Case Nos: CO/3871/2002 and CO/3876/2002

Neutral Citation No.: [2003] EWHC 35 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Thursday 23 January 2003
Before:

THE HONOURABLE MR JUSTICE STANLEY BURNTON
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	The Queen on the application of 		
	C and D	Claimants	
	- and -		
	Sheffield Youth Court	Defendant	
	-and-		
	Director of Public Prosecutions	Interested Party 	
			
	The Queen on the application of		
	N	Claimant	
	- and -		
	Sheffield Youth Court	Defendant	
	-and-		
	Director of Public Prosecutions	Interested Party 	
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(Transcript of the Handed Down Judgment of
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)
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Stephen Simblet and Emma Favata (instructed by Howells) for the Claimants in each case.
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.
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Judgment
Mr Justice Stanley Burnton: 

Introduction
1.	I have before me applications for orders to quash decisions of the Sheffield Youth Court made in July of this year committing the Claimants, all of whom are aged 14, for trial to the Crown Court on charges of robbery and attempted robbery.  There have been a number of such applications during the course of this year.  Mr John, on behalf of the CPS, submits that there are conflicting decisions of the High Court on two questions:
(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.
2.	Mr John submitted that the only matter to be taken into account by the Youth Court in deciding on venue under section 24(1) is the appropriate sentence for the defendant before it: does it consider that if found guilty it ought to be possible to sentence him pursuant to section 91(3) of the Powers of Criminal Courts (Sentencing) Act 2000 (‘PCCSA’).  As I understood him, Mr Simblet submitted that the Youth Court could and should take other matters into account, and in particular the unsuitability of the Crown Court for the trial of young persons.  On issue (b), Mr John submitted that the High Court could only interfere with a decision of the Youth Court if it were Wednesbury unreasonable: i.e., if the traditional judicial review test were satisfied.  Mr Simblet submitted that it was sufficient for the High Court to conclude that the decision of the Youth Court was wrong.  On both these issues, Mr John submitted that the more recent decisions of the High Court, in the Manchester, Thetford and Southampton cases, to which I refer below, were made in ignorance of previous inconsistent decisions in Cushion  and Devizes; that the more recent decisions are wrong, and that I should therefore follow the earlier decisions.  Mr Simblet, for the Claimants, submits that the more recent decisions are correct and, in any event, precedent requires me to follow them.  I shall, therefore, have to review the authorities to which they have referred.
3.	The youth court and the CPS did not oppose the grant of permission to apply for judicial review of the decisions in question because they wished to have further guidance from the High Court as to the exercise of the former’s powers under section 24(1) of the MCA.  In view of this, and the submissions of Mr John that previous decisions of Divisional Courts were incorrect and should not be followed, at the beginning of the hearing I raised the question whether the present cases should be adjourned for hearing before a Divisional Court.  Counsel urged me to hear the cases as a judge sitting alone, because of the delay that would result from an adjournment, and the desirability of a speedy conclusion to these proceedings, since the trials of the Claimants cannot proceed until after their conclusion.  I reluctantly acceded to their submission.  I had not then read the comments on the exercise by single judges of the judicial review jurisdiction of the High Court in the Preface to the 2003 Edition of Archbold, with which I have sympathy.
The facts
4.	C and D have been charged with robbing T on 23 May 2002.  C and D are of good character.  C, D and T are all aged 14, and had either reached 14, or were within a month or so of their fourteenth birthdays, at the date of the alleged offence.  They all knew each other before the date of the alleged offence.  The prosecution case is that C and D pushed T down a steep bank, punched and repeatedly kicked her whilst she was on the ground, and demanded money on threat of beating her up.  T alleged that she gave C and D the sum of £2 in cash because of the threats and violence.  On arrival at their school, the teacher saw that T was white, had a black eye and a bump on the head and big scratches down her neck; and she felt sick.  
5.	C and D appeared before Sheffield Youth Court on 22 July for the determination of venue.  The Court decided to refuse jurisdiction, pursuant to section 24.  C’s and D’s solicitors recorded the reasons given by the bench as follows:
“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 [2002] EWCA Crim 127.
6.	N is aged 14.  He is not a persistent young offender.  He has one previous conviction for common assault.  He is charged with attempted robbery on 26 May 2002.  The attempt was to rob the victim, an undergraduate, of his motorbike.  According to the prosecution, the victim had looked out of the window of his home and saw two youths wheeling his motorbike away.  He chased them and they ran off.  As he was wheeling the motorbike back to his house, he was approached by two other youths, one of whom was N.  N attacked the victim, saying that he and the person with him were going to take the motorbike.  According to a witness, N punched the victim “as hard as possible” 10 to 20 times and threatened to kick his head in.  He head-butted the victim.  The number plate of the bike was snapped off and N threw it at the victim, hitting him in the body.  A witness called on N and the person with him to desist and rang the police from her mobile telephone.  N tried to take the telephone from her.  The victim of the attempted robbery intervened and was again punched in the face.  
7.	Sheffield Youth Court considered the question of venue on 17 July 2002.  According to N’s solicitors note, the chairman of the bench said:
“Such cases never easy. We must consider each case.  The alleged offence leads us to believe you should be committed to the Crown Court.”
8.	The justices’ evidence is that they gave the following reasons for their decision:
“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.   
9.	In his witness statement dated 15 November 2002, the chairman of the court stated:
“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.”
10.	Mr Simblet, on behalf of the Claimants, contends that the decisions of Sheffield Youth Court to decline jurisdiction were wrong, and should be quashed.  In addition, he sought relief in each case on the basis of alleged procedural irregularities.  It appears from the evidence filed by the court in N that the legal advisor in the Youth Court retired with the bench during the course of their deliberations and advised them on the law.  N’s solicitor’s note of the hearing contains the following passage:
“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.”
11.	The legal advisor to the Magistrates did not repeat in open court the advice he had given to the Magistrates during their retirement.  There was therefore a failure to comply with the Practice Direction (Criminal: consolidated) [2002] 3 All ER 904, paragraph 55.7.
12.	In addition, Mr Simblet submitted that the reasons given by the justices for their decision were inadequate, and that the court should not take into account the expansion of their reasons given in the evidence served on their behalf on the basis that it was likely to be ex post facto justification.
13.	In the case of C and D, in arriving at their decision the Magistrate had regard to “the guidelines issued to Magistrates by the Liaison Judge and Resident Judge in Sheffield.”  The Chairman of the Bench stated, in her witness statement dated 14 November 2002 (italicised as in the original): 
“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.”
14.	Mr Simblet complains that the guidelines were not referred to in Court by the Magistrates or their legal advisor, and that the Claimant’s solicitor therefore had no opportunity to make submissions as to their application.  
The legislation
15.	Section 24(1) of the MCA is 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 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.”
16.	Mr Simblet drew to my attention the provisions of the Children and Young Persons Act as amended relating to youth courts, and in particular sections 31, 45, 46 and 47 and Schedule 2.  The qualifications and training of the magistrates, the procedures of the court and the architecture of the court are special and designed to accommodate the special sensitivities of children and young persons.  In addition, Parliament has deliberately restricted the sentencing powers of Youth Courts.  They have no power to sentence any of the Claimants to detention of any kind.  In certain circumstances they are required to sentence an offender by ordering him to be referred to a youth offender panel: see Part III of the PCCSA, and in particular sections 16(2) and 17(1).  Because none of the Claimants is a persistent offender, the only power to sentence them to detention is that contained in section 91 of that Act, which is conferred only on the Crown Court:
“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.”
17.	The statutory intention that is implicit in these provisions was summarised by Silber J in R (on the application of R) v Balham Youth Justices [2002] EWHC 2426 (Admin), in a case that, like these, concerned a defendant who was not a persistent offender:
“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 authorities
18.	The first decision of the High Court on section 24 was an unreported decision of a Divisional Court consisting of Schiemann LJ and Brian Smedley J in R v Liverpool Youth Court, ex parte Cushion (case no. CO/474/98, unreported, 7 May 1998).  Like the present case, it was a challenge by way of judicial review to a decision of a Youth Court pursuant to section 24 to commit the applicant’s case for trial at the Crown Court.  Submissions were made on behalf of the applicant similar to those made before me, as to the suitability of the Youth Court for the trial of young persons, which were particularly appropriate in that case, where the applicant was aged only 13.  He was alleged to have been one of three boys who had handcuffed a girl, handcuffed her to a front door and to a metal bar in a garage, dragged her across the road, demanded that she commit sexual acts with them and threatened to rape her.  She had had a breakdown as a result of the incident.  Schiemann LJ said:
“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.”
19.	Cushion is authority for the propositions:
(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.  
20.	In R v Devizes Youth Court and Others, ex parte A (2000) 164 JP 330, the Divisional Court considered the question whether, if a Youth Court concluded that a custodial sentence for a young person should be available to the sentencing court, it had a discretion whether or not to decline jurisdiction.  Cushion does not seem to have been cited to the Court.  The head note accurately summarises the decision: 
“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.”
21.	The “international conventions” referred to were the United Nations’ Standard Minimum Rules for the Administration of Juvenile Justice, the United Nations’ Convention on the Rights of the Child and the European Convention on Human Rights.  Judgment in Devizes preceded the coming into force of the Human Rights Act 1998.  Brooke LJ said, at page 334:
“… 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.”
22.	He continued, at page 335:
“… 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.”
23.	Finally, having referred to the international conventions mentioned above, Brooke LJ said, in a judgment with which Jowitt J agreed:
“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.”
24.	It follows from Devizes that, if the defendant before the Youth Court is charged with robbery (or other offence to which section 24(1)(a) applies), the only question for a Youth Court is whether it considers that if he is found guilty of the offence it ought to be possible to sentence him pursuant to section 91(3) of the PCCSA.  Once it so considers, the Youth Court has no discretion in the matter.  Questions of the suitability of the Crown Court for the trial of the offender are irrelevant to the decision to be made by the Youth Court: those questions have been determined by Parliament by imposing an obligation to commit on the Youth Court in the circumstances specified in section 24.  
25.	The decision will be made by the Youth Court on the limited information provided to it when the question of venue arises.  The justices must take into account the sentencing practice of the Crown Court and the Court of Appeal Criminal Division in relation to section 91(3): the Youth Court could not reasonably consider that “it ought to be possible to sentence” a defendant under that provision if there were no possibility that the Crown Court would so sentence him.
26.	The next decision on section 24(1) was that of Gage J in R (on the application of D) v Manchester City Youth Court [2001] EWHC Admin 860.  It concerned a 13 year old (12 at the date of the alleged offence) of previous good character charged with indecent assault on a child aged 9.  The defendant was not a persistent offender.  It was alleged that the defendant had exposed his penis and invited the complainant to masturbate him, and that when the complainant refused the defendant obtained a knife and threatened the complainant by holding a knife to his cheek.  The Youth Court had declined jurisdiction, but when the case came before the Crown Court the judge suggested that the defendant apply for judicial review of the committal.  Gage J was referred to the abbreviated Current Law Yearbook report of Cushion.  That report set out the facts of the alleged offence and summarised the decision of the court as follows:
“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.
27.	Gage J contrasted the offence in that case with that before him.  He said:
“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.
28.	Section 24 came before Gage J again in the next cases, when he was sitting with Sedley LJ in the Divisional Court in R (on the application of W) v Thetford Youth Justices [2002] EWHC 1252 (Admin).  There were two cases before the court.  That concerning W related to 4 alleged offences of indecent assault.  W was of good character and aged 11.  He was alleged to have forced the complainant by violence or threats to engage in sexual activity with him.  He was alleged to have forced 3 complainants to lick his penis.  The charges were said to be specimen charges of his conduct over a period of some months.  The second claimant, M, was aged 13.  He had indecently assaulted a 12 year-old girl: the assault included digital penetration of her vagina.  
29.	Gage J gave the leading judgment.  He stated that the only custodial sentence available in respect of W and M was a sentence under section 91.  He repeated what he had said in the Manchester case that  in order to decline jurisdiction the Youth Court had to consider such a sentence to be a real possibility.  Having considered the authorities on the application of section 91 and its predecessor to persons under 15, including R v AM and other appeals [1998] 1 WLR 363 and R v T and K [2001] 1 Cr App R 446, and his own decision in Manchester, he said:
“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.”
30.	With regard to the test to be applied by the High Court, he agreed with Sedley LJ, for the reasons he gave, that the decision of the Youth Court could be quashed if the High Court considered it to be wrong.  He concluded that the decisions of the Youth Courts in both cases had been wrong, and should be quashed.
31.	Sedley LJ agreed with Gage J’s analysis of the legislation and his reasoning from it.  In view of the subsequent decision in R (on the application of W) v Southampton Youth Court [2002] EWHC 1640 (Admin), to which I refer below, I do not propose to cite extensively from his judgment.  He held that the High Court could interfere with a decision of a Youth Court under section 24 not only if it considered it irrational, but also where it considered it to be wrong. 
32.	The last in this series of cases is that of a very strong Divisional Court, consisting of the Lord Woolf CJ and Kay LJ, in R on the application of W v Southampton Youth Court [2002] EWHC 1640 (Admin).  Judgment was given after the decisions of the Youth Courts in the cases before me.  The leading judgment was given by Lord Woolf.  He was conscious that section 24(1) was a matter of general concern for Youth Courts.  He said:
“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:
‘[1] 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.
[2] 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.”
33.	It would seem from the judgments in Southampton that neither Cushion nor Devizes had been cited to the Court.  Lord Woolf said:
“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.” 
34.	Kay LJ agreed with the judgment of Lord Woolf CJ.  He said:
“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.”
35.	Lastly, there is the decision of Silber J in R (on the application of R) v Balham Youth Justices [2002] EWHC 2426 (Admin).  In that case the alleged offence was attempted robbery of a £1 coin, with a threat to stab the victim if he did not hand it over.  The defendant was aged 14, and was not a persistent offender.  Mr John appeared in that case too on behalf of the Director of Public Prosecutions.  Silber J helpfully reviewed the authorities on the sentencing principles applicable to young persons, and it is therefore accordingly for me to do so in this judgment.  He summarised his conclusion on venue as follows:
“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.”
36.	On the test to be applied by the High Court to the question whether the decision of the Youth Court should be quashed, he cited paragraph 40 of the judgment of Sedley LJ in Thetford; he stated that he agreed with it, and he therefore refused to follow Cushion.  He therefore quashed the decision of the Youth Court.
Precedent
37.	There is a conflict between Cushion and the more recent decisions, and there may be a conflict between Devizes and what was said by Lord Woolf LCJ at paragraph 16 of his judgment in Southampton.  It may be that in theory I am free to decide which to follow, unless I am convinced that all are wrong.  However, I think that the task of a judge in the present circumstances is to seek to reconcile previous decisions of the High Court, and if it is impossible to do so generally to follow the most recent, particularly if they are considered decisions by strong Divisional Courts.  The decisions in Thetford and Southampton are such decisions.
Conclusions on the law
38.	On this basis, the law is as stated by Lord Woolf in Southampton.  However, I do not think that his observation at paragraph 16 of his judgment was intended to suggest that a Youth Court that considers that if a defendant is found guilty it ought to be possible to sentence him pursuant to section 91(1) of the PCCSA has a discretion whether or not to commit him to the Crown Court.  If he did, his observation was inconsistent with the decision in Devizes, where the point was the basis of its decision, and I should follow Devizes.  In any event, in my judgment Devizes was correctly decided.   Section 24(1) unambiguously requires the Youth Court to commit to the Crown Court if the conditions for the exercise of the power to commit are satisfied: the words are “the Court shall commit the accused for trial”.  Parliament has decided that the Crown Court is the suitable venue for the trial of persons under the age of 18 if the conditions expressly laid down by section 24(1) are satisfied.  The Crown Court must ensure that its facilities and procedure are appropriate for the trial and sentencing of any child or young person who appears before it.  It follows that if in paragraph 33 of his judgment in Balham Silber J intended to hold that the suitability of the Crown Court for the trial of a defendant is a separate consideration to be taken into account by the Youth Court in making its decision under section 24(1), I respectfully disagree.  The relevant considerations were the first two referred to in that paragraph.  In effect, his third factor is the product of the first two.
39.	In deciding whether it considers that it ought to be possible to sentence a defendant pursuant to section 91(3), the Youth Court must consider the sentencing powers of the Crown Court and the guidance that has been given as to their exercise.  If, on the basis of that guidance, there is no real possibility of such a sentence, committal is inappropriate.  The relevant guidance is to be found in the judgment of Gage J in Thetford, approved by the Divisional Court in Southampton. 
40.	I accept Mr Simblet’s submission that in making its decision, the Youth Court should take into account any undisputed facts put forward as mitigation, such as the good character of the accused.  Contentious mitigation should be ignored: if the case is committed to the Crown Court and the defendant convicted, mitigation will be a matter for that court.
41.	The test to be applied by the High Court on judicial review of a decision of a Youth Court under section 24(1) is: in the judgment of the High Court, was the decision of the Youth Court wrong?  The test is one appropriate to a review court rather than one making the original decision.  Parliament has clearly given the original decision to the Youth Court, and in terms that admit of some latitude: the words of the statute are not “it ought to be possible to sentence (the accused) in pursuance of” section 91(3) but “the court considers that … it ought to be possible” so to sentence him.  There is normally a range of appropriate sentencing decisions available, and a sentence within that range cannot be said to be wrong: hence the test applied by the Court of Appeal Criminal Division on appeal that a sentence must be wrong in principle or manifestly excessive if it is to interfere.  It is not sufficient for the High Court to consider that it would have made a different decision under section 24(1) to that of the Youth Court.  Only if the High Court is satisfied that the original decision was wrong may it interfere.
42.	In this connection, I do not think that Sedley LJ and Gage J in Thetford intended to lay down anything different from Lord Woolf in Southampton.  Both are well aware of the differences between an original and a review jurisdiction.  If there is any difference between their respective statements as to the test to be applied in judicial review proceedings, it is the more recent statement of the law in Southampton that must be followed.
The application of the test in the present cases
43.	The Court in C and D applied too low a threshold for a sentence under section 91.  There is no real possibility of such a sentence in that case, given the small amount involved and the context, namely violence between schoolgirls known to each other, given that both C and D are of previous good character.  The decision of the Youth Court was outside the range of decisions open to it, and was wrong.  It will be quashed.
44.	The case of N is different.  There was persistent serious violence.  N acted in concert with another.  The object of the attempted robbery was an item of high value.  In my judgment, the court was entitled to take into account the prevalence of such offences in Sheffield, just as the Crown Court would, although in the case of a young person this should be a marginal consideration.  Mr Simblet compared N’s alleged offence with that of W addressed by Lord Woolf in paragraph 21 of his judgment in Southampton, and stated to be a case which was close to the borderline.  In that case had produced a broken bottle with a jagged edge with which he threatened his victim.  No violence was actually used: it was threatened.  In the case of N, no weapon was used.  However, two persons were involved in the offence, and the actual violence was serious.  Whether or not I should have made the same decision as the Youth Court, it cannot be said that it was wrong to consider that a sentence under section 91 should be possible.
Procedural questions 
45.	In view of my decision in the cases of C and D, it is unnecessary to consider whether the decision of the Youth Court should be quashed because they failed to give their solicitor an opportunity to comment on the guidelines to which they referred.  Magistrates should refer those acting for the parties to any authorities or guidelines on which they propose to rely, if they have not already been referred to in court.  However, not every failure to do so is liable to result in the decision being quashed: if the authority or guideline is of marginal relevance failure to seek submissions on it will not lead to the magistrates’ decision being impugned.  If, however, the authority or guideline may be of decisive importance, it must be mentioned to the legal representatives of the parties and they must be given an opportunity to consider it and to comment on it before the magistrates make their decision.
46.	In the case of N, Mr Simblet complained that the legal advisor to the magistrates had advised them during their retirement without the effect of that advice being put before the parties in court.  Notwithstanding that there was a failure to comply with the Practice Direction (Criminal: consolidated) [2002] 3 All ER 904, I do not think it right to quash their decision on this ground, for the following reasons:
(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.
47.	I turn lastly to the question of the adequacy of the justices’ reasons for committing N for trial to the Crown Court.  The decision under section 24(1) does not require elaborate or detailed reasons.  The principal elements of the alleged offence will be obvious.  I see no inadequacy if the justices merely state that on the facts as alleged by the prosecution, and the uncontentious matters relied upon by the defence, in their view the offence is so serious that it ought to be possible for the Crown Court to pass a sentence under section 91 of the PCCSA.  The reasons given by the justices in the case of N were sufficient, whether as set out in the evidence of N’s solicitor or in that filed on behalf of the Youth Court.
48.	Mr Simblet submitted that in paragraph 24 of Mr Hepworth’s witness statement, set out above, he stated that the bench considered that the sentence passed on N, if he were convicted, would inevitably be less than 2 years’ detention.  Mr Simblet stated that on this basis the reasons now provided by the Youth Court, if taken into account, failed to explain why N’s case was exceptional, as it would be if it were to be committed to the Crown Court where the possible sentence is less than 2 years.  He also submitted that if the Youth Court considered that a sentence of 2 years or more was not a realistic possibility, it erred in declining jurisdiction.  
49.	I do not think that Mr Hepworth did mean that the inevitable sentence would be less than 2 years’ detention.  The bench considered that in the absence of mitigating factors the appropriate sentence would be well in excess of 2 years: Mr Hepworth did not state that the reduction for his age and absence of meaningful convictions would reduce the sentence below 2 years.  There are additional indications that the court considered a sentence of 2 years to be a realistic possibility.  Mr Hepworth states that the advice received by the bench was that “we should not send cases to the Crown Court in circumstances where the Bench determines that the matter is unlikely to result in a sentence approaching or in excess of two years”.  The witness statement of Mr Miles, the legal advisor to the bench, similarly indicates that the bench considered that taken at its highest the prosecution case suggested that a custodial sentence of 2 years or more would be appropriate.
50.	In my judgment, the bench in N made no error of law in reaching their decision. As stated above, I have concluded that their decision was not outside the range of decisions properly open to them.
Determination 
51.	The decision of the Youth Court to commit C and D for trial to the Crown Court will be quashed.  The application to quash the decision in respect of N will be dismissed.
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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.