QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
MR JUSTICE LEVESON
|THE QUEEN ON THE APPLICATION OF|
|"H", "A" and "O"||(CLAIMANTS)|
|THE SOUTHAMPTON YOUTH COURT||(DEFENDANT)|
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MISS KEELY HARVEY (instructed by Messrs Peach Grey and Co) appeared on behalf of the CLAIMANT "H"
MR RUPERT BURKE-GAFFNEY (instructed by Eric Robinson) appeared on behalf of the CLAIMANT "O"
MR CHARLES GABB (instructed by the Crown Prosecution Service) appeared on behalf of the DEFENDANT
Crown Copyright ©
Thursday, 2nd December 2004
"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."
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."
(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."
"(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).
(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."
"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."
"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
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."
"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."
"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."
"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."
"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."
"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.
"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?"
"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."