it does not seem to me that that case comes anywhere near the threshold. I take the view that the case should have remained in the Youth Court. Accordingly, that application will be granted."
"25. The simple principle underlying the current legislation for sentencing very young offenders is that, generally speaking, first-time offenders aged 13 and 14, and all offenders aged 11 and 12, should not be detained in custody. For 13 and 14 year olds, where the youth persists in offending, the position changes. Clearly some offences or offending are so serious in themselves that the court has to contemplate the possibility of sending an under 15 year old for a period in custody, despite the general approach of the legislation. That may be to protect the public or it may be that the long-term interests of the offender require such a drastic course, even though he is under 12 or under 15 but not a persistent offender. To cater for this possibility Parliament has left open to the courts the use of section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. The need in exceptional cases to make use of these powers cannot, however, have been intended to water down the general principle.
26. In those circumstances I, too, share the view that the guidance given by Gage J in the Thetford Youth Justices case properly reflects the law as it is now, and I endorse those passages to which my Lord has referred in his judgment."
"33. In essence, there are three factors which convince me that this case should not have been sent to the Crown Court. First, this was an offence which is very unlikely to have attracted a custodial sentence for a boy of 14 who was attempting to steal only £1 and so the Youth Court would unquestionably have had adequate powers to sentence him. Second, there is nothing on the facts of this case to rebut 'the strong presumption against sending young offenders to the Crown Court', referred to by the Lord Chief Justice in the Southampton case. Third, for this fourteen year old, with his record, the proper venue was the Youth Court, rather than the more formal Crown Court."
Conclusions on the law
The application of the test in the present cases
(a) This ground was not included in the Claim Form, and no application to amend it has been made. Mr Simblet mentioned it only in his supplementary skeleton, and submitted that he should be permitted to rely on it without formal amendment and re-service of the claim form.
(b) In consequence, I have no evidence on behalf of the Claimant on this point. It is however evident from N's solicitor's attendance note that she noticed that the magistrates' legal advisor had not advised them in court and had joined them after their retirement. I infer that she was aware that in all probability their advisor had advised the magistrates during their retirement and had not repeated that advice in open court. There is no explanation as to why this matter was not referred to in the claim form.
(c) Although the Youth Court received Mr Simblet's supplementary skeleton and accepted that advice was given in the retiring room, it has not sought to explain that happening. If this matter had been relied upon in the claim form, they might have done.
(d) It is particularly important that the claim form includes all grounds for relief sought if it is anticipated that the defendant may not appear at the hearing. It is normal for a court whose decision is impugned in judicial review proceedings not to be represented at the hearing. No skeleton argument was served by counsel or solicitor on behalf of the Youth Court, and it must have been evident that it would not be represented before me.
(e) The objection to the legal advice given by the justices' legal advisor not being repeated in court is that the trial must be and seen to be fair, and the bench independent and impartial. The lack of any contemporaneous complaint suggests that the proceedings in the Youth Court were not seen to be unfair, and that N's solicitor did not have any real concerns as to the independence or impartiality of the bench.
(f) The evidence filed on behalf of the Youth Court makes it clear that their legal advisor's advice was confined to matters of law. In fact, there could have been no occasion for him to advise on evidence: there had been none, and the submissions of the parties had been relatively short. His advice on the law was unexceptionable. There was no actual unfairness in the proceedings.
MR JUSTICE STANLEY BURNTON: My judgment has been distributed in draft. I am grateful to counsel for their corrections. For the reasons set out in the draft which is now filed, copies of which are available to all those who are interested, the decision of the Youth Court in the case of C and D will be quashed, and the claim in the case of N will be dismissed.
MR JOHN: My Lord, I believe your Lordship has already had advance notice of the proposed question. I am going to invite your Lordship to certify, as one of general public importance.
MR JUSTICE STANLEY BURNTON: I do not recognise it as a question that I answered in my judgment.
MR JOHN: If it is badly phrased, that is undoubtedly my fault. It was precisely the same question which -- I shall tell your Lordship -- I asked Silber J to certify in Balham.
MR JUSTICE STANLEY BURNTON: I do not read my judgment as declaring to a Youth Court that the fact that the sentence they anticipated being passed is one of significantly less than two years is necessarily something which precludes them from committing.
MR JOHN: As I read your Lordship's judgment -- if I have misunderstood, of course, it is my fault -- your Lordship in effect is following the line of authority which starts with Gage J saying that ordinarily if the justices commit for trial those under the age of 15 who are not persistent young offenders, they should only do so either if the sentence in their judgment ought to be two years or more, or exceptionally in a case which is close to that level. That is the matter which is causing concern to Youth Courts and to their legal advisers up and down the country, because that is not what the words of the statute say, and they are concerned to be applying a consistent approach. That is the one I would like to put to your Lordship.
MR JUSTICE STANLEY BURNTON: Thank you very much. This question really relates to the sentencing powers of the Crown Court, having regard to the line of authority which indicates the practice of the Crown Court rather than the question of law. It seems to me it is inappropriate for me to certify this question, and I therefore decline to do so.
Mr John, it may be of interest to you to know that there is active consideration being given to cases such as this going before the (inaudible) Division in future.
MR JOHN: That certainly is of interest to me.
MR JUSTICE STANLEY BURNTON: If so, issues such as the one which is raised by the proposed question will be addressed in a more direct way by the court, which, of course, has jurisdiction over Crown Courts as well as Youth Courts.
MR JOHN: I may be making similar submissions before a slightly different court. I am obliged to your Lordship.
MR SIMBLET: I have nothing else to say, save that in my submission the appropriate orders in relation to costs are that there be no order for costs as between the parties. I would be grateful for a detailed assessment for the purposes of public funding.
MR JUSTICE STANLEY BURNTON: Is that contentious?
MR JOHN: No, my Lord, it is not.
MR JUSTICE STANLEY BURNTON: Thank you both very much. There is another case pending, which I may hear.
MR SIMBLET: My Lord, without disclosing too much of the analysis that may apply in the M case, one of the difficulties that has arisen in advising M is that your Lordship's judgment had to be confidential from M.
MR JUSTICE STANLEY BURNTON: I would have released you, frankly, but it seemed to me you might want time in the New Year.
MR SIMBLET: It may come back to this court, but it may well not.
MR JUSTICE STANLEY BURNTON: Is there anything else? Thank you both very much.