BW, R (on the application of) v Caernarfon Youth Court & Anor

On 15 January 2013 the claimant, whom I shall call W, appeared before District Judge Andrew Shaw at Caernarfon Youth Court charged with six offences. In the first, he was charged under section 5 of the Sexual Offences Act 2003 that on 6 August 2012 he intentionally penetrated with his penis the mouth of a girl under the age of 13, that is to say, aged six years, to whom I shall refer as E. In the second, third and fourth, he was charged that on the same occasion he intentionally touched E sexually. In the fifth, he was charged that on the same occasion he assaulted E, contrary to section 39 Criminal Justice Act 1988.

The District Judge accepted Youth Court and therefore summary jurisdiction, and adjourned the matter for trial, provisionally listed for 6 and 8 March. In the meantime, having taken further instructions relating primarily to the state of W's mental health, the solicitor acting for him requested that the case be listed for plea on 23 January, on which occasion the claimant pleaded guilty to all five charges. The case was adjourned for the preparation of reports.

At the adjourned hearing on 19 February 2013 the District Judge was provided with reports provided by Ms Carys Jones on behalf of the Youth Justice Service and an assessment report by Kathryn Lawrence on behalf of the TAITH Service provided by Barnardo's Cymru. District Judge Shaw submitted the claimant for sentence to Caernarfon Crown Court under section 3C Powers of Criminal Courts (Sentencing) Act 2000.

This is an application for judicial review of the District Judge's decision to commit the claimant for sentence. There are three grounds on which the claimant relies: (1) in the circumstances the District Judge had no power to commit under section 3C; alternatively (2) the criteria for committal under section 3C were not met on the facts; alternatively (3) the claimant had a legitimate expectation that he would be sentenced in a Youth Court.

On 8 March 2013 my Lord, Wyn Williams J, adjourned the application for permission for an oral hearing, with the review to follow should permission be granted. We granted permission in the course of the hearing.

This claimant was born on 13 June 2001 and is still aged 11 years. The complainant is, as I have said, a girl aged six years. E is entitled to her anonymity under section 1 Sexual Offences (Amendment) Act 1992. I would further direct, pursuant to section 39 Children and Young Persons Act 1977, that no report in the media shall reveal the name, address or school, or include any particulars tending to lead to the identification of the claimant as a party to these proceedings. For that reason, I would direct that the title to this action shall refer to the claimant as R (on the application of W).

The significance of the claimant's young age is twofold. First, he is extremely young to be charged with and convicted of an offence of rape. Second, the Youth Court has no power to impose a custodial sentence upon a defendant who is under the age of 1two years. This restriction upon the powers of the Youth Court in part reflects the statutory objects to be found in section 37 of the Crime and Disorder Act 1998:

Section 24(1) Magistrates' Courts Act 1980 creates a statutory presumption that a defendant under the age of 18 will be dealt with in the Youth Court. There are exceptions to the general rule. (1) Where the defendant is charged with an offence to which section 91 Powers of Criminal Courts (Sentencing) Act 2000 applies, commonly referred to as "grave crimes", both rape and sexual assault of a child under the age of 13 years contrary to section 5 and section 7 of the Sexual Offences Act 2003 are offences to which section 91 applies. The defendant may therefore be committed for trial in the Crown Court in respect of such offences; or (2) where a child or young person is before the Youth Court and it appears to the court that if convicted the criteria for the imposition of a sentence under section 226(3) or section 228(2) Criminal Justice Act 2003 (the dangerousness criteria) would be met, the defendant must be committed to the Crown Court under section 51A(2) and sub-section (3)(d) of the Crime and Disorder Act 1998; or (3) where a person under the age of 18 years appears jointly charged with an adult, he may be committed for trial with that adult. The claimant appeared as a sole defendant. The third exception accordingly did not apply.

There is no dispute that if the court is to decline jurisdiction because a sentence under section 91(3) of the Sentencing Act 2003 may be appropriate, or because the dangerousness criteria are met, it should do so at the preliminary stage of the hearing in the Youth Court in a venue before plea procedure.

In this case the District Judge considered the powers of sentence in the Youth Court and decided to accept summary jurisdiction. There was not, on the facts of this case, any scope for a change of mind (see by analogy R (on the application of the Director of Public Prosecutions) v Camberwell Green Youth Court [2003] EWHC 3217 (Admin), and the District Judge did not on this occasion purport to reverse his decision to accept jurisdiction.

We are grateful for the helpful note which the District Judge has prepared for the use of the court and the parties. Having considered the guidance provided by this court in R (on the application of H, A and O) v Southampton Youth Court [2004] EWHC 2912 (Admin) and R (on the application of U) v Manchester City Magistrates' Court [2002] 1 Cr App R (S) 373 at paragraph 22, the judge found it improbable that the offences admitted by the claimant would result in a sentence approaching two years' detention. He therefore retained jurisdiction.

The pleas of guilty were, as I have said, entered on a later occasion. However, at the sentence hearing, having considered the contents of the reports provided to him, the judge held that the claimant, having committed a serious specified offence, posed a significant risk of serious harm to the public from further specified offences, and found that for that reason, he was bound to commit the claimant to the Crown Court for sentence.

On behalf of the claimant, Mr Matthew Curtis, who did not appear in the Youth Court but did appear in the Crown Court upon a preliminary hearing adjourned in consequence of the present claim, first submits that there was no "summary trial" within the meaning of section 3C of the Powers of Criminal Courts (Sentencing) Act 2000 which could have founded a power in the Youth Court to commit for sentence.

Section 3C provides as follows:

The essence of Mr Curtis's submission is that there was no trial in the absence of an opening, the call of evidence and submissions to the District Judge as to the guilt or innocence of the accused. I cannot accept this submission.

In the Camberwell Green case, the prosecution sought to persuade the District Judge to reverse decisions to conduct a summary trial already made, and the court found that she was right to refuse the application. In R v Dudley Justices ex parte Gillard [1986] AC 442 (HL), one of two defendants pleaded guilty in the Magistrates' Court, the other elected trial by jury. The House of Lords held that it was not open to the magistrates a week later to discontinue the summary proceedings against the first defendant and to commit him with the second defendant for trial in the Crown Court.

In the present case, no change of mind was involved. Mr Curtis's argument, attractively presented, requires the court to conclude that the words "summary trial" are not apt to embrace summary proceedings in which the Youth Court has accepted summary jurisdiction upon which the defendant pleads guilty. That is a proposition which I cannot accept.

A separate jurisdiction arose under section 3C of the 2000 Act. The claimant pleaded guilty in summary proceedings to the provision made for committal under section 3C of the 2000 Act. Whether on a plea of guilty or not guilty in summary proceedings, there may become available to the court, either in the course of evidence or upon the production of pre-sentence reports, information which drives the Tribunal to alter its opinion as to the seriousness of the offences committed, and the risk for the future of repetition.

For that reason, the court is given a residual power in very exceptional circumstances to commit to the Crown Court for sentence, notwithstanding the original acceptance of summary jurisdiction.

For the same reason I reject the argument that the claimant had any legitimate expectation that he would be sentenced in the Youth Court. No doubt, those advising the claimant relied quite reasonably upon the District Judge's acceptance of jurisdiction as an indication that the court did not consider that a sentence approaching two years' detention would be appropriate. That being the case, it was indeed most improbable that the District Judge would consider subsequently that it was appropriate to exercise the power under section 3C(2). However, the judge had, to the knowledge of the claimant and his advisers, read no reports. It was perfectly possible, however unlikely, that material would emerge in those reports which changed completely the assessment of seriousness and future risk.

It seems to me that legal advisers advising an accused in such circumstances needs to be circumspect. I therefore turn to the question whether the section 3C(2) power was properly exercised on this occasion.

Offences contrary to sections 5 and 7 of the Sexual Offences Act 2003 are serious specified offences for the purpose of sections 226 and 228 of the Criminal Justice Act 2003. The statutory question is whether there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences. It is not suggested that a sentence of detention for life was within the contemplation of the District Judge, and in my view nor could it have been. The issue for the judge was therefore whether the statutory test had been met and, in the light of amendments made to sections 226 and 228, whether a determinate sentence of 4 years or more would have been appropriate so as to meet the criteria required by section 226(3) or section 228(2A) (as amended).

Mr Curtis argued in writing that the judge must already have rejected the possibility that a sentence approaching two years' detention might be imposed in the Crown Court in order to reach his decision to accept summary jurisdiction. The judge acknowledges in his note to the court that what caused him to reach a different decision on 19 February was the contents of the reports to which I have referred. It is now necessary to summarise the facts of these offences.

On 6 August 2012, the child E was playing in or close to the garden of her home. The claimant, who was a near neighbour, enticed her away to rough woodland nearby where he had built a den. When they arrived, he would not let the child go. He told her that she would have to bite his "willy". He exposed his penis and briefly placed it in E's mouth. He then kissed her neck, mouth and stomach. E was crying and pleading to be allowed home. The claimant placed her hands together, told her that she was "under arrest", and threw her down in a shallow muddy pond close by.

E had with her a small case in which she habitually carried her favourite doll. The claimant threatened to throw it in the pond if she said anything about the incident. He threw it into the bushes anyway, whence it was later recovered by the police.

The claimant ran away and E went to her mother distressed and covered in mud. When he was arrested later that day, the claimant made a prepared statement of denial, but not long afterwards made comprehensive admissions.

It was on the basis of this information that the District Judge accepted jurisdiction and therefore anticipated that, following a summary trial, a non-custodial sentence would be passed.

In the reports, a more serious picture emerged. In the opinion of the writers, it was probable that the claimant had either been exposed to inappropriate sexual behaviour or to viewing adult pornography. The claimant had exhibited signs of inappropriate sexual behaviour at the ages of five and a half years and seven years, which took the form of inviting others to lick his penis and masturbating apparently against furniture. At school, he had been observed pulling down the trousers of other boys in the playground. His parents and his school both sought assistance from social services, but it was unclear whether any assistance had been forthcoming.

Nonetheless, there had been no recent repetition as far as could be ascertained on enquiry. The claimant had been assessed in 2006 by a community paediatrician, Dr Karen Windall, when he was aged 5 and a half years. He was diagnosed suffering from ADHD, with some motor and perceptual difficulties. He was reviewed thereafter at three to six month intervals. He was prescribed ritalin for a time, but his prescription was changed to a long-acting substitute when the claimant reporting hearing a man's voice telling him to do "bad things".

Following his arrest, the claimant was removed from his parental home in view of its proximity with the victim's home, and he has since been living with his maternal grandparents under their close supervision. He has recently commenced secondary education with one-to-one tuition. No more sexual incidents have been reported.

To the report writers, the claimant was open to his limited abilities, straightforward and forthcoming in his account of his behaviour and his understanding of it. They agreed that an intensive referral order was appropriate, and that for the time being, it would not be appropriate for the claimant to return to his parents' home.

The additional information about his offences given by the claimant to the authors of the reports included the revelation of an element of premeditation. The claimant told them that when he saw E, bad thoughts came into his head, such as pulling her hair and placing his hands around her throat "and other naughty things". When they were in his den, he said that he had told E to pull her knickers down and had touched her vagina externally. He volunteered that he had pushed her four times into the muddy pond.

The author of the Youth Justice Report, Ms Jones, said at paragraph 2.14:

Ms Jones went on to describe the claimant as loving in nature and open in conversation. She described him as socially isolated. There was no depth of understanding in his use of the words "rape", and although he knew he was in serious trouble, he did not appear to understand the gravity of his sexual behaviour. He was currently showing signs of severe anxiety, evidenced by bed wetting and bad dreams. He was, in her opinion, a highly vulnerable boy. He appeared to have acquired a real fear of adult men. He was, in Ms Jones' opinion, at medium risk of re-offending. If he did re-offend sexually, then there was a risk of serious harm. Those risks were controlled at present by constant supervision. An intensive package of intervention was planned to reduce the risk, but, in the view of the author of the report, a curfew was not required to support it.

It seems to me, upon reading the material before the District Judge, that he was perfectly entitled to be concerned about the risk which the claimant presented for the future. The question for this court is whether, on the information before him, it was reasonably open to the judge to find that the statutory criteria for an indeterminate or extended sentence were met.

The Sentencing Guidelines Council published "Dangerous Offenders Guide for Sentencers and Practitioners" in July 2008. At paragraph 6.5.3 appears the following:

“The Youth Justice Board anticipates that normally the court would find a youth to be a dangerous offender only if he or she was assessed in a pre-sentence report to pose a very high risk of serious harm or, in a small number of cases and due to specific circumstances, a high risk of serious harm ... However ...the court is not bound by the assessment of risk in the pre-sentence report; it does not follow automatically that, because an offender has been assessed as posing a high risk or very high risk of serious harm, he or she is a dangerous offender...”

In Lang and others [2005] EWCA Crim 2864, the court, over which the Vice-President Rose LJ presided, pointed to the need when sentencing young offenders to bear in mind that they were likely to change and develop as they matured. A child of very young age was likely to mature and change that much more quickly. This was highly material to the assessment of future risk. At paragraph 17 (vii) the Vice-President said that in relation to particularly young offenders, an indeterminate sentence may be inappropriate even when a serious offence has been committed and there is a serious risk of significant harm from further offences.

In my judgment, prominent features of the present case were that this was the first time that the claimant had exhibited sexually abnormal behaviour for a period of some three and a half years. He was immature for his age. He had a developmental age of about eight years. He had himself been exposed to experiences which had generated learned behaviour. He had, while in the care of his grandparents for a period of six months, exhibited no such behaviour. He was settling into a new school. He was open and co-operative with the Youth Justice Service.

Alarming though this offending was, it seems to me most unlikely that the Crown Court would conclude this claimant presented a significant risk of serious harm provided that intervention and supervision was likely to have the effect of containing the risk described by Ms Jones.

In the light of the amendments made to the dangerousness provisions since section 3C of the Act was enacted, an important consideration for the District Judge was whether the facts of the present case would have required a determinate sentence after a plea of guilty of four years' detention or more. It does not appear from the judge's note to the court that this was a significant consideration in his analysis of the statutory criteria, since he does not mention it. To justify a sentence under section 226 or section 228, it must follow that the starting point for a determinate sentence would have been six years' detention.

It is clear from the reports that this was a boy with limited culpability for his serious misbehaviour. Having concluded in the preliminary stages that a sentence approaching two years' detention after a trial would not have been appropriate, it does not seem to me that the further information provided to the judge so changed the assessment of seriousness and risk as to attract a sentence of four years' detention or more after pleas of guilty.

With great respect to this very experienced District Judge, I do not consider that an indeterminate or extended sentence could properly be imposed on the information before him. Without in any sense minimising the seriousness of the claimant's conduct, it seems to me that prevention was indeed the dominant consideration. There was no suggestion in the reports that intervention by statutory services was likely to be unsuccessful or in any particular way difficult. On the contrary, the claimant had shown every sign that he was susceptible to positive influence.

For these reasons, I conclude that it was not reasonably open to the District Judge to exercise his power of committal under section 3C. I would therefore quash that committal and direct that the Youth Court proceeds to sentence.

I agree with all that my Lord has said about the substance of the claims. I add these further short observations about the position of the interested party, the Crown Prosecution Service.

This claim was issued on 28 February 2013 and the interested party was named a such. Service would have taken place comparatively shortly thereafter. Within days of the claim being issued, I made an order directing that this hearing should take place. That order was served on the interested party shortly after it was made.

The interested party has not communicated with the court and did not appear at this hearing. That may be explicable because we understand that on 15 January 2013, when the case was first before the Youth Court, the interested party joined with the defendant's solicitor in inviting the District Judge to retain jurisdiction. When the claimant was committed for sentence on 19 February, although the interested party alerted the District Judge to the power under section 3C, it joined with the defendant's solicitor in making representations that the District Judge should not exercise that power. However, as is apparent from what my Lord has said, one of the main points taken in this claim related to the proper interpretation of section 3C.

It would have assisted the court if the interested party had attended the hearing so as to address the point of interpretation . It is a matter of some regret that it did not do so. That said, I am satisfied that the proper interpretation of section 3C is as explained by Lord Justice Pitchford.