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
		2nd December 2004

Thursday, 2nd December 2004

1. MR JUSTICE LEVESON: Yet again, this court is required to consider a decision of the Youth Court to commit young persons to the Crown Court for trial pursuant to section 24 of the Magistrates' Courts Act 1980 on the grounds that there is a real possibility that the higher court might impose a custodial sentence under section 91(3) of the Powers of Criminal Courts (Sentencing) Act 2000 of, or, at the very least, approaching two years in length.
2. With the leave of the single judge, H, who was born on 9th April 1990 and is now 14 years, 8 months, challenges a decision of the Southampton Youth Court dated 11th August 2004 to proceed in relation to an allegation of indecent assault against him and two others, also 14 years of age, by way of committal for trial rather than to retain jurisdiction within the Youth Court. A (who was born on 17th November 1989) and O (who was born on 12th October 1989) were joined in these proceedings as interested parties: both now also seek to challenge the decision, albeit out of time. Mr Charles Gabb, for the Crown Prosecution Service, did not take any point as to the time and accepted that it was appropriate that all three cases should be heard together.
3. The facts of the alleged indecent assault are important and require a measure of detail. The victim was S, who was the same age, having been born on 4th November 1989. He had been friends particularly with A, but also saw H; through A he met O. On a date in July 2003, when all four boys were 13 years of age, during the school holidays they were together at the home of H. They were playing, each with a ball bearing, or BB, gun, which fires small plastic pellets. To quote words from the video interview of S in June 2004 (which it is right to identify ascribes different roles to the others to that provided in an earlier interview in April 2004), the four were "having a BB gun war around the house, just jumping around, shooting each other and that. It was a good laugh."
4. They then played on the computer and were in H's bedroom when H left and went into the kitchen. He returned with something behind his back and called S over and as he came, tripped him so that he landed on the bed. Whilst A physically restrained S, O pointed a loaded BB gun at his head. It is alleged by S that H then pulled down the tracksuit bottoms and underwear that S was wearing and put a kitchen spatula between his buttocks. S believed that his anus was penetrated to some extent and says that he was in pain at the time; actual penetration is said to be in issue and it is only fair to record that there is no medical evidence to support it, or of physical injury. As this was happening, O said, "Don't worry about it, mate, you're doing fine. It's a delicate procedure." In any event, S was telling them to get off and he kicked out at H in the stomach and caused him to fall. O then noticed that S was crying and threw his gun down. S walked out of the house.
5. What happened thereafter, as related by S, is also important. The others chased him, shooting their guns, but they stayed on the opposite side of the road to S and he kept walking home. His particular friend, A, then came up to him and said, "Come back to the flat." S said, "No", and A said, "Oh, I'm sorry, just come back to the flat." He said, "Sorry's not the word for it", which led A to say, "Oh, that's fine, sod you then", and the two parted. The following day S felt bad and told his mother but did not want to take matters further. Unfortunately, a few days later S started getting abuse at school as what had happened was clearly spread around. In his own words, even at the time of the video interview in June 2004, "I still get people taking the piss out of me and that."
6. There is no doubt that what happened to S and the way that he was treated in the months that followed this incident seriously aggravated its effect. According to his mother, it changed his work pattern and his behaviour. Ultimately, the police were told. The three boys were interviewed. H admitted that the incident had taken place but denied that he had used a spatula. It was put to him (perhaps in an effort to persuade him to admit what was perceived to be his role) that it was more of a stupid, thoughtless joke with, at best, a subsidiary sexual element. O and A admitted taking the parts ascribed to them by S. O said, "It was like a joke about", and later quotes, "A joke, that's all." A said, "It was just a joke. We was just messing about." He went on to say that it had been discussed between the three a matter of minutes before it occurred. After the incident, he agreed that he had gone to S in the street, trying to explain it was just a laugh and to forget about it. With none of the boys was there any investigation of possible sexual motivation to this incident. Indeed, Mr Gabb accepts that he could not suggest that this assault had sexual gratification as its purpose, or indeed one of its purposes. For reasons the significance of which will become apparent, I ought to add that at the time all three boys were of prior good character.
7. The three boys were charged with indecent assault. When the matter came before the Youth Court on 11th August, over a year after the incident, the prosecutor addressed the court as to the circumstances in briefer terms than I have summarised them. There is no suggestion that he mentioned the apology, the attempt to explain what had happened as a joke, or that he referred to the interviews of any of the defendants. He represented that the allegation was such that the grave crimes procedure should be considered and mentioned the aggravating features later recorded by the Magistrates' legal adviser. In a statement made for the purpose of these proceedings, he said that he confirmed the ages of the defendants to the court and provided details of their past history. He confirmed that because they were 14 they could not receive an order of detention and training in the Youth Court unless deemed persistent offenders. He went on that as a likely consequence of this not being the case, that is of their not being persistent offenders, the court must go on to consider whether it ought to be possible, such a possibility being more than vague or theoretical, to sentence the youths for a period of detention that would approach two years in the case of a youth aged between 15 and 17. He considered that this represented a fair summary of two decisions of this court, to which I shall later refer. He goes on to make the point (which is common ground) that no contrary representations were made by the solicitors acting for any of the boys.
8. I turn now to the experienced court legal adviser. He said that he was alerted to the application to be made by the Crown Prosecution Service and also learnt that the solicitors did not intend to make a contrary representation. He explains in his witness statement that prior to the hearing he advised the Magistrates in this way. He told them that in order for the case to be committed to the Crown Court it would be necessary for them to find that the offence was a grave crime. In clarifying what term "grave crime" meant, he explained that they would have to be satisfied that it ought to be possible for the sentencing court to have more than two years' imprisonment available to it. In doing so, he emphasised the importance of being satisfied, particularly bearing in mind the age of the boys, that an order under section 91 of the Powers of Criminal Court (Sentencing) Act 2000 was more than just a vague or theoretical possibility. Thereafter, the hearing took place and he also reported in his statement that the three defence solicitors conceded that the case should be committed to the Crown Court. He goes on to say that he took the view that the approach of the Crown Prosecution Service confirmed the advice that he had given to the Magistrates and he made that clear to the Bench.
9. The Chairman of the Bench made a statement in similar term to the legal adviser: in particular, he refers to the fact that it was made clear that it was up to the Bench to make a decision whether or not the defendants' solicitors agreed and articulated the test in terms that the Bench had to be satisfied that the sentencing court ought to have available to it more than two years' imprisonment and that such a sentencing outcome needed to be more than a vague or theoretical possibility. There is no suggestion that the Bench were taken to any decisions of the Crown Court or the Court of Appeal Criminal Division, whether involving children as young as this or otherwise, to help them to make up their minds as to the likely disposal should the matter proceed to the Crown Court. Further, although in fact the decisions of this court which form the basis of the advice to the magistrates in this case involved allegations of indecent assault which did provide a clear indication as to the attitude of the higher courts for the commission of offences of this nature by children under the age of 15, there is no evidence that the facts of these cases or their outcome was drawn to their attention. In the event, not surprisingly in the light of the unanimity of the legal representatives in court, the Bench decided to commit the trial.
10. I ought to deal with the position of the defence solicitors. Only H's solicitor has made a statement. He takes the point that neither he nor the other defence solicitors were informed of the full factual basis of the allegation. He had seen only advance disclosure papers. He had not seen S's statement. Copies of H's interview and other statements were served upon the defence only on the day of the hearing. Furthermore, he had not had the opportunity of discussing the case with the different solicitor who had represented H when interviewed. Whether or not that is the case, the very least one would expect is that each solicitor would have taken careful instructions before permitting the court to embark upon the grave crimes procedure. It is said that there is increasing pressure on advocates to make early decisions and rapidly progress all cases, especially those involving serious charges and young people and, rightly or wrongly, the solicitors did not ask for an adjournment, did not obtain further disclosure and did not consider the case in full prior to this hearing. Suffice it to say, it was for the defence representatives to ensure that they knew enough about the case to make an informed judgment about the submissions to be made. An account provided by the boys consistent with what was said in interview would have alerted them to the need to consider the matter rather more carefully than perhaps it was. I do not blame the Crown Prosecution Service for that defence failure and it is not, of course, the fault of the court.
11. The reasons why the court declined jurisdiction appear to be in pro forma reasons prepared subsequent to the decision. It is not a certificate as such because, according to the Clerk, the matter was entirely agreed. Rather, it was prepared after a letter for such a form from H's solicitor. It is expressed in these terms for 12 to 14 year olds:

"The court is satisfied that the court which sentences should have available to it the option to sentence to more than two years' custody, having proper regard to the young age and its probable effect on sentencing."

12. I am not surprised that the legal adviser has sought to distance himself from this inelegant conclusion which, in any event, does not appear to represent the legal adviser's view of the proper effect of the authorities. Reference was then made to the following aggravating features:

i) Unprovoked Assault by three youths on to one

ii) BB gun pointed at the aggrieved during the assault

iii) The aggrieved was physically restrained on a bed

iv) Foreign implement inserted into the anus of the aggrieved."

13. Having reached this decision, the matter was adjourned and, on 16th September 2004, the case against all three boys was committed for trial to the Crown Court. Two weeks later, on 30th September, they appeared for what was at least their third time in court before HHJ Leigh QC, whereupon counsel raised concerns with the court about the appropriate venue. The Judge then adjourned the case in order that consideration could be given to an application for judicial review. Unfortunately, this type of circumstance is not unusual. In my capacity as a presiding judge, I have had to deal with the distribution among the appropriate judges of a disturbing number of cases concerning sexual allegations of greater and lesser gravity involving young defendants under the age of 15.
14. To understand why so many such young persons are now being committed to the Crown Court, whereas previously there would have been no question of what was then known as the Juvenile Court not dealing with them, it is necessary to traverse the law relating to the court's jurisdiction. This has been done in a number of cases, but, in the light of the fact that these cases are not diminishing, bears repetition.
15. I deal first with the sentencing regime relating to young persons and, in particular, to the Youth Court. First, section 37 of the Crime and Disorder Act 1998 makes it clear that it shall be the principal aim of the youth justice system to prevent offending by children and young persons, which provision should be considered alongside section 44(1) of the Children and Young Persons Act 1933 to the effect that every court in dealing with a child or young person brought before it, shall have regard to the welfare of the child or young person. There is then the overarching statutory restriction on all discretionary custodial sentences contained within section 79(2) of the Powers of Criminal Courts (Sentencing) Act 2000 as amended ("the 2000 Act"), which provides that the court shall not pass a custodial sentence unless satisfied that the offence was so serious that only such a sentence can be justified for it, or where the offence is a violent or sexual offence, that only such a sentence would be adequate to protect the public from serious harm from him.
16. Moving from the general to the particular, section 100 of the 2000 Act then 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) A 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 the 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) it 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 date as the Secretary of State may by order appoint."

17. It is important to appreciate that the Secretary of State has never appointed a date, with the result that in the case of 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 15 there is no such power unless the offender is a persistent offender which can include an offender of good character who has committed a series of offences (see R v AS [2001] 1 Cr App Rep (S)62) but obviously does not include any person under the age of 15 at the time of conviction without previous convictions who is convicted of a single offence.
18. What then are the powers of the Youth Court in respect of such an offender? If convicted, the court is restricted to non-custodial options such as supervision order, attendance centre order or action plan. If such a 14 year old pleads guilty, however, the only realistic option (ignoring absolute discharge) is a referral order; that is because the effect of section 16(2) and 17 of the 2000 Act is that if he pleads guilty, has never been convicted of an offence or bound over in criminal proceedings, and assuming that referral to a youth offending team is available, such an order is mandatory.
19. That is the background against which the court considers the other strand of legislation which concerns the circumstances in which it is possible to commit for trial and the powers of the Crown Court.
20. Section 91 of the 2000 Act provides as follows:

"(1) Subsection (3) below applies where a person aged under 18 is convicted on indictment of --

(a) ...; or

(b) an offence under section 14 of the Sexual Offences Act 1956 (indecent assault on a woman); or

(c) an offence under section 15 of that Act (indecent assault on a man committed after 30th September 1997).

(2) ...

(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 imprisonment with which the offence is punishable in the case of a person aged 21 or over, as may be specified in the sentence."

21. In Ganley [2001] 2 Cr App R (S) 60, the Vice President, Rose LJ, said:

"The power to impose detention under section 53(3) of the Children and Young Persons Act 1933 [now section 91(3) of the 2000 Act] is unaffected. The principles set out in Mills (1998) 2 Cr App R (S) 128 in relation to such a sentence and as to the importance of avoiding, where possible, lengthy periods in detention on offenders under 18 will continue to apply. If detention for two years or less is called for, it will generally be appropriate to make a detention and training order rather than to have recourse to section 53."

22. It is now necessary to turn to section 24 of the Magistrates' Courts Act 1980. It reads:

"Summary trial of information against a child or young person for indictable offence

24(1) Where a person under the age of 18 years appears or is brought before a Magistrates' Court on an information charging him with an indictable offence other than homicide, he 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 the 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) ...;

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 the 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."

23. Thus, if the Crown Court considers the crime sufficiently grave, the option of a custodial sentence remains.
24. How should the inter-relationship of the statutory provisions be resolved? In R (on the application of D) v Manchester City Youth Court [2002] 1 Cr App R (S) 373, Gage J, as he then was, observed at paragraph 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."

25. He returned to the same problem in the case of R (on the application of W) v Thetford Youth Justices (when sitting in a divisional court). Having analysed the authorities, 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 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."

26. Sedley LJ agreed with this analysis. So did the Divisional Court in R (on the application of W) v Southampton Youth Court [2002] EWHC 1640. It is this case, along with the Manchester case, that the Crown prosecutor referred to as providing authority for the formulation of the test as he proposed it. This court comprised of Lord Woolf CJ and the late Kay LJ. Lord Woolf said at paragraph 16:

"I would respectfully agree with the approach indicated by Gage J ... 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 (2002) 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 settings. That is more satisfactorily achieved in a Youth Court than in a Crown Court."

27. He went on as follows:

"18. As to the complexity of this area of the law, I have considerable sympathy for those who have to apply it. It is unfortunate that the matter is not dealt with in a more comprehensive and satisfactory manner in one piece of legislation rather than in the various sections to which I have referred. It is to be hoped that, in consequence of the recent White Paper, changes will take place to make the law clearer. I also have some sympathy for those who have to apply the statutory provisions to which I have referred because there is a clear tension between the fact that the Crown Court has a general power to impose a detention, which is contained in section 91, yet there are these restrictions which are placed upon the Youth Court but which have not been expressly applied to the Crown Court. However, be that as it may, Youth Courts have to apply the law as it now is. They have to form a conclusion as to when they should try cases and when they should not. As I have already indicated, the approach which was adopted in the Thetford Youth Justices case is one with which I agree. 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."

28. Kay LJ observed at paragraph 25:

"The simple principle underlining 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."

It appears that Kay LJ did not accurately reflect the dividing line between those whom custody, save for section 91, is not permitted and those for whom custody is permitted should they be a persistent offender but his enunciation principle is clear.

29. There are many other such cases. It is sufficient if I refer to two other formulations of the test. In R (on the application of C) v Balham Youth Court [2004] 1 Cr App R 22, 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?"

30. In R (on the application of M and W) v West London Youth Court [2004] EWHC 1144, I put the test in slightly different terms (at pargraph 16):

"Whether there is a real prospect that a custodial of or in excess of two years might be required, or is there any unusual feature of this case which might justify a sentence of less than 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."

31. Against this background, I return to the formulation put before the Youth Court in this case, initially by the Crown Prosecution Service, namely, ought it to be possible, such possibility being more than vague or theoretical, to sentence the youth for a period of detention that would approach two years in the case of a youth aged between 15 and 17? With respect, and notwithstanding the emphatic way in which the matter was put in the witness statement of the Crown prosecutor concerned, that is to misunderstand the authorities and, I apprehend, to misunderstand in particular the observation of the Lord Chief Justice at paragraph 19 when he referred to a custodial sentence which is approaching the two-year limit which is normally applicable to older offenders with whom the court has to deal. He was there referring to the fact that such offenders can receive a sentence of up to two years' detention and training so that there should be no question of using section 91 for them and thus none either for anyone younger. The court in this case was not concerned with what sentence might be passed on a youth of 15 to 17. It was concerned with the sentence on a 14 year old who inevitably, because of his age, will receive a lesser sentence than an older youth in the same position for the same offence. As I shall endeavour to make clear, that point is particularly obvious in this case; that error which the legal adviser did not correct, but confirmed, although it differed from what he had told the magistrates in private, is in itself sufficient to render this decision flawed.
32. In an effort to assist hard-pressed magistrates to determine this issue and thereby prevent the constant diet of cases of this nature before the court and, at the same time, seeking to avoid the need to trawl through the ever-growing list of authorities which touch on this point, with the approval of the Vice President of the Court of Appeal Criminal Division, I will attempt to summarise the matter in a way that can properly be put before the youth court whenever the situation arises.
33. 1. The general policy of the legislature is that those who are under 18 years of age and in particular children of under 15 years of age should, wherever possible, be tried in the youth court. It is that court which is best designed to meet their specific needs. A trial in the Crown Court with the inevitably greater formality and greatly increased number of people involved (including a jury and the public) should be reserved for the most serious cases.
34. 2. It is a further policy of the legislature that, generally speaking, first-time offenders aged 12 to 14 and all offenders under 12 should not be detained in custody and decisions as to jurisdiction should have regard to the fact that the exceptional power to detain for grave offences should not be used to water down the general principle. Those under 15 will rarely attract a period of detention and, even more rarely, those who are under 12.
35. 3. In each case the court should ask itself whether there is a real prospect, having regard to his or her age, that this defendant whose case they are considering might require a sentence of, or in excess of, two years or, alternatively, whether although the sentence might be less than two years, there is some unusual feature of the case which justifies declining jurisdiction, bearing in mind that the absence of a power to impose a detention and training order because the defendant is under 15 is not an unusual feature.
36. With that, I turn to the present case. Assuming the facts to be true (as must the Youth Court), it was an extremely unpleasant incident of bullying which has doubtless affected the victim who had clearly treated the three defendants as his friends. That bullying was apparently aggravated by further teasing and bullying in the months that followed; that greatly aggravates the effect on the victim but is not, of course, strictly relevant to the exercise of determining the possible sentence for the original offence, save only to the extent that it might impact upon remorse. As to that sentence, it would obviously be necessary to ensure that any penalty imposed by the court underlined the gravity of the behaviour and sought to increase the level of each boy's awareness as to the impact of what he had done.
37. That the position would be different for an older person is obvious. Had an adult behaved in this manner to a 13 year old boy, sexual gratification would have been an obvious motive and a substantial custodial sentence would indeed have been justified. An older teenager could also lose his liberty. In my judgment, however, 13 and 14 year olds behaving in this way to one of their school friends, while deeply reprehensible and demanding condemnation, does not come within that category, and certainly not at the level of a sentence approaching two years. In my view, although entirely understandable in the light of the circumstances, the decision of the Magistrates was wrong (see the test adumbrated by Lord Woolf CJ in W v Southampton Youth Court above at paragraph 21). In other words, it was outside the reasonable boundaries of a decision which could be justified. I would quash it and remit the matter back to the Youth Court to continue to hear the matter. It follows, therefore, that I would grant A and O permission to apply for judicial review, albeit out of time. I would abridge all time, treat this hearing as the final hearing of the matter and quash the decisions in their cases as well.
38. I add only two further comments. In my view, it is disturbing that the solicitors acting for these boys did not know sufficient about the case to consider that there may be grounds for challenging the request to commit for trial. With the briefest of instructions, they could have done so. I hope that this judgment will clarify matters so that all concerned in this jurisdiction approach the matter in the correct way and so avoid the necessity of review by this court, which causes delay and undeniably adds to the stress suffered by all, including young victims, young witnesses and, of course, defendants.
39. The second comment is to acknowledge that it is a matter of legitimate public debate that the legislation is so framed as to deprive the youth court of the ability to pass any form of custodial sentence on anyone under 15, save for those above the age of 12 who are persistent offenders. That is, however, a matter for the legislature and it is no part of the function of the courts to seek to go behind it.
40. MR JUSTICE COLLINS: I agree. The order of the court, accordingly, will be that in the case of O and A, permission is granted. All procedural steps are dispensed with and we will treat this as the hearing of the claims for judicial review. We quash the decision of the Youth Court in relation to all three of the claimants and remit the matter to the Youth Court to hear the cases in due course. We express the hope that "in due course" will be as quickly as possible.
41. Are there any other orders?
42. MISS HARVEY: My Lord, yes. Perhaps I may ask for an order for taxation --
43. MR JUSTICE COLLINS: Yes, you may have the usual order for detailed assessment. That is on the assumption that you have filed the relevant certificate.
44. MISS HARVEY: I believe that has been done, my Lord.
45. MR BURKE-GAFFNEY: In relation to all the applicants.
46. MR JUSTICE COLLINS: You are Legally Aided too, are you?
47. MR JUSTICE LEVESON: Why was it necessary for you to come? The argument was advanced on behalf of H; by all means, make application, but what was it going to add for you to be here?
48. MR BURKE-GAFFNEY: It was the effect that the arguments had to be put forward on behalf of O. I appreciate your Lordship's point and, of course, it was exactly the same argument; that is clear from the skeleton arguments, but he was separately represented. I think historically the reason for that is there is a conflict and there will be a conflict at any potential trial. But that was the position.
49. MR JUSTICE LEVESON: That may be, but there is no conflict in relation to jurisdiction. Speaking entirely for myself, I am concerned that hard-pressed public funds have been used to multiply by three the number of legal teams that are here when the point was legitimately made by one and so impacted on all three. Of course, you had to make application; I accept that entirely, but thereafter, I do not see why three people need turn up.
50. MR JUSTICE COLLINS: What is the position? These are criminal proceedings?
51. MR BURKE-GAFFNEY: Yes.
52. MR JUSTICE COLLINS: You have got Legal Aid through the Legal Services Commission, have you?
53. MR BURKE-GAFFNEY: Initially, there was Legal Aid, a representation order.
54. MR JUSTICE COLLINS: But that was in the Magistrates' Court, and indeed at the Crown Court. But that would not extend to these proceedings. As far as I am aware, normally in these criminal cases I decide whether there should be a representation order because there is no power in the Legal Services Commission.
55. MR BURKE-GAFFNEY: There was an emergency order granted last week, I think, in the case of O.
56. MR JUSTICE COLLINS: By the Legal Services Commission?
57. MR BURKE-GAFFNEY: As I see it.
58. MR JUSTICE COLLINS: So they do, or can, grant Legal Aid in these cases?
59. MR BURKE-GAFFNEY: In emergency circumstances.
60. MR JUSTICE COLLINS: Yes, I see. Miss Harvey, you have a representation order through the Legal Services Commission, do you?
61. MISS HARVEY: My Lord, yes. As soon as the application was plotted on behalf of H, that legal representation order was granted and essentially it has gone on to the criminal representation order.
62. MR JUSTICE COLLINS: I see. Mr Burke-Gaffney, does your order permit you to appear, or does it extend only to the lodging of the application?
63. MR BURKE-GAFFNEY: My instructing solicitor informed me that it permitted me to appear.
64. MR JUSTICE COLLINS: You are in the same boat, are you?
65. MISS HAUGHEY: My Lord, I do not know, is the simple answer. We were the last party to lodge terms. I am not aware of the position as regards Legal Aid. I fully appreciate that when this position arose I may well have to appear pro bono, although I would make the application. We were always in a different position to the co-defendants because of the previous conviction that I had, which has now been addressed, my Lord, and I accept that. The difficulty, as my learned friend has pointed out on behalf of his client, O, is that there is likely to be a conflict in the long-term, should this matter go to trial.
66. MR JUSTICE COLLINS: That may be so when you get back to the Youth Court, but that is, with respect, not relevant so far as we are concerned.
67. MISS HAUGHEY: Indeed, my Lord.
68. MR JUSTICE COLLINS: The only certificate that the court has relates to H. You are not entitled, either of you, to a detailed assessment order unless you serve a certificate that you are Legally Aided. The normal order we make in those circumstances is to grant the order, subject to the necessary certificates being lodged within 14 days.
69. MISS HAUGHEY: My Lord, if it assists the court, I have been told by those who sit behind me that that was granted in respect of us 24 hours ago.
70. MR JUSTICE COLLINS: I am not doubting that you have got it. All I am saying is that the court must have a copy of the order. The reality is that whether or not we grant a detailed assessment order, I think I am right in saying, makes no difference whatever. But there we are; we go through the motions. So far as the generality is concerned, and this applies to both you and Mr Burke-Gaffney, we are concerned that there has been thought to be the need for the two of you to attend this court. We recognise that there was a need for these proceedings to be lodged and, clearly, for that to be covered by some sort of order, but we have the gravest possible doubts as to whether it was appropriate or correct that you should be instructed to attend before this court. We do not know what the precise terms of the Legal Aid orders that you have are. We are afraid that it may be that you will suffer, but we are afraid that we would not approve that there were any payment for the attendance here, by either you or your instructing solicitors, and if the Legal Services Commission is able to prevent such payment, we would support that approach. We are being tough because we take the view that not only was it a waste of money for you to have to appear here, but also we take account of the failure in those cases to launch these proceedings at a much earlier date. If proper consideration had been given earlier, then this would, or could have been, avoided because, apart from anything else, there would have been plenty of time to invite the court to give directions as to whether there was any need for attendance by more than one counsel. If the court had been asked for such directions, it would have said quite clearly that there was no such need because there was no argument to be advanced by either of the other claimants to add to that that was advanced by the representatives of H. However, obviously we cannot make any order which is contrary to the legal provisions and if the Legal Services Commission has granted a certificate which covers this representation, there is little that we can do about it, save to express, as we have, our disapproval. I should have said "I" rather than "our". My Lord will indicate whether he agrees with what I have said.
71. MR JUSTICE LEVESON: I agree.
72. MR JUSTICE COLLINS: Thank you.