Director of Public Prosecutions v North Durham Justices

1. MR JUSTICE HENRIQUES: This is an application by the Director of Public Prosecutions for judicial review, permission having been granted on paper by the single judge. The Director of Public Prosecutions challenges the decision of the North Durham Justices to accept jurisdiction for sentencing in relation to a charge of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861, following a guilty plea under the Plea Before Venue procedure. It is contended that the facts were sufficiently grave to merit the committal of the defendant to the Crown Court for sentence.

2. James Slade, the interested party in this application, was at the material time 18 years of age, and in the early hours of 5th July 2002 was present at an end of term party, indeed the leaving party, at Durham Public School. Both he and Lloyd Pickering were boarders at the school. It is alleged that James Slade attacked Lloyd Pickering, knocking him to the ground, repeatedly kicking him about the back, the side and the body, inflicting injuries which eventually resulted in the removal of Lloyd Pickerings' spleen. The assault lasted for some 30 to 40 seconds. Prior to the assault, James Slade had shouted, "Let's get Lloyd", or words to that effect. It appears from the full and frank interview of James Slade that followed that it was accepted practice within Durham Public School that at end of term parties certain horse play did take place between fellow boarders. That fact is referred to in the pre-sentence report, which was in due course obtained, where it states that considerable horse play goes on within the dormitories at school.

3. In that same interview, James Slade conceded that he had consumed six to seven cans of lager, that he had punched Lloyd Pickering some four or five times, and had kicked him whilst on the ground to the ribs and to the stomach. The consequence of Lloyd Pickering losing his spleen is that he will have to take penicillin for the rest of his life, and it is said that he will be susceptible to certain infections.

4. Mr Dodds, who appears on behalf of the Director of Public Prosecutions, submits that the gravity of this attack very obviously necessitated a custodial sentence in excess of six months, and accordingly the decision to accept jurisdiction was irrational or truly astonishing. He points to premeditation, basing that assertion upon the words, "Let's get Lloyd". This was, he submits, excessive violence over 30 to 40 seconds of kicking on the ground, a savage assault, as James Slade himself conceded. There was a ruptured spleen and there was a six day stay in hospital. The words "truly astonishing" are culled from the judgment of Nolan J, as he then was, in R v Acton Crown Court, ex parte Bewley [1988] Cr.App.R(S) at page 106, where the dicta of Watkins LJ, who was in fact sitting with Nolan J, in an unreported divisional court decision of R v Croydon Crown Court, ex parte Donovan Miller were cited, namely that an applicant who came to the Divisional Court seeking to have a sentence of a Magistrates' Court or of a Crown Court reviewed on the basis that the sentence was too severe would have to show that the sentence was by any standard truly astonishing. Whilst the present complaint goes to the potential for under-sentencing rather than over-sentencing, it seems to me that whether the test is one of irrationality and perversity or truly astonishing amounts to one and the same thing. Mr Richmond, who appears on behalf of the interested party, submits that "truly astonishing" means defying reasonable explanation.

5. It is plainly a more extreme test than the test of undue leniency within section 36 of the Criminal Justice Act 1988. Mr Dodds in his skeleton argument referred us to the Magistrates' Court sentencing guidelines, a national mode of trial guidelines for section 20 offences published in Stone's Justices' Manual Volume 1, paragraph 6485. Justices are reminded that cases contrary to section 20 should be tried summarily unless the court considers that one or more of the following features is present and that its sentencing powers are insufficient. The features specified are as follows:

"1. The use of a weapon of a kind likely to cause serious injury.

2. A weapon is used and serious injury is caused.

3. More than minor injury is caused by kicking, headbutting or similar forms of assault.

4. Serious violence is caused to those whose work has to be done in contact with the public or who are likely to face violence in the course of their work.

5. Violence to vulnerable people, eg the elderly and infirm.

6. The offence has clear racial motivation."

The use of a shod foot has on many occasions been described or equated with the use of a weapon, and quite rightly so. Accordingly, the present case engaged features (1), (2) and (3).

6. The second question, however, which we must consider in due course is this: were the sentencing powers of the justices in any event sufficient? We have been referred to a number of decided cases. As Mr Richmond indicates, those sentences were of necessity at the top end of the range. Sentences at the lower end of the range are not, of course, reported. In the case of Kelly [2002] 1 Cr.App.R(S) at page 11, the defendant was of good character and 15 years of age. Together with a co-accused, he made repeated attacks upon a stranger in a chip shop, breaking his jaw, putting him in hospital for a week, causing his victim to have recurring headaches, which appeared to be preventing him from gaining future employment. He had damage to his hearing and coordination, and believed he would never work again. The attack was prolonged. Twice the owner of the chip shop separated the three persons involved in the fight, and on each occasion the defendant re-engaged. A 24 month detention and training order sentence was reduced to 15 months primarily by reason of the fact that no credit had been given for a plea of guilty. For my part, the facts of that case appear to be considerably more serious than the present.

7. We were also referred to the Attorney General Ref No 10 of 1992. That, however, was a case of wounding with intent contrary to section 18, as were other references referred to in the skeleton.

8. Finally, we were referred to the case of Moore [1991] 13 Cr.App.R.(S) at page 130. In that case the appellant was 23 years of age. A trial had preceded the sentence. The appellant had three previous court appearances, two of which were for disorderly behaviour, and for that reason the authority is, in my view, of no assistance.

9. The case advanced on behalf the Director can be put very shortly. The gravity of the present attack merited, it is submitted, a sentence of custody of approximately two years, and thus the decision to retain jurisdiction was truly astonishing.

10. On behalf of the interested party, Mr Richmond advances a contrary submission with skill and elegance. Even if this court were to take the view that the case should have been committed to the Crown Court, that would not suffice to review the decision taken. In Director of Public Prosecutions v Salisbury Justices, 10th October 2002, [2002] EWHC Admin, reference number CO/1219/2002, Latham LJ, sitting with McCombe J stated:

"However surprising the decision may have been, it is not one which I am prepared to categorise as one which went outside the discretion available to the justices so as to be able to describe it as perverse."

11. Mr Richmond pointed to the considerable discretion that justices have in sentencing, and to the fact that sentences for offences contrary to section 20 vary enormously. He pointed to the particular circumstances of this case. Whilst the loss of the spleen was, of course, serious, the victim was first treated for bruising. There were no fractures and there was no injury to the head or face and, but for the loss of the spleen, this would have been an offence of assault occasioning actual bodily harm. This was not the case of an habitual offender, but a schoolboy prank that went badly wrong, principally through the consumption of alcohol. This was in no sense an attack upon a stranger. The two young men had been friends over a five year period, and there was a very sincere display of remorse.

12. The submission as to sentence is that a six month custodial sentence would certainly meet the gravity of this offence, but in fact it is submitted that there are strong arguments in favour of a non-custodial sentence. Whilst it is true that the justices did not have before them the pre-sentence reports on 29th August when they accepted jurisdiction, they did have placed before them many of the facts underlying the conclusions of that report. We have the advantage of that report before us. It is a thoroughly favourable report which includes this paragraph:

"In view of the seriousness of the offences, custody is likely to be considered an option. However, this will have considerable affect [sic] on Mr Slade's future especially in his intention to join the army. Also such a sentence would place him with those more sophisticatedly criminal and given he is a low risk of offending the Court may consider that such a sentence will not be necessary as a deterrent to further offending."

13. Without myself advancing any concluded view as to sentence, plainly there is here an arguable case which can properly be advanced to a sentencing tribunal in favour of a non-custodial sentence.

14. There is a second limb to Mr Richmond's argument relating to delay. The offence was committed on 6th July 2002. The defendant was arrested and interviewed on 15th July 2002, and he was charged with the offence on 19th August 2002. On 29th August 2002 he pleaded guilty at Chester-le-Street Magistrates' Court, and the justices accepted the jurisdiction. The case was listed for sentence on 1st October 2002. Affidavits are before the court as to what occurred on that occasion. It suffices to say the case was taken out of the list because the prosecutor knew the father of one of the witnesses, and it may be that a member of the bench was closely connected with the school in question.

15. The first communication that the prosecution were minded in any way to consider a review of the justices' decision appears to have been on 26th September, when a prosecutor asked a court clerk about reopening jurisdiction. In fact, nothing was done, and indeed it was not until 8th November 2002 that this application for judicial review was filed. That involved a delay of ten weeks between the decision and the filing of the application. The rules state that judicial review is to be claimed promptly, and in any event within three months. That means the claimant has a duty to act promptly, and not an entitlement to wait up to three months. The utmost promptitude is expected where third parties stand to be adversely affected by the overturning of a decision, and the likelihood that the remedy would cause hardship or prejudice to any person or detriment to good administration may be a key factor justifying refusal of the remedy.

16. For my part, I have concluded that this application was not made with the promptness required in the circumstances. It is relevant to note that at the present time, pursuant to the Street Offences Initiatives, courts are endeavouring to bring youth offenders before courts and to complete the process of trial and sentence within as short a period as possible. The target period in the North Durham Justices' court, we are told, is some 29 days between a youth being arrested and sentenced. Whilst it was agreed in the present case that that period could be extended, the fact that 29 days is the standard target period draws attention to the delay involved here, namely ten weeks. The fact of the matter is this: that a 18 year old has been awaiting sentence. He still awaits sentence almost six months after he pleaded guilty, a fact which will doubtless, and quite properly, be prayed in aid on his behalf at the sentencing process, when in due course it takes place. The decision to seek the remedy should have been taken within a far shorter period, in my view, within days rather than weeks. The decision has all the appearance of an afterthought, the initial intention being perhaps to try to persuade the justices themselves to reconsider the matter.

17. Turning to the merits, I, for my part, am satisfied that the decision to retain jurisdiction was a perfectly reasonable and proper decision. It cannot in any way be described as a truly astonishing decision. Accordingly, both on the merits and for reasons of delay, I would refuse this application.

18. LORD JUSTICE ROSE: Although brought with the permission of a deputy judge, who did not have before him all the material which is before this court, this is an unattractive application. Indeed, its only attractive features have been the performance of counsel on both sides before this court. Mr Dodds, robust and valiant, for the Director of Public Prosecutions, and Mr Richmond, crisp and powerful, for the interested party. At a time when resources are stretched in relation to all public services, including criminal justice, the making of this application at the time when it was made was not, in my judgment, a sensible use of public money. The only consequence of the application having been made will be that the interested party, still only 18 and of good character, will be sentenced six months or so later than he would, and should, have been, thereby adding to the significant mitigation already available to him.

19. In almost all cases, judges and magistrates still, rightly, have a discretion as to the appropriate sentence to be imposed in the particular case before them. That discretion is not to be lightly interfered with. Challenges to the assumption of jurisdiction by justices should be rare, and will only succeed if the decision is truly astonishing. Surprise is not a proper basis for challenging such a decision, as Latham LJ pointed out in the passage in Director of Public Prosecutions v Salisbury Justices, which my Lord has already read. Latham LJ also said this in that case, which was a similar challenge by the DPP to an assumption of jurisdiction:

"It may be that few justices would have come to the same conclusion as to the right answer to that question as these justices did, but I am not prepared to say that in their understandable and commendable desire to seek to ensure that the sanction that they imposed was appropriate for the very special circumstances of this case, they went beyond what was a reasonable response."

20. McCombe J said this:

"This court would, I expect, therefore be slow to interfere with decisions of this character made by a magistrates' court. Sometimes courts have to be courageous in adopting individual approaches to such matters to meet the facts of particular cases, even if some decisions fall outside the parameters of what observers might normally expect to happen in cases of a particular type."

With these passages in the judgments of Latham LJ and McCombe J, I respectfully agree.

21. Furthermore, if a challenge to jurisdiction is to be made, it is essential that it be made swiftly, particularly in the case of a young defendant. It is inadequate for such an application to be made merely within the maximum period of three months prescribed by the rules. The North Durham Justices have a commendably short target period, as my Lord has pointed out, for dealing with cases of this kind. This application has frustrated the achievement of anything approaching that target by an enormous margin. Accordingly, and for the reasons given by my Lord, with which I agree, this application is dismissed.

22. MR RICHMOND: I suspect the public funding certificate for this case may not have been extended to come --

23. LORD JUSTICE ROSE: If it has not, it certainly is now, assuming we have jurisdiction.

24. MR RICHMOND: (inaudible)

25. MR JUSTICE HENRIQUES: Latham LJ was persuaded that he had in similar circumstances.

26. MR RICHMOND: I am grateful.