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
		7th July 2005

Thursday, 7th July 2005

1. LORD JUSTICE KENNEDY: This is an application for judicial review of a decision of Inner London Crown Court, permission for this review having been granted by the single judge on 10th June of this year.
2. The challenge is to a decision of that court which, on 27th May of this year, dismissed the claimant's appeal against his sentence which was originally imposed by the Camberwell Green Youth Court, and upheld that sentence which was a 4-month detention and training order, it being imposed on 20th May 2005.
3. The claimant was born on 12th October 1989. He is now 15 years of age and, apparently, physically unusual because he is very tall and somewhat overweight. He has been, it is clear from his record, a persistent offender. A lot of his offending has been concerned with criminal damage done by graffiti. On 12th October 2004, which was by no means the first occasion when he had been in court premises, an Anti-Social Behaviour Order was made for such offending, on that occasion involving the track-side wall of a railway station. Four prohibitions were specifically made in the Anti-Social Behaviour Order. They were as follows:

"(a) not to carry any form of unset paint in any form of container, any form of permanent marker pen, any form of shoe dye or permanent ink in any form of container, any form of grinding stone, glass cutting equipment, glass etching solution or paste, throughout England and Wales.

(b) not to attempt or incite any person to commit any form of criminal damage towards any property not belonging or under the direct authorised control of the Claimant throughout England and Wales.

(c) not to enter railway property or trains between 6.30pm and 7.30am.

(d) not to "use" the top deck of any public bus."

4. On 30th December the same court, Camberwell Green Youth Court, sentenced him to attend an attendance centre for 18 hours for his admitted breach of condition (d) which I have just set out, that breach having occurred on 10th December 2004.
5. On 5th January 2005, at the same court, a similar order was made for a further breach of the same condition on 29th December 2004.
6. On 22nd April 2005 he appeared at the same court in respect of an offence of robbery committed on 19th January 2005 when apparently he had pushed another boy and taken his bicycle. He was made the subject of a 12-month supervision order with an intensive supervision and surveillance programme. He was also made the subject of a curfew order for a period of 90 days.
7. On 20th May 2005 he appeared before the same court for two further breaches of condition (d), those breaches being on 16th and 17th March. He also appeared for two offences of criminal damage. That court had before it, it seems, some reports to which I will later refer. That court was the one which made the detention and training order in respect of the two breaches of condition (d), but it imposed no separate penalty in respect of the offences of criminal damage.
8. Against that sentence there was the appeal to which I have already referred and the offender was granted bail pending the hearing of the appeal. Thus the matter came before the Inner London Crown Court on 27th May when the appeal was dismissed.
9. In broad terms the submission made to the Inner London Crown Court was that having regard to the information available about the working of the intensive supervision and surveillance programme which had been imposed on 22nd April 2005, it was not appropriate then to make any order which deprived him of his liberty. The court said this and the remarks of the court are to be found not only in the recollection of the solicitor who appeared on behalf of the appellant at that time but also in the court's own log:

"Taking everything into account this appellant has been treated with every possible non-custodial sentence, but has not appreciated the force and strength of ISSP [That, it seems, may well have been a reference to ASBO and that is what appears in the solicitor's note]. This was for protection of public. Our judgment was that this sentence was not excessive. It's quite clear that detention order might benefit appellant. This appeal is accordingly dismissed."

10. Then the court went on:

"No question of cost, 4 mths detention training order, ends 12.48 [being the end of the sentencing by the court]."

11. Undoubtedly, when the matter came before both the Youth Court initially and then more particularly the Crown Court on appeal, it was important for the court to adopt the proper approach to the problem with which it was faced. The proper approach is set out in statutory provisions beginning with the Children and Young Persons Act 1933 requiring courts to have regard to the welfare of children. Section 37(1) of the Crime and Disorder Act 1988 says that it shall be the principal aim of the youth justice system to prevent offending by children and young persons.
12. Then, most recently, it is section 79(2) of the Powers of Criminal Court Sentencing Act 2000 which provides that:

"Subject to subsection (3) below, the court shall not pass a custodial sentence on the offender unless it is of the opinion -

(a) that the offence, or the combination of the offence and one or more offences associated with it, was so serious that only such a [custodial] sentence can be justified for the offence."

13. Mr Harries submits that in reality, and having regard to the material before it, the Crown Court could not and certainly should not have arrived at its conclusion because the material before it included reports from those who had been dealing with this particular offender. Initially the youth justice team had been extremely doubtful about whether or not an ISSP programme would be of any particular benefit, but on 18th May 2005, which was of course just before the hearing in the lower court, there was prepared for that hearing a report by Mr Mellens, the project officer. That report was in marked contrast to his earlier misgivings and did show a considerable turnaround in behaviour on the part of this particular young man.
14. The conclusion of anyone who reads that report must be, submits Mr Harries, and I agree, that there had been a considerable response to the imposition of that order. Mr Mike Smith who prepared the pre-sentence report for the hearing on 20th May, again available to the lower court, said this:

"Although these matters appear to pre-date the making of the current ISSP, [D] has clearly developed a pattern of escalating offending behaviour. [D] feels that the making of the ISSP represents a 'turning point' in his life, giving him the opportunity of attending school every day, and putting him in touch with activities designed to make use of his leisure time, with a view to at the very least a reduction in his offending. However given the embryo stage of the ISSP, and [D's] lack of boundaries, I would currently assess him as posing a high risk of reoffending. The risk to the public remains the same."

15. Then in his conclusion he says that the court has indicated that custody is a very likely option and he has made that known to D:

"However it is my view that [D] would without doubt be very vulnerable in a custodial setting due to his size, and low score in terms of maturity factors. I am also concerned that [D] would find this experience difficult to deal with given that he would be unable to adopt the appropriate coping strategies.

"Although [D] has had the opportunity to work with the Youth Offending Team, I believe that he needs continued intervention of an intensive nature to address the factors that have contributed to his behaviour, in order to refrain him from further offending. Brief discussions with [D] regarding his views on my assessment and his need for such a continued programme met with a positive response.

"Should the Court be of the opinion that [D] could be continued to be supervised in the community, I am of the opinion that the most appropriate option would be the making of a concurrent Supervision Order with an [ISSP]."

Then he says that Mr Mellens has assessed D as suitable and his report with such a programme is attached.

16. Undoubtedly this court is extremely slow to interfere with decisions of the Crown Court, particularly decisions on appeal from the Magistrates' Court. If authority be needed for that proposition it can be found, for example, in the case of R v St Albans Crown Court ex parte Cinnamond [1981] 1 QB 480, but that said, if we are persuaded that the Crown Court has adopted an approach which was wrong in law, then, as it seems to me, we are bound to intervene.
17. Here, what is submitted by Mr Harries, first, is that there was, apparent on the face of what was said by the Crown Court when dismissing this appeal, an error of law. Instead of approaching the matter from the beginning as it should have done and is required to do by statute, what it did was simply to review the decision of the Magistrates' Court. In my judgment that is what emerges from any reading of the decision as recorded not only by the solicitor but also by the Crown Court.
18. Secondly, Mr Harries submits that anyone who reads the information which was available to the Crown Court would in fact have come to the conclusion that the order made at the time when the Magistrates' Court imposed an ISSP for the offence of robbery, had not failed. It may not have been startlingly successful so far, but it could not possibly be said to have failed.
19. Thirdly, the robbery was a more serious offence than the breaches of the Anti-Social Behaviour Order which preceded the lower court's decision in relation to the robbery. It is not entirely clear whether the lower court was aware of those breaches at the time that it passed sentence in respect of the robbery, but the probability is that it was. If it was it would be surprising, to say the least, for a successor court, in respect of lesser offences, to impose a sentence which, in effect, nullified what had been done at an earlier stage in respect of the offence of robbery.
20. Last but not least, Mr Harries submits that viewing the matter overall it is clear here that, on the face of what one can see of the documentation and of what was said by the Crown Court, that the Crown Court did not adopt a proper approach to youth sentencing. In my judgment there is force in that point also. Accordingly, although as I have indicated I would be reluctant, normally, to interfere with any decision of a Crown Court on appeal, I am persuaded that this case can be properly compared with the decision of this court in the case of R v Swindon Crown Court ex parte Murray, heard on 2nd July 1997, where the facts were broadly similar. Henry LJ giving the first judgment on that occasion said this:

"... appeal against conviction is an appeal by way of rehearing. That is made clear not only by the fact that there is no limit on the calling of fresh evidence in such matters, but also by the statutory provisions to be found in [section 79(3)] of the Supreme Court Act 1981, that there is power in the Court to increase the sentence within certain limits.

"When the Recorder came to give the Court's decision he said this, and this is an agreed note between counsel: 'In the Court's judgment there was nothing wrong in principle with imposing custody and there was no reason to disagree with the length of the sentence imposed by the Justices.'"

A little later Henry LJ said this:

"It is clear from what they said that the question the Court was considering was: was the sentence passed by the Magistrates such sentence that it was in their proper discretion to pass? That was the wrong question. The question they should have asked themselves was: on all the matters that they had heard what in their view was the right sentence? It was their view of the sentence that the Applicant was entitled to have and not their view as to whether the Magistrates could properly have arrived at the sentence that they did."

He indicated that that which formed part of the submission of the applicant in that case seemed to him to be well-founded.

21. As Mr Harries submits, that case can bear comparison with the present case on the first ground on which Mr Harries relies, but for the reasons I have indicated it seems to me that all of the grounds advanced before us are substantiated. I for my part would quash the decision of the Crown Court.
22. That gives rise to the question of what should be done with the matter now. Section 43 of the Supreme Court Act 1981 gives certain powers to this court including a power, if the High Court determines that the Magistrates' Court or the Crown Court had no power to pass the sentence, to amend the sentence by substituting a sentence for it. It seems to me that it is at least open to question whether in the circumstances which I have outlined in this case, we have in fact come to the conclusion that the Crown Court had no power to pass the sentence which it has imposed.
23. Be that as it may, and it is unnecessary to reach a final conclusion about that this afternoon, I am satisfied that the right course in the present case, having quashed the sentence imposed, is to remit the matter to the Crown Court in order to decide what the sentence should be. That is because, as it seems to me, the Crown Court would be assisted by an up-to-date report as to the progress that this claimant in these proceedings has been making in response to the order which was made on 22nd April 2005, as well as by any report there may be arising out of his period in custody.
24. Accordingly, I would order that the sentence having been quashed, the matter be remitted now to Inner London Crown Court.
25. MR JUSTICE WALKER: I agree that the sentence of the Crown Court should be quashed for the reasons given by my Lord. As to other relief, if one assumes that we have power under section 43 to vary the sentence, then, again, for the reasons given by my Lord, I would not favour us exercising that power. As to whether we do indeed have such power, we have not been taken to authority on the true construction of section 43 and I express no view on that issue.
26. LORD JUSTICE KENNEDY: Mr Harries, thank you very much.
27. MR HARRIES: There is one other matter, if I may, and it is this: there has been Legal Aid granted in this case, might I have Legal Aid Taxation?
28. LORD JUSTICE KENNEDY: You may indeed.
29. MR HARRIES: Thank you very much.