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
		22nd June 2006

1. MR JUSTICE McCOMBE: This is a renewed application for permission to apply for judicial review, permission having been refused initially on the papers by Langstaff J who unfortunately did not have before him the skeleton argument of counsel that was intended to support the application and which raised the interesting arguments which have been presented to this court.
2. The decision sought to be challenged is that of His Honour Judge Campbell made at the Crown Court at Inner London on 24th March 2006 refusing bail to the claimant, "M", a young man of 16 years of age, and remanding him to a Young Offender's Institution. M faces a charge of attempted robbery, said to have been committed by him and at least three other young men on 17th January of this year. The trial is due to begin on a date in the course of next month.
3. The Crown's case is that at about 11 pm on the evening in question, five young men approached a bus stop in the Crystal Palace/Sydenham Hill area of South London. One of the group engaged two other people at the bus stop in conversation. This young man became threatening and demanded the mobile phone of one of the people he accosted. He suggested to the complainant that he had a weapon, probably a knife. The complainant ran off and the first youth and one of the others pursued him. During the chase a police car approached and the two assailants gave up the pursuit and ran off. Four of the young men were arrested. It is those four, including M, who are to be tried next month.
4. It is said on behalf of M that the case against him is very weak. He did not threaten the complainant, he did not chase him, and took no part in any attempt to rob this man. It is further said that there was a young man called Daniel O who was the prime mover in the attempted robbery and it was he and another, not M, who chased the complainant along the street. At the hearings in the Crown Court the Crown appears to have accepted that M was not the prime mover in the offence and that Daniel O was, although, as we pointed out to counsel when this matter first came before the court earlier this week, there were some indications in the statements that might suggest otherwise.
5. On 19th June 2006, Monday of this week, this court (as presently constituted) heard counsel on behalf of the claimant on his initial renewed application for permission to apply for judicial review. We refused permission to apply in so far as it was sought to challenge the learned judge's decision under the Bail Act. However, we gave more limited permission to argue the various points arising, as we shall explain hereafter, under section 23 of the Children and Young Persons' Act 1969, as amended from time to time.
6. On 2nd February 2006 all four young men appeared before His Honour Judge Campbell at the Inner London Crown Court for a preliminary hearing. Two of the co-accused, one of whom was "O", were on bail while M and one other were not. Applications for bail were made on behalf of M and that other. Each application was refused. In M's case the Crown objected to bail on the basis that there was a likelihood that he would commit further offences and would fail to appear. The Crown also stated to the judge that M had given false details on arrest, namely a fictitious address at what was thought to be 4 Strawberry Grove, London, SE9. It was also said he was on bail to Camberwell Green Magistrates' Court in respect of an alleged offence for attempted burglary. The court had before it M's antecedents, including convictions in June and August 2005 for aggravated vehicle taking, three common assaults and attempted robbery, all committed while on bail.
7. Not surprisingly on that material, Judge Campbell refused bail. However, it appears from the transcript of that hearing that no consideration was given to the provisions of section 23 of the Children and Young Persons Act 1969 as amended. Those provisions deal with the nature of the accommodation to which a person of M's age is to be remanded if refused bail. It appears, therefore, that consideration of the matters dealt with by section 23 should have been carried out on 2nd February.
8. Accordingly, application was made on behalf of M for the issue of a writ of habeas corpus under reference CO/2367/2006. At a hearing before Stanley Burnton J and Leveson J on 22nd March 2006, it was ordered that the notice of motion for the writ of habeas corpus should be treated as a claim form applying for judicial review. It was further ordered that M be given permission to apply for judicial review and the matter be remitted to Inner London Crown Court without delay for consideration of the bail and detention of M in accordance with section 23 of the 1969 Act. The order was stated to take effect as an interim order but that if neither the court nor the prosecution applied to set aside the order within 48 hours, that order would become a final order on the judicial review application (see page 125 of our present bundle).
9. On 23rd March this year the matter was brought back again before Judge Campbell at the Crown Court. All four defendants were arraigned, including M, and they pleaded not guilty to the charge of attempted robbery alleged to have been committed on 17th January. On that occasion, counsel for M again sought to reapply for bail to be granted to M (I would point out that counsel who appeared then is not counsel who appears before us on behalf of the claimant). It was pointed out that the allegation made on the previous occasion about M having given a false address was not correct. The judge was also referred briefly to the proceedings in this court and the order that had been made on the previous day. He was reminded in outline of the need to consider section 23 and the reference in that section, to which I shall come shortly, to the need for consultation by the court refusing bail with the local authority, the Probation Service and the Youth Offending Team.
10. The judge again declined to grant bail (see page 142 of our bundle) and, in view of the inability to make suitable contact with the authorities mentioned in section 23 at that stage, he ordered that the case be brought back on the following day and that M be returned to the Young Offenders Institution overnight (see page 156). The matter returned before the judge on the next day, 24th March, when the judge made the order it is now sought to review. Again, counsel urged upon the judge the nature of the evidence in the case against M. He put to the court a number of conditions that had indeed been advanced in a recommendation from the ISSP team, at the time of the hearing in February, in an attempt to meet the Crown objections to bail that had prevailed before the court up to that stage.
11. Having heard their arguments, the learned judge again refused bail for the same reasons as before (see page 171). The judge then stated at that stage of the procedure that he was of the view that M should be remanded into the care of the local authority "with a security requirement" (see page 14 D of the transcript of that day, page 171 of our bundle).
12. The judge then proceeded to hear from the bail worker of the Greenwich Youth Offending Team. The judge told the bail worker that he required a "security requirement" for M and asked whether the authority could fulfil that requirement. The answer from the relevant official was in the following terms, at page 172 of our bundle:

"Your Honour, I have had a conversation with counsel yesterday. This matter was drawn to my attention. It is my understanding that M currently was remanded in custody at Feltham . . . From our point of view I have consulted the files of the Youth Offending Team and previous assessments that have been done by my colleague, and there was some question yesterday about whether that was a suitable placement for M. On the grounds of welfare we do not find that M is a vulnerable young man with the assessments that have been carried out and we would suggest that Feltham is a suitable placement for him at this moment in time."

In the result, the judge ordered that M be returned to Feltham Young Offenders Institution. It is that decision that is challenged in the present proceedings.

13. In essence the complaint is, first, that judge failed to make the appropriate consultations required by section 23 of the 1969 Act before determining the need for a security requirement and, in any event, he misapplied the provisions of section 23. Section 23 and the modifications made to it from time to time are labyrinthine in the extreme and I have the greatest sympathy with the learned judge in applying himself to that task. Indeed, the editors of the current edition of Archbold (at paragraph 3-75) suggest that part of the recent modification to the 1969 Act made by the Criminal Justice and Police Act 2001 is meaningless. The unmodified and modified provisions of section 23 are set out sequentially in Archbold at pages 253 to 257.
14. It appears from paragraph 3-75 of Archbold that it is the finally modified provisions that should have applied in this case (since M is 16 years old). As would appear, a special regime is provided in this respect for boys aged 15 or 16. Unfortunately, it seems to me that when the judge was initially referred to the section in the course of argument on 23rd March he was being invited to consider the unmodified version. This cannot have helped his understanding of the law that fell to be applied. For example, at page 151, page 25 G of that transcript, he is referred to the old section 23 and again at page 153, pages 27 C to D, page 154, page 28 E to F.
15. However, on the following day the learned judge summarised the law as it then appeared to him (see pages 164-5 of our bundle, pages 7 and 8 of the transcript of 24th March). When he did so he appeared to be applying, at least in part, the section as modified. For example, he paraphrases section 23(5A) in the modified form (see page 164-5, transcript page 7 G to 8 A). He also referred to a version of section 23(5) (see page 154, transcript page 7 G). He referred to it there in the form appearing as the unmodified version in Archbold. He may, in my view, have been right to do so for present purposes because of the full terms of the amended legislation to which I shall return shortly.
16. It seemed to this court on the initial hearing on Monday of this week that the learned judge's Bail Act decision could not be faulted on any ground leaving it vulnerable to judicial review. We considered the careful submissions made in this respect, the outline arguments of Mr Baumber on behalf of M and his supplementary oral arguments on that point. However, having regard to the recent offending history of M, including several examples of offending while on bail, as it appeared to us then, the judge was fully entitled to reach the conclusion that M was likely to commit further offences while on bail on this occasion. We noted what was said about M's compliance in many respects with the requirements of his ISSP order, but it was not possible to say that the learned judge erred in law in reaching the conclusion that he did under the provisions of the Bail Act. It is not necessary to consider the other ground of objection, namely that M was not likely to attend at trial.
17. Having refused bail, the judge had to apply the provisions of section 23 thereafter. The section provides that when a person of M's age is refused bail, the remand shall be to local authority accommodation unless he is remanded to a remand centre or prison in pursuance of section 23(4)(b) or (c) (see section 23(1)). The new section 23(4) then provides:

"Where the court, after consultation with a Probation Officer, a social worker, a local authority social services department, or a member of a youth offending team, declares a person to be one to whom subsection (5) below applies --

(a) it shall remand him to a local authority accommodation and require him to be placed and kept in secure accommodation if --

(i) it also after such consultation declares him to be a person to whom subsection (5A) below applies; and

(ii) it has been notified that secure accommodation is available for him;

(b) it shall remand him to a remand centre if paragraph (a) above does not apply and it has been notified that such a centre is available for the reception from the court of persons to whom subsection (5) below applies; and

(c) it shall remand him to a prison if neither paragraph (a) nor paragraph (b) above applies."

18. Thus section 23(4) provides for three alternatives if subsection (5) applies; that is local authority accommodation with the requirement that the accommodation be secure, a remand centre or a prison. Local authority secure accommodation will be the decision, subject to subsection (5) applying, if the court declares the person to be within subsection (5A). Subsection (5A) reads as follows:

"This subsection applies to a person, in the court's opinion, that by reason of his physical or emotional immaturity or a propensity of his to harm himself, it would be undesirable for him to be remanded to a remand centre or prison."

This qualification is designed to keep out of a remand centre or prison persons who, because of immaturity or risk of self harm, would be at risk in such institutions subject, as always in these times, to the court being notified that secure accommodation is available. Availability of such suitable accommodation to meet any particular case cannot, it seems, be assumed.

19. The precondition of secure local accommodation, remand centre or prison is section 23(5). This reads in the modified form, as printed in italics in Archbold, as follows:

"This subsection applies to a person who --

(a) is charged with, or has been convicted of, a violent or sexual offence or an offence punishable in the case of an adult with imprisonment for a term of 14 years or more; or

(b) has a recent history of absconding while remanded to local authority accommodation and is charged with or has been convicted of an imprisonable offence alleged or found to have been committed while he was so remanded if (in either case) the court is of opinion that only remanding him to a remand centre or prison or to local authority accommodation with the requirement he be placed in secure accommodation will be adequate to protect the public from serious harm."

20. Here, M was charged with an offence which in the case of an adult would be punishable with imprisonment for 14 years or more. He had no recent history of absconding. It was not suggested that M had to be accommodated in secure accommodation to protect him from serious harm (see the definition of "serious harm" in section 23(13)). In contrast, the old version of section 23(5) was in the following terms, as appears in bold print in Archbold:

"A court shall not impose a security requirement in relation to a person remanded in accordance with subsection (1) above except in respect of a child who has attained the age of 12 or a young person who (in either case) is of a prescribed description, and then only if --

(a) he is charged with or has been convicted of a violent or sexual offence or of an offence punishable in the case of an adult with imprisonment for a term of 14 years or more; or

(b) he is charged with or has been convicted of one or more imprisonable offences which, together with any other imprisonable offences of which he has been convicted in any proceedings --

(i) amount; or

(ii) would if he were convicted of the offences of which he is charged amount;

to a recent history of repeatedly committing imprisonable offences while remanded on bail or to local authority accommodation and (in either case) the conditions set out in subsection (5AA) below is satisfied."

21. The crucial difference for present purposes, it may possibly have been noticed, is that this version went on to refer to the need to satisfy the condition set out in (5AA). No such reference is made in the seemingly new modified subsection (5), as printed in italics in the textbook, to that condition. In both this modified and unmodified form of subsection (5AA) one finds references to the need to protect the public from serious harm and the prevention of further imprisonable offences. There one has the reference to the need for secure accommodation etc "to prevent the commission by him of imprisonable offences". It would only be such a requirement that would have made M amenable to a secure accommodation regime. In enacting the modifications, did Parliament intend the secure accommodation requirement only to apply to cases of potential serious harm to the public (in other words should subsection (5AA) be deleted) or did it intend to repeat the old law and continue the two cases for secure accommodation, ie, the risk of serious harm or imprisonable offences. In this case the new subsection (5) would have repeated the reference to subsection (5AA). That is the dilemma posed by the statute as printed in the textbook. In the former case it seems that M could not lawfully be required to be kept in secure accommodation, remand centre or prison. In the latter case he could have been.
22. For my part, I am extremely grateful for the researches diligently carried out and the submissions of Mr Baumber of counsel who now appears for the claimant and who has supplied to us copies of the statutory material making these amendments in such tortuous form. In the end, he concedes, I consider rightly, that the statute as modified should be construed in such a manner as to incorporate a reference to subsection (5AA) into subsection (5). This is, in my judgment, a result of the legislation as a whole. If I am wrong about that, I would be prepared so to construe it as being the obvious intent of the revised version of section 23.
23. The revisions to section 23 of the 1969 Act were made in relation to boys aged 15 or 16, like M, by section 98 of the Crime and Disorder Act 1998. The latter section introduced in such cases the modifications as printed in italics in the current edition of Archbold. Then, however, section 130 of the Criminal Justice and Police Act 2001 appears to make a further amendment to section 23. By subsection (2) of that section it is provided that:

"In subsection (5) (conditions for the imposition of a security requirement) for paragraph (b) and the words after it there shall be substituted:

'(b) he is charged with or has been convicted of one or more imprisonable offences which, together with any other imprisonable offences of which he has been convicted in any proceedings --

(i) amount; or

(ii) would if he were convicted of the offences with which he is charged amount

to a recent history of repeatedly committing imprisonable offences while remanded on bail or to local authority accommodation and (in either case) the conditions set out in subsection (5AA) below is satisfied.'"

In other words, the subsection repeats the reference to "the conditions set out in subsection (5Aa)" that appeared in the unmodified version of section 23.

24. Section 130 of the 2001 act then goes on to provide in subsection (5) as follows:

"That section [ie section 23] as it has effect pursuant to section 98 of the Crime and Disorder Act 1998 (alternative provision for 15 and 16 year old boys) shall so have effect with the further modifications set out in (6) and (7). [My emphasis]."

Then there is a reference to subsection (5AA).

25. In other words, it seems that Parliament intended that section 23(5) should be read in these cases as again referring to the condition in subsection (5AA) and I would so hold. Mr Baumber therefore accepts that it was a relevant consideration to the question of the nature of accommodation to which his client was to be remanded that such accommodation might have to be chosen with reference to the need to prevent the commission of further imprisonable offences.
26. However, he submits that the learned judge still failed to apply the statutory criteria correctly. In particular, he determined the need for secure accommodation before rather than after consultation with a Probation Officer, social worker or member of the Youth Offending Team as required by section 23(4). Ultimately the only question addressed when consultation did take place was the applicability of the condition in subsection (5A), that is as to the emotional immaturity or vulnerability of M. Further, Mr Baumber submits that the judge rolled up together the Bail Act question and the questions under section 23 of the 1969 Act. It is also argued that the judge failed to comply with the requirement of section 23(6) to state that he was of the opinion set out in 23(5AA) and to explain to the claimant in open court why he was of that opinion. Without rehearsing the grounds for so saying, in my view all those submissions have force.
27. Mr Baumber submits that if the learned judge had applied the procedures correctly he would not have come to the conclusion that he did, namely that M had to be remanded to secure local authority accommodation, or in particular in this case to Feltham. He submits that the proper consultation would have included a series of matters which he helpfully sets out in paragraph 10 of his outline argument which is not necessary to repeat here.
28. I have carefully considered those points. It may well be that had the full impact of the statutory provisions been appreciated in February 2006 the points would have had more force since many address the situation that then prevailed. However, in all the circumstances, given the reasons for the judge refusing bail in this case, the pattern of M's offending record and his offending on bail by committing fairly serious offences, it seems to me inevitable in the end that by March 2006 the report would have concluded that secure accommodation was necessary having regard to the terms of section 23(5) and (5AA). This is clearly so in view of the position taken by the Youth Offending Team Officer when he was consulted before the judge.
29. In those circumstances, notwithstanding the very able submissions that Mr Baumber has made on all aspects of this case, I would refuse this application for review.
30. LORD JUSTICE LATHAM: I agree. Thank you both very much indeed for your help, and particularly, Miss Dashani, for you coming in at such short notice.
31. MISS DASHANI: Thank you, my Lord.