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
		4 May 2007

1. MRS JUSTICE RAFFERTY: This is a claim for judicial review of a decision by the Folkestone Youth Court to commit the claimant SS to the Crown Court for trial, the suggestion being that that decision is wrong in law.
2. SS, born on 6 September 1990, is now 16. He was charged with perverting the course of public justice, when he and a co-defendant RE, currently 15, made a false allegation of robbery against a young man now aged 19. He claimed that the young man had approached them, shown them a knife and taken from RE his mobile telephone. On 11 November 2006 he signed a witness statement which detailed that allegation. As a result, the young man was arrested and bailed but spent nine days in custody before a decision to take no further action. That decision was inevitable, consequent upon the claimant admitting that the allegation of robbery was untrue.
3. The claimant has no previous convictions. He and his co-defendant, on 21 January 2007, appeared at the Folkestone Youth Court where, following argument on 13 February 2007, he was committed for trial to the Crown Court sitting at Maidstone under the provisions of Section 24 (1) (a) of the Magistrates' Court Act 1980.
4. On 27 February at the Crown Court an adjournment was granted for parties to consider whether judicial review should lie. The by now familiar text for judicial review in these circumstances is set out in R (On Application of C and D) v Sheffield Youth Court [2003] EWHC 35 Admin, paragraph 41: it is -

"In the judgment of the High Court, was the decision of the Youth Court wrong? ..... It is not sufficient for the High Court to consider that it would have made a different decision ..... "

5. Section 24 of the 1980 Act, so far as relevant, reads as follows:

"(1) Where a person under the age of 18 appears or is brought before a magistrates' court on an information charging him with an indictable offence ..... he shall be tried summarily unless -

(a) the offence is such as is mentioned in sub-section (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 sub-section (3) of that section;

.....

and accordingly in a case falling within paragraph (a) ..... of this sub-section the court shall commit the accused for trial if either it is of the 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."

The familiar powers of Section 91 of the Criminal Courts (Sentencing) Act 2000 we do not, for these purposes, need to rehearse.

6. For completion, it is worth mentioning perhaps that this being a common law offence there is no statutory maximum for perverting the course of public justice. It would fall squarely within the contemplated position achieved by Section 91 (1) (a).
7. A Detention and Training Order can be imposed by the Youth Court for periods beginning at four months and moving through six, eight, ten, twelve, eighteen to a maximum of twenty-four, as is plain from the reading of Sections 100 and 101 of the Powers of Criminal Court (Sentencing) Act 2000. The proper approach to a decision whether or not to commit in cases such as this has most recently been rehearsed in R (On Application of Crown Prosecution Service Redbridge Section) v Redbridge Youth Court and BS [2005] EWHC 1390 Admin, where at paragraph 11 Lord Justice Brooke said:

"11 .....

In considering the application of Section 24, [of the 1980 Act] 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 ..... The general policy ..... is that those ..... under 18 ..... should, wherever possible, be tried in the Youth Court. A trial in the Crown Court should be reserved for the most serious cases ..... "

The judge went on to remark that it followed that -

" ..... 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 .....

Given that the maximum period for which a magistrates' court may impose a detention and training order is 24 months ..... Section 91 is primarily applicable to cases of such gravity that the court may be considering a sentence of at least two years ..... "

8. Putting that another way, the test to be applied by the Youth Court whether to commit was well expressed in R (On Application of C and D) v Sheffield Youth Court and R (On Application of N) v Sheffield Youth Court [2003] EWHC 35 Admin, where it was said that there must be "a real possibility" of such a sentence.
9. Finally for the avoidance of any doubt, in R (H A and O) v Southampton Youth Court, Mr Justice Leverson (as he then was) referred to "a real prospect".
10. In C and Others v Croydon Youth Court and Central Hertfordshire Youth Court [2006] EWHC 2627, Lord Justice Auld remarked that it should be remembered that a decision under challenge was not itself a sentence. That task or stage has not been reached, but it is a determination as to venue which the relevant statutory sentencing provisions and the sentencing guidelines allow for elasticity, some range of the borderline in which a reasonably made determination as to venue can go either way.
11. The submission made by Miss Rosefield for the claimant, not contested by Mr Cullings for the Crown Prosecution Service (the interested party), is that even were these facts to affect an adult the appropriate sentence would be one of fewer than two years' imprisonment. It is not necessary, given the concession by Mr Cullings, for us to rehearse the digest of sentencing authorities which, certainly for my part, I consider fortifies Miss Rosefield's submission.
12. The only remaining statutory provision to be considered is Section 37 of the Crime and Disorder Act 1998. It provides for the principal aim of the youth justice system, that is to prevent offending by children and young persons and, in addition to any other duty, it should be the duty of all persons and bodies carrying out functions in relation to the criminal justice system, to have regard to it.
13. Were I in any doubt as to the appropriate disposition of this application - and I am not - I should find fortification in the undesirability of imposing long sentences on young persons where such can be avoided, as in Mills [1998] 2 Cr App R (Sentencing) 128 as Lord Bingham CJ set out. It follows that if one takes the adult sentencing hypothesis, this claimant's youth would immediately predicate a discount. Taking all factors into account, I have reached the conclusion that the decision to commit to the Crown Court for trial was manifestly wrong. It seems to me relevant too that if, having heard all the evidence in the case, the magistrates in a contested trial remain of the view that their powers are insufficient they can commit to the Crown Court for sentence. For the reasons I have rehearsed I would grant an order quashing the decision sought.
14. MR JUSTICE GAGE: I agree.
15. MISS ROSEFIELD: There are two or three matters. First, an order of anonymity was granted by the single judge. If I need to ask for that to continue in these proceedings, I do so. The claimant, as we know, is 16 years old.
16. MR JUSTICE GAGE: Yes. My Lady tells me it is automatic.
17. MISS ROSEFIELD: Secondly, somewhat unusually, the application

for public funding has not yet been decided by the Legal Services Commission. I am not quite sure why not. I understand a further emergency application was mooted (?) by those instructing me on - - - - -

18. MR JUSTICE GAGE: Did they have all the relevant documents?
19. MISS ROSEFIELD: I understand that they have. A further application was made at the beginning of this week in an emergency fall-back, as it has been described to me.
20. MR JUSTICE GAGE: What can we do about that? What are you asking us to do?
21. MISS ROSEFIELD: I understand that you have the power to grant such an application today.
22. MR JUSTICE GAGE: If we have, we will. On the basis that we do have power, we grant you such an order.
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