England and Wales High Court (Administrative Court) Decisions

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

		Birmingham Civil Justice Centre Priory Courts 33 Bull Street Birmingham B4 6DS
		Friday, 13th July 2012

1. LORD JUSTICE HUGHES: The necessity for this application for judicial review arises from what would appear to be legislative oversight. Parliament has created a Youth Court as a specialist subset of the Magistrates' Court for good reason. The Youth Court is designed to bring specialist attention to young people who have to be dealt with in the criminal justice system. It is a court staffed only by magistrates who are specially trained and authorised. It can take advantage of adjusted procedures geared to dealing with the young; indeed sometimes the very young.
2. It is the clear underlying policy of the statutes which deal with offenders under the age of 18 that they should be dealt with in the Youth Court unless there is a positive reason for that to be inappropriate. Section 24 of the Magistrates' Courts Act 1980 provides the two principal reasons why it may be inappropriate. One, which does not concern us, is the case of the youngster charged with an offence which may attract the need for the exercise of the sentencing powers contained in section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. The other, which does concern us and which is extremely common, is the case of the the defendant under the age of 18 who is charged jointly with a person who is 18 or more.
3. In such a situation if the magistrates would commit the adult for trial to the Crown court, such is the normal desirability of jointly charged defendants remaining together, that the statute enables the youngster to be committed at the same time. That all makes very good sense. But what may happen, and happened in this case, is that that having occurred, the adult may drop out of the proceedings in the Crown Court, most often simply because he pleaded guilty. In that event the occasion for the youngster being in the Crown Court has fallen away.
4. The same thing can of course occur in the adult Magistrates' Court. If a young defendant is charged jointly with an adult, the case will not be heard in the Youth Court but in the adult Magistrates' Court. If in that event the adult pleads guilty, there is a sensible and necessary statutory power in section 29(2) of the Magistrates' Courts Act 1980 enabling the adult Magistrates' Court to remit the remaining young defendant to the Youth Court to be dealt with there. That is where he ought to be tried and, if necessary, sentenced.
5. The curiosity of the legislation is that there is no equivalent power for the Crown Court to do the same as the adult Magistrates' Court can do under section 29(2) of the 1980 Act. It is clear that the Crown Court can invent no inherent power to remit, there will have to be a specific statutory power, just like section 29(2). It is probably the result of piecemeal legislation that the power has never been created. But it has not.
6. All that is common ground. There is no dispute that that is the law and that the Crown Court has no power to remit, in those circumstances, was decided explicitly by this court in in R (on the application of W A Minor) v Leeds Crown Court [2011] EWHC 2326 (Admin), [2012] 1 Cr App R 162. The date of that decision was 28th July 2011.
7. The omission to which we have just referred of any statutory power to remit is made the more puzzling by the presence in a remote part of the Crime and Disorder Act 1998, of Schedule 3, paragraph 13. That does provide a limited power in the Crown Court to remit a young defendant to the Youth Court if the indictment has been amended in such a way as to leave no indictable only offence on it. That, however, does not touch the more common situation, which we have just described and which existed here, where the committal to the Crown Court has been of a young defendant because he is jointly charged with an adult who is being committed, and where subsequently the adult pleads guilty.
8. The present case is what if anything can be done, or should be done, if the Crown Court overlooks the absence of the power to remit and purports to do so. However, before we come to examine the at times complex questions which have been raised, the first thing that we think we ought to do is to make clear our view that there is an imperative need for the Crown Court to be provided with a power to remit which mirrors section 29(2) of the Magistrates' Court Act 1980. We want to make it clear that the need for that power does not arise because it is required to put right the kind of error which was understandably but wrongly made by the Crown Court in this case. The need for the power to remit is because without any error by anyone, there are certain to be situations in which a juvenile defendant is properly committed to the Crown Court because he is jointly charged with an adult, but then the adult pleads guilty and the juvenile does not. In that situation the juvenile ought not to have to be tried in the Crown Court, although it may be right in some cases for that to follow. He certainly ought not to have to be any more than he would have to be tried in the adult Magistrates' Court in the equivalent situation absent committal. That he cannot be sent, even where it is appropriate for him to be sent, to the specialist Youth Court, seems to us to be indefensible. There needs to be a power, not a duty, to remit. It would be a very simple piece of legislation. Without it juveniles are certain, without any error by anyone, to end up having to be tried in the wrong court. So far as we are able, though it is not of course a matter for us, we urge those who are responsible for criminal justice legislation to find the earliest possible opportunity, if our view be shared, to insert such a provision into a convenient Act of Parliament.
9. These three claimants were charged with an affray in the street, in which a victim suffered a broken jaw and associated injuries. They were all at the material time under 18 but a fourth defendant, called Jenkins, was 19. It may be that he was the one who was alleged to have done most of the damage, but that is not quite clear. All the defendants appeared before the magistrates and because Jenkins was an adult and could not appear in the Youth Court, the appearance was in the adult Magistrates' Court. The justices considered that the case of the adult justified committal to the Crown Court. The juveniles would not have justified committal by themselves because the offence was not a grave crime attracting the possible application of the unlimited detention powers given to the Crown Court by section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. However, perfectly properly, because the adult was being committed and because the cases of all the defendants obviously needed to be heard together, the committal of all of them was correctly ordered. That is, as we have said, specifically provided for by section 24(1)(b) of the Magistrates' Court Act 1980. That provides, so far as material as follows:

"(1) Where a person under [the age of l8 years] appears or is brought before a magistrates' court on an information charging him with an indictable offence other than ... he shall be tried summarily unless—

...

(b)he is charged jointly with a person who has attained [the age of 18 years] and the court considers it necessary in the interests of justice to commit them both for trial."

10. On arrival in the Crown Court on 31 March 2011 there ensued the usual plea and case management hearing. The adult, Jenkins, pleaded guilty to an offence of assault occasioning actual bodily harm, which properly represented what he was alleged to have done. Accordingly the parallel charge of affray was not pursued by the Crown, clearly appropriately. These three claimants however were contesting the charge. The judge was asked to remit them to the Youth Court for trial which is where, given the provisions of section 24(1) which I have just read, they would have been tried if Jenkins had not been in the case. The judge acceded to that application and ordered that the claimants' cases be remitted to the Youth Court.
11. This was, as is now common ground, an error although it was a direction which everyone asked the judge to give. We observe that it was something like 4 months before the decision of this court in W's case, which we have mentioned above. It is accordingly perhaps unsurprising that everybody overlooked the absence of the necessary statutory power to remit.
12. The three claimants duly appeared in the Youth Court, where they pleaded not guilty and over a period of some days a trial of them ensued. They were convicted. At some point between conviction and sentence the parties drew the attention of the Youth Court to the decision in W's case. The justices took advice and they reached the conclusion that their proceedings would not be treated as ipso facto null and void and the best thing for them to do was to proceed to sentence, as it were de bene esse, leaving the legal consequences of the error in the Crown Court to be dealt with elsewhere. The claimants were sentenced to a variety of non-custodial orders, referral orders or community orders. However, they disputed the correctness of the conviction by the Youth Court and they lodged notices of appeal to the Crown Court, under section 108 of the Magistrates' Court Act 1980. It falls to this court to deal with the legal consequences of what has happened, as anticipated by the Youth Court.
13. The case for the three claimants is simple in the extreme. The remission was beyond the powers of the Crown Court. Accordingly the claimants should never have been in front of the Youth Court. If the point had been appreciated and the justices asked to decline to deal with them, the justices would have no alternative but to agree. Therefore, says Mr Nelson QC, on behalf of the claimants, the proceedings in the Youth Court were conducted without jurisdiction and the result can only be, he says, that the convictions must be set aside. The result of that will be that the claimants will have to take their trial in the Crown Court under the original order for committal.
14. The Crown Prosecution Service has appeared in this application as an interested party. We are, if we may say so, extremely grateful to Mr Kovats QC for a penetrating analysis of the legal position. I hope we do justice to it in attempting to summarise it. His contention is as follows. He agrees that the order purporting to remit the claimants to the Youth Court was unlawful. He agrees that there is no alternative remedy such as would justify refusal here of judicial review. However, he asks us to say that relief ought nevertheless to be refused. The grant of relief by way of judicial review is, as he rightly says, always discretionary. He advances two reasons why that ought to be our conclusion in the present case. Firstly, he says that the error of the Crown Court did not mean that its order purporting to remit was a nullity. Accordingly, it ought to be treated as a procedural rather than a jurisdictional error, in accordance with the line of cases of which R v Soneji [2005] UKHL 49, [2006] 1 AC 340 is the lead. If there was no prejudice to the applicants, as he submitted there was not, the order of remission should stand.
15. Secondly, the relief should be refused, he says, because the error led to the Youth Court lacking "adjudicative" rather than "constituted" jurisdiction. That means, he submits, that the Youth Court could validly embark on the case and proceed unless and until the point was taken. It never was, at least before conviction, and accordingly the convictions can properly stand.
16. Central to Mr Kovats' more technical submissions is the argument founded on the net outcome. He says the claimants have received a fair trial in the Youth Court. It was a trial in which the adult had dropped out and so took no part. Accordingly, it was consistent with the general policy of the criminal justice statutes that the trial should take place in the Youth Court even if as a result of an unlawful order to remit in the Crown Court.
17. I agree with Mr Kovats that neither the Crown Court order to remit, nor the Youth Court's convictions are nullities, in the sense that they could be ignored and treated of no legal effect without any order declaring them to be unlawful. They are both orders of the court and they stand unless and until they are quashed - see for example R v Cain [1985] AC 46.
18. However, to say that is not to answer the question. If those orders are respectively an order to remit and convictions, which have been made without any power to make them, then the applicants are, prima facie at least, entitled to an order of this court, declaring that to be the position and quashing the order and the convictions respectively.
19. This case is not resolved by concluding that the order to remit and the convictions stand unless they are quashed. The question has to be faced: are the applicants entitled to have them quashed? That raises the two possibilities which Mr Kovats asks us to consider.
20. I also agree with Mr Kovats that the claimants ought not to be refused relief on the grounds they have alternative remedies in the form of an appeal either to the Crown Court or, for that matter, to this court by way of Case Stated. Both forms of appeal would assume the existence of jurisdiction in the Youth Court. That is the very issue in this case. Moreover, either form of appeal would leave in question what was to happen next. Those objections seem to me to be fundamental. It is not necessary to go further into the question of whether it remains the rule that there is no power to extend the 21 day time limit for an appeal by way of Case Stated.
21. Next, I agree that section 142 of the Magistrates' Court Act 1980 cannot be mobilised to provide a solution to the present problem. What that section does is enable the Magistrates' Court to correct a mistake made in dealing with an offender. It does not enable the Magistrates' Court to exercise a freestanding power to re-open a case for any reason - see R (on the application of Williamson v City of Westminster Magistrates' Court [2012] EWHC 1444 (Admin). In any event the present difficulty does not arise from a mistake made in the Magistrates' Court; it stems from an error made in the Crown Court. That brings me to the two possible routes by which Mr Kovats invites us to say that the convictions should, as a matter of discretion, be allowed to stand by refusing any relief.
22. I do not doubt that the Soneji principle is now well established. It relates to situations in which the court is confronted by a statutory requirement to take a procedural step en route to making a decision and that step has either not been taken or has been faultily taken. The old practice of asking whether the step in question was "mandatory", thus carrying the consequence that any omission to tread it was fatal to any subsequent proceedings or, on the other hand, "directory", thus amounting to a legal error which did not invalidate subsequent proceedings, is nowadays superseded by the application of a test of parliamentary intention. Was it Parliament's intention that the failure to tread the preliminary step or to meet the preliminary condition should be fatal to all subsequent proceedings or was it not? There is no need to rehearse the authorities which establish this approach, which in fact will frequently yield precisely the same result as the test as it used previously to be expressed. The House of Lords plainly endorsed this approach in the unsigned indictment case of R v Clarke and McDaid [2008] 1 WLR 338, at paragraph 18. There the statute made it unhappily clear that invalidity necessarily followed the absence of an indictment because the requirement of a signed indictment was the direct descendant of the Grand Jury's decision.
23. The present however is not a case in which the Soneji approach to procedural steps will help the Crown Prosecution Service submission. The Soneji approach is a test for the consequences of a failure to tread a procedural step or to meet a procedural condition along the way to a decision. It does not supply a means of holding that jurisdiction exists when frankably it does not. It is certainly true in some cases that the difference between the two situations is a difficult one to define. That is in part because the word "jurisdiction" is often used by courts in a number of different senses. It may be used to describe the situation where a court purports to do something which it has no power to embark upon, but it also may be used to describe a situation where the court does have power to embark upon an issue but has failed to tread a procedural step or to meet a procedural condition en route to the decision.
24. The difference was vividly, although certainly not exhaustively described by Fulford J in R v Ashton Draz and O'Reilly [2006] EWCA Crim 794, [2007] 1 WLR 181, at paragraphs 4 and 5:

"... it is now wholly clear that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised ('a procedural failure'), the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid. ...

5. On the other hand, if a court acts without jurisdiction – if, for instance, a magistrates' court purports to try a defendant on a charge of homicide – then the proceedings will usually be invalid."

25. Of course it is true that the absence of jurisdiction in this case was one step lower than that of a Magistrates' Court purporting to try a defendant for homicide, because no Magistrates' Court can ever do that, whereas a Youth Court can, in the right circumstances, try defendants such as these for affray. But the absence of jurisdiction in this case is not the result of failure to tread a procedural step and meet a procedural condition. This is an example of the defendants being in front of a court where they never should have been and at a time when another court, that is to say the Crown Court, had their cases properly before it. That they might have arrived in the Youth Court via a wholly different process and legitimately is nothing to the point. They had been sent to the Crown Court and, however regrettable, the Crown Court had no power to divest itself of their case. This case, in other words, is clearly on the side of the line of absence of jurisdiction in the narrow sense. The court which was purporting to deal with the defendants should never have had them in front of it at all. It is not on the side of the line where there is simply some procedural defect in the way in which the defendants arrived where they were.
26. The second basis of Mr Kovats careful argument is, on analysis, rather similar. For my part, I am perfectly prepared to accept, at least for the purposes of argument, that the difficult concept of jurisdictional shortfall can usefully sometimes be approached by considering the two descriptive situations: one of an absence of constituted jurisdiction, and the other an absence of adjudicative jurisdiction. I agree with Mr Kovats that they are not and never have been advanced as watertight legal concepts but that the analysis can be helpful I certainly accept. The difference was explained by Sedley LJ in Ahsan v Carter [2005] IC R 1817 and in Anwar v Secretary of State for the Home Department [2010] EWCA Civ 1275, [2011] 12552. Note that the Ahsan case went to the House of Lords [2008] 1 AC 696 where, however, it was decided on the basis of issues estoppel without averting to the analysis currently under discussion.
27. The difference between the two situations is between the case, on the one hand, of a Tribunal which has no power to embark on the decision-making process at all - that is described as an absence of constituted jurisdiction - and on the other, that of the Tribunal which can embark on the decision-making process but whose decision as to its powers can only be made if particular facts are found - that is described as an absence of adjudicative jurisdiction.
28. So to take the examples afforded by those two cases, the issue was one of adjudicative jurisdiction if the ability of the Tribunal to make a decision depended on the finding that the defendant political party, when selecting local election candidates, was or was not a qualifying body for the purposes of being governed by the rules against racial discrimination. The other case depended on whether an immigration claimant had or had not left the country so as to afford a right of appeal which otherwise he would not have. In each case the facts had to be determined before anyone could know whether the court had power to act or not.
29. One consequence of the difference, as Sedley LJ explained, is that if what is in question is an absence of adjudicative jurisdiction depending on a finding of fact, then if the point has not been taken in the court below, the facts thus had never been found, the decision of the Tribunal will ordinarily not be susceptible to challenge.
30. Whilst, as Stanley Burnton LJ observed in Lamichlne v Secretary of State Home Department [2012] EWCA Civ 260, the difference between these two concepts can often be elusive, I am, for my part, perfectly prepared to assume, for the purposes of this case, that it can in appropriate cases be discerned and may be a helpful analysis. What however I am completely clear about is that the present, if that analysis is undertaken, is a case of absence of constitutive jurisdiction. The ability of the Youth Court in law to deal with these defendants did not depend on any finding of fact. This was a case in which they simply had no power to embark on the decision-making process. It was a position, such as was described by Laws LJ when Cart v The Upper Tribunal was in the Court of Appeal [2010] EWCA Civ 859, [2011] QB 120, at paragraph 99. It was a case of a Tribunal "embarking on a case which was frankly beyond the four corners of its statutory remit."
31. I accept, of course, that there is a general discretion to refuse relief by way of judicial review even in such a clear case. There may well be cases, to which I will refer in a moment, in which that would be the right conclusion. But in the present case, there is a purely practical consideration which demonstrates that a refusal of relief would be wrong and it is the question of: what would then occur?
32. The claimants have lodged notices of appeal under section 108 of the Magistrates' Court Act 1980 to the Crown Court. If this court refuses relief, what is to happen to that? In particular, what is the Crown Court judge hearing the appeal to do if the submission is made to him that the claimants' appeal ought to be allowed, irrespective of a fresh hearing on the merits, for the simple reason that the Youth Court ought not to have tried them at all in the first place and have no power to do so?
33. Mr Kovats' answer to that is that the Crown Court ought to take its lead from this court and simply refuse to entertain such a submission. Of course if this court had declared the order remitting these claimants to the Youth Court to be lawful and the proceedings in the Youth Court as a result to have been lawful, then the Crown Court would indeed be bound by that decision. But if all this court does is to refuse the discretionary relief whilst saying, as it must, that the order remitting the claimants to the Youth Court was unlawful and the trial of the claimants in the Youth Court was unlawful, it is very difficult to see how the Crown Court could do other than entertain the submission that we have indicated. If, on the other hand, it were to be suggested - and it is not - that they had lost their right of appeal to the Crown Court because their original trial in the Youth Court should never have occurred, then they would have lost a statutory right to which they are entitled.
34. There can be no issue estoppel in criminal proceedings and I, for my part, am unable to see how the claimants could be restrained from making the submission to the Crown Court judge that I have just contemplated.
35. For those reasons I, for my part, am persuaded there is simply no basis for refusing the applicants the relief which they seek by way of judicial review. It is conceded that they would be entitled to it if the trial in the Youth Court had been about to start. I am unable to see that it makes any significant difference that the point arose after conviction but before sentence but yet while the proceedings in the Youth Court were still current.
36. For those reasons both the order of the Crown Court remitting the claimants to the Youth Court and the convictions in the Youth Court must be quashed. I would grant the claimants judicial review, quash those two orders and declare that the Youth Court had no power in these circumstances to try them.
37. I would just add this: we do not know how often Crown Courts have been seduced into thinking that the power that they ought to have to remit a juvenile in this situation is one that they actually have. But the existence of both Ws case and this case suggests that it may well have happened on other occasions. It would not be surprising if Crown Courts had taken the view that there must exist a power to remit when clearly there ought to exist a power to remit. It does not follow from the decision at which I would arrive at in this case that completed cases ought to be the subject of applications for judicial review and, still less, that they ought to be allowed to proceed. Neither the order remitting to the Youth Court nor completed convictions are nullities. If the case has been completed and there is nothing left outstanding, so far as I can see, it will normally follow that relief should be refused for that reason alone and no doubt permission would be refused for the same reason. This case however was not completed when the point arose. It proceeded to sentence only on the tentative basis that I have already described. There may be other situations in which relief could properly be refused in a case of this kind. One that comes immediately to mind is the case of a defendant in a Youth Court who wished to be there, who was well alive to the point but chose deliberately not to take it.
38. The case of a defendant who has been convicted but has lodged an appeal is one which may have to be addressed in the future, if it arises.
39. I would accordingly grant the application for judicial review. I declare that the Youth Court had no power to try the claimants. I would quash both the Crown Court order remitting them to the Youth Court and their convictions in that court.
40. MR JUSTICE BEATSON: I agree.
41. LORD JUSTICE HUGHES: Where do we go from there, Mr Nelson?
42. MR NELSON: First of all there was in fact a fourth youth, Jordan Crooke, who was --
43. MR JUSTICE BEATSON: Who did not appeal.
44. MR NELSON: But it would might be appropriate --
45. LORD JUSTICE HUGHES: He is not before us.
46. MR NELSON: He is not before us. (Pause). There was some problem with funding.
47. LORD JUSTICE HUGHES: I do not think we can do anything about Mr Crooke, Mr Nelson. I do not see how we can. Whether there are different arguments. We do not even know what the position is.
48. MR NELSON: I will just give my Lord the complete picture. I think he has appealed to the Crown Court.
49. LORD JUSTICE HUGHES: He has?
50. MR NELSON: Yes. He did not get funding I gather for this claim.
(The Bench Conferred)
51. LORD JUSTICE HUGHES: I would have thought - I am not here to give him advice - he needs to make an extremely prompt application. If anybody had the necessary instructions we could deal with it but they have not. I expect it could be dealt with extremely expeditiously. There is no other ancillary order required? (Pause)
52. MR NELSON: There is a funding certificate in place. I am asked for an order for legal aid taxation.
53. LORD JUSTICE HUGHES: Well if you need it, you shall have it, Mr Nelson.
54. MR NELSON: Thank you.
55. MR JUSTICE BEATSON: I am looking hopefully at Mr Kovats.
56. MR KOVATS: I think the order is required to say there should be a detailed assessment, even though the statute says that there has to be one, if it is asked for ... yes, detailed assessment.
57. LORD JUSTICE HUGHES: There is nothing else outstanding, Mr Kovats, is there?
58. MR KOVATS: No.
59. LORD JUSTICE HUGHES: Thank you both very much. It was an interesting case and nicely constructed submissions, if we may say so.
60. MR KOVATS: I am extremely grateful for having such a pleasant hearing and such thorough judgment.