E, R (on the application of) v Leeds Youth Court Justices & Anor

J U D G M E N T

1. MR JUSTICE JACK: The claimant is 13 years old and sues by his father as litigation friend. On 21 March 2002 he was charged with an offence of robbery. On 7 May an order was made by the District Judge sitting in the Leeds Youth Court to commit his case to the Crown Court under section 24 of the Magistrates' Courts Act 1980. He applies pursuant to permission granted on 10 October 2002 for judicial review of that order, and for an order requiring the Youth Court to accept jurisdiction. I take it as implicit in the permission that an extension of time in which to apply for judicial review was granted as sought. The application for an extension, dated 28 August 2002, makes a strong case.

2. The further facts are as follows. The charge of robbery relates to events on 19 March 2002, two days after the claimant's thirteenth birthday. It is alleged that the claimant was with two other boys in a park in Leeds. There is some uncertainty as to exactly what occurred, even on the prosecution case, but it was at least the following. One of the boys with the claimant demanded from another boy, whom they had met, and punched him. The boy handed over one pound and it is alleged that he was then punched by all three boys, including the claimant. The boy sustained only minor injuries, but it must have been a very unpleasant experience. As I understand it, the two companions of the claimant have not been arrested.

3. Following the committal of the case to the Crown Court, the case was listed for trial on 5 and 6 August 2002 before the Recorder of Leeds. It was adjourned without a date after the Recorder had heard submissions and of the decision to commit being subject to challenge by judicial review.

4. By way of further background, the claimant has cautions for shoplifting on 11 June 1999 and on 27 January 2000. He was also convicted of theft on 18 April 2002. This offence occurred after the alleged robbery.

5. Section 24 of the Magistrates' Court Act 1980 can best be understood in the context of section 100 of the Powers of Criminal Courts (Sentencing) Act 2000 and section 91 of that Act. By section 100(1) any sentence of detention passed on a person under 18 is ordinarily to be in the form of a detention and training order. By section 100(2) it is provided that:

"(2) A court shall not make a detention and training order -

(a) in the case of an offender under the age of 15 at the time of conviction, unless it is of the opinion that he is a persistent offender;"

It has not been contended in the present case that the claimant is a persistent offender. I mention also that by section 101(1) the maximum term of a detention and training order is 24 months.

6. Section 91 provides, so far as relevant:

"(1) Subsection (3) below applies where a person aged under 18 is convicted on indictment of -

"(a) an offence punishable in the case of a person aged 21 or over with imprisonment for 14 years or more, not being an offence the sentence for which is fixed by law;

"(b) ...

"(c) ...

Subsection (3) provides:

"(3) 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 21 or over, as may be specified in the sentence."

Robbery carries a maximum sentence of life imprisonment. So if a person under 21 is charged with robbery, he may be dealt with under subsection (3) of section 91, if the court is of the opinion there set out.

7. It is in this context that section 24(1) of the Magistrates' Courts Act 1980 provides, as amended:

"(1) Where a person under the age of 18 appears or is brought before a magistrates' court on an information charging him with a indictable offence other than homicide, he shall be treated summarily unless -

(a) the offence is such as is mentioned in subsection (1) or (2) of section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (under which young persons convicted on indictment of certain grave crimes may be sentenced to be detained for long periods) and the court considers that if he is found guilty of the offence it ought to be possible to sentence him in pursuance of subsection (3) of that section; or

(b) he is charged jointly with a person who has obtained the age of 18 and the court considers it necessary in the interests of justice to commit them both for trial;

and accordingly in a case falling within paragraph (a) or (b) of this subsection the court shall commit the accused for trial if either it is of the opinion that there is sufficient evidence to put him on trial or it has power under section 6(2) above so to commit him without consideration of the evidence."

8. The case of the claimant was committed to trial to the Crown Court under section 24(1)(a). The basis was that the District Judge considered that, if he was found guilty, it ought to be possible to sentence him pursuant to section 91(3) of the Powers of Criminal Courts (Sentencing) Act 2000. The District Judge's decision was made without the benefit of a number of recent authorities. He has stated that, if the matter had been referred back to him, he would have reconsidered his decision in the light of those authorities. It is unnecessary to consider whether he would have, in fact, had power to do that.

9. In accordance with the usual practice, the Youth Court has not been represented before us today. The court has, however, had the assistance of counsel instructed on behalf of the Crown Prosecution Service. He has not resisted the order that is sought on behalf of the claimant.

10. The latest of the authorities to which I have referred is the judgment of Stanley Burnton J in R on the application of C and D v Sheffield Youth Court [2003] EWHC 35 Admin, delivered on 23 January 2003. In that judgment Stanley Burnton J reviewed the earlier cases, namely decisions by two judge Divisional Courts, including a very strong Divisional Court consisting of Lord Woolf CJ and Kay LJ. It plainly emerges from these decisions that, in general, if a custodial sentence cannot be made under section 100 by means of a detention and training order, a way round this should not be found by use of section 91. If the court would consider that, freed of statutory constraints, a sentence of under two years should be passed, this should not be achieved, save in rare circumstances, by an order under section 91(3). That is because section 100(2) shows that, unless a detention and training order can be made in accordance with its provisions, a custodial sentence is not generally appropriate. I refer in particular to the judgment of Gage J in R (on the application of W) v Thetford Youth Justices [2002] EWHC 1252 Admin at paragraphs 29 and 30, and to the judgment of Lord Woolf CJ in R (on the application of W) v Southampton Youth Court [2002] EWHC 1640 Admin, paragraphs 18 and 19. The cases also underline the importance of persons of appropriate age being tried in the Youth Court as the suitable and appropriate court.

11. Here it cannot be suggested that, the statutory restraints apart, a sentence in excess of two years would have been appropriate on a finding of guilt, or anything approaching two years. In accordance with the statutory provisions, as interpreted in the authorities to which I have referred, the only course open to the District Judge was to proceed with a summary trial in the Youth Court. The case should be remitted to the Youth Court with a direction that it proceed with the summary trial of the claimant. The decision to commit the claimant for trial must be quashed.

12. Lastly, I mention the order made by Lightman J when granting permission to apply for judicial review, that the publication of any material likely to lead to the identification of the claimant be prohibited.

13. LORD JUSTICE CLARKE: I agree. Very well, the order will be as indicated by my Lord.

14. So what about costs?

15. MR JASON PITTER: My Lords, there is public funding allowed in this case. I ask that costs be allowed from central funds with a detailed assessment.

16. LORD JUSTICE CLARKE: Very well, then, we will make an order that the claimant's costs be paid out of public funds. Thank you very much for your assistance.