Royal Courts of Justice
Strand
London WC2
B E F O R E:
LORD JUSTICE SCOTT BAKER
MR JUSTICE PITCHFORD
C
(CLAIMANT)
-v-
BALHAM YOUTH COURT
(DEFENDANT)
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MISS S ELLIOTT appeared on behalf of the CLAIMANT
MR S CHIPPECK appeared on behalf of the DIRECTOR OF PUBLIC PROSECUTIONS, the INTERESTED PARTY
J U D G M E N T
(As Approved by the Court)
Crown copyright©
Thursday, 22nd May 2003
LORD JUSTICE SCOTT BAKER: This is an application for judicial review of a decision of the Balham Youth Court, who declined jurisdiction to hear the case of a young offender, to whom I shall refer as "C", who was charged with attempted robbery of a mobile phone.
Judging by the number of cases of this nature that are reaching the Divisional Court, the legislation is plainly causing some difficulty and, as the Lord Chief Justice said in another case, one can only have sympathy with the Youth Court, faced with a problem of this nature.
The claimant was born on 8th August 1988, so he was 14 last August and he was only 14 and a quarter when his case came before District Judge Pratt in the Balham Youth Court last December. He and another youth, a girl called MB, also aged 14, were charged with attempting to rob MH, another 14 year old, of a mobile phone.
The alleged offence occurred on 12th December of last year. The victim was on a number 68 bus, going from Covent Garden to South London with two friends. The claimant and his codefendant got on at Camberwell and sat two rows behind them. The victim recognised the claimant, but could not name him. When the victim's two friends got off the bus, the claimant and his codefendant began to raise their voices, and directed them towards the victim. The female defendant spoke of beating people up and said that she carried a spanner. Reference was then made to the victim: "little girl thinks she's a woman".
The claimant and his codefendant followed the victim off the bus. They then engaged the victim in conversation. Reference was again being made to "you're a little girl". They followed her as she crossed over the road.
The claimant dropped a tub of crisps on the floor and he stamped on them and said "I'm going to do that to someone's face in a minute". He then asked the victim about her mobile phone. The other defendant demanded the phone. The victim moved to the middle of the road to avoid them, but they followed her. The codefendant pulled her hair as the claimant pulled her bag.
The claimant then started pulling her hair so hard that he was dragging her face towards the ground and her hair was coming out. There was a struggle for the bag. The claimant managed to hang on to it. A metal strap hit the female codefendant, distracting the two of them and allowing the victim to escape.
The claimant was arrested the same day and charged with the offence the following day. He appeared on 18th December before District Judge Pratt at the Balham Youth Court, who declined jurisdiction in respect of the offence. His codefendant, MB, was arrested on 21st January of this year and on 7th February, they were both committed to stand trial at the Inner London Crown Court.
On 20th February, the claimant appeared for a plea and directions hearing at the Inner London Crown Court in front of His Honour Judge Prendergast, who declined an application to adjourn the hearing without the claimant being arraigned. The claimant entered a not guilty plea. The case was adjourned without any further directions for three weeks, as MB had failed to attend. The present position remains that no date for the trial has been set.
At the time that the District Judge made his decision, of which complaint is now made, the claimant had one caution for shop lifting. He has subsequently received a referral order for shop lifting, that order being made on 5th February of this year.
The District Judge gave no reasons for declining jurisdiction, but one gains some insight into what happened through the clerk's notes. These read as follows:
"Only has one previous caution -- No custody available in the Youth Court".
Then there is a brief outline of the Crown's case and then the heading "Def:" (which presumably means "defence"):
"Not all facts are admitted. Not really know each other [no doubt referring to the victim knowing the claimant] Words exchanged -- all parties get off bus together -- No other particular aggravating factors -- suggest RefO [which presumably means 'referral order'] would be sufficient. Will be a guilty plea".
It may be that the District Judge's simplistic approach was that the offence was an unpleasant one; no custodial penalty was available in the Youth Court; and therefore the claimant ought to go to the Crown Court, where such an option was available, and that the youth court should therefore decline jurisdiction.
If this was his approach, and one does not know because no reasons were given, it was, in my judgment, wrong. It is, in my judgment, a useful discipline for a Youth Court declining jurisdiction to give reasons. By doing so, there is a better prospect that the court will consider and apply the appropriate legal test.
I turn to the relevant legislation. Section 100(2) of the Powers of Criminal Courts (Sentencing) Act 2000 provides that:
A court shall not make a detention and training order --
in the case of an offender under the age of 15 at the time of the conviction, unless it is of the opinion that he is a persistent offender".
The claimant was only 14 when he committed the offence and he is still only 14. The maximum period for a detention and training order, in the event that the sentence is available, which it is not in this case, is two years.
Section 24(1)(a) of the Magistrates' Courts Act 1980 provides:
Where a person under the age of 18 appears or is brought before a magistrates' court on an information charging him with an indictable offence other than homicide, he shall be tried summarily unless
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".
Grave offences for this purpose are defined by section 91(1) the Powers of Criminal Courts (Sentencing) Act 2000. They include an offence punishable, in the case of a person aged 18 or over, with imprisonment for 14 years or more, not being an offence the sentence for which is fixed by law. Attempted robbery qualifies as a grave offence.
Section 91(3) provides:
If the court is of the opinion that none of the other methods in which the case may legally be dealt with is suitable, the court may sentence the offender to be detained for such period, not exceeding the maximum term of imprisonment with which the offence is punishable in the case of a person aged 18 or over, as may be specified in the sentence".
So the law, as enacted by Parliament, is that offenders under the age of 15 are not eligible for sentences involving detention unless they are persistent offenders or the offence is very serious. Once, however, an offender is 15, the criterion of being a persistent offender goes and the court, including the Youth Court, has available to it the option of passing a detention and training order of up to two years' duration.
What is the Youth Court to do in a case like the present, where its powers of sentence are limited to making a referral order or giving an absolute discharge? Why should it not send the case to the Crown Court to exercise its powers under section 91(3), which are, after all, expressed in the subsection in unqualified terms?
Kay LJ summed up the position in this way in R v Southampton Youth Court [2002] EWHC 1640 Admin at paragraph 25:
"The simple principle underlying the current legislation for sentencing very young offenders is that, generally speaking, first-time offenders aged 13 and 14, and all offenders aged 11 and 12, should not be detained in custody. For 13 and 14 year olds, where the youth persists in offending, the position changes. Clearly some offences or offending are so serious in themselves that the court has to contemplate the possibility of sending an under 15 year old for a period in custody, despite the general approach of the legislation. That may be to protect the public or it may be that the long-term interests of the offender require such a drastic course, even though he is under 12 or under 15 but not a persistent offender. To cater for this possibility Parliament has left open to the courts the use of section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. The need in exceptional cases to make use of these powers cannot, however, have been intended to water down the general principle".
He referred there to the need to use the section the 91 power in exceptional cases. If Parliament expressly has not made the normal custodial sentence for youngsters, i.e., the detention and training order, available for offenders like the claimant because they are under 15 and not persistent offenders, then it must be wrong to send such a person to the Crown Court if the result is likely to be that the heaviest sentence he will receive is detention of less than two years.
A sentence of less than two years under section 91 is only given in exceptional circumstances and the facts of this case do not merit it. That is the submission of Miss Elliott for the claimant.
In R (on the application of W) v Thetford Justices [2002] EWHC 1252 Admin, Gage J referred to his earlier judgment in R (on the application of D) v Manchester City Youth Court [2002] 1 Cr App R(S) 573. He said:
"Finally I must refer to R (on the application of D) v Manchester City Youth Court [then he gives the reference]. That was a decision of mine on an application precisely similar to the applications made in these cases. The facts of the offence are however slightly different. In that case I said (paragraphs 22 and 23 page 578):
'22. In my judgment, the effect of section 24 is that a Magistrates' Court should not decline jurisdiction unless the offence and the circumstances surrounding it and the offender are such as to make it more than a vague or theoretical possibility that a sentence of detention for a long period may be passed. Although, under section 91 and pursuant to recent authority, it is no longer necessary for a court to pass a sentence of at least three years, in my judgment section 91 is primarily applicable to cases of such gravity that the court is or may be considering a sentence of at least two years. Anything less, it seems to me, falls primarily to be dealt with as a detention and training order.
There is no statutory restriction on a court, using its powers under section 91, passing a sentence of less than two years. But it seems to me that it will only be in very exceptional and restricted circumstances that it will be appropriate to do so, rather than making a detention and training order. The fact that an offender, as here, does not qualify for a detention and training order because he is not a persistent offender does not seem to me such an exceptional circumstance as to justify the passing of a period of detention of less than two years under section 91 of the Act of 2000'".
He then went on a little later in his judgment:
My conclusion is that the authorities cited to this court do not undermine or alter my conclusions already expressed on the relationship between sections 91 and 100. I adhere to my view that in respect of offenders under 15 a custodial sentence will ordinarily only be available in the form of a detention and training orders. If the court is prohibited from making such an order in general an order under section 91 will not be appropriate. Having considered the submissions made in this court an a rather fuller basis than those before me in D v Manchester City Youth Court, I see no reason to change to any great extent the views which I expressed in this case. I remain of the opinion that where an offence or offences are likely to attract a sentence of less than two years custody the appropriate sentence will be a detention and training order. In the case of an offender under 15, who is not a persistent offender or a child under 12, the most likely sentence will be a non custodial sentence. It follows that in most cases the appropriate place of trial will be the youth court.
However, I accept that there may be cases where, despite the fact that the offender is under 15 and no detention and training order can be made, the only appropriate sentence is a custodial sentence pursuant to section 91 and possibly for a period of less than two years. But I remain of the opinion that the circumstances of the offence and offender will only really call for a sentence pursuant to section 91, particularly if the court is dealing with an offender under the age of 12. In expressing my views as I did in D v Manchester City Youth Court, my use of the expression 'very exceptional' may be more restrictive than was strictly necessary or justified. But, I remain of the view that the mere fact that a youth court, unable to make a short detention and training order, considers that the option to pass a short custodial sentence should be available, does not mean that it should decline jurisdiction. It seems to me that in such circumstances the fact that a detention and training order is not available indicates that Parliament intended that generally a non-custodial sentence should be passed. Perhaps it would be better to say that cases involving offenders under 15 for whom is detention and training order is not available will only rarely attract a period of detention under section 91; the more rarely if the offender is under 12".
The Lord Chief Justice agreed with those observations in the Southampton case, to which I have already referred. In the Southampton case, the court was concerned with two applicants, W and K. It is only necessary to refer to the case of W.
W, the claimant, aged 14 at the relevant time, appeared before a Youth Court charged jointly with another boy with robbery. It was alleged that the claimant, together with another boy aged 15, robbed a 13 year old boy of his bicycle. It was alleged that when the 13 year old refused to part with his bicycle, the claimant produced a broken bottle from his pocket and threatened the boy with it. The claimant denied this allegation. The claimant appeared before the Youth Court for the purpose of determining jurisdiction. The District Judge decided that the matter should proceed to the Crown Court. She observed that the claimant was 14, he had no previous convictions and was not a persistent offender. The Youth Court would have no power to pass a detention and training order on the claimant because of his age and lack of previous convictions. The alleged offence was serious and involved the use of a weapon. It was unlikely that a court would want to exceed the maximum permissible term of detention and training, but in the interests of justice, any sentencing court should have the power to impose a custodial sentence if the claimant was convicted of the offence.
The court concluded that the offence was of some seriousness. He was armed with a broken bottle, which was used for the purposes of threatening the victim. The District Judge did not misdirect himself in any way. The Court's conclusion was that the decision could not be said to be wrong. The offence was within the category of cases which were appropriate to be sent to the Crown Court, although it was a case close to the borderline.
In the course of giving judgment, the Lord Chief Justice said:
"The other guidance which justices should have in mind is that they must be of the view that, if they were going to send a case to the Crown Court, it was such a serious case that detention above two years was required, or it was one of those cases where they considered that the appropriate sentence was not only a custodial sentence, but a custodial sentence which was approaching the two-year limit which was normally applicable to older offenders".
It is not entirely clear whether the Lord Chief Justice was seeking, in putting it in those two ways, to distinguish between those cases where a young offender was not eligible for a detention and training order of up to two years and those in which he was not, but that may have been the position.
In the commentary in the Criminal Law Review at page 753, Prof Thomas writes:
"This decision endorses the view expressed in R v Manchester City Youth Court and R v Thetford Youth Court, to the effect that a defendant under the age of 15 who is not a 'persistent offender' for the purposes of the Powers of criminal courts (Sentencing) Act 2000, s 100 and thus not eligible for a detention and training order, should not be committed to the Crown Court for trial with a view to a sentence of detention under section 91 unless the appropriate sentence would be of the order of two years or thereabouts, allowing presumably for his age and any other relevant factors".
As Gage J pointed out in the Manchester case, and repeated subsequently, the fact that an offender, as in this case, does not qualify for a detention and training order because he is only 14 and not a persistent offender, is not an exceptional circumstances to justify passing a sentence of detention of less than two years under section 91 of the 2000 Act.
Absent any exceptional circumstances, this claimant was not going to receive a sentence of less than two years under section 91. There is no suggestion of any other circumstances that might make this case exceptional. So it seems to me one comes back to the question: was this case such a serious case that detention above two years would, and I would add, or might realistically, be required?
I come, therefore, to consider where broadly on the scale of severity the likely sentence in this case appears to fall.
In Attorney General's Ref Nos 4 and 7 and the case of Lobban [2002] 2 Cr App R (S) 345, the Lord Chief Justice dealt in some detail with the appropriate level of sentence for the prevalent offence of robbery of mobile phones. He said this in paragraph 2 of his judgment:
In giving this judgment we are not seeking to set new guidelines. If we were intending to do so, we would have sought the advice of the Sentencing Advisory Panel before giving this judgment. Instead, we are seeking to draw together the principles which are already clearly established by the reported decisions of this court".
He then described in some detail the then current prevalence of the problem, and went on:
Faced with that background the courts have no alternative but to adopt a robust sentencing policy towards those who commit these offences".
He said at paragraph 5:
In his submissions on behalf of the Attorney General, Mr Pownall said that the bracket of sentencing which the authorities reveal for offenders of the sort we have been describing is 18 months to five years ... We agree with what Mr Pownall said, subject to this. If the offences are committed by and offender who has a number of previous convictions and if there is a substantial degree of violence, or if there is a particularly large number of offences committed, the five year upper limit may not be appropriate.
Mr Pownall also indicated that the authorities suggest that the upper limit is three years when no weapon is used. Again we agree, subject to the qualifications which we have already expressed in relation to the five year figure".
Mr Chippeck, who has appeared today for the respondent, places strong reliance on the bottom end of the bracket for offences of this kind being 18 months' custody.
However, in my judgment, the Lord Chief Justice, in gathering the various cases together and analysing them, was not saying anything that was intended to cut across the established principles for dealing with offenders under the age of 15.
The case which is of particular relevance to the present case appears at paragraph 12 of the Lord Chief Justice's judgment and it is R v Bol Joseph [2001] 2 Cr App R(S) 398. The Lord Chief Justice referred to it in this way:
"In that case three years' detention was upheld in the case of an appellant aged 14 at the time he committed the offence of attempting to rob a man in the street. The appellant and a group of others, including a young woman, approached a man who was on his way home from work, carrying a lap-top computer. The young woman asked the man for money, which he refused to give her. She abused him and flicked his spectacles off, causing them to fall to the ground. The appellant then went up to the man, punched him on the face and head-butted him. As he did so, he told the others to take the man's wallet and computer. The appellant produced a knife with a four-inch blade and the man ran off. The appellant and one of the others chased him and forced him to the ground. The man managed to hold on to his computer and ran away. The court pointed out that they had to look at the principles involved in sentencing in a case of this kind. They recognised that when sentencing an offender aged 14 or 15 the appropriate sentence would always be shorter than that which would be appropriate for an adult. A balance was required between the youth of an offender, deterrence and the effect of a long sentence on the perception of the offender. The court also considered the gravity of the offence which had been committed. A further consideration was that attempted offences usually carried a lesser sentence than that imposed for the full offence. This was not a potent factor because of the circumstances. The important features of the case were that the appellant was convicted after a trial; the robbery was committed at night; the appellant was with others and took a prime role in the attempted robbery. The court concluded that the sentence was not manifestly excessive or wrong in principle".
In my judgment, Joseph was plainly a significantly more serious case than the present one. I note also that W in the Southampton case was serious enough to go to the Crown Court but described as being "close to the borderline".
The next case is Huggins, which was a decision of the Court of Appeal Criminal Division and in that case, the appellant was sentenced to an eight month detention and training order and the case was dealt with in the Crown Court. It is unnecessary to refer to anything about the case, except two short passages in the judgment. First of all, the facts in paragraph 3:
"In outline the Crown case was that at 3.25 pm on 26th February 2001 Thomas Pentecost, aged 13, was walking home from school when he was approached by the appellant and by mark Levitt, aged 15. He knew both boys, but not well. He knew Mark was a bully. He was scared of both boys. The appellant said to him: 'Give me your phone'. When he refused the appellant got aggressive. He did not swear or issue any threats but unzipped Thomas' jacket and tried to take Thomas' phone out. Thomas zipped his jacket up again and put his hand in his jacket and then took his phone out and the appellant then grabbed the phone and refused to give it back. The appellant pushed Thomas against the wall before running off with Mark Levitt. The statement made by Thomas Pentecost said that Mark throughout just stood watching what Anthony was doing, and that nothing was said to involve Mark other than his presence standing there".
At paragraph 22 of the judgment, Mance LJ, giving the judgment of the court, made this observation:
"We think that the realistic position is that there was no real possibility of his receiving anything like a two year sentence".
The next case is R (on the application of C and D) v Sheffield Youth Court and Director of Public Prosecutions and R (on the application of N) v Sheffield Youth Court and Director of Public Prosecutions.
It is the case of C and D that is of particular interest. The facts were these. C and D were charged with robbing T on 23rd May 2002. They were of good character. C and D and T were all aged 14 and had either reached 14 or within one month or so of their 14th birthdays at the date of the alleged offence. They all knew each other before the date of the alleged offence. The prosecution's case was that C and D pushed T down a steep bank, punched and repeatedly kicked her while she was on the ground and demanded money on threat of beating her up. T alleged that she gave C and D the sum of £2 in cash because of the threats and violence. On arrival at their school, the teacher saw that T was white, had a black eye, a bump on the head and big scratches down her back and she felt sick.
At paragraph 43, Stanley Burnton J said, referring to the test for jurisdiction:
"The court in C and D applied too low a threshold for a sentence under section 91. There is no real possibility of such a sentence in that case, given the small amount involved and the context, namely violence between schoolgirls known to each other, given that both C and D are of previous good character. The decision of the Youth Court was outside the range of decisions open to it and was wrong. It will be quashed".
In the present case, there was an attempted robbery by two 14 year olds of another 14 year old. No weapon was used, albeit one was threatened. It was, in my judgment, loutish behaviour that spilled over into a very unpleasant attempted robbery. That, at any rate, is how it appears from such facts as are available to this court, and which were available to the District Judge.
But it is not, in my judgment, in the same category as some other cases involving multiple assailants, a weapon and offences committed at night. In my judgment, this was not a case that warranted a section 91 sentence of two years or more. There were no exceptional circumstances why the court should consider a lesser period under section 91, and even if the claimant was eligible for a detention and training order, which he was not, I would expect one significantly less than two years to suffice.
The District Judge ought to have accepted jurisdiction and, in my judgment, he would have done so if he had considered and applied the correct test.
In my judgment, this application should succeed.
MR JUSTICE PITCHFORD: I agree.
LORD JUSTICE SCOTT BAKER: What about the appropriate order?
I think we should therefore quash the committal and the case will therefore return to the Youth Court, and it ought to happen as soon as possible.
MISS ELLIOTT: Yes, my Lord.
LORD JUSTICE SCOTT BAKER: What about the other youngsters involved in this case, MB and MH? I think they should all be referred to by initials in any report and in any subsequent transcript?
MR CHIPPECK: I agree, my Lord.
LORD JUSTICE SCOTT BAKER: Thank you very much.
Anything else?
MISS ELLIOTT: My Lord, the claimant is publicly funded and I would ask for a normal order as to costs?
LORD JUSTICE SCOTT BAKER: I think you can have that.
Thank you for your assistance.
MISS ELLIOTT: Thank you, my Lord.