QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| REGINA (On the Application of ZN & AM)
|- and -
|BROMLEY YOUTH COURT
THE DIRECTOR OF PUBLIC
Mr Daniel Bunting (instructed by Ewings & Co Solicitors) for the 2nd Claimant
Mr Simon Heptonstall (instructed by CPS Appeals Unit) for the Interested Party
Hearing dates: 24th June 2014
Crown Copyright ©
Mr Justice Hayden :
i) The Complainants are young people and one, I am told, is an additionally vulnerable witness. Splitting the trial requires them to give evidence twice which is both profoundly undesirable and manifestly unfair to the Complainants;
ii) It must surely be an obstacle to the Crown's case of 'Joint Enterprise' that one Defendant should be tried separately. The integrity of the trial is, at least potentially, compromised and the public interest in the effective administration of the Criminal Justice System is not served.
i) "I am told the allegations against [ZN] and [AM] have been listed for trial at Bromley Youth Court on the 4th April 2014. The case against, Dangerfield was hearing before Judge Gower QC today and the Judge ordered the Prosecution to write to the court asking the court to consider its powers under Section 46 subsection 1 of The Children and Young Persons Act 1933 in order to send this case forthwith to the Crown Court where the court finds that it is necessary in the interests of justice to do so" [it is agreed that the relevant section is in fact Section 51(7) of The Crime and Disorder Act 1998].
ii) "The case against Connor Dangerfield has been adjourned for trial in week commencing 7th July 2014. The Complainants currently would be required to attend and give evidence twice, first in the trial against the youths on the 4th April and then again against the adult defendant... on the 7th July".
iii) "I therefore write to the Court in order that this matter maybe listed for mention for consideration to be given to the issue of having a single trial in the Crown Court where the young vulnerable witness's may give their evidence once, before the same trial tribunal that hears the evidence against the adult and youth defendant to allow consistency of decision making and in the interests of justice".
i) When a Magistrates or Youth Court determines mode of trial, it is irrevocable however undesirable the consequences of that decision maybe;
ii) The Magistrates' Court has no inherent jurisdiction enabling it to review earlier decisions it being, essentially, a creature of statute;
iii) There is therefore no jurisdictional basis for the Claimants being sent to the Crown Court;
iv) The grounds for Judicial Review are plainly arguable;
v) The applications should be 'rolled up' and the relevant orders quashed.
"Whilst it is accepted that it is desirable that there is such a power in cases such as this, it is submitted that without an expressed power there is nothing a court can do".
(7) Where –
(a) the court sends an adult("A") for trial under subsection (1), (3) or (5) above; and
(b) a child or young person appears or is brought before the court on the same or a subsequent occasion charged jointly with A with an indictable offence for which A is sent for trial under subsection (1), (3) or (5) above, or an indictable offence which appears to the court to be related to that offence,
the court shall, if it considers it necessary in the interests of justice to do so, send the child or young person forthwith to the Crown Court for trial for the indictable offence.
24A Child or young person to indicate intention as to plea in certain cases
(1) This section applies where—
(a) a person under the age of 18 years appears or is brought before a magistrates' court on an information charging him with an offence other than one falling within section 51A(12) of the Crime and Disorder Act 1998 ("the 1998 Act"); and
(b) but for the application of the following provisions of this section, the court would be required at that stage, by virtue of section 51(7) or (8) or 51A(3)(b), (4) or (5) of the 1998 Act to determine, in relation to the offence, whether to send the person to the Crown Court for trial (or to determine any matter, the effect of which would be to determine whether he is sent to the Crown Court for trial).
(2) Where this section applies, the court shall, before proceeding to make any such determination as is referred to in subsection (1)(b) above (the "relevant determination"), follow the procedure set out in this section.
(3) Everything that the court is required to do under the following provisions of this section must be done with the accused person in court.
(4) The court shall cause the charge to be written down, if this has not already been done, and to be read to the accused.
(5) The court shall then explain to the accused in ordinary language that he may indicate whether (if the offence were to proceed to trial) he would plead guilty or not guilty, and that if he indicates that he would plead guilty—
(a) the court must proceed as mentioned in subsection (7) below; and
(b) (in cases where the offence is one mentioned in section 91(1) of the Powers of Criminal Courts (Sentencing) Act 2000) he may be sent to the Crown Court for sentencing under section 3B or (if applicable) 3C of that Act if the court is of such opinion as is mentioned in subsection (2) of the applicable section.
(6) The court shall then ask the accused whether (if the offence were to proceed to trial) he would plead guilty or not guilty.
(7) If the accused indicates that he would plead guilty, the court shall proceed as if—
(a) the proceedings constituted from the beginning the summary trial of the information; and
(b) section 9(1) above was complied with and he pleaded guilty under it,
and, accordingly, the court shall not (and shall not be required to) proceed to make the relevant determination or to proceed further under section 51 or (as the case may be) section 51A of the 1998 Act in relation to the offence.
(8) If the accused indicates that he would plead not guilty, the court shall proceed to make the relevant determination and this section shall cease to apply.
(9) If the accused in fact fails to indicate how he would plead, for the purposes of this section he shall be taken to indicate that he would plead not guilty.
(10) Subject to subsection (7) above, the following shall not for any purpose be taken to constitute the taking of a plea—
(a)asking the accused under this section whether (if the offence were to proceed to trial) he would plead guilty or not guilty;
(b)an indication by the accused under this section of how he would plead.
"There are, I think in theory at least, two possible approaches. The first would be to identify a plain legislative oversight and read the legislation so as to supply an omitted provision which Parliament must have intended but failed by mistake to provide. The second possibility might be to resort to Section 3 of the The Human Rights Act 1998 so as to read the legislation in a way that is compatible with the convention. There is no suggestion in the present case that there might be a declaration of incompatibility, but for my part I think the Claimant's advisors were right not to press the Human Rights Act route. An over ingenious human rights lawyer might make something of a case for an infringement here of Article 6, or conceivably Article 8, of the European Convention on Human Rights, but the reality is the Claimant would get a fair trial in the Crown Court, and that is accepted. It is only that it would be strongly preferable for policy reasons if he were in the Youth Court".
121. For present purposes, it is sufficient to notice that cases such as Pickstone v Freemans plc and Litster v Forth Dry Dock & Engineering Co Ltd suggest that, in terms of section 3(1) of the 1998 Act, it is possible for the courts to supply by implication words that are appropriate to ensure that legislation is read in a way which is compatible with Convention rights. When the court spells out the words that are to be implied, it may look as if it is "amending" the legislation, but that is not the case. If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the Convention rights. And, by its very nature, an implication will go with the grain of the legislation. By contrast, using a Convention right to read in words that are inconsistent with the scheme of the legislation or with its essential principles as disclosed by its provisions does not involve any form of interpretation, by implication or otherwise. It falls on the wrong side of the boundary between interpretation and amendment of the statute.
122. When Housman addressed the meeting of the Classical Association in Cambridge in 1921, he reminded them that the key to the sound emendation of a corrupt text does not lie in altering the text by changing one letter rather than by supplying half a dozen words. The key is that the emendation must start from a careful consideration of the writer's thought. Similarly, the key to what it is possible for the courts to imply into legislation without crossing the border from interpretation to amendment does not lie in the number of words that have to be read in. The key lies in a careful consideration of the essential principles and scope of the legislation being interpreted. If the insertion of one word contradicts those principles or goes beyond the scope of the legislation, it amounts to impermissible amendment. On the other hand, if the implication of a dozen words leaves the essential principles and scope of the legislation intact but allows it to be read in a way which is compatible with Convention rights, the implication is a legitimate exercise of the powers conferred by section 3(1). Of course, the greater the extent of the proposed implication, the greater the need to make sure that the court is not going beyond the scheme of the legislation and embarking upon amendment. Nevertheless, what matters is not the number of words but their effect. For this reason, in the Community law context, judges have rightly been concerned with the effect of any proposed implication, but have been relaxed about its exact form. See, for example, Lord Keith of Kinkel and Lord Oliver in Pickstone v Freemans plc  AC 66, 112D and 126A - B.