England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Manchester Civil Justice Centre 1 Bridge Street West Manchester M3 3FX
		3rd March 2010

Mr Justice Langstaff:

1. Section 24 of the Magistrates' Courts Act 1980 provides, so far as material:

"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 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 …"

It was in the exercise of his powers under that section that District Judge Richardson on 31 July 2009 made orders committing each of the two current applicants to the Crown Court for trial. Each must be regarded as presenting a separate case. Each contends that, applying familiar principles of judicial review, the decision of the District Judge to make such a committal should be quashed.

2. In the case of W & Ors, R (on the application of) v The Brent Youth Court [2006] EWHC 95 (Admin), a decision of the Divisional Court, Smith LJ observed in respect of committals under this section that where several defendants were charged together she would:

"…stress the need mentioned by Leveson J for the court to consider the position of each defendant separately. Where all the defendants are under the age of 18 there is no power to commit a young person to the Crown Court in the interests of justice, as there is where one defendant is over the age of 18 and must be committed to the Crown Court. If all are under 18, the court must make an appropriate decision for each defendant, even if this results in one defendant being tried in the Youth Court and others in the Crown Court."

3. I have a report of that which it is agreed the District Judge said, insofar as any record is currently available. He was considering cases which I need to describe briefly in order to set the context for his observations. The case against W was that he was an 11-year old charged with two offences of rape and one of sexual assault in respect of a male victim aged four at the time, he, W, then being 11 and turning 12 in respect of the latter two more serious offences. M was aged 13 at the time of the offence of rape alleged against him in respect of the same victim but, it was suggested, which had occurred upon a separate occasion.
4. The judge said this. He indicated that the charges were very serious and that the first issue to consider was that of venue. He said it was far from straightforward. He noted that the starting point was that matters should be dealt with in the Youth Court as it is designed specifically to deal with youths, but "grave crimes" should proceed to a higher court. He relied for that proposition on section 24, which I have cited. I interpose to note that all counsel are agreed that the crimes alleged here merit the description "grave crimes". The judge acknowledged that he must put to one side what were the maximum sentences available. He indicated that he had been assisted greatly by the skeleton argument for W and acknowledged that those representing M had taken a neutral view. That was, I should add, because M's representatives considered that they had not got proper instructions, in view in part of the mental state of their client.
5. The District Judge approached the matter by applying a test of whether or not there was a real prospect of a sentence being imposed in excess of two years detention. He acknowledged he would have to make that decision upon the basis of the Crown's case. No-one criticises that approach, though Mr Clarke, who appears for the interested party, observes that the words "real prospect of a sentence being imposed in excess of two years" do not come directly from the statute but from authority which has considered the wording of the statute, and he would prefer a test of the availability of a sentence so that the test should be: should the court have available the powers under section 91?
6. The District Judge went on to say, that the victim was W's cousin who was four years old. He described the family background, the initial denial by W to his family but later admission of it to his mother and to the police, and the admission in interview by M. He said that the charges were rightfully joined but that it was not clear how the two defendants had come to abuse the same victim. He acknowledged that the aggravating features were the nature of the offence, it being rape; that there were repeat offences; that the victim was only four; the effect on L, the victim, and his family; an abusive family relationship; and breach of trust. The report of his remarks continues that the judge had indicated it was not an easy decision to make but felt that the case did, however, come within the Southampton case -- that is an authority I shall return to -- and he therefore found the matter to be a "grave crime". He felt that there was a real prospect that the defendants may receive a sentence in excess of two years and as a result the matter would be committed to the Crown Court.
7. It seems plain from that note that the District Judge approached the two boys without going into any distinction between their cases, instead rather lumping them together. No blame should attach to him for doing so because he was not addressed to the effect he should do anything different. In particular, he was not referred to the words of Smith LJ which I have already quoted. Mr Clarke QC, who appears for the interested party today, indicates that he accepts that the thrust of those words was that the judge was treating a decision in respect of one as being in effect the decision which should bind both; he referred to "defendants" in the plural.
8. It is contended on behalf of M that the judge was obliged to give separate consideration to each defendant and that by committing him because he was committing W he erred in law. This was a case in which in any event there were separate offences, albeit the same victim, and albeit some link of family and therefore it being open to suggestion that there may have been some interaction between the two defendants about the willing and compliant nature of the same victim. But be that as it may, they were separate offences and separate offenders. And the principle in any event stated by Smith LJ is in my view clear.
9. The District Judge, inadvertently though it may be, it seems to me fell into an error of law in his approach to whether or not M should be committed. He regarded the decision as to him as, in effect, determined by his decision on W's case. It accordingly follows that so far as M is concerned, this court must quash the decision to commit him to the Crown Court. Because the inevitable consequence of this is that his case remains to be considered and venue remains to be considered by the Magistrates' Court, I should say nothing about the decision which should be made or the scope of the decisions which are open to the District Judge or Magistrates or Crown Court Judge sitting as a District Judge, whoever it may be who takes that decision, though the principles upon which it needs to be taken are clear and were in part adverted to by the District Judge himself.
10. It is to those principles which I now turn. By section 37 of the Crime and Disorder Act 1998, considered alongside section 44 of the Children and Young Persons Act 1933, which requires a sentencing court to have regard to the welfare of a child or a young person, and section 152(1) of the Criminal Justice Act 2003, it can be seen that the principal aim of the Youth Justice System is to prevent offending by persons who are under the age of 18. The approach which a court should take in exercising its powers against that background, where offenders come before it, was expressed in words which higher authority has already suggested cannot be improved upon by Leveson J, as he was, in the case of R (on the Application of H, A and O) v the Southampton Youth Court [2005] 2 Cr App R (S), beginning at page 13. At page 184, in paragraph 33, he said this, which merits quoting in full:

"33. 1. The general policy of the legislature is that those who are under 18 years of age and in particular children of under 15 years of age should, wherever possible, be tried in the youth court. It is that court which is best designed to meet their specific needs. A trial in the Crown Court with the inevitably greater formality and greatly increased number of people involved (including a jury and the public) should be reserved for the most serious cases.

34. 2. It is a further policy of the legislature that, generally speaking, first-time offenders aged 12 to 14 and all offenders under 12 should not be detained in custody and decisions as to jurisdiction should have regard to the fact that the exceptional power to detain for grave offences should not be used to water down the general principle. Those under 15 will rarely attract a period of detention and, even more rarely, those who are under 12.

35. 3. In each case the court should ask itself whether there is a real prospect, having regard to his or her age, that this defendant whose case they are considering might require a sentence of, or in excess of, two years or, alternatively, whether although the sentence might be less than two years, there is some unusual feature of the case which justifies declining jurisdiction, bearing in mind that the absence of a power to impose a detention and training order because the defendant is under 15 is not an unusual feature."

It was that guidance to which the District Judge was plainly referring. All counsel before me are agreed that he did so appropriately and therefore directed his mind toward the appropriate principles.

11. What then, on behalf of W, is the challenge? The challenge is that the District Judge here could not properly come to the conclusion that there was a real prospect that the powers under section 91 would or might be required. Mr Weatherby accepts that that is a challenge based upon the District Judge having reached a decision which was wholly unreasonable.
12. This court, on review, in my view, has to approach the decision by the District Judge by asking whether he or someone in his position was entitled to come to the view on the material before him that there was a real prospect -- adopting the words of Leveson J which it appears have the endorsement of the Vice President of the Court of Appeal, Criminal Division -- that the sentence would be more than two years. It is therefore not my decision that the offences to which W was subject might carry a reasonable prospect of such a sentence against him.
13. How is the question of reasonable prospect to be assessed? At the stage of committal, inevitably the child to be committed, if they are to be committed, has entered no plea. Mr Weatherby accepts that this is a matter of potential relevance; it is open to a child defendant to change his instructions, should he wish to do so, before a plea is entered. He accepts that there may be available arguments of admissibility even where, as in this case, admissions have been recorded on tape and admissions made to a relative in addition. But he invites this court, in assessing what was open to the District Judge to decide, to have regard to the probability that W will enter a plea at the Crown Court.
14. For his part, Mr Clarke emphasises that a decision as to committal must be neutral as to plea, and that if the question is whether the court should have available the powers, as he submits it is, the committing court must ask what the proper sentence might be, or within what range it might fall, upon a conviction.
15. In my view, real prospect involves having regard to the realities of a case. Those realities must necessarily include those matters which it appears, for the time being, may well aggravate an offence in the mind of the sentencing judge, whomever it may come before. They must include those matters which inevitably will be or are likely to be prayed in mitigation. They include the possibilities and probabilities that there may be a plea of guilty. But the matter cannot be approached simply upon the basis that there will necessarily be a trial or there will necessarily be a plea of guilty. There is a general assessment to be made. And the evaluation, it seems to me, must take account of the prosecution case at the highest as it may reasonably be viewed by a court, since it is open to a court to take that view, assuming that such a view would not be unreasonable, and that must necessarily inform the view of any committing judge.
16. In this case I turn therefore to see whether or not the decision which District Judge Richardson came to was one which was within his entitlement. There are no guidelines specifically applicable to sexual offences committed by someone who is 11 or 12. There are a limited number of cases which indicate what the sentencing range might be. Those cases, to which I have been referred, begin in time with the case of Reeve [1989] 11 Cr App R (S). That was a case in which a boy of 15 pleaded guilty to three counts of rape. They were committed against a four-year-old cousin for whom he babysat. Accordingly, the defendant was older by some margin than is the defendant here. There was a breach of trust to a greater extent than might be said here. There was no particular psychiatric evidence which played a role. A sentence of two years' detention upon a plea was upheld by the court. It therefore has to be accepted that that was within the range. It does not of course indicate the upper limit of the appropriate limit of the appropriate range on a plea. Mr Clarke points out that if Reeve had pleaded not guilty and had been convicted, it indicates a starting point of three years, and thus three years is within the appropriate range.
17. The case of R v Jason Brown is reported at [1992] 13 Cr App R (S). In that case the appellant, who was 14 at the time of the events, pleaded guilty to the rape of a child aged 5 whom he had been babysitting. It was one charge of rape; the rape was vaginal. Three years' detention was thought excessive; a sentence of two years' detention was substituted. That might indicate, for a single offence by someone of that age upon a child a little older than the victim in the present case, that three years would have been appropriate had there been a contested case.
18. The case of R v O is one of the more modern of the authorities. It is reported at [2006] 1 Cr App R (S), page 606. There, a sentence of three years' detention was imposed upon a boy aged 15 for the attempted rape of his cousin, aged four. This was one offence. The crime was the attempt to insert his penis. Aggravating features included the fact that there had been a breach of trust and some injury. It was a plea of guilty. A three-year detention sentence was reduced to two years.
19. In the case of R v F [2006] 2 Cr App R (S) at page 449, the court considered the case of an appellant who had been found guilty of more than one offence. This was a boy of 11, therefore if anything a little younger than the appellant in this case. He was convicted of two counts of rape of a child under the age of 13 (that was a boy of six, therefore a little older than the child in this case), three counts of causing or inciting a child under 13 to engage in sexual activity and one count of sexual assault on a child. The assaults consisted of the placing of the penis in mouth and anus and the victim had been made to masturbate the appellant. The court observed that age was a factor but not decisive; that it was a case where the normal result of grave offences of such a kind, even when committed by a young boy, should follow, and it would be very unusual if custody did not follow such offences as these. Two and a half years' sentence was upheld. It follows that that was, therefore, within the range appropriate upon a conviction. It has obvious similarities to the present case, though it may be said that there were more acts committed.
20. In the case of D, a boy who was 13 had consensual sexual intercourse with his sister, who was then 11 or 12. He had done this on five occasions. The sentence which Latham LJ, Burton J and HHJ Beaumont QC, sitting at the Court of Appeal in 2006 ([2006] 2 Cr App R (S) 52) regarded as appropriate was one of three years, reducing a sentence of four years and three months to reach that conclusion. The sentence of four years and three months initially imposed was on a plea of guilty.
21. Finally, I have been referred to the case of R v M [2007] 2 Cr App R (S) 10 at page 43. Three years' detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 was upheld in the case of a boy aged 15 for raping and attempting to rape a six-year old girl. Both the perpetrator and the victim were older, the perpetrator significantly so. There had been a plea of guilty. The case was not one which involved a breach of trust as such, because the victim's mother and the applicant's mother were friends, and it was one afternoon when the victim went to the applicant's while her mother went shopping when the offence occurred. There may have been some breach of trust involved, but it was different from the babysitting case. The court specifically noted in determining that the sentence should be upheld that there were two offences, not a single isolated offence, and that a shorter sentence would not properly reflect the gravity of offences on a six-year old child.
22. These cases indicate that, amongst the features which a court is entitled should it wish to do so to regard as aggravating, are the age of the victim, the difference in age between perpetrator and victim, the nature and situation of the sexual activity engaged in, the number of occasions when penetration occurred, any remorse shown and the offender's maturity and, it almost goes without saying, a guilty plea. Here in his skeleton argument Mr Clarke for the interested party points to various features of the evidence. They are capable, he suggests, of showing that W, despite his years, was a lad who was very sexually aware. Thus he plainly knew what it was to masturbate, he spoke of his relations with girls, he understood the nature of the incidents in which he was involved. They were not, Mr Clarke says, necessarily to be dismissed as mere exploratory play. He draws particular attention to the fact that there were three incidents which showed an escalation in severity. The first in time, when W was 11, consisted of him putting his naked penis on the buttocks of a 4-year old, L. The second, a little while later, involved him inserting his penis. He was then 12. The third involved him going into a bathroom and on one view of the available evidence making himself erect by masturbation, then with pants still lowered going into the bedroom, where he knew the 4-year old would be, lowering the clothing of the 4-year old, parting the buttocks and inserting himself fully. That was the third of the events. The escalation therefore is capable, given the cases to which reference has been made, of being regarded as an aggravating factor, and seriously so.
23. As against that, Mr Weatherby, who appears for W, invites me to consider that the committing judge could have no proper view that there was a real prospect here that detention of two years or more than two years would be justified or might be justified. That was because W is undoubtedly very young and because W made what Mr Weatherby describes as full admissions with what is described as immediate remorse. It may be said on one view that admissions as to two offences came only later, but it may also be said that the fact that they came at all showed that W was remorseful. It is also to be noted, however, that W, on one view of his interview, plainly knew that what he was doing was wrong and that a consequence might be that he would go to prison. Mr Weatherby notes that there were no apparent injuries -- indeed, the medical evidence is such as to exclude injury; that W was not truly in a position of trust; that there was no question of any bullying or use of a weapon; and he invites me to conclude that the sentencing judge would be bound to have regard to a view that what inspired the offences was confusion about sexual activity in the mind of this youngster, who had stayed within the family unit by decision of those experts who had been involved in looking at him and the family dynamics following his admissions.
24. On the approach which I have to take, asking whether it was open to the District Judge to come to the conclusion which he did that W should be committed to the Crown Court, the committing judge was in my view entitled to think that a court might (though not necessarily would) wish to impose a sentence under section 91 of the 2000 Act. It seems to me potentially within the range of sentences available. That is not, I hasten to add, in any sense a determination by me of what sentence I would impose if this matter had come before me in the Crown Court, nor is it any sense any indication to any court that might later consider this case as to what sentence is necessarily appropriate. It is inevitably based upon the limited information which was before the District Judge on committal. It is against that information that I have to ask whether his evaluation was unreasonable on public law grounds. There being no error of law in his approach, the only question is one of his evaluation. It seems to me that it was within the limits available to him.
25. The unhappy result of this case, when one considers the case of M, bears out Smith LJ's prediction quoted above that the result of the principle which she recognised was that one alleged young offender might go for trial in the Magistrates' Court, whereas another might go to trial in the Crown Court, though the offences are factually linked. But that is a consequence of the law and a consequence of the principles which Parliament has required that the courts apply.
26. In consequence my decision is that this appeal succeeds so far as M is concerned, and in respect of M the committal decision will be quashed. So far as W is concerned, for the reasons I have given, it is not.

MR WEATHERBY: My Lord, W is publicly funded.

MR JUSTICE LANGSTAFF: You want an order for costs.

MR CLARKE: My Lord, M is also publicly funded. Having succeeded, the application is for the costs to be taxed.

MR JUSTICE LANGSTAFF: Yes.

MR CLARKE: I do not need such an order, my Lord, thank you.

MR JUSTICE LANGSTAFF: Thank you all.