England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		30th April 2004

1. MR JUSTICE LEVESON: These applications are the latest in a long line of cases relating to decisions of the Youth Court to commit children or young persons to the Crown Court for trial, pursuant to section 24 of the Magistrates' Court Act 1980, in respect of one or more serious offence on the grounds that there is a real possibility that the Crown Court might impose a custodial sentence of, or at least approaching, two years in length. These cases involve young people of good character or with limited prior criminal history, such that they cannot be described as persistent offenders. The reason for this is that unless they are a persistent offender, a detention and training Order is not open to the Youth Court in relation to a child or young person under the age of 15 at the time of conviction (see section 100(2) of the Powers of Criminal Court (Sentencing) Act 2000). In the event of conviction, a non-custodial penalty is thus inevitable.
2. With the leave of Silber J, M, who was born on 21st January 1990 and is now 14, challenges the decision of District Judge Magistrates' Court Simpson, sitting at West London Youth Court on 22nd January 2004, to commit him for trial in respect of an offence of robbery. When a co-defendant, W, who was born on 12th August 1989, and is also 14 years of age, became aware of this hearing, he commenced proceedings and now seeks permission, together with consolidation of his case with that of M. The Youth Court has responded to that intimation of proceedings but although the Crown Prosecution Service, as interested party, was not served, it does not oppose this application being heard, together with that brought by M. That is the course which I have taken.
3. The facts must be set out in a little detail. On 12th October 2003, it is alleged that these claimants were part of a group of between 10 and 15 youths who committed a robbery. The victim was another youth who was 14 years of age. He was walking to his home at about 5.30 pm when he was approached from behind and surrounded by a group of youths. One asked him, "What have you got for me?", another put his hand in the victim's trouser pocket and removed his mobile telephone and a £10 note. The same youth also removed the gold sovereign ring from the victim. The victim tried to escape from the youths but his route was blocked by two boys. One, who it is conceded was W, and who at the time was using crutches, struck the victim over the head with one of his crutches. In addition, the victim was also punched in the face by another youth, although he did not see who threw the punch. The group of youths all made off.
4. The prosecution case is put on the basis of joint enterprise, that is, a joint plan to rob the victim, in the course of which he was assaulted with a crutch. Both claimants were identified by the victim, each of whom was caught when the victim and his parents, together with police officers, trawled the area. W was on crutches. At the time he said that one of his crutches had been taken off him, but before the district judge he accepted that he had used his crutch, asserting that he had been threatened by the victim. M admits presence at the scene but denies all involvement.
5. When the issue of venue came before the district judge, the Crown prosecutor invited the court to decline jurisdiction and to commit both these claimants, along with three others whose circumstances are very different and do not fall for consideration by me, to the Crown Court for trial. Her representations relied upon the facts which I have just summarised. She submitted that aggravating features were the size of the group and the violence used. All five defendants made representations as to venue. I am concerned only with those of these claimants.
6. M submitted that the case was suitable for summary trial. He was of previous good character and would not receive a sentence, even if convicted, of two years. W also represented that the case was suitable for summary trial. He would be pleading guilty, had never been in trouble before, and lived with his parents. As I have said, he accepted that he had used the crutch but submitted that there was no evidence of injury and claimed that he had been threatened.
7. The district judge gave a short ex tempore judgment which was noted in these terms:

"Not suitable for summary trial in the Youth Court due to the number of youths involved in the robbery -- 15 and the violence used and the effect that had on the victim. Guideline sentences on mobile phone robberies."

In a witness statement for these proceedings, the district judge elaborated. He said that he was aware of a number of cases in relation to the decision as to jurisdiction, and he also had regard to the prevalence of street robbery in the Westminster area, in particular, robberies involving thefts of mobile phones. The statement then sets out a number of decisions, both on the question of jurisdiction and sentence involving robberies of mobile telephones, but he makes it clear that no cases were cited to him at the time. In addition, he was not aware of one of the decisions to which I shall refer later. This statement deals only with M, and the district judge observes:

"In deciding whether it ought to be possible to sentence the claimant pursuant to section 91(3) of the PCC(S)A [Powers of Criminal Court (Sentencing) Act] 2000, I appreciate that M was not a persistent offender and was of an age where, if convicted, he was not eligible for a detention and training order."

8. The meaning of this sentence is not entirely clear but Mr Khamisa, on behalf of the Crown Prosecution Service, accepts that it appears to mean that the district judge had noted, and therefore considered, the fact that because M was of prior good character and not a persistent offender, he was not eligible for a detention and training order at the Youth Court. Thus, he should be committed in order that such a possibility might be open to the court. If that is the proper meaning of that sentence, it represents, as Mr Khamisa readily accepts, an error of law.
9. What the district judge went on to say was this:

"Sentencing young people is a complex exercise and is often likely to result in a more individual process than that of their adult counterparts. At the jurisdiction decision the Youth Court has to ascertain whether or not, following a conviction on the prosecution's version of the facts, the appropriate sentence should be as indicated in the Southampton case [ie a custodial sentence approaching two years]. However, the Crown Court will have the full facts established either during the course of a trial or by a plea of guilty on agreed facts. The Crown Court will also have the benefit of a pre-sentence report from the appropriate youth offending team before reaching a decision as to whether the case is so serious that only a custodial sentence can be justified and, if so, whether the length should in fact be within an appropriate range for detention under section 91.

On my understanding of the facts of the prosecution case taken at its highest and the authorities I have cited above, this was a case where despite the youth and previous good character of the claimant, once all relevant facts were established and enquiries made, the Crown Court might consider the appropriate sentence to be in the category described by the Lord Chief Justice in the Southampton case. It was an attack by a large group of youths on one young boy, he was surrounded, punched and then hit over the head with an improvised weapon, and it was a mobile phone robbery in an area where such attacks are prevalent."

10. With that recitation of the facts, I turn to the law. The statutory framework can be set out quite briefly. Section 100 of the Powers of Criminal Court (Sentencing) Act 2000 provides:

"(1) Subject to sections 90, 91 and 93 above, and subsection (2) below, where --

(a) a child or young person, that is to say any person aged under 18, is convicted of an offence which is punishable with imprisonment in the case of a person aged 21 or over; and

(b) the court is of the opinion that either or both of paragraphs (a) and (b) of section 79(2) above apply, or the case falls within section 79(3), the sentence that the court is to pass is a detention and training order.

(2) The court shall not make a detention and training order --

(a) in the case of an offender under the age of 15 at the time of conviction unless it is of the opinion that he is a persistent offender;

(b) in the case of an offender under the age of 12 at that time, unless

(i) he is of the opinion that only a custodial sentence would be adequate to protect the public from further offending by him; and

(ii) the offence was committed on or after such a date as the Secretary of State may, by order, appoint."

The Secretary of State has never appointed a date. Thus, for an offender under the age of 12, there is no power to make a detention and training order. In the case of an offender under the age of 15, before such an order is made the offender must be characterised as a persistent offender.

11. These provisions were analysed in R (on the application of W) v Southampton Youth Court [2002] EWHC 1640 Admin [2003] 1 CAR(S) 87. Having set them out, the Lord Chief Justice went on at paragraph 11:

"There is no doubt that the general policy of the legislature is that young offenders should, where possible, be tried by a Youth Court. That is a policy which the courts should promote. It is obviously desirable that, where appropriate, young offenders should not be tried before the Crown Court unless this is clearly necessary. The policy is reflected in section 24(1) of the Magistrates' Courts Act 1980 . . . "

That section makes it clear that for an indictable offence other than homicide, a person under the age of 18 should be tried summarily unless, among other conditions, the court considers that if he is found guilty of the offence it ought to be possible to sentence him in pursuance of section 91(3) of the Powers of Criminal Court (Sentencing) Act 2000. This last provision sets out that power in these terms:

"If the court is of the opinion that none of the other methods in which the case may legally be dealt with are suitable, the court may sentence the offender to be detained for such a 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."

12. The Lord Chief Justice then went on to consider two decisions in which Gage J had given important judgments. Without citing them in their entirety, it is important to refer to certain parts of those cases. In R (on the application of D) v Manchester City Youth Court [2002] 1 CR APP R(S) 135, at page 573, Gage J considered these provisions and went on at paragraph 23, page 578:

"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 making 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."

The significance of the two-year term is that that is the maximum period for which a detention and training order can be made.

13. Gage J returned to this issue in R (on the application of M) v Waltham Forest Youth Court Justices and Director of Public Prosecutions [2003] 1 CR APP R(S) 67 at page 323, and observed at paragraph 30:

"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 necessarily 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 was not available indicates that Parliament intended that generally a non-custodial should be passed. Perhaps it would be best 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."

14. Having cited these observations, the Lord Chief Justice agreed with that approach, referring, in addition, to the principles set out in T and V v United Kingdom [2000] 30 EHRR 121, which require trials fully to take into account the needs of defendants of a young age. He went on at paragraph 18:

"In an attempt to underline what was said by Gage J in that case, I would indicate that justice 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 be not so appropriate as the Youth Court. 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 a two-year limit, which is normally applicable to older offenders which whom they have to deal. To do otherwise would not comply with the intention of the legislation to which I have referred."

15. Agreeing with that judgment, Kay LJ went on to observe at paragraph 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 age 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 court the use of Section 91 ... the need in exceptional cases to make use of these powers cannot, however, have been intended to water down the general principle."

16. This decision was applied in R (on the application of C) v Balham Youth Court [2004] 1 CR APP R(2) 22, where the matter was put by Scott Baker LJ in these terms at paragraph 34:

"So it seems to me one comes back to the question: was this case such a serious case that detention above two years would, and I would add, or might realistically, be required?"

I would pose the question in slightly different terms, but to like effect and ask whether there is a real prospect that a custodial sentence of, or in excess of, two years might be required, or is there any usual feature of this case which might justify a sentence of less than two years, pursuant to section 91(3), for which purpose the absence of a power to impose a detention and training order because the offender is under the age of 15 is not an unusual feature. What then is the appropriate test? Reverting to the observations of the Lord Chief Justice in Southampton Youth Court, he put it in this way at paragraph 21:

" . . . 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."

17. With that, I turn to the merits. Mr Khamisa referred me to Attorney General's Reference Numbers 4 and 7 of 2002, R v Lobban and Sawyers [2002] 2 CR APP R(S) 77, and the well-known observations of the Lord Chief Justice in relation to robbery offences in these terms at paragraph 4:

"Custodial sentences will be the only option available to the courts when these offences are committed, unless there are exceptional circumstances. That will apply irrespective of the age of the offender and irrespective of whether the offender has previous convictions. However, both those factors are very important when a judge comes to decide on the length of sentence.

In his submissions on behalf of the Attorney General, Mr Pownall said that the bracket of sentencing which the authorities reveal for offenders of the sort we have been described is 18 months to five years."

The Lord Chief Justice then agreed with that bracket, subject to a modification of the upper limit in certain cases. He went on to observe that a factor which, in his judgment, was of importance was whether a team of offenders was involved, and commented:

"The fact that there are a number of offenders will make the offence more intimidating."

18. I do not refer to the earlier authorities mentioned in skeleton arguments and deployed in submissions, bearing in mind that the Lord Chief Justice went on to speak of the need to deter those who commit offences of this nature, which have increased because of their prevalence. Mr Khamisa argues that the aggravating features in this case, ie, the number of offenders and the use of a weapon, all serve to indicate that the district judge was entitled properly to conclude that a sentence of two years was a real possibility. Mr Southey, for M, and Miss Rahman, for W, take issue with that submission and have referred me to a series of cases where this question of jurisdiction has been ventilated. They invite me to compare the gravity of the facts of this case with the gravity of those.
19. In the Southampton case itself, the defendant, who was 14 years of age and of good character, and another 15-year old were alleged to have robbed a 13-year old and stolen his bicycle. The particular aggravating feature of that offence is that the relevant defendant was alleged to have threatened the victim with a broken bottle which had a jagged edge, and which he produced from his pocket. If that is correct, it meant that he had embarked upon an offence, having armed himself with such a weapon and was prepared at least to threaten violence. The Lord Chief Justice considered the case "close to the borderline" and did not interfere with the decision to commit for trial. It is submitted that the feature of the broken bottle makes this a more serious incident than the present, which involved what Mr Khamisa accepted was a improvised weapon, although one which was used.
20. I was next referred to the facts of the Balham case. That concerned two alleged offenders who were 14 years of age at the time of the incident and who were charged with attempting to rob a youth of a similar age. Both, while on a bus with the victim, allegedly spoke in loud voices about beating people up and that one of them carried a spanner. They followed the victim off the bus, engaged her in conversation, and the claimant in that case dropped a tub of crisps on the floor and stamped on them saying, "I am going to do that to someone's face in a minute." He then asked the victim about her mobile phone and the other defendant demanded the phone. The victim moved away but they followed her and her hair was pulled, as was her bag. The claimant, apparently, also started to pull her hair so hard that he was dragging her face towards the ground and her hair was coming out. There was a struggle for the bag. The claimant managed to hang onto it. A metal strap hit the female co-defendant, distracting the two of them and allowing the victim to escape.
21. In that case Scott Baker LJ observed that this was an incident of "loutish behaviour that spilled over into a very unpleasant attempted robbery". The decision to commit to the Crown Court was quashed. It is said that this case, again, is more serious than the present facts; the violence was more severe, it was as intimidating, and the defendant apparently had a record of dishonesty. However, Scott Baker LJ did observe that the case should not be committed because it was not in a category of "multiple assailants, a weapon, and offences committed at night". Mr Khamisa relies upon this observation saying that this did concern, at least, multiple assailants and a weapon.
22. I ought to refer to two other examples. In R (on the application of D) v Sheffield Youth Court [2003] EWHC Admin 35 Vol 167, JP 167, Stanley Burnton J quashed committals in relation to two 14-year olds who had allegedly pushed the victim down a steep bank, punched and repeatedly kicked her whilst she was on the ground, and demanded money on threat of beating her up. Two pounds were stolen, the victim was left with a black eye, a bump on the head, scratches down her neck and felt sick. Stanley Burnton J said at paragraph 43:

"There is no real possibility of such a sentence in that case [ie, a sentence under section 91], 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."

23. Before expressing my conclusions, I ought to comment on one further submission made by Mr Southey and Miss Rahman. Mr Khamisa had relied upon the Attorney General's Reference Numbers 4 and 7, as I have suggested, and observed that the Lord Chief Justice intended the approach to govern offenders of all ages. In the Balham case, Scott Baker LJ observed, about this citation from the Lord Chief Justice:

"In my judgment the Lord Chief Justice, in gathering the various cases together and analysing them, does not say anything that was intended to cut across the established principles for dealing with offenders under the age of 15."

I agree with that observation. None of the cases before the Lord Chief Justice concerned youths or children under the age of 15 and, as far as I can see, none of the cases cited in argument concerned such young offenders. Thus, although I must properly consider the gravity of this particular allegation, I do so free of the absolute obligation to start at a term of 18 months, bearing in mind the ages of these two boys.

24. I go back to the fact that both claimants are of prior good character. If he is convicted, M will not have the benefit of having pleaded guilty. His role, however, was, by concession from Mr Khamisa, on the fringe of this group activity. It is not said that he threw a particular blow. That is not the case in relation to W. Although he concedes the specific use of violence, albeit unplanned violence, he has the benefit of having immediately admitted his responsibility to the Youth Court and intimated a plea of guilty. That inevitably would attract a real discount on any sentence. In addition, he suffers from dyslexia and is the subject of a statement dealing with his educational needs.
25. In my judgment, I do not believe, taken at its highest that either of these boys suffers the real possibility of a sentence of, or approaching, two years in length. I know of no unusual feature, save for the number involved in the incident, which is not sufficient for the purposes of the test to which I have referred, which brings this case within section 91(3). In my judgment, the district judge was wrong to conclude that this case was appropriate only for committal for trial. In those circumstances, I grant permission to W, and the decision to commit for trial will be quashed both as regards M and W.
26. Having said that, it is a matter of legitimate public debate that the legislation is so framed that the Youth Court is entirely deprived of the ability to pass a custodial sentence on a young person under the age of 15, unless he can be characterised as a persistent offender or unless the offences is so serious that, absent unusual features, a sentence of the order of two years is required. The remedy, if remedy is required, is to amend the legislation. Certain it is that the increasing number of occasions on which the courts have to indulge in the type of analysis which I have had to consider, is not conducive to the sensible disposal of criminal business, especially when one takes into account that committal for trial causes with it all the adverse side-effects of a public trial by jury for a young offender who, by reason of the decision in T and B to which I referred, should be kept from that ordeal, save for the most unusual circumstances.
27. MR SOUTHEY: Thank you, my Lord. In addition to the quashing order, firstly, what I would ask for in relation to costs is for the claimant's costs to be assessed for the Community Legal Service. Secondly, my Lord, I recognise that there is, in relation to those costs, somewhat of a difficulty because I am well aware of the authorities on costs from the Magistrates' Court and recognise that this is not a case where, despite the Magistrates' Court being the defendant, I would be entitled to costs from the Magistrates' Court. I recognise also that those authorities do not lend support to costs being paid by the Crown Prosecution Service, despite the fact that the Crown Prosecution Service has been the effective defendant.
28. My Lord, in those circumstances, what I have sought in the past, with some success, is costs from central funds. Because this is a Divisional Court case, there is a power to make an order for costs from central funds. The reason for that -- it may sound theoretical given there is Legal Aid funding, but there are two practical reasons why I seek that order. The first is that, as your Lordship will be aware, the Community Legal Service thesedays is cost limited. In principle, and indeed in practice, the budget, the expenditure for the budget, has an impact on other applicants. The extent to which we can recover costs is important because it governs other applications.
29. MR JUSTICE LEVESON: I understand.
30. MR SOUTHEY: My instructing solicitors will be paid less which, in my submission, they should not be for bringing a legitimate case. Essentially, the funding arrangements mean that they are on a much reduced rate if they do not obtain costs from some other source.
31. MR JUSTICE LEVESON: I am not concerned about that. The statutory mechanisms are the statutory mechanisms.
32. MR SOUTHEY: The reason I mention that, my Lord, is the assumption behind those statutory mechanisms are that it penalises those --
33. MR JUSTICE LEVESON: I would not dream of making a different order simply so that your solicitors could recover more.
34. MR SOUTHEY: Well. I do make the first point, however, my Lord. I do submit that, as has happened on other occasions, it is appropriate that there is an order for costs from central funds.
35. MR JUSTICE LEVESON: In these sorts of cases?
36. MR SOUTHEY: In criminal cases where -- this is, to be frank, the first of the section 91/section 24 cases I have appeared in but, for example, a case I can think of was a case before the Divisional Court where it was a legitimate expectation case. There are a number of cases regarding sentencing where the Magistrates' Court say they will deal with something and then the next Magistrates bench go behind that. I can remember getting an order for costs from central funds on this basis.
37. MR JUSTICE LEVESON: Yes. Right.
38. MR SOUTHEY: My Lord, unless I can assist you further.
39. MR JUSTICE LEVESON: No, thank you.
40. MS RAHMAN: My Lord, my client was privately funded, Legal Aid having been refused. I am quite happy to take the lead from my friend so far as --
41. MR JUSTICE LEVESON: You are not going to get any costs, save for the costs of applying for permission because you obviously had to put in a document for that. But it was then open to you to wait for this case to be determined.
42. MS RAHMAN: My Lord, yes.
43. MR JUSTICE LEVESON: Had it been determined, as it has been, in your client's favour, then doubtless your client's case would have gone rather more swiftly.
44. MS RAHMAN: My Lord, yes.
45. MR SOUTHEY: My Lord, I hesitate to rise again but my learned friend Mr Khamisa has pointed out that in his bundle, at page 88, it is clear in one of these cases that an order from central funds was made.
46. MR JUSTICE LEVESON: Right.
47. MR SOUTHEY: I am told it is the Waltham Forest case.
48. MR JUSTICE LEVESON: Right. Well, I will make an order that M's costs be paid out of central funds. I will make an order that W's costs be paid out of central funds, limited to the preparation and application for permission.
49. MR SOUTHEY: My Lord, there will obviously be an assessment --
50. MR JUSTICE LEVESON: Detailed assessment of all costs. Thank you.