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
		20 May 2015

Sir Brian Leveson P :

1. B is now 16 years of age, having been born in September 1998. On 7 February 2015, he was charged with three offences of oral rape of a boy under the age of 13 years contrary to s. 5 of the Sexual Offences Act 2003 and one charge of inciting a boy under 13 to engage in sexual activity contrary to s. 8 of the same Act. He was 14 or 15 years at the time of the first incident and 15 in relation to the other two.
2. On 13 March 2015, the case was listed at South Tyneside Youth Court before District Judge Elsey in order to determine venue. The prosecution argued that these offences were caught by the grave crimes procedure and that, pursuant to s. 51A of the Crime and Disorder Act 1998 (the 1998 Act, formerly s. 24(1)(a) of the Magistrates Courts Act 1980), the court should conclude that it ought to be possible to sentence him to detention under s. 91(1) of the Powers of Criminal Courts (Sentencing) Act 2000 (the 2000 Act) with the result that he should be committed for trial. The defence submitted that the youth court should retain jurisdiction. In the event, the District Judge decided to retain jurisdiction; with the leave of Sweeney J, the Crown Prosecution Service now seek to challenge that ruling by way of judicial review.
3. There does not appear to be a note of the reasons provided by the District Judge for his decision but, in reply to the application for judicial review, he provided the following information (corrected to remove a typographical error):

"i. I heard submissions on mode of trial … on 19 March. I accepted it was a serious case and it may be that the appropriate venue for sentence – if the defendant was convicted – might be the Crown Court. However, given the age of the defendant and the availability of the power to commit for sentence either as a dangerous offender or by virtue of s. 3(B)(1) of the Powers of Criminal Courts (Sentencing) Act 2000, I considered that the youth court was the appropriate venue for trial. In announcing that I accepted jurisdiction for trial, I expressly reserved the issue of sentence. In reaching that decision I bore in mind the need to consider the welfare of the young defendant, the fact he had no previous convictions and the overarching principles of sentencing in the youth court.

ii. If the power to commit did not exist, I would in all likelihood have committed for trial but even then – as happened in another such case recently – it would have been possible for the case to be remitted for sentence."

4. The law in this area is complex and by no means straightforward. It has been rendered even more difficult by recent amendments introduced by s. 53 of the Criminal Justice and Courts Act 2015 (the 2015 Act). In particular, it appears that the District Judge placed reliance on an amendment that came into force only for cases commenced after 15 April 2015. It is therefore necessary to deal with the case in some detail.
5. The facts are set out in the application. The complainant, L, was 6 years old at the time of the first incident and 7 thereafter. He lives with his paternal grandmother but had regular contact with his maternal grandparents, often visiting B, his cousin, who lived next door to them. On 28 February 2014, having returned home from contact with his maternal grandparents, L complained that whilst in B's bedroom, B had put his penis into his mouth and had then removed L's underwear and taken l's penis into his mouth. At the time, the bedroom door had been wedged shut.
6. The following day, L was subject to an ABE interview and further disclosed that B had put his penis into L's mouth on two earlier occasions, once when he was 6 and once when 7. L reported that on each occasion B had said that if L told anyone, he wouldn't be his cousin.
7. DNA originating from B was recovered from the centre inside front of L's underwear which was consistent with L's allegation. When interviewed, B denied the allegations, accounting for the presence of his DNA by stating that L had touched a soft drinks bottle that he (B) had drunk from.
8. On the basis of these facts, Ms Ailsa Williamson on behalf of the Crown Prosecution Service approached the issue of venue and the test whether it ought to be possible to sentence the defendant to detention pursuant to s. 91(1) of the 2000 Act, by reference to the decisions in this court of R (H, A and O) v Southampton Youth Court [2004] EWHC (Admin) 2912; [2005] 2 Cr App R (S) 30 and R (W and M) v. Oldham Youth Court [2010] EWHC 661.
9. In the former case, the court provided guidance as to the general approach to be adopted when considering venue in these terms (at para. 33 et seq):

"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.

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.

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."

10. In the Oldham Youth Court case, Langstaff J set out that approach and went on (at para. 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."

11. Thus, the prosecution argued that taking the case at its highest involved the absence of credit for a plea of guilty, lack of remorse, a large age difference between B and L with B having a position of responsibility as his much older cousin, three separate incidents and sexual gratification as the purpose the criminality. The only mitigation was the absence of previous convictions. Applying the Sentencing Guidelines "Overarching Principles – Sentencing Youths", for offenders aged 15-17, "it may be appropriate, depending on maturity, to consider a starting point from half to three quarters of that which would have been identified for an adult offender".
12. From this starting point, Ms Williamson points to the Definitive Guideline on Sexual Offences and submits that this is a Category 3A (culpability based on abuse of trust) or 3B (B being in a position of responsibility towards L) leading to a starting point for an adult of 10 years (bracket 8-13 years) or 8 years (bracket 6-11 years) respectively. Even taking the 3B category and discounting for youth, she submits that the starting point would reduce to 4-6 years, well in excess of the limit of 2 years available to the youth court. She also refers to R v O [2005] EWCA Crim 2455 (2 years for a 15 year old who pleaded guilty to attempting to rape his 4 year old cousin and was held to be in a position of responsibility) and R v M [2006] EWCA Crim 3055 (3 years upheld following a guilty plea by a 15 year old for oral rape and attempted anal rape of a 6 year old).
13. The difficulty with seeking to apply the Guidelines or these decisions in a mechanistic way is that in relation to any offending by children and young persons, it is critical to ensure that full account is taken of all the circumstances not only of the victim and the impact on him or her, but also the nature of the offending. In this case, for example, nothing is known about the build up to these incidents or how long they lasted or to what extent it would be appropriate to infer an element of planning or bullying beyond the bald facts. Furthermore, sexual misconduct by the young cannot be viewed merely as a less culpable form of similar misconduct by an adult. Although the age of B is known, nothing is revealed about his maturity or his sexual understanding. Neither is it suggested that such information was before the District Judge.
14. With that introduction to the facts, I turn to the law. It is unnecessary to repeat the power set out in s. 51A of the 1998 Act, the statutory test ("whether it ought to be possible" to sentence to detention pursuant to s. 91(1) of the 2000 Act), or the subsequent guidance in Southampton Youth Court (whether there is "a real prospect, having regard to his or her age, that this defendant ... might require a sentence of, or in excess of, two years"). The further elaboration in Oldham Youth Court (to "take account of the prosecution case at the highest") was, of course, premised on the basis that once a decision to retain a case within the youth court was made, the decision as to venue was irrevocable, irrespective of any aggravating features that subsequently emerged in the evidence either about the offence or the offender.
15. At the time that the District Judge came to make his decision, that premise was entirely accurate in the circumstances of this case. There were then only two routes by which a child or young person could be committed for sentence: they were where the defendant indicated a plea of guilty to an offence within the list of offences in s. 91 of the 2000 at the first appearance in the youth court (s. 3B of the 2000 Act) and where the criteria for a sentence to be imposed on the grounds of dangerousness were met (s. 3C of the 2000 Act). Whenever the Youth Court considered that a sentence of s. 91 detention was a sentence which should be open to the sentencing tribunal, there was no method by which the case could be dealt with by the Crown Court unless it was sent for trial.  The decision as to venue was irrevocable in that, when the youth court retained jurisdiction for trial, it had to retain jurisdiction for sentence.
16. Thus, once there had been no indication of plea by B and there is no question of the dangerousness provisions arising, the District Judge had to consider whether he had to commit the defendant for trial at the Crown Court given that this was a case subject to s. 51A(3) of the 1998 Act. By asserting his belief that he had a general power to commit the defendant for sentence and that, in the light of that belief, the youth court was the proper venue for a trial although the appropriate venue for sentence might be the Crown Court, he was in error.  As at March 2015 there was no such general power.
17. To understand the nature of the error made by the District Judge it is necessary to consider the legislative history in more detail. When the provisions relating to plea before venue were introduced, it was necessary to consider the position of the youth court and para. 23 to Schedule 3 of the 2003 Act did so by adding s. 3B of the 2000 Act, providing a power to commit for sentence if a plea of guilty was intimated before consideration of allocation of venue. Thus, the power did not conflict with s. 51A of the 2000 Act since that provision was and is concerned with venue which would only arise if a guilty plea was not intimated.
18. The same legislation also introduced s. 3C of the 2000 Act. Although it provided for committal for sentence after trial, this was in cases where the youth court considered that the defendant met the criteria of dangerousness and would qualify for a sentence of detention for public protection or an extended sentence.  When the dangerousness provisions of the 2003 Act were first introduced, the minimum notional determinate term for detention for public protection and the minimum custodial term under an extended sentence were within the sentencing powers of the youth court.  Thus, a specific power to commit for sentence to the Crown Court was necessary to allow public protection sentences to be imposed on youths in cases where jurisdiction for trial had been retained by the youth court.
19. Historically the number of committals for sentence under Sections 3B and 3C has been small.  In 2009/2010 there were around 135 such committals for sentence in the whole of England and Wales.  By 2013/2014 the figure had risen to just over 250.  It is not possible to say whether Section 3B or 3C was the route for the committals from the Youth Court in each case.  The overwhelming likelihood is that the vast majority of the cases involved a committal under Section 3B, that is cases in which a plea of guilty was intimated before venue. 
20. This is to be contrasted with the many thousands of either way cases committed for sentence every year from adult magistrates' courts i.e. where there is no statutory restriction on such committal.  The magistrates' court dealing with an adult charged with an either way offence is required by s. 19 of the 1980 Act to consider the appropriate venue for trial and the guidance provided by the Sentencing Council in its Definitive Guideline is that either way offences should be tried summarily "unless it is likely that the court's sentencing powers will be insufficient".   In making that determination, the court will consider the nature of the case; whether the offences is of a serious character; whether the sentencing powers of the magistrates' court would be adequate; and any other circumstances which may the offence more suitable for trial in one way rather than the other. 
21. This point is emphasised in my Review of Efficiency in Criminal Proceedings (at para. 80) to the effect that the proper construction of the Guideline is that "in cases where Magistrates are uncertain about the adequacy of their powers (short of it being likely that they are not adequate) they can retain the case and commit for sentence if they later take the view that the case falls outside their sentencing powers".  Thus, if the court orders a summary trial, there is no statutory restriction on committing the case for sentence thereafter if the court decides after conviction that greater punishment should be inflicted than the magistrates' court has power to impose.  That is something of which the defendant is told at the point at which the allocation decision is made.
22. There was thus a difference in approach between the adult and youth justice systems. To address that difference, for any defendant appearing in the youth court for the first time on or after the 13 April 2015, a further power to commit for sentence became available.  Thus, s. 53 of the Criminal Justice and Courts Act 2015 amended s. 3B of the 2000 Act so that it now provides:

"(1) This section applies where on the summary trial of an offence mentioned in section 91(1) of this Act a person aged under 18 is convicted of the offence.

(2) If the court is of the opinion that—

(a) the offence; or

(b) the combination of the offence and one or more offences associated with it,

was such that the Crown Court should, in the court's opinion, have power to deal with the offender as if the provisions of section 91(3) below applied, the court may commit him in custody or on bail to the Crown Court for sentence in accordance with section 5A(1) below.

(3) Where the court commits a person under subsection (2) above, section 6 below (which enables a magistrates' court, where it commits a person under this section in respect of an offence, also to commit him to the Crown Court to be dealt with in respect of certain other offences) shall apply accordingly."

23. The result is that a child or young person may be tried in the youth court in relation to an offence which falls within s. 91 of the 2000 Act and then be committed for sentence if the Crown Court "should in the court's opinion have power to deal with the offender" under Section 91(3) of the 2000 Act, that is to say, to impose a sentence of long term detention in excess of 2 years.  Had this provision been in force when the District Judge made his decision, it would have been unassailable. As it is, it was not.
24. Ms Williamson recognises the difficulty and invites the court to quash the decision of the District Judge and to remit the matter for further consideration by him. She further submits that the CPS might discontinue the present proceedings and recommence the prosecution so that the power will then be available for the District Judge to proceed as he intended and prays in aid the observations of the solicitors to B (who have not taken part in these proceedings but have written to the court) anxious not to lose the intended trial date set for 2 July 2015. The solicitor observes that in the circumstances of this case, he does not consider such a course would constitute an abuse of process.
25. It is not for this court to determine how the CPS or the District Judge should conduct this case in the future, but in the light of the fact that this new provision is now in force and having regard to the possibility that such a course might be adopted in this case, it is appropriate to discuss a further potential issue with the statutory structure now in place.
26. On its face, s. 3B of the 2000 Act as amended means that a youth court can commit a defendant for sentence after conviction in that court if it is of the opinion that the Crown Court should have the power to impose detention under Section 91(3) of the 2000 Act.  However, the question of whether it "ought to be possible" to impose (or whether, in Southampton Youth Court terms there is a real prospect of) such a sentence, already will have been considered at the point of allocation. If the prosecution case is taken at its highest and given the mandatory nature of the requirement to commit for trial in such circumstances, it is difficult to see the circumstances in which a case could be accepted as fit for trial in the youth court and then require committal for sentence.
27. If that analysis is correct, s.3B of the 2000 Act and s. 51A of the 1998 Act might appear to be in conflict.  However, it is reasonable to assume that legislation has been enacted for a purpose and that its purpose should not be rendered of no practical effect by existing legislation.  Against that background, it is necessary to consider whether it is appropriate to consider whether an approach can properly be adopted within the boundaries of the statutory wording so as to give proper force to s. 3B of the 2000 Act while at the same time ensuring that it is consistent with s. 51A of the 1998 Act.
28. I have set out the approach prescribed in Southampton Youth Court and start by emphasising the first principle that the general policy of the legislature that children and young persons should, wherever possible, be tried in the youth court, a court best designed to meet their specific needs, avoiding the greater formality and public involvement of the Crown Court. Since that decision, public concern over the propriety of trials in the Crown Court for those under the age of 18 has increased rather than diminished.  In 2014 Lord Carlile Q.C. chaired a parliamentary inquiry in the Youth Court in England and Wales.  He reported that "an overwhelming majority of the respondents" to the inquiry considered that the Crown Court was not an appropriate venue for the trial of defendants eligible by age to be tried in the Youth Court.  On its face the amendment to Section 3B of the 2000 Act would enable full effect to be given to the first principle which I have again summarised.
29. The test set out in Southampton Youth Court, (whether there was a "real prospect" that the defendant might require a sentence in excess of the powers of the youth court) has been recognised and followed as a sensible interpretation of the requirements of s. 51A of the 1998 Act.  When formulated, however, it had to be applied in the context of an irrevocable allocation decision.  If the youth court retained jurisdiction for trial and it emerged in the course of the trial that the circumstances were more serious than had been understood at the allocation hearing, the court remained restricted in its sentencing powers.  That factor justified the requirement in Oldham Youth Court to take the prosecution case at its highest.
30. In practical terms, however, the youth court often would have only limited material at the allocation hearing with the result that the "real prospect" test would be met for want of information and in the knowledge that further material emerging later in the proceedings could not permit any change in venue.  For my part, I have no doubt in recognising that this will have resulted in an understandable caution in respect of allocation decisions by youth Courts and I am aware that it has been the experience of Resident and other judges in Crown Courts in different parts of England and Wales that cases have been sent from the youth court for trial where, after fuller investigation, it has become apparent that the sentencing powers of the youth court were sufficient to meet the justice of the case. This case is a good example. Without considerably more information, it is quite impossible to determine whether B requires condign punishment, education or psychological therapy.
31. Because s. 3B (as amended) of the 2000 Act means that the youth court is not making a once and for all decision at the point of allocation, the "real prospect" assessment requires a different emphasis and taking the prosecution case at its highest is no longer necessary; to that extent, the observations of Langstaff J in Oldham Youth Court no longer apply.  For the future, there will, of course, be cases in which the alleged offending is so grave that a sentence of or excess of two years will be a "real prospect" irrespective of particular considerations in relation either to the offence or the offender's role in it: such cases are, however, likely to be rare.  As the time of allocation and determination of venue, the court will doubtless take the views of the prosecution and defence into account; these views could include representations as the value of privacy of the proceedings or, alternatively, the desire for a jury trial. Subject to such submissions, however, in most cases whether there is such a "real prospect" will generally be apparent only when the court has determined the full circumstances of the offence and has a far greater understanding of the position of the offender.  Since the youth court now has the option of committing a defendant for sentence after conviction if the court considers that the Crown Court should have the power to impose a sentence of detention pursuant to s. 91(3) of the 2000 Act, it will generally be at that point when the assessment can and should be made.  In that way, the observations in Southampton Youth Court (at para. 33) that Crown Court trial for a youth "should be reserved for the most serious cases" remain entirely apposite. It is worth observing that this approach is entirely consistent with the intended purpose of the amendment as explained by the Parliamentary Under-Secretary of State for Justice during the Report and Third Reading of the Bill: see Hansard, Vol 580, Col 464.
32. For the sake of completeness, I add only that cases of homicide and offences subject to minimum terms under the Firearms Act 1968 are dealt with separately within Section 51A of the 1998 Act. Offences of that kind do not fall within the "real prospect" test.
33. In conclusion, therefore, on the basis that the District Judge failed to appreciate that the amendment to s. 3B of the 2000 Act was not in force at the time that he made his decision, I would quash it and remit the matter back to him for further consideration in the light of all the circumstances. It is for the CPS to decide what approach to adopt to the case although we express concern that over a year passed before a decision was made to prosecute in this case and the further delay both for B and L and their families is to be deprecated.
34. I add only one further comment. Section 3B (as amended) of the 2000 Act will permit greater flexibility for the Youth Court when making allocation decisions so as to allow more trials of  young defendants charged with offences which fall within Section 91 of the 2000 Act to be heard in the Youth Court.  However, the requirements of Section 51A of the 1998 Act are still mandatory.  There would be greater coherence within the legislation if the provisions of Section 51A were directory i.e. "may" rather than "shall".  Were Section 51A to be so amended, further guidance would be required on allocation from the Sentencing Council.

Mr Justice William Davis :

35. I agree.