England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		8th June 2005

Wednesday, 8th June 2005

1. LORD JUSTICE BROOKE: This is an application by the Crown Prosecution Service for judicial review of a decision of the Redbridge Youth Court made on 18th and 22nd February 2005 in relation to proceedings against BS, who is 17 years old. On the first occasion, the Youth Court refused an application to the effect that it should decline jurisdiction under section 24 of the Magistrates' Courts Act 1980 in respect of two offences of sexually assaulting a child under the age of 13, contrary to section 7 of the Sexual Offences Act 2003, two offences of sending a malicious communication, contrary to section 1(1B) and (4) of the Malicious Communications Act 1988, which are summary offences, and an offence of taking an indecent photograph of a child, contrary to section 1(1A) of the Protection of Children Act 1978, which is also a grave offence.
2. On the second occasion, it declined to reopen its earlier decision on mode of trial and accepted jurisdiction on 18 further charges. The Crown Prosecution Service, and BS, as the interested party, have agreed that judicial review should lie to quash the Youth Court's decision, but are not agreed on the precise form the court order should take. The Youth Court, for its part, after filing evidence, does not appear before the court but has requested the court to give judgment on the grounds that such a judgment may provide some useful guidance for the future. For this reason, and to resolve the dispute between the parties as to the precise order the court should make, I will deliver this short judgment even though the court has not heard argument between the parties on the substantive issues of law covered by the judgment, on which they are agreed.
3. It is desirable to say as little about the facts of the case as possible. On 18th February BS was charged with the five offences I have mentioned. On 22nd February a further 18 charges were preferred. There were five counts of causing or inciting a child under 13 to engage in sexual activity, contrary to section 8(1) and (3) of the Sexual Offences Act 2003, five counts of sending indecent or grossly offensive articles, contrary to section 1(1A) and (B) and (4) of the Malicious Communications Act 1988, three counts of making an indecent photograph of a child, contrary to section 1(1A) and (6) of the Protection of Children Act 1978, three counts of distributing indecent photographs of a child, contrary to section 1(1B) of the Protection of Children Act 1978, one count of possessing an indecent image of a child, contrary to section 160 of the Criminal Justice Act 1988, and one count of perverting the course of justice, contrary to Common Law, which is an offence triable only on indictment. All the other offences, apart from the offences under the Malicious Communications Act, are triable either way.
4. On the first occasion the matter came before the Youth Court, the Crown Prosecution Service invited it to decline jurisdiction on the basis that there was a real prospect of a custodial sentence of or in excess of two years. The Justices were referred to the recent decision of this court in R (H, A & O) v Southampton Youth Court [2004] EWHC 2912 (Admin) and the relevant aggravating features of the alleged offences were outlined. The defence made no representations. It appears from a note on the court file that the Clerk advised the Bench to decline jurisdiction. The court indicated that it wished to consider Thomas on Sentencing, and retired. On its return, it gave its decision that it accepted jurisdiction. The reasons that it gave were that it had been referred by the Clerk to two cases, R v Eames [1993] 14 Cr App R (S) 205 and R v Harrison [2001] 1 Cr App R (S) 107, in which sentences of 21 months and three years had been passed respectively. The Youth Court concluded that:

"On this basis, dealing with a youth, we do not believe in this case these offences will attract a sentence substantially in excess of two years."

5. On the second occasion, on 22nd February, when BS appeared again, the Justices were invited by the Crown Prosecution Service to reopen the earlier mode of trial decision. This application was opposed by the defence and refused by the court. No representations were made as to the mode of trial in the light of the decision not to reopen the earlier decision. The Youth Court accepted jurisdiction on the further either way offences.
6. Mr Keith, who appears for the Crown Prosecution Service, accepts that no challenge could be made against the decision not to reopen the earlier mode of trial decision, given the recent cases of R (DPP) v Camberwell Green Youth Court [2003] EWHC 3217 (Admin) and R (C) v Grimsby and Cleethorpes Magistrates' Court [2004] EWHC 2240 (Admin). These cases established, first, that there existed no inherent power to reopen a mode of trial ruling outside section 25 of the Magistrates' Court Act 1980, and also that the decision to reopen mode of trial only arises under section 25(2) of that Act (and, by implication, under section 25(5)(a)) where the summary trial has actually commenced, which it did not on the present occasion.
7. The relevant statutory provisions are section 24 of the Magistrates' Court Act, which reads:

"(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 one falling within subsection (1B) below, 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."

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

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

(a) an offence punishable in the case of a person aged 21 [18] or over with imprisonment for 14 years or more, not being an offence the sentence for which is fixed by law; or

...

(3) If the court is of the opinion that none of the other methods in which the case may legally be dealt with [neither a community sentence nor a detention and training order] 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 [18] or over, as may be specified in the sentence."

9. The maximum term of imprisonment for offences under section 7 and section 8(3) of the Sexual Offences Act 2003 is 14 years. The offence of perverting the course of public justice carries a maximum sentence of life imprisonment. All three offences therefore fall within section 91(1)(a).
10. The correct test to be applied under section 24, and the matters to be taken into account by the Youth Court when making such a decision, have been the subject of challenge on a number of recent occasions in this court, most recently in the Southampton Youth Court case, to which I have referred.
11. Mr Keith has suggested in his skeleton argument, very helpfully, that the following principles appear from the authorities to be applicable:

(1) Although it is not necessary, in order to invoke the provisions under section 91, that the crime be one of exceptional gravity (R v Mills [1998] 2 Cr App R (S) 128 at page 131, per Lord Bingham CJ), the power to make an order for detention is a "long-stop reserved for very serious offences": R(W) v Thetford Youth Court; R(M) v Waltham Forest Youth Court [2002] EWHC 1252 (Admin), [2003] 1 Cr App R (S) 67, at para 20.

(2) In considering the application of section 24, the Youth Court should start with a strong presumption against sending a young defendant to the Crown Court unless it is satisfied that this is clearly required, notwithstanding the fact that the forum for trial will not be so appropriate for trial as the Youth Court: R(W) v Southampton Youth Court [2002] EWHC (Admin) 140, [2003] 1 Cr App R (S) 87 at para 18 per Lord Woolf CJ. The general policy of the legislature is that those who are under 18 years of age and, in particular, children under 15 years of age, should, wherever possible, be tried in the Youth Court. A trial in the Crown Court should be reserved for the most serious cases: R(H, A & O) v Southampton Youth Court at paragraph 33.

(3) Accordingly, 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 under section 91: R(D) v Manchester City Youth Court [2001] EWHC (Admin) 860, [2002] 1 Cr App R (S) 135, at para 22.

(4) Given that the maximum period for which a magistrates' court may impose a detention and training order is 24 months (see sections 100 and 101 of the Powers of Criminal Courts (Sentencing) Act 2000), 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: R(D) v Manchester City Youth Court at para 22; R(W) v Thetford Youth Court at para 20; R(W) v Southampton Youth Court at para 19.

12. The test disclosed by the authorities has been variously expressed. In R(C & D) v Sheffield Youth Court, R(N) v Sheffield Youth Court [2003] EWHC 35 (Admin) at para 39 it was said that there must be "a real possibility" of such a sentence. In R(H, A & O) v Southampton Youth Court at para 35 Leveson J referred to "a real prospect".
13. It is common ground between the parties that on the face of its own decision, the Youth Court on 18th February applied the wrong test. It appears to have considered not merely a threshold of two years, but whether the offences would attract a sentence substantially in excess of two years. It also appears to have considered whether the offences would attract such a sentence, rather than whether there was a real prospect of the Crown Court passing such a sentence. The authorities show that if the case is sent up to the Crown Court, the sentence will be at large in the Crown Court.
14. Accordingly, I am satisfied, and this is not in dispute, that the original mode of trial decision of the Youth Court (which, as I have said, was taken against the advice of its Clerk) cannot stand. Further justified criticism of the approach of the Youth Court on the first occasion was that it allowed its Clerk to give it legal advice and to bring certain cases to its attention otherwise than in open court, so that the parties were deprived of the opportunity to comment on them.
15. Mr Keith has urged us not only to quash the decision, but also to send it back to the Youth Court with a direction to reconsider it and reach a decision in accordance with the findings of this court.
16. Mr Wise, who appears for the interested party, BS, has urged us not to adopt that approach. But it appears to me that in a case involving sentencing, this is not the type of case in which it would necessarily be appropriate simply to send it back to the Youth Court to decide the matter afresh. I have referred to the fact that the Youth Court on the first occasion acted against its Clerk's advice. It is clear from the evidence that we have received from the Chair of the Magistrates who sat in the Youth Court on the second occasion that that court felt that the decision of the earlier Bench to retain jurisdiction was wrong, but they did not feel that they could reopen the case. As I have said, the Youth Court has expressed the request to this court to give judgment in this case to give useful guidance for the future.
17. Mr Keith has submitted that this was a case in which a sentence of detention for two years was plainly a realistic possibility. He has drawn our attention to nine particular facts of the case: I have been careful not to refer to the details in this judgment.

(1) The serious nature of the two indecent assaults under section 7 which carry a maximum sentence of 14 years, even when there has been no penetrative act;

(2) The substantial age difference between S and BS and the fact that BS was nearing adult age;

(3) The breach of trust involved, in that BS was S's school-appointed mentor;

(4) The sophisticated nature of the offences and the use of a false identity in order to entrap S;

(5) The premeditated nature of the offences;

(6) The use of threats of exposure, public disgrace and humiliation;

(7) The use of a white BMW to cause fear and distress;

(8) The sexual and perverse gratification in the offending; and

(9) The fact that BS implicated another innocent child in the events.

18. Our attention has been drawn to a number of other decisions, largely relating to children significantly younger than the defendant in the present case and, among those cases, a number of the cases to which I have already referred in this judgment.
19. In Lennon [1991] 1 Cr App (S) 19, Henry LJ said, in relation to cases of indecent assault:

"It was never easy to sentence in such cases; the circumstances of each case would vary greatly. The sentencer must tailor the sentence to the facts of the case before the court."

20. In R(H, A & O) v Southampton Youth Court, Leveson J, after setting out three relevant principles at paragraphs 33, 34 and 35, said at paragraph 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, do not come within that category, and certainly not at the level of a sentence approaching two years."

21. As I have said, BS, the interested party in this case, is 17 years old and is not of the younger age group which is picked up in Leveson J's case and a number of other cases.
22. Our attention has been drawn to the two cases of R v Eames and R v Harrison, to which the Youth Court's attention was directed, but it appears to me that the facts of those two cases are so very different from the present case that they do not give us any significant assistance.
23. I return to the nine aggravating features of the present case to which I have drawn attention. I am bound to say that there is, in my judgment, a real possibility, alternatively, a realistic prospect, that the Crown Court may pass an order of detention of two years or more. As I suggested in argument, this is the kind of case in which it is very much more appropriate for a professional sentencer, such as will be found in the Crown Court, to determine what the appropriate sentence should be.
24. It is common ground that if we quash the first of the Youth Court's decisions, we should also quash the second and remit the whole matter to the Youth Court to determine in the light of the judgment of this court, and I would so direct.
25. MR JUSTICE FIELD: I agree.
26. MR KEITH: I have no ancillary applications.