England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		28th April 2006

Friday, 28th April 2006

1. LORD JUSTICE SCOTT BAKER: This is an application for permission to apply for judicial review. The application came before Walker J on paper on 30th March of this year under the court's urgent procedure. He directed an oral hearing to take place on notice to the Crown Prosecution Service not later than today, indicating that the court might, if permission is granted, wish to proceed to the full hearing. In the event, the court does grant permission and does proceed to the full hearing.
2. This is yet another case of a Youth Court declining jurisdiction to hear a case against a young alleged offender and committing the case to the Crown Court. I have some sympathy with the Fareham Youth Court Justices in this case because the lawyer who appeared for the Crown Prosecution Service on 28th December 2005 suggested to the court that the offences with which the applicant is charged are grave offences. The Justices accepted that submission and declined jurisdiction. What is unclear to me is the extent to which the Crown Prosecution Service lawyer on that occasion was fully appraised of all the facts of the case. I appreciate that there is a tension between the need to bring young offenders before the court expeditiously and the need to have the full details of all relevant transcripts of interviews available. What is not clear to me is what the precise position was at the Fareham Youth Court on 28th December. What was clear then was that the charges against this applicant are an assault of a girl under the age of 13 by penetration, contrary to section 6 of the Sexual Offences Act 2003 and two further offences of assault by touching, contrary to section 7 of the same Act. The victim was at the time aged 8 and the applicant aged 14. Section 6 carries a maximum penalty of life imprisonment and section 7 a maximum penalty of 14 years' imprisonment. Accordingly, these offences, by their label, are grave offences as defined by section 91(1) of the Powers of Criminal Court (Sentencing) Act 2000.
3. Section 91(3) of that Act provides that:

"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 18 or over, as may be specified in the sentence."

4. Under section 24(1) of the Magistrates' Court Act 1980, a person under the age of 18 is to be dealt with summarily unless section 91(3) applies. But numerous authorities of this court have made clear that the Justices should not decline jurisdiction unless there is a real prospect that the defendant will require a sentence in excess of two years or there is some unusual feature of the case which justifies declining jurisdiction, bearing in mind, however, that the absence of a power to impose a detention and training order because the defendant is under 15 is not an unusual feature.
5. The court's attention was drawn to the decision of this court in R (H, A and O) v Southampton Youth Court [2004] EWHC Admin 2912. The Youth Court purported to apply that decision. It is unnecessary, in my judgment, to set out the observations of the court in that case which drew together a large number of other authorities. There has been one subsequent case to which it may be helpful to make reference, and that is the Crown Prosecution Service v South-East Surrey Youth Court and Ghanbari, decided by this court by a three- member court on 8th December 2005 and reported under neutral citation [2005] EWHC 2929 Admin
6. At paragraph 17, Rose LJ, giving the judgment of the court, said that the Justices should bear in mind the following matters:

"(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 [2004] EWHC 2912 Admin and approved by the Divisional Court in R (on the application of the Crown Prosecution Service) v Redbridge Youth Court [2005] 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."

7. Not all those observations are relevant to the circumstances of the present application, but it is important to restate them so that future Youth Courts considering matters of this kind do have them in mind.
8. It is necessary to look at the facts of the present case in summary. A boy of 14 of previous good character is accused of putting his finger into the vagina of his sister's friend whom he knew very well. Whilst the difference in their ages, 8 and 14, is an aggravating feature, this appears to be mitigated by the fact that it was done openly on the doorstep of a house while others the girl knew were close at hand. The boy's sister had also shouted out that she could see. The girl also complains that he asked to do it a second time and that she was "snogged" on other occasions. The facts of the case appear to suggest that the applicant is immature for his age and that was why he was playing with younger children.
9. It is, in my judgment, unnecessary to go in any more detail into the facts of the case. Suffice it to say that Miss Lumsdon, who appears now for the Crown Prosecution Service, having come into this case to represent the interested party, puts the matter this way:

"Having viewed the videos of all the witnesses, read the transcripts, considered the transcripts of the defendant's interview and looked at a note written by the complainant, one forms the view that this was a case of very ill-judged sexual experimentation by the applicant upon a girl who, despite the difference in age, was one of his friends."

10. Although at first blush this is an offence which sounds very serious, a full consideration of the material indicates that a custodial sentence would be a wholly inappropriate disposal, and thus highly unlikely. That is the way that prosecutor puts it.
11. Miss Lumsdon has helpfully filed a further skeleton argument dealing with the kind of penalties that have been imposed by this court in broadly similar cases. Those cases are Fuller [1992] 13 C App R (S) 680, TW [2001] 1 Cr App R (S) 128, CB [2000] 1 Cr App R (S) 177, AG's Ref No 61 of 1999 (Wayne B) [2000] 1 Cr App R (S) 516 and Jonathan Paul W [1999] 1 Cr App R (S) 488.
12. The Justices set out the test that they applied in the reasons that they have helpfully supplied. Paragraph 3(a) reads:

"The Youth Court in declining jurisdiction had regard to the test set out in R (H, A and O) v Southampton Youth Court [2004] EWCA Admin 2912. The test set out in that case was that the jurisdiction should remain with the Youth Court unless there was a real prospect that this defendant might require a sentence of two years or more, or alternatively that was an unusual feature of the case. That test was brought to the Youth Court's attention and was applied in the instant case."

13. As Miss Lumsdon observes, the second alternative is not fully set out, in particular the youth of the defendant does not qualify as an unusual feature. She submits it would be more accurate to summarise the alternative as:

"alternatively, that even though the sentence might be less than two years, there is some unusual feature which justifies declining jurisdiction."

14. She submits it is not clear whether the Justices made their decision under the first or the second alternative. If they made it under the first alternative, they were wrong, because any sentence in excess of two years would plainly, in my judgment, be so disproportionate as to amount to an error of law in the light of the authorities. If jurisdiction was declined under the second alternative, it has been pointed out on a number of occasions, certainly I did in the case of Balham, that the fact that a defendant is too young to receive any other form of custodial sentence is not an unusual feature for the purposes of the section.
15. In my judgment, the Justices reached a conclusion that was erroneous in law. They should have accepted jurisdiction and, in these circumstances, the applicant's application for judicial review must succeed.
16. MR JUSTICE OPENSHAW: I agree.
17. LORD JUSTICE SCOTT BAKER: I think we need to quash the order without any further direction, do we not?
18. MR SMYTH: My Lord, I think that is right.
19. MR JUSTICE OPENSHAW: The matter should obviously be listed before the Magistrates' Court very speedily for a trial date to be sorted out.
20. LORD JUSTICE SCOTT BAKER: You will see to that, will you, for the CPS?
21. MISS LUMSDON: My Lord, yes.
22. LORD JUSTICE SCOTT BAKER: In fact, it might just help if we add to the order that we direct that it be heard in the Youth Court as a matter of expedition.
23. MR SMYTH: Thank you very much indeed.