QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE CRANE
MR JUSTICE OPENSHAW
|THE CROWN PROSECUTION SERVICE||(CLAIMANT)|
|SOUTH EAST SURREY YOUTH COURT||(DEFENDANT)|
|MILAD LEON GHANBARI||(INTERESTED PARTY)|
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MISS DE SILVA appeared on behalf of the DEFENDANT
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"A Practical Compromise.
As a result of the conflict, an interpretation of the provisions has developed that provides a compromise solution. It has received fairly wide support amongst CJS practitioners including the Judicial Studies Board and some parts of the Justices Clerks Society. It can be summarised as follows:
Consider whether it is a grave crime.
If so, consider whether the offender is dangerous. If so, send him to the Crown Court using section 51A(3)(d).
If not, commit him for trial using section 6 and 24 Magistrates' Courts Act (if the test in the Southampton Justices (No 2) case is satisfied.
If it is not a grave crime, do not consider dangerousness at this stage.
The venue for trial will be the youth court. On conviction consider dangerousness and if the offender is dangerous then commit him for SENTENCE under the new section 3C PCC(S)A 2000 ['Powers of Criminal Courts (Sentencing) Act 2000'] (see Schedule 3 paragraph 23 of the Criminal Justice Act 2003)"
That guidance having been disclosed, submissions were made by both sides to the Justices. The Justices, following the guidance, determined that assault occasioning actual bodily harm was not a grave crime, so that the provisions of section 24(1) of the Magistrates' Courts Act 1980 were not met, declined to consider the provisions of section 51A(3)(d) and concluded that the case remained within their summary jurisdiction. The defendant entered a not guilty plea and the case was adjourned for a pre-trial review. The present proceedings were then instituted.
"(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 without consideration of the evidence."
Subsection (1B) which relates to homicide and certain Firearms Act offences is not of present relevance.
"(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 [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 or over, as may be specified in the sentence."
Although "18" will be substitute for "21" in subsections (1) and (3) by paragraphs 160 and 181 of Part II to Schedule 7 to the Criminal Justice and Court Services Act 2000, that amendment has not yet been brought into force.
"(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, subject to sections 51 and 51A of the Crime and Disorder Act 1998 and to sections 24A and 24B below, be tried summarily."
"Sending cases to the Crown Court: children and young persons.
(1) This section is subject to sections 24A and 24B of the Magistrates' Courts Act 1980 (which provide for certain offences involving children or young persons to be tried summarily).
(2) Where a child or young persons appears or is brought before a magistrates' court ... charged with an offence and any of the conditions mentioned in subsection (3) below is satisfied, the court shall send him forthwith to the Crown Court for trial for the offence.
(3) Those conditions are-
(d) that the offence is a specified offence (within the meaning of section 224 of the Criminal Justice Act 2003) and it appears to the court that if he is found guilty of the offence the criteria for the imposition of a sentence under section 226(3) or 228(2) of that Act would be met."
(i) the policy of the legislature, as correctly identified by Leveson J in R (On the application of H, A and O) v Southampton Youth Court  EWHC 2912 Admin, and approved by the Divisional Court in R (On the application of the Crown Prosecution Service) v Redbridge Youth Court  EWHC 1390 Admin paragraph 11(2), is that those who are under 18 should, wherever possible, be tried in a Youth Court, which is best designed for their specific needs;
(ii) the guidance given by the Court of Appeal (Criminal Division), in particular in paragraph 17 of the judgment in Lang & Ors, particularly in (iv) in relation to non-serious specified offences.
(iii) the need, in relation to those under 18, to be particularly rigorous before concluding that there is a significant risk of serious harm by the commission of further offences: such a conclusion is unlikely to be appropriate in the absence of a pre-sentence report following assessment by a young offender team;
(iv) in most cases where a non-serious specified offence is charged, an assessment of dangerousness will not be appropriate until after conviction, when, if the dangerousness criteria are met, the defendant can be committed to the Crown Court for sentence - a procedure with which the Crown Court has, for many years, been familiar.
(v) When a youth under 18 is jointly charged with an adult, an exercise of judgment will be called for by the Youth Court when assessing the competing presumptions in favour of (a) joint trial of those jointly charged and (b) the trial of youths in the Youth Court. Factors relevant to that judgment will include the age and maturity of the youth, the comparative culpability in relation to the offence and the previous convictions of the two and whether the trial can be severed without either injustice or undue inconvenience to witnesses.