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 WC2A 2LL
		15th October 2009

1. MR JUSTICE CRANSTON: This is an application for permission to apply for judicial review.
2. The claimant comes from Vietnam. He was arrested in this country in early July at an address in Sunbury-on-Thames. The police had had reports of activities at that address. As a result they searched the premises and found a cannabis production operation with the electricity mains meter being bypassed.
3. The claimant was then interviewed and he said that his family in Vietnam had paid agents for him to be brought to this country to work in an electronics factory. He said that he had a passport when he arrived in France, but the agents tore it up and then put him on a lorry to come to this country. In the result he ended up at the property in Sunbury-on-Thames. He told the police that he knew the plants were cannabis and he admitted watering and nurturing them. He was asked about the electricity supply and he said he had never touched the fuse box. It was put to him that he ought to understand the bypassing of the box since he was due to work in an electronics factory but he said that he was not an electrician. Apparently at the time the Surrey police had some concern about his age. He gave his date of birth as 1st January 1993.
4. The matter went to the Crown Prosecution Service, who initially authorised a charge of cultivation: Misuse of Drugs Act 1971, section 6. The reviewing lawyer at the Crown Prosecution Service was aware that there was some difficulty over the claimant's age, but the police apparently now stated that he was an adult.
5. He came before the North Surrey Magistrates' Court on 7th July 2009. He maintained that he was a youth. The case was then remitted to the Youth Court on 8th July. On that date the court dealt with the claimant as a youth but, applying the "grave and serious" principles of section 24 of the Magistrates' Court Act 1980, decided that their powers were insufficient and adjourned the case for committal to the Crown Court. So at this point the claimant was being treated as a youth.
6. The claimant was remanded in custody and the case was adjourned until 19th August. The Youth Justice Team and the Surrey social services ("Surrey") were involved. The latter conducted an initial age assessment of the claimant on 29th July. I observe that that initial assessment was in accordance with the procedures laid down in the so-called Merton case, to which I will come.
7. In that initial assessment the social worker from Surrey concluded that the claimant was 16. That was done on the basis of his physical characteristics, inquiries about his social history, his development, his education and his sole care skills. The conclusion of the assessment was that the social worker believed him to be between the ages of 16 years and 17 years and 6 months. The final assessment was conducted a week later, on 5th August this time the report was prepared by two social workers from Surrey. There is an apparent discrepancy in relation to the claimant's physical appearance between the initial and final reports. The assessment of 29th July was that, from observation, the claimant appeared to be 5 feet 8 inches tall. In the final assessment the two social workers reported that the claimant was shorter, and that the claimant informed the social workers that he believed his height was approximately 5 feet 3 inches to 5 feet 4 inches.
8. The conclusion of the final assessment was that the claimant was aged 16. The assessment was conducted along the same lines as the earlier initial assessment. In other words the conclusion was that the claimant was of the age he claimed, a date of birth of 1st January 1993.
9. Meanwhile, following that age determination, the claimant appeared again before the North Surrey Magistrates' Court. Prior to committal to the Crown Court, the court assessed the claimant's age. Unfortunately, we do not have full details of what was said before the magistrates but it appears that a social worker, Ms Helen Evans, from Surrey attended and gave evidence on oath as to how age assessment reports were prepared and the fact that they were undertaken by experienced social workers.
10. The magistrates concluded, in accordance with section 99 of the Children and Young Persons Act 1933, that the claimant was aged 22 years. They based that assessment on his physical appearance and the available evidence. That available evidence was what they regarded as two age assessments by Surrey. They identified what they described as the discrepancies between the two assessments, the one on 29th July and the further one on 7th August. They highlighted the age the claimant gave for his siblings, that they were far older than the claimant, and also the parents' ages, which on one interpretation meant that the claimant's mother had given birth to him when she was in her fifties.
11. Following that determination the matter was listed before His Honour Judge Critchlow on 23rd September and 9th October. The matter was adjourned on the first date for further enquiries about his age. The Crown Prosecution Service maintained that the determination had been made by the magistrates and that in light of no further information having been submitted the assessment that he was 22 should stand. Some consideration was given as to whether there should be a medical examination.
12. Section 99(1) of the Children and Young Persons Act 1933 reads as follows:

"(1)Where a person, whether charged with an offence or not, is brought before any court otherwise than for the purpose of giving evidence, and it appears to the court that he is a child or young person, the court shall make due inquiry as to the age of that person, and for that purpose shall take such evidence as may be forthcoming at the hearing of the case, but an order or judgment of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the court, and the age presumed or declared by the court to be the age of the person so brought before it shall, for the purposes of this Act, be deemed to be the true age of that person, and, where it appears to the court that the person so brought before it has attained the age of eighteen years, that person shall for the purposes of this Act be deemed not to be a child or young person."

13. "Merton assessments" are well known to the Administrative Court. They are derived from the decision of Stanley Burnton J (as he then was) in R (on the application of B) v Merton London Borough Council [2003] EWHC 1689 (Admin); [2003] 4 All ER 280. The essence of the Merton assessment is that it is informal but fair. Stanley Burnton J acknowledged that the assessment of age in borderline cases is a difficult matter although not complex. Except in clear cases, however, age cannot be determined on the basis of appearance alone. Stanley Burnton J sets out at paragraph 37 of the judgment that the decision maker must seek to elicit the general background of the applicant, his family circumstances, his history, his educational background and his activities during the previous few years. His Lordship notes that ethnic and cultural information may also be important. If there is any reason to doubt the applicant's statement as to his age, the decision maker will have to make an assessment of his credibility and ask questions designed to test that.
14. The importance of Merton compliant assessments has been underlined in a number of decisions of the Administrative Court. A v London Borough of Croydon [2009] EWHC 939 (Admin) was in a sense a test case. In that decision Collins J considered the extent to which evidence by paediatricians as to age should be taken into account. In the course of his decision, he said this about the general issue:

"9. To quote again Ward LJ in A and M [R (on the application of M) v Lambeth LBC [2008] EWCA Civ 1445], age determination is often a very difficult question of fact which requires a measure of professional knowledge or experience in the decision maker (see paragraph 81). Thus training is important, as of course is experience in dealing with the issue. The social workers involved in the decision making process who are employed by the local authorities in these cases have had training and do have substantial experience in assessing the age of UASCs. That is the evidence before me and I have no reason to doubt it. That does not of course mean that their decisions are not challengeable, but it does mean that the court should not readily take the view that they are flawed. Since there is no scientific proof available and the final decision involves the exercise of a judgment, it is never possible to be sure that the decision in a given case, particularly where an individual is close to 18, is factually correct. But perfection is unattainable and the approach adopted by the Secretary of State that, if the decision maker is left in doubt, the claimant should receive the benefit of that doubt is undoubtedly proper. But the decision is to be made by the authority not by anyone else ... "

Collins J concluded his judgment by commenting that only in very few instances would it have been possible to review successfully a refusal to change a conclusion reached through a Merton complied assessment. It was always necessary to make sure that the assessment was properly conducted and reached a sustainable conclusion and the record and reasons for the assessment would be crucial. Nonetheless, very great weight was to be attached to Merton compliant assessments by the court.

15. That same conclusion had been reached earlier in the year by Keith J in R (on the application of H v Secretary of State for the Home Department [2009] EWHC 928 (Admin). There his Lordship said that in the absence of medical evidence, appearance and demeanour may justify a provisional view of age, but it was only in an obvious case that appearance and demeanour alone would be sufficient. It was important, therefore, in such cases for the decision-maker to find out about the person's background, namely their family, their education and what they have done, and to assess that information against the background of their ethnicity and culture. Finally there is the recent decision of Blake J in R (On the application of) NA v London Borough of Croydon. There Blake J identified the importance of age assessment by social services departments for matters such as Home Office decision-making and matters such as education, welfare benefits and other services. In the course of his decision, at [41] - [45], Blake J pointed out that a Merton assessment is not a decision in rem so that the applicant is or a child for all purposes. Nonetheless, Merton Assessments by trained social workers were to be given great weight.
16. Before us today Mr Thomas has advanced cogent arguments as to the flaws in the assessment of age by the magistrates' on 9th August. He accepts that the issue of age is not always clear cut. It is possible for different authorities to come to different assessments. But in this case, he submits, the social workers had come to a Merton complaint conclusion. They had taken into account all relevant factors. The magistrates had had Merton assessments explained to them by the social worker, Ms Evans yet they had acted in a way which was arguably irrational. The conclusion that the appellant was 22 years seemed to have no basis. They had made that assessment on the basis of discrepancies in the initial and final reports - for example, as to height - which on a closer analysis may have been explicable. They had not taken into account the seriousness with which the Administrative Court regards Merton assessments.
17. For the Director of Public Prosecutions Mr Weekes submitted that the magistrates applied the correct test in deciding that the claimant was over the age of 18 years. This court should be slow to interfere with a decision of this type where the justices had the benefit of being able to see the claimant for themselves and to make an assessment based on all of the material supplied to them. Unless the factual decision of the inferior court can be shown to be manifestly unreasonable, or based on totally irrelevant facts, a reviewing tribunal ought to respect its findings. The justices had regard to (i) the physical appearance of the claimant; (ii) the fact that he asserted his parents were significantly older than might be expected, bearing in mind his stated date of birth; (iii) the discrepancies in the accounts which he had given; and (iv) the fact that the claimant declined to be assessed medically. In those circumstances Mr Weekes submitted that the decision was entirely defensible and reasonable.
18. In my judgment, there are difficulties with the assessment of age reached by the magistrates. The finding that the claimant is 22 years old is difficult to understand, notwithstanding that there may have been inconsistencies between the initial and the final reports of the social workers. The fact is that the age of 22 years is so removed from what the social workers had decided as to be, at the least, puzzling.
19. The difficulty the magistrates faced is that they did not have explained to them the importance of Merton compliant assessments. Ms Evans explained the procedure to them but since she was not a lawyer the magistrates were not made aware of the weight which this court places on Merton compliant assessments. That means that the magistrates' decision is arguably flawed in public law terms. Ordinarily I would conclude that judicial review should be granted in this matter.
20. However, as Mr Weeks has submitted, there is an alternative remedy. That remedy is provided by section 99 of the Children and Young Persons Act 1933. At any point a court can make an assessment as to the age of a person appearing before it. That being the case, it seems to me that the best course is for the Crown Court to make an assessment, as a matter of urgency, of this claimant's age, taking into account all the matters to which I have referred, and in particular the matter which the magistrates did not regard as a relevant consideration, through no fault of their own, namely, the very great weight which this court places on Merton complaint assessments. On that basis, I would grant permission to apply for judicial review, find the magistrates' decision unlawful but refuse judicial relief.
21. LORD JUSTICE SCOTT BAKER: I agree. Accordingly we grant leave to apply for judicial review and conclude that the finding of the magistrates was unlawful. However, we refuse to grant any relief. The case is in the Crown Court and an application can be made to the Crown Court judge for assessment under section 99 of the Children and Young Persons Act as a matter of urgency.
22. MR THOMAS: I am grateful. Just as a matter of clarity. Whilst the decision of the magistrates is said to be unlawful, he remains in custody in an adult prison. The court's ruling is that no leave was given whatsoever, including any route as to bail.
23. LORD JUSTICE SCOTT BAKER: That is right. You can make a separate application for bail, if you wish, to the judge in chambers. But I would have thought that this would be dealt with pretty expeditiously in the Crown Court.
24. MR THOMAS: We are, of course, and we simply hope our solicitors do that.
25. LORD JUSTICE SCOTT BAKER: Yes.
26. MR THOMAS: That is the reason I just reaffirmed the question of bail.
27. LORD JUSTICE SCOTT BAKER: I do not think bail is a matter we can easily deal with today.
28. MR THOMAS: I apologise for pressing the issue, but given that the decision has been said to be unlawful, and whilst I appreciate--
29. LORD JUSTICE SCOTT BAKER: Ordinarily what would have happened is that the magistrates would have had to retake the decision, would they not? We would be back in the position where the decision had not been taken and still the point was open.
30. Can you help us on that Mr Weeks?
31. MR WEEKS: My Lord it does occur to me that of course your Lordships could reconstitute this court as a Crown Court and hear the matter at 2 o'clock. But it may be that course is not one that appeals to this court. It would be entirely possible.
32. LORD JUSTICE SCOTT BAKER: I do not think that is the ordinarily appropriate court, not least because it then gives rise to issues about appeal process or review from that.
33. MR WEEKS: It was simply a proposal, thinking on my feet. But I think my Lord I would submit your Lordships, in the absence of doing that, do not entertain a bail application, because I do not believe this court has jurisdiction. Clearly it is a matter for the claimant's solicitors that they simply must get on with. I hear what my learned friend says and I do appreciate the difficulties, practically speaking, but this is a matter, if my instructing solicitor is given notice of, which it has in effect has been, but ought to be within 24 or 48 hours. Granted that the applicant is currently in an adult prison, but the requirement of the Crown Court clearly should be the defendant to attend and the matter should be listed with the defendant to attend, the decision by the Crown Court judge will be given as to, if not granted bail, where he should be housed.
34. LORD JUSTICE SCOTT BAKER: Yes.
35. MR WEEKS: I would submit, my Lord, that would be the cleanest route in this case.
36. LORD JUSTICE SCOTT BAKER: Mr Thomas?
37. MR THOMAS: We are in a difficult position that once we leave this courtroom we have no influence whatsoever on what happens.
38. LORD JUSTICE SCOTT BAKER: That is not this court's problem, is it?
39. MR THOMAS: Not at all. But in terms of the submissions that I can make.
40. LORD JUSTICE SCOTT BAKER: There is no reason why your instructing solicitor should not tell the solicitors who act in the criminal proceedings what this court has said and no doubt they will then get a move on.
41. MR THOMAS: My application, of course, was for this court to grant bail by way of the only relief the court gave, and bailed to the address provided by the social services which is still available.
42. LORD JUSTICE SCOTT BAKER: I am not convinced that even if he was under 18, that it would necessarily be a case in which he would be granted bail. We have not the material to look at it.
43. MR WEEKS: No. Indeed my Lord, the Crown objected to bail when he was considered to be a youth at the first appearance before the Youth Court and I daresay would maintain objection to bail. With all due respect to my learned friend, it is not simply a question of if the decision falls away, his client automatically is admitted to bail. There would have to be nonetheless the determination to bail by the Crown Court judge.
44. LORD JUSTICE SCOTT BAKER: It seems to me that you probably have to go to the Crown Court judge first. I am not sure there would be any direct route to the judge in chambers because a judge in chambers has to go to the Crown Court.
45. MR WEEKS: In fact, as your Lordships probably know the 2003 Criminal Justice Act abolished the right to apply to a High Court judge in chambers.
46. LORD JUSTICE SCOTT BAKER: Did it?
47. MR THOMAS: The only thing we can do, if refused by the Crown Court judge, is an application for judicial review which is again very limited.
48. LORD JUSTICE SCOTT BAKER: Yes. (Pause)
49. The other route through this may be the Crown Prosecution Service can be in touch with the criminal solicitors. It really should not be beyond the whit of man that there should be some communication here.
50. MR THOMAS: I am grateful. My instructing solicitor has authorised in this case and bearing in mind the facts ordinarily, as your Lordship know the Criminal Procedure Rules, 24 hours' notice is required, to the Crown Court and to the Crown Prosecution Service. My instructing solicitor has authorised to waive that requirement in this case. So, I would suggest that albeit they may not receive renumeration for doing so, the claimant's civil solicitors ought to contact the Crown Court and ask for it to be listed tomorrow, as a matter of urgency.
51. LORD JUSTICE SCOTT BAKER: I think your instructing solicitor has seen the Crown Court judge any way.
52. MR THOMAS: He has. But it is a question purely of listing difficulties. The lists tend to be compiled by around this time. So they need to be listed as a matter of urgency.
53. LORD JUSTICE SCOTT BAKER: Well, usually people can fit in something urgent.
54. MR THOMAS: I am sure that is not the difficulty. The question is when. I am afraid to say it is persuading the list office. But that is a practical difficulty which I do not need to detain your Lordships.
55. MR WEEKS: Just as a backstop then, could your Lordships order that the case be heard before a Crown Court judge by the latest on Monday?
56. LORD JUSTICE SCOTT BAKER: I do not think we have power to order that, have we? It would be inappropriate. What you might want is liberty to apply to us?
57. MR WEEKS: Liberty to apply. Secondly, for an expedited transcript.
58. LORD JUSTICE SCOTT BAKER: Yes. You can have an expedited transcript.
59. MR WEEKS: I am grateful.
60. LORD JUSTICE SCOTT BAKER: Is there anything else?
61. MR THOMAS: No thank you, my Lord. My Lord, I am sorry, a detailed assessment of the claimant's ...
62. LORD JUSTICE SCOTT BAKER: You can have that.