Denny, R (on the application of) v Acton Youth Court & Anor

LORD JUSTICE MAURICE KAY: Richard Denny was born on 15th June 1985. He was charged with an offence of attempted robbery, alleged to have been committed on 2nd July 2002 (at which time he was aged 17). At Acton Youth Court on 27th August 2002 he entered a plea of not guilty. For reasons which have not been fully explained, and for which it is difficult to believe that there can be an acceptable justification, he was not tried in the youth court for over a year.

The eventual finding of guilt in the youth court was on 6th August 2003 (by which time he was aged 18). The youth court then adjourned sentence and remitted him to Ealing Magistrates' Court, as the local adult court. That remittal was said to be pursuant to section 9(1) of the Powers of the Criminal Court (Sentencing) Act 2000, which provides:

An issue then arose concerning the jurisdiction of the adult court. The case was listed for legal argument before a Deputy District Judge on 13th October 2003. The issue related to the jurisdiction of the adult court in view of the fact that the offence of attempted robbery is not an either way offence: in the case of an adult it is triable only on indictment. An adult magistrates' court has no sentencing powers in relation to it.

The Deputy District Judge considered that the order of remittal from the youth court had been lawful because the wording of section 9(1) of the 2000 Act is not limited to "either way" offences. However, she considered herself to be without jurisdiction in relation to an offence which, as regards an adult, is not triable summarily. She further considered herself powerless to remit the case back to the youth court for sentence as the offender was now aged 18, and powerless to commit him to the Crown Court for sentence because sections 3 to 6 of the 2000 Act apply only to "either way" offences. She therefore adjourned the matter in the adult court to 10th November, remanding the claimant on conditional bail, whilst, at the same time, inviting the youth court in the meantime to reconsider the order to remit. She had established that the youth court could list the matter for reconsideration on the next day, 14th October. She had in mind that such reconsideration might take place pursuant to section 142(1) of the Magistrates' Courts Act 1980 as amended. Section 142(1) provides that a Magistrates' Court:

At one time for that section to be resorted to the exercise of the power had to take place within a period of 28 days following the original sentence or order. However, that time limit has been removed by subsequent amendment.

On 14th October in the youth court objection was taken on behalf of the claimant to any such reconsideration. The matter was adjourned to enable an application to be made to this court for judicial review. On 2nd January 2004 Beatson J granted permission for such an application. The primary basis of that application was that section 142 does not apply in the present circumstances.

In his skeleton argument on behalf of the prosecution, as an interested party, Mr Ramsubhag sought to raise an issue about the lawfulness of the original order of the youth court to remit to the adult court for sentence.

It had been the case for the prosecution before the Deputy District Judge that the remittal was unlawful but she had not agreed. Mr Bunting, on behalf of the claimant, concedes that he is not taken by surprise by the matter being re-opened at this stage. He is in a position to deal with it without the need for an adjournment. We have indicated to counsel the view of the court that we ought to allow the issue to be argued before us, notwithstanding that the youth court, as defendant, may not be on notice as to it. It is common for magistrates' courts, and similar bodies of a judicial nature, not to participate in proceedings such as this. The youth court as defendant has shown no previous sign of participating in these proceedings, although there is before us a witness statement of the Deputy District Judge who sat in the adult court.

The point made by Mr Ramsubhag is a fundamental one: although section 9 does not, in terms, exclude indictable only offences from the power to remit to the adult court, it plainly makes no sense to remit a person to an adult court for the specific purpose of sentence when, as is common ground, the adult court has no power to sentence him. I can envisage no circumstances in which it would be appropriate to remit (by reference to section 9) in the case of an offence triable only on indictment. In my judgment, it is implicit from the wording of section 9(2)(b) that any such remittal must be legally defective.

Mr Bunting's submission is that whilst he concedes that the remittal in the present case was Wednesbury unreasonable, it was not inherently unlawful so as to render it a nullity, and that the most that this court should do at this stage is to declare the defect without returning the claimant to the youth court for sentence.

I do not accept this submission. Whether the defect is one of illegality or unreasonableness -- and I take the view that it is primarily the former -- in my judgment it ought to lead to the quashing of the remittal with the result that the matter remains in the youth court where it began and belongs.

Relief is of course a matter of discretion but, notwithstanding the passage of time, I can see no good reason why the public interest in seeing those convicted of offences sentenced for them should not be fully respected in the circumstances of this case. As it is, we know nothing of the circumstances of the offence, save that by definition it is a serious one, or the personal history of the claimant, save for his age. They are matters to be taken into consideration by the sentencing court, which can only give such weight as it sees fit for the delay. Again the reasons for it are not wholly within our cognisance, although it seems that at least some of the delay between remittal and the hearing before the Deputy District Judge was the fault of the claimant himself.

The quashing of the remittal, on the grounds to which I have referred, effectively disposes of this case. However, it is appropriate to address the points raised by Mr Bunting in his original application. They were to the effect that it would not have been open to the youth court to rescind the remittal pursuant to section 142 because an order of remittal under section 9 is not "a sentence or other order imposed or made by it when dealing with an offender", and/or because the youth court had ceased to be seised of the case once it had made the order or, at the latest, once the adult court had become involved and, for example, granted bail.

In my judgment, a remittal under section 9 is "an order .... made ... when dealing with an offender." I do not accept that it is merely a lesser step of a preparatory or procedural nature, as Mr Bunting suggests. It is clear from the language of section 142 that "sentence" and "other order" are disjunctively linked by the word "or" and that whereas sentences are "imposed" other orders are "made". It is significant that they both relate to a time "when dealing with an offender". I have no doubt that, all other things being equal, a youth court can rescind a remittal by reference to section 142 and could have done so in this case.

I agree with Mr Bunting when he submits that a point will come when the youth court cannot re-visit the case under section 142 because it has been overtaken by the adult court. However, I do not accept that that point had been reached in this case. From the moment the adult court took up the case it did so on the basis that there was an issue, effectively one of jurisdiction, to be resolved before it could proceed further. It never reached the stage of considering sentence. All it did was arrange a hearing date for legal argument; determine that argument in the way I have described; adjourn and grant bail. In my view, that did not put section 142 beyond the reach of the youth court, especially when the adult court itself was encouraging the youth court to resort to section 142 and creating the circumstances in which it might do so.

In summary, I would refuse the application for judicial review as sought by the claimant, but would quash the remittal order for the reasons I have given. I would direct that the matter be listed in the youth court for sentence as soon as possible and further direct that the claimant attend when it is so listed. Failure to attend in such circumstances would be punishable as a contempt of this court. The result of such orders would be to render further proceedings in the adult court nugatory.

It may be helpful to youth courts and their advisers to have their attention drawn to this judgment, the effect of which is that they should never remit under section 9 in relation to an offence which would be triable only on indictment in the case of an adult. Unless the offence is such that it warrants committal to the Crown Court for trial, even in the case of a young person, it must be completed in the youth court. Whether this apparent lacuna is desirable is a matter which Parliament may wish to consider.

MR JUSTICE CRANE: I agree with the decision, the reasoning and the proposed order.

LORD JUSTICE MAURICE KAY: Thank you both very much.

MR BUNTING: My Lord, on the matter of costs, the claimant is publicly funded with a nil contribution, you should have a full certificate for that. I would ask for no order as to costs except for detailed assessment of the claimant's publicly funded costs.

LORD JUSTICE MAURICE KAY: Apparently we have not got a certificate. You may have an order if the certificate is lodged within seven days.

MR BUNTING: My Lord, yes.

MR RAMSUBHAG: My Lord, I do not know whether it is helpful to direct a date for when Mr Denny should attend.

LORD JUSTICE MAURICE KAY: I do not think we can do that, because that will depend on when there is availability in Acton. We have said as soon as possible and the order will go to the court as defendants and that will appear in the order.

MR RAMSUBHAG: I am grateful.

MR BUNTING: One further point, my Lord. This morning I did say that my understanding was it was Acton Youth Court's general policy to follow this procedure. I do not know if your Lordships would direct that a transcript perhaps be given to either the claimant or respondent, or to the court, so at least on the next appearance they will know what happened in this court, and secondly they could take your Lordship's points at the end of your judgment on board?

LORD JUSTICE MAURICE KAY: Yes, certainly. If it is going to be made available, it should be made available to the two parties here represented and the youth court as defendant.