England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		6th April 2005

1. LORD JUSTICE LAWS: This application for judicial review, for which Hodge J gave permission on 17th March 2005, is about the appropriate venue for the trial of the claimant, "C", who is a minor born on 22nd February 1990, upon two charges of being concerned in the supply of heroin.
2. On 2nd February 2005, which was the day after he had been arrested, C appeared with two co-accused before District Judge Kitson at the Leeds Youth Court. After hearing submissions for the Crown and for C, but not apparently for the co-accused, the District Judge decided to decline jurisdiction in the youth court and directed that C and the co-accused be committed for trial in the Crown Court. That is the decision under challenge. Hodge J stayed the criminal proceedings until the judicial review should be determined and ordered that the case be expedited.
3. Here are the outline facts. The first charge related to an occasion on 24th November 2004 when two test purchase officers were deployed in the Chapeltown area of Leeds. The Crown case was that two males approached the officers and sold them heroin and that video footage shows C in the background acting as a lookout while the deal was taking place. The second charge concerned the same two test purchase officers and an occasion on or about 7th December 2004, again in Chapeltown.
4. The Crown case was that C was one of two males who met with the officers and directed them to a location where they might obtain heroin. C is also said to have given one of the officers a telephone number which the officer rang two days later. He was then given details of a meeting place but did not pursue it. C and his two co-accused were, as I have indicated, arrested on 1st February 2005.
5. In a submission which forms the substantive part of the acknowledgment of service in the judicial review proceedings, District Judge Kitson states that:

"The arrests had been part of a major police operation, and a total of fifteen defendants, both adults and youths, were before the court that day. Some were charged alone, and some like [C] were jointly charged with co-defendants."

6. It is convenient at this stage to set out the statutory framework which defined the District Judge's task on 2nd February 2005. Section 24 of the Magistrates' Courts Act 1980, so far as relevant, provides:

"(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 ... 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 ...

and accordingly in a case falling within paragraph (a) ... 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."

7. Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, so far as relevant, provides:

"(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...

(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, or as may be specified in the sentence."

8. Thus it can be seen that the general rule is that a minor under 18 charged with an indictable offence is to be tried summarily, that is in effect in the youth court; but if certain conditions are met he is to be committed for trial to the Crown Court under section 24(1) of the Magistrates' Courts Act.
9. The authorities in this area, and I refer in particular to the decision of the Divisional Court presided over by the Lord Chief Justice in W and K [2002] EWHC Admin 164 and also H, A and O [2004] EWHC Admin 2912, have emphasised the primary statutory policy that minors are to be tried in the youth court and have emphasised also the duty of the courts to promote that policy. Guidance was given in both of these cases. However neither of them, nor any other authority, was cited by prosecution or defence to the District Judge in the present case.
10. In W and K both the Lord Chief Justice and Kay LJ endorsed the approach of Gage J (as he then was) in D [2002] 1 Cr App R (S) 573. Gage J had said this in D:

"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 restrictive 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."

11. The Lord Chief Justice in W and K for his part also said this:

"18. ...In an attempt to underline what was said by Gage J in that case [the reference is in fact to a decision of Gage J in Thetford Youth Justices which cross-referred back to his earlier decision in D], I would indicate the 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."

12. In H, A and O, Leveson J, with whose judgment Collins J agreed, made these general remarks:

"33. 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 a 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. 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. 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."

13. Mr Waterman for the Crown Prosecution Service cites in his skeleton argument other authority, not least the decision of Stanley Burnton J in R v Sheffield Youth Court [2003] EWHC Admin 309 and that of Scott Baker LJ in R v Balham Youth Court [2004] 1 Cr App R (S) 330. He seeks to distil the principles to be got from the cases generally in paragraph 55 of the skeleton:

"(a) Is there a more than vague or theoretical possibility/a real possibility of two or more years being imposed, or might realistically two or more years be imposed, or is there a real prospect of more than two years being imposed? If so, then the case should be committed to the Crown Court for trial."

There are other considerations canvassed by Mr Waterman into which, given the facts of this case, it is unnecessary to travel.

14. C's judicial review grounds, elaborated in Mr Wise's skeleton argument, refer to other legal sources, such as section 44(1) of the Children and Young Persons Act 1933 and Article 3(1) of the United Nations Convention on the Rights of the Child, which emphasise the primacy, or at least the importance, of the interests of the child in proceedings where a child is involved. Emphasis is placed on the decision of the Court of Appeal Criminal Division in Khalid Hussain [2001] 2 Cr App R (S) 273 in order to mount a comparison with the facts of the present case in light of the guidelines in W and K and H, A and O.
15. In Hussain the appellant was 15 at the time he committed offences of supplying heroin and possession with intent to supply. In this case C was 14 at the time the offences were committed. As in this case, in Hussain a test purchase officer was involved. The appellant pleaded guilty and was sentenced in the Crown Court to three years' detention. That was varied by the Court of Appeal Criminal Division to a detention and training order for 24 months. It is submitted for C that this present case is less grave than Hussain: C, as I have said, was 14 at the time of the offences; he was acting as a lookout rather than actually holding the drugs; no drugs were actually supplied. It is accordingly submitted, having regard to the guidelines and the importance of the best interests and welfare of the child, that there was no real prospect of C being sentenced to custody for two years or more and accordingly the District Judge was wrong to commit him to the Crown Court.
16. I shall return to the merits of this argument shortly. First it is convenient to notice that it is also submitted by Mr Wise, in light of authority such as R v Burton upon Trent Justices ex parte Hussain [1997] 9 Admin LR 233 and learning from the European Court of Human Rights at Strasbourg, that the District Judge owed a duty to give reasons for his decision, which he failed to fulfil. C's case is that the District Judge disposed of the matter in a single sentence: "I hear what you say, but this is not a suitable case for summary trial for any of them". There is no transcript of what was said by the District Judge. However, in his observations set out in the acknowledgment of service, to which I have already referred in passing, the District Judge says this:

"The Crown Prosecution Service made representations that the offences were Grave Crimes, that there was a nexus between all three defendants, and that they should be dealt with together at the Crown Court. My recollection is that the other two defendants' solicitors did not oppose the suggestion that their cases were Grave Crimes and although as [C]'s solicitor Mr Message did make some submission for his client to be dealt with separately in the Youth Court, the submission was extremely brief and he didn't rely on any authorities. He certainly didn't cite the case of R v Khalid Hussain which is referred to in the Claimant's grounds for appeal. Mr Message did not indicate what plea his client would be entering to the charges, therefore assuming his client intended to plead not guilty I took the view that not only were these Grave Crimes but in the light of what I was told about the connection between the three co-defendants, I considered they should all be dealt with by the same tribunal so as to avoid the possibility of two or more trials in different courts. Although no authorities were presented to me by Mr Message I did apply my mind to the Grave Crimes criteria and I gave my reasons, albeit brief ones, for my decision to direct that all three defendants should be dealt with at the Crown Court. At no time did Mr Message ask me to elaborate on my reasons, which were delivered ex tempore but recorded by the Legal Advisor. The note of my reasons on the case papers says 'involved in large supply of Class A drugs. Nexus between the defendants. Should be dealt with together'.

I take issue with paragraph 3 of the Grounds of Appeal, which states that I disposed of the matter in one sentence. I consider that the extent of my reasons were commensurate with the submissions which had been made by both Prosecution and Defence."

17. It is right to notice that in R v Sheffield Youth Court [2003] EWHC Admin 309, Stanley Burnton J said this at paragraph 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 sentence under section 91 of the PCCSA."

18. It is clear that the condition for committal to the Crown Court established by the PCCSA 2000 section 91(1)(a) was met here: that is to say, that the offences in question were "punishable in the case of a person aged 21 or over with imprisonment for 14 years or more". The question for the District Judge arising under section 24(1)(a) of the Magistrates' Courts Act was accordingly whether he considered that if C was found guilty of the offence it "ought to be possible to sentence him in pursuance of subsection (3) of section 91 of the PCCSA". I repeat section 91(3) for convenience:

"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."

19. Mr Waterman for the CPS submits that on the facts here, according to the prosecution case summary, C was part of a group of men, or men and boys, involved in the commercial supply of heroin and crack cocaine in an area where such dealings are prevalent. He, that is C, had a street alias. On an occasion not forming the subject of a charge against him, he was seen with known drug users at the same location where he had acted as a lookout. It is said that this goes to rebut any suggestion that he was "peripheral to what was taking place": see Mr Waterman's skeleton argument paragraph 74(c). C denied the offences in interview.
20. Counsel refers to the judgment given by Hooper J (as he then was) in R v Djahit [1999] 2 Cr App R (S):

"What then is the appropriate sentence following a trial for a typical low-level retailer of heroin or other Class A drug, with no relevant previous convictions, selling to other addicts in order to be able to buy drugs for his own consumption and to earn enough to live very modestly? It seems to us that he may expect about six years' imprisonment."

Mr Waterman would not I think accept that the case was as low-level, to use that expression, as is being contemplated there.

21. As for the case of Hussain relied on by Mr Wise, Mr Waterman points to the fact that Hussain pleaded guilty yet still received a 24 month detention and training order. An appropriate sentence after a contest might therefore have been 27 to 36 months. Moreover, the basis of plea in Hussain was that Hussain had found the drugs and only sold to acquaintances he knew. These points, and in particular the latter, seem to me to be very significant factors: albeit, Hussain, unlike C, was actually in possession of drugs and in fact sold drugs to others.
22. It seems to me that the District Judge may have said more than is attributed to him by C in the grounds, but on his own account given in the acknowledgment of service there is no sign of his having considered the guidance in the authorities to which I have referred, and I have already said that no learning was cited to him. I have been concerned whether, notwithstanding the fact that short reasons may no doubt suffice. (as Stanley Burnton J explained) the District Judge may in those circumstances have failed to direct himself properly or failed to have regard only to relevant considerations. It should be remembered that this is a judicial review case to be decided on public law principles. A want of reasons is a familiar, indeed nowadays elementary, basis of challenge.
23. In my judgment, the District Judge's reasoning, taking it from his own explanation in the acknowledgment of service, did not fulfil the standards which it should have done. It is not apparent that he had regard to the correct approach as explained by decisions of this court. That would justify an order to quash the decision and a remission for a re-hearing in the youth court, unless it be the case that, in truth, only one outcome on the merits was available here. In my judgment, while certainly the District Judge should have made it explicitly clear that he had had regard to the approach to sections 24 and 91 spoken for in the authorities, nevertheless, despite Mr Wise's strenuous submission to the contrary, this is in fact a case in which the court was really bound to conclude that there was at least a real prospect that C would receive a sentence of two years or more detention.
24. It is important to have in mind that neither the District Judge nor this court is concerned actually to sentence C; we are merely considering the proper application of section 24 of the Magistrates' Courts Acts and section 91 of the Powers of Criminal Courts (Sentencing) Act in light of the guidance given in cases which I have described. That being so, in my judgment the District Judge's decision, far from being beyond the permissible range of conclusions open to him, was really the only available conclusion. There must have been at least a real prospect here that C would be sentenced to a term of detention of two years or more. In those circumstances it would be idle to quash the District Judge's decision and remit the matter. For all those reasons, for my part I would dismiss this application.
25. MR JUSTICE DAVID STEELE: I agree.
26. MR WISE: My Lord, I do have the benefit of public funding. May I have a detailed assessment?
27. LORD JUSTICE LAWS: Certainly, Mr Wise.
28. MR WISE: I am obliged.
29. LORD JUSTICE LAWS: Thank you very much.