H v Balham Youth Court & Anor

MR JUSTICE JACKSON: This judgment is in six parts: part 1, introduction; part 2, the facts; part 3, the present proceedings; part 4, the Balham Youth Court's decision on 18th March to decline the summary jurisdiction; part 5, the Balham Youth Court's decision on 28th April to commit; part 6, conclusion.

This is a claim for judicial review of two decisions made by the Balham Youth Court. In essence, the claimant contends that the charge or charges against him ought to be tried in the Youth Court rather than the Crown Court. At the hearing today, the claimant is represented by Mr Richard Hearnden; the Director of Public Prosecutions as interested party is represented by Mr Duncan Atkinson.

Before addressing the issues between the parties, I must first set out the relevant facts.

The claimant was born on 1st January 1988. It is alleged that on 27th February 2003, the claimant, who was then aged 15 years and two months, together with two other youths, committed a robbery. According to the prosecution case, the robbery took the following form.

A schoolboy (JC) was outside his school at about 3.20 pm in the afternoon. Three youths, one of whom was the claimant, and another MH, called JC over to them. MH showed JC a bus pass that he had stolen from JC the day before. MH offered to sell the bus pass back to JC for £20. Another of the youths then began to search JC's pockets and removed from him another bus pass, a wallet and a mobile telephone. The wallet and the mobile telephone were returned to JC by the youth who searched him. The youth kept JC's bus pass, and when JC asked for it back, said: "I'll hit you if you say that one more time". The youth then offered to sell back the bus pass to JC for £10. The offer was refused.

The claimant then said to JC: "Give me your phone". JC handed over his mobile telephone to the claimant who replied: "Give me £20 tomorrow and I'll give you your pass and phone back". JC says that because he was in fear of MH, he complied with the claimant's demand.

On the evening of the same day, a second robbery occurred in which it was originally alleged that the claimant was involved, although that allegation is no longer pursued. The facts of this second robbery were as follows: Mohammed Habid was about to leave his home, a flat near the claimant's address, at about 8 pm on 28th February 2003. Mr Habid opened the communal front door. He noticed three male youths outside. Mr Habid says that he cautiously wanted to let them in. However, as he opened the door, he was pushed inside, and he was jostled, racially abused, kicked and punched. The youths were aiming for his face, he says. Mr Habid had a bicycle thrown at him. During the course of the violence, Mr Habid's mobile telephone and his wallet were stolen from him. In a statement made two days later, Mr Habid said that his jaw and ribs were hurting.

On 28th February 2003, the claimant was arrested. Shortly afterwards, both the claimant and MH were charged with two offences of robbery, namely: one, robbing JC of a bus pass and mobile phone on 27th February; two, robbing Mohammed Habid of a mobile telephone, a wallet and its contents on 27th February 2003. MH was also charged with a third offence, namely robbing JC of a bus pass on 26th February.

The claimant and MH first appeared before Balham Youth Court on 3rd March. They were remanded on bail. On 18th March, the claimant and MH returned to court. The Balham Youth Court declined jurisdiction. The basis of this decision was that in the opinion of the Youth Court, there was a real possibility of the Crown Court imposing a custodial sentence longer than two years pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. The matter was then adjourned for five weeks.

The committal hearings took place on 22nd April. The claimant and MH were dealt with in separate committal hearings. In the case of the claimant, the charge of robbing Mohammed Habid was dropped and no lesser charge was substituted in respect of that incident. Thus the claimant faced a single charge of robbing JC of a mobile telephone and a bus pass.

The Balham Youth Court inquired into the case as examining justices and committed the claimant for trial to the Crown Court. At the hearing on 22nd April, the claimant's legal representative did not seek to argue that committal to the Crown Court was inappropriate following the prosecution's abandonment of the more serious charge. Nevertheless, at least retrospectively, the claimant and his advisers were aggrieved by the decision to commit. Accordingly they launched the present proceedings for judicial review.

By a claim form issued on 9th May 2003, the claimant sought judicial review of two decisions by the Balham Youth Court, namely: one, the decision of the Balham Youth Court in March 2003 to decline summary jurisdiction; two, the decision of the Balham Youth Court on 22nd April 2003 to commit the claimant for trial.

The challenge to the first decision essentially runs along these lines. The claimant contends that even in March 2003 when he faced two robbery charges, there was no real possibility of a sentence longer than two years. Therefore, the Youth Court had adequate sentencing powers and ought to have dealt with the matter summarily.

The challenge to the second decision is as follows. The claimant contends that on 22nd April 2003, once the more serious charge had been dropped, it was then clear that the Youth Court had adequate sentencing powers. Accordingly, the Youth Court on 22nd April should, of its own motion, have ceased to act as examining justices and should have proceeded to try the case summarily.

On 21st May 2003 at an oral hearing, Keith J granted the claimant permission to proceed with his claim for judicial review. The Balham Youth Court, for perfectly understandable reasons, has taken no part in these proceedings. However, the Director of Public Prosecutions, as an interested party, sought and obtained leave to lodge an acknowledgment of service out of time.

The Director of Public Prosecutions resists the first claim. He contends that the decision of the Balham Youth Court on 18th March was a proper and reasonable one. In relation to the second claim, the Director of Public Prosecutions stance is different. He accepts that if the Balham Youth Court had jurisdiction on 22nd April to revert to summary trial, then it should have done so.

Having explained how the battle lines are drawn, I must deal separately with the two decisions of the Youth Court which are under challenge.

The claimant challenges this decision on the basis that the Youth Court had adequate sentencing powers. The following statutory provisions are relevant.

Section 100(1) of the Powers of Criminal Courts (Sentencing) Act 2000 (which I shall refer to as "the 2000 Act") empowers the Youth Court to impose a detention and training order on an offender aged under 18. Subsection (2) imposes restrictions where the offender is below the age of 15. Those restrictions do not apply in the present case since at all material times, the claimant had attained the age of 15.

Section 101 of the 2000 Act provides that the maximum term of a detention and training order shall be 24 months.

Section 91 of the 2000 Act provides:

Section 24(1) of the Magistrates' Courts Act 1980 provides:

The effect of and interrelationship between these statutory provisions has been considered in several recent decisions of this court. In particular, in their helpful skeleton arguments, counsel have referred us to the following: R (on the application of D) v Manchester City Youth Court [2001] EWCH Admin 860; (2002) 1 Cr.App.R. (Sentencing) 135; R (on the application of W) v Thetford Youth Court [2002] EWHC 1252; (2003) 1 Cr.App.R. (Sentencing) 67; R (on the application of W) v Southampton Youth Court [2002] EWCA Civ 1640; (2003) 1 Cr.App.R. (Sentencing) 87; R (on the application of C and D) v Sheffield Youth Court [2003] EWHC 35 Admin; and C v Balham Youth Court [2003] EWHC 1332 Admin.

In each of these cases to which we have been referred, the offenders were aged under 15, and problems arose because the conditions set out in section 100(2) of the 2000 Act could not be satisfied. Those problems do not arise in the present case, since the claimant was at all material times and still is aged 15.

Nevertheless, two principles may be derived from those authorities which are pertinent to the present issue. They are: (i) where (as in this case) a youth aged between 15 and 17 is charged with an offence falling within Section 91(1) of the 2000 Act, then the Youth Court ought to commit to the Crown Court if there is a real possibility that the Crown Court will impose a custodial sentence longer than two years. If that is not a real possibility, then the Youth Court ought to try the case summarily; (ii) If the Youth Court wrongly considers that a custodial sentence longer than two years is a real possibility, then the Youth Court's decision to embark upon committal proceedings may be quashed by judicial review.

Let me now revert to the facts of the present case. On 18th March, the claimant was charged with two separate robberies. In both robberies, a mobile phone was stolen. The second robbery involved physical violence and racial abuse. The victim was attacked in his own home and left in continuing pain. In my view, if the claimant had been convicted of both of the robberies with which he was originally charged, there was a real possibility that the Crown Court would have sentenced him to a term of detention longer than two years. Accordingly, on 18th March 2003, the Balham Youth Court correctly exercised its discretion under section 24(1)(a) of the Magistrates' Courts Act 1980. Therefore the claimant's challenge to this decision fails.

Mr Hearnden, who appears for the claimant, very sensibly concentrated most of his submissions this morning on this second challenge. The claimant challenges the decision of 22nd April on the basis that the Youth Court's sentencing powers became adequate as soon as the second robbery charge was dropped.

For my part, I accept that the second robbery charge was more serious than the first. It involved physical violence and racial abuse. More items were stolen. Nevertheless, even in isolation, the first robbery charge was no trivial matter. It involved the theft of a mobile phone in the street. The Court of Appeal in Attorney General's References (Numbers 4 and 7) [2002] EWCA Crim 127 stressed the seriousness of such offences. Lord Woolf, Chief Justice, giving the judgment of the court, said that save in exceptional circumstances, custodial sentences were inevitable for such offences. He went on to give general guidance as to the appropriate brackets.

In C v Balham Youth Court [2003] EWHC 1332 Admin, the Divisional Court specifically considered the appropriate levels of sentence for young persons who rob others of mobile phones. See in particular paragraphs 40 to 49 of the judgment of Scott Baker LJ.

It is clear from these authorities that in robberies of mobile phones, as in other offences, youth is a mitigating factor. The younger the offender is, the greater that element of mitigation is.

I must now consider the circumstances of the first robbery as outlined in part 2 above, in the light of the guidance given in these two authorities. On this basis, I come to the conclusion that a 15-year old youth would not be sentenced to more than two years' detention for committing that particular robbery.

The question then arises whether the Balham Youth Court could and should have changed the mode of trial following the prosecution's abandonment of the second charge.

Section 25 of the Magistrates' Courts Act 1980 (to which I shall refer as the 1980 Act) provides:

At first blush, it seems clear that the Youth Court had power to revert to summary trial during the course of the committal proceedings. However, counsel for the Director of Public Prosecutions in his skeleton argument, and both counsel in their oral submissions, have drawn our attention to a number of authorities in recent years concerning the extent of a Magistrates' Court's powers to reverse a previous decision concerning mode of trial. These authorities include R v Newham Juvenile Court, ex p F [1986] 1 WLR 939, and R v Liverpool Justices, ex p Crown Prosecution Service (1990) 90 Cr.App.R. 261.

These authorities and many others in the same line were reviewed by this court last week in R (on the application of the Director of Public Prosecutions) v the Camberwell Green Youth Court, 5th December 2003. The effect of those authorities is that a magistrates' court cannot reopen its original decision concerning mode of trial until it actually embarks upon the summary trial or the committal hearing, as the case may be. Nevertheless, once a magistrates' court has embarked upon that hearing, it becomes clothed with the various powers set out in section 25 of the 1980 Act. Subsections (1) to (4) apply in the case of adults, subsections (5) to (7) apply in respect of persons under 18. A magistrates' court must exercise the discretion conferred by those provisions in a lawful manner.

Mr Atkinson, who appears for the Director of Public Prosecutions, observed during his submissions that it was deeply regrettable that no one at the hearing on 22nd April 2003 appreciated that the position had changed. No one addressed their minds to the provisions of section 25(7) of the 1980 Act. I agree it is most unfortunate that the Youth Court did not receive the assistance which it was entitled to expect either from the defence representative or from the prosecution representative. In those circumstances, no criticism is intended by this judgment to be made of the justices who dealt with matters on that occasion.

Nevertheless, the fact is that section 25(7) of the 1980 Act was applicable on 22nd April, and it was the duty of the court to bear that provision in mind whilst inquiring into the case for the purposes of committal.

In my judgment, in the circumstances which existed on 22nd April 2003, the only proper way for the Balham Youth Court to exercise its discretion under section 25(7) of the 1980 Act was to switch from committal proceedings to summary trial. For these reasons, in my view, the Balham Youth Court erred in law on 22nd April, and its decision of that date must be quashed.

If my Lord agrees with part 4 of this judgment, the claimant's challenge to the decision of 18th March 2003 must fail. If my Lord agrees with part 5 of this judgment, the Balham Youth Court's decision of 22nd April 2003 to commit for trial must be quashed. There must be a mandatory order that the Balham Youth Court do try the claimant summarily.

LORD JUSTICE ROSE: I agree with all six parts of my Lord's judgment. The court is indebted to Mr Hearnden and Mr Atkinson, because their written submissions set out the position with conspicuous clarity and their oral submissions were admirably succinct. Anything else?

MR HEARNDEN: I am grateful for that, my Lord. The only issue is costs.

LORD JUSTICE ROSE: Are you publicly funded?

MR HEARNDEN: My Lord, yes.

LORD JUSTICE ROSE: What are you suggesting?

MR HEARNDEN: I think the usual order is no order for costs, save detailed assessment for the claimant's costs.

LORD JUSTICE ROSE: If you need an order from the court to that effect, you shall have it.

MR HEARNDEN: I am grateful, my Lord.

LORD JUSTICE ROSE: Thank you very much.