R, R (on the application of) v Manchester City Youth Court

MR JUSTICE OUSELEY: The claimant in this case, R, is aged 15 years. He is of previous good character and has been charged with a single offence of dwelling house burglary. He has signified his intention to plead guilty and has done so at the earliest opportunity.

The brief facts are that at 2am on 30 August 2005, he climbed into a domestic premises, opened the door of the property and let two others in, with whom he had embarked upon this criminal enterprise. The house was unoccupied. They left the house in some turmoil after searching it for valuable property. They stole property valued at nearly £6,000 and took the goods to the home of the claimant's father, some 200 yards away. That property was searched the same morning and the claimant was arrested at his home address. Some of the property was recovered from those two addresses. When interviewed, the claimant made full admissions and provided the police with the names of the others taking part in the burglary.

On 15 December 2005, the claimant, another youth and the claimant's father appeared before a district judge in the adult court. The district judge accepted jurisdiction in respect of the father, who was charged with handling stolen goods. He remitted the claimant and his youthful co-accused to the Youth Court sitting that afternoon.

The Youth Court considered mode of trial under the provisions of section 24 of the Magistrates Courts Act 1980. This provides that where a person aged under 18 is brought before a Magistrates' Court, charged with an indictable offence, save for certain limited exceptions, he should be tried summarily. The most common exception is where the offence is one of those identified as grave crimes for which a defendant may be sentenced to be detained for long periods, and the court considers that if the defendant is found guilty of that offence, it ought to be possible to sentence him to a longer period than available in this case (two years' detention).

The magistrates declined jurisdiction, notwithstanding that both the claimant, who was represented by a solicitor, and the Crown submitted that the offence was suitable for summary trial. The reasons for declining jurisdiction appear to have been the fact that it was a burglary of a dwelling house and the value of the goods stolen was nearly £6,000.

The matter then came before the Youth Court on 26 January 2006 for committal proceedings, when Mr Weatherby sought to persuade the magistrates to exercise their powers under section 25 of the Magistrates' Courts Act 1980. Section 25(5)(b) and 25(7) provide that where a person under 18 is before magistrates on an information charging him with an indictable offence, and the Magistrates' Court has "begun to inquire into the case as examining justices", the court may proceed to try the information summarily if "it appears to the court at any time during the inquiry that the case is after all one which under the said section 24(1) ought to be tried summarily".

The magistrates declined to change the mode of trial decision. It appears that they had some considerable sympathy with the application, but did not consider that they should use the powers in section 25 to revisit the decision on mode of trial made on 15 December 2005 because it would amount to the court acting as an appellate court and overturning their colleagues' decision.

Mr Weatherby, on behalf of the claimant, contends in these judicial review proceedings that the decision of 15 December 2005 ignored the guidance that has been given on a number of occasions as to the way in which magistrates should consider their powers under section 24. He further submits that the magistrates on 26 January 2006 misconstrued the powers that they had to reconsider the mode of trial decision. Mr Weatherby points in particular to the absence of any real possibly or real prospect that the claimant in this case would receive any sentence in excess of two years' detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.

The application is not opposed either by the Youth Court or by the Crown Prosecution Service. The acknowledgment of service by the Youth Court is silent as to any reasons why the decision should be upheld. Mr Weatherby tells me, and I accept, that the CPS has agreed verbally that the decisions of the Youth Court should be quashed. I accept that because that would be entirely consistent with the stance that the CPS took before the Youth Court.

It is not necessary to go into all the authorities which deal with the appropriate approach to the consideration of section 24 Magistrates' Courts Act 1980 powers. They have been dealt with on many occasions, and most recently by the Divisional Court in R(W, S and B) v the Brent Youth Court, the Enfield Crown Court and the Richmond on Thames Youth Court [2006] EWHC 95 Admin. I need simply refer to the way in which the principles are set out in the judgment of Smith LJ, adopting what Leveson J said in an earlier case. Those principles are set out in paragraphs 1 to 5.

It is clear that the magistrates needed to ask themselves whether there was a real possibility that the claimant could be sentenced to a custodial term in excess of two years. The guideline case on sentencing for domestic burglaries is R v McInerney and Keating [2002] EWCA Crim 3003; [2003] 2 Crim App R (S) 39 at page 240.

I accept the summary of the sentencing guidelines provided by Mr Weatherby in his submissions. The present case would be classed as a standard burglary as it involved the theft of electrical goods and personal items, some damage and turmoil. It had no high level aggravating features. There were a number of medium level aggravating features because of the value of the goods and the involvement of a number of offenders. But no one was in the dwelling house at the time. It was this claimant's first offence. The damage was not extensive. He admitted the offence in interview, assisted the police and has indicated his guilty plea at the earliest possible moment.

It may be a matter of some debate as to what the precise starting point would be for a first timer, depending on the view that is taken of the aggravating features. It needs to be remembered that in McInerney the Court of Appeal (Criminal Division) did not accept the precise delineation of offences suggested by the Sentencing Guidelines Panel, not because they thought they were too lenient but because they might involve too rapid an acceleration of the higher sentencing levels. But the likely starting point if this were an adult first offender would be of the order of 12 months. The court would naturally, when considering a youth of 15, regard a substantially shorter sentence of custody, if custody at all, as probably appropriate.

There are no circumstances here in which it could be said that there was a real possibility of this claimant being sentenced to a custodial term in excess of two years. Had he been an adult, it is very unlikely that he would have been sentenced in excess of two years. Something, as both I and Munby J (considering the papers on earlier occasions) said, has gone significantly wrong. That decision is therefore quashed.

It follows because that decision is quashed, and it was the basis for the refusal by the magistrates on 26 January 2006 to change the decision, that they proceeded on a manifestly false basis. That decision too is quashed. The concerns that the magistrates expressed relating to section 25 powers may warrant a brief mention.

The purpose of sections 25(5) and (7) is to enable examining justices, who have began to inquire into the case, to reconsider in the light of their examination as it proceeds whether the case ought to be tried summarily. The power is exercisable at any time during the inquiry.

I understand the reservations which magistrates might have about reaching a different decision on mode of trial before they have done anything substantive by way of inquiry into the case as examining justices, where nothing is before them other than that which was already before the justices on the earlier occasion. But with the comment that their position can be understood, the position of examining justices, with jurisdiction at any time once the inquiry has begun to change the mode of trial decision, cannot be fettered by a previous decision which their own examination shows to be wrong. In this case, it is clear that the magistrates ought to have concluded that the previous decision was wrong. Indeed, they may have been inclined to do so. Their examination of the facts should have led them to conclude, as the case evolved before them, that a summary trial was all that was appropriate. In my judgment, they were too limited in their approach. For that reason as well, I would quash the decision of 26 January 2006.

Accordingly, both the decisions are quashed. This case should proceed to a summary trial in the Youth Court.

Thank you, Mr Weatherby.

MR WEATHERBY: I am obliged. My Lord, I have a public funding certificate. I think I need a detailed assessment.

MR JUSTICE OUSELEY: Yes, there will be detailed assessment of your costs.

MR WEATHERBY: I am obliged.