BH v Norwich Youth Court

This is the judgment of the court to which we both have contributed.

The Claimant applies for judicial review of the decision of District Judge (Magistrates’ Courts) Sheraton (“the judge”) sitting on 20 January 2022 in the Norwich Youth Court to retain jurisdiction in relation to three charges of rape and to order summary trial of those charges. At the conclusion of the hearing on 15 December 2022 we announced our decision that the claim for judicial review was dismissed. We did so in order to prevent any further delay to the criminal proceedings. These are our reasons for that decision.

As is customary the Youth Court was not represented at the hearing. We had its acknowledgment of service setting out its case in relation to the way in which the decision was reached but no other evidence from the court. The Claimant was represented before us by Mr Philip Rule. The Crown Prosecution Service as interested party was represented by Mr Simon Ray. We had written and oral submissions from both Mr Rule and Mr Ray.

Criminal proceedings are active within the meaning of that term in the Contempt of Court Act 1981. Pursuant to Section 4(2) of the 1981 Act, we ordered that nothing should be published in relation to these proceedings which might identify the Claimant. This order will continue until the conclusion of the criminal proceedings or until further order of this court, whichever is the sooner. This judgment is anonymised accordingly with the Claimant being referred to as BH.

For reasons which will be apparent from the substance of this judgment, the Claimant will not have the normal statutory protection against publication of his identity in relation to the proceedings in the Youth Court. It is neither necessary nor appropriate for us to comment on what order will be appropriate in the continuing criminal proceedings. For instance, we do not know whether identification of BH in those proceedings might undermine the statutory protection against identification to be afforded to the complainant in the case.

BH was born on 29 March 2004. He is charged with three offences of rape alleged to have been committed between April and August 2020 when he was aged 16. The complainant in the offences alleged against him was ten months younger than him i.e. aged 15 at the time of the offences.

BH and the complainant were friends. They lived near to each other. They attended the same school. In the course of their friendship they met regularly in person. From time to time during 2020 they met secretly at night both at the Claimant’s home and at the home of the complainant.

The complainant alleges that on three occasions during the summer of 2020 BH raped her. The first occasion is said to have occurred when the complainant visited BH at his house. This was in the early hours of the morning. The two of them lay on BH’s bed with BH’s arm around the complainant. This was consensual. The complainant alleges that BH went on to attempt to penetrate her vagina with his finger and to suggest that they had sex. She says that she said no more than once. BH began to masturbate. He then pushed her shorts to one side and inserted his penis into her vagina. He ejaculated. The next day the complainant told BH that what had happened the night before should not occur again.

The further allegations of rape relate to subsequent occasions when BH visited the complainant at her home. These visits were in the small hours of the morning when the complainant’s parents were asleep. They took place on a number of occasions. On two of those occasions BH behaved in a similar fashion to the first incident alleged by the complainant. When they were together in the complainant’s bedroom BH tried to touch the complainant’s breasts and vaginal area. She moved his hands and told him to stop. He began to masturbate and then put his penis in her vagina. He ejaculated over her shorts or over the bed sheets.

The complainant told friends about what had happened. At the end of August 2020 she told her parents that she did not want to go back to school. When asked why, she told her parents that BH had raped her. The police were informed. On 6 September 2020 the complainant was the subject of a full ABE interview in which she set out her account of events. BH was interviewed in September and November 2020. He made no comment to all questions put to him. The complainant’s pyjamas were subjected to scientific analysis. Traces of semen were found on the pyjamas. The DNA of the semen matched that of BH. This result was available in early December 2020. The mobile telephones of both the complainant and BH were examined by the police. The results of the examinations were available in early January 2021.

It was not until 6 December 2021 that criminal proceedings were commenced against BH by way of a written charge and requisition. We have no evidence about why there was such a delay. There was more than sufficient evidence available by the beginning of 2021 to justify charging BH. In a case involving a young defendant and an even younger complainant the need for expedition must have been obvious. We are well aware that delays of this kind are not uncommon in cases such as these. That does not make it any the more acceptable. Had the proceedings been commenced when they should have been, namely early in 2021, much of the basis for the claim for judicial review with which we are concerned would never have arisen. There is every prospect that the criminal proceedings would have been concluded by now rather than BH and the complainant still awaiting a trial.

The first appearance was listed on 7 January 2022 at Norwich Youth Court. The proceedings were adjourned because there was no District Judge (Magistrates’ Courts) available to hear the case on that day. BH was notified in advance of the position. He did not attend court on that day.

The date for the adjourned hearing was 20 January 2022. BH attended. He was represented by a solicitor, Haroon Shah. The Crown Prosecution Service was represented by a Mr Crimp. We had evidence from Mr Shah in the form of two witness statements made by him. We had no evidence from Mr Crimp or from the Youth Court (other than what was set out in the court’s acknowledgment of service). The precise course of events at the hearing on 20 January 2022 was not clear from the evidence. However, we concluded that it was appropriate to proceed on the basis that the hearing began with the judge deciding whether the Youth Court should retain jurisdiction in relation to the charges of rape. Both Mr Crimp and Mr Shah argued that the case should be sent to the Crown Court. Mr Crimp referred to the Sentencing Council Definitive Guideline in relation to offences of rape. He submitted that the offending fell into Category 2B in that guideline. An adult convicted of a Category 2B offence would be subject to a starting point of eight years’ custody with a range of seven to nine years’ custody. Even allowing for BH’s age, the likely sentence was such that he should be sent to the Crown Court for trial. Mr Shah agreed with that submission. He further argued that the case was too complex to be tried in the Youth Court. There were issues of third party disclosure and complex scientific and electronic evidence. The judge disagreed. He considered the adult guideline but in the context of the Sentencing Council Sentencing Children and Young Persons guideline. In any event, the judge considered that the case fell into Category 3B with a category range of four to seven years’ custody for an adult offender. The judge decided that the case should remain in the Youth Court. This is the decision challenged by BH. The record sheet completed by Mr Crimp recorded that BH pleaded not guilty to the charges. Mr Khan’s evidence is that no plea was tendered or indicated. However, the judge gave directions for trial and completed the Preparation for Effective Trial (PET) form, the trial estimate being two days. Consent was identified as the issue in the case. It is unrealistic to suggest that these steps occurred in a vacuum. BH must have indicated a plea of not guilty. A trial date in early April 2022 was available. The judge did not fix the trial for that date because BH was due to take public examinations in June 2022 and, on his behalf, it was submitted that the trial should be delayed until after those examinations. In consequence, the trial was fixed for two days commencing on 7 July 2022.

On 30 March 2022 BH’s solicitors wrote a letter before claim to the Norwich Youth Court. In the letter they repeated the arguments put before the judge on 20 January 2020. They invited the judge to reverse his decision. The judge considered that suggestion. By an e-mail dated 4 April 2022 from the court the invitation was rejected. It was said that “in the absence of any new information (the judge) declined” to re-visit the issue of jurisdiction. The claim for judicial review was made on 20 April 2022.

In due course BH was given permission to apply for judicial review on three separate grounds. These were grounds one, three and four in the claim. We shall use the same numbering. The decision under challenge remained that made on 20 January 2022. We shall deal with each of the grounds in turn. We do so in what appears to us to be the logical order. It is not the order in which they were argued by Mr Rule.

As we already have set out in our review of the factual background, the judge on 20 January 2022 commenced his consideration of BH’s case with a determination of whether the Youth Court should retain jurisdiction for the purposes of trial. Prior to that, no indication was sought of BH’s plea. Mr Rule argued that the judge failed to follow the procedure set out in Section 24A of the Magistrates’ Courts Act 1980. That procedure was mandatory. It should have preceded the determination of venue for trial. Since it did not, the judge had no jurisdiction to make the decision in relation to retaining the trial in the Youth Court. Thus, the decision should be quashed and the case returned to the lower court. Since BH is now aged 18, he will have to be dealt with as an adult. His case will be sent to the Crown Court for trial. Mr Rule relied on the mandatory language of Section 24A. He submitted that there is authority in relation to the comparable provision relating to adults (Section 17A of the 1980 Act) which supports his argument.

Mr Ray argued that Section 24A is a procedural provision. It does not confer jurisdiction on the Youth Court to try offences which in relation to an adult can only be tried on indictment. That jurisdiction is created by Section 24 of the 1980 Act. Failure to follow a procedural provision cannot render a subsequent decision invalid.

We agree that the jurisdiction of the Youth Court is established by Section 24(1) of the 1980 Act. It reads:

Section 24A of the 1980 Act (so far as is relevant) reads as follows:

There is considerable jurisprudence in relation to the distinction between a procedural and a jurisdictional requirement. Mr Rule began his review of the authorities with R v Cockshott and others [1898] 1 Q.B. 582 and moved forward from there. We do not need engage in any historical analysis of the position. The issue we have to address is helpfully summarised in R v Lalchan [2022] EWCA Crim 736 at [39]:

Section 17A of the 1980 Act is jurisdictional. A magistrates’ court is only entitled to try an either way offence where the relevant statutory requirements have been complied with since a magistrates’ court is purely a creature of statute. Before submitting to the jurisdiction of the magistrates’ court in relation to an either way offence, a defendant must be told that his case involves an offence which could be tried in the Crown Court. Further, he must be told that, were he to indicate a plea of guilty, this would be treated as a guilty plea and that he then could be committed for sentence. Without those steps, the magistrates’ court has no jurisdiction in relation to an either way offence. All of that is clear from R(Rahmdezfoul) v Crown Court at Wood Green [2014] 1 WLR 1793. The same applies if an indication of plea pursuant to Section 17A is given by a defendant’s representative on their behalf. Since such an indication is to be treated as a plea of guilty, it can only be given by a defendant personally. If it is not, there is no basis upon which the defendant can be committed for sentence. Any purported committal for sentence will be invalid: see R(Owadally and another) v Westminster Magistrates’ Court [2017] 1 WLR 4350.

Mr Rule argued that the same considerations applied mutatis mutandis to Section 24A. This submission fails to grapple with the legislative purpose and history of Section 24A. As we have indicated, it was introduced to provide a mechanism by which the Youth Court could commit for sentence a child or young person where a sentence in excess of 2 years’ detention ought to be available. Such committal could only occur if the indication were given at the first appearance when allocation for trial was to be considered, that being the meaning of the term “appears or is brought before the court”. This limited power to commit for sentence was introduced in the Criminal Justice Act 2003 by adding Section 3B to the Powers of Criminal Courts (Sentencing) Act 2000. That section referred to Section 24A as providing a procedure for indication of plea. Section 24A cannot affect the jurisdiction of the Youth Court to try indictable offences summarily. Rather, it provides the jurisdiction to commit for sentence rather than deal with the case summarily. Were the Youth Court to purport to commit a defendant for sentence when he appears or is brought before the court without engaging in the plea before venue procedure, it would be acting without jurisdiction. Beyond that, Section 24A does not serve to protect any right of the defendant. A defendant in the Youth Court has no right to elect trial. Save where the court declines jurisdiction, a defendant in the Youth Court will be tried summarily. The validity of any decision to retain jurisdiction will not be affected by a failure to follow the plea before venue procedure.

It is also the case that the legislative purpose of Section 24A to a significant degree no longer holds good. Section 53 of the Criminal Justice and Courts Act 2015 amended the provision first introduced by the Criminal Justice Act 2003. The power of the Youth Court to commit for sentence now can be exercised “where on the summary trial of an offence mentioned in section 91(1) of this Act a person aged under 18 is convicted of the offence”. Given the terms of Section 24A(7)(b) this will include an indication of plea. However, the power to commit for sentence is now much wider. Prior to 2015 Section 24A had the jurisdictional element to which we have already referred in that a Youth Court only had the power to commit for sentence pursuant to that provision. The Youth Court now has jurisdiction to commit for sentence for an indictable offence whenever a child or young person is convicted whether after trial or upon a plea of guilty. Section 24A is no longer the only route by which the Youth Court can commit for sentence.

We are satisfied that Parliament at no stage intended that a failure to comply with the procedure set out in Section 24A should remove the jurisdiction of the Youth Court to try indictable offences summarily. Thus, the judge in this case was entitled to consider the appropriate venue for trial irrespective of any procedural failing. In reaching this conclusion we note the reasoning in R(D) v Sheffield Youth Court (2008) 172 JP 576. The legislative framework being considered by the court in that case was not precisely the same as the one with which we are concerned. However, the approach taken by the court was the same as that we have adopted. It supports our conclusion.

Since the statutory provision with which we are concerned was procedural, failure to comply with it could only be a basis for a challenge to the allocation if it were to affect the fairness of the proceedings or prejudiced BH. The failure in this case did not begin to do that. BH would have indicated a plea of not guilty had he been asked the question. The judge then would have moved on to consider venue precisely as he did in fact. We do not suggest that failing to provide the defendant with the opportunity to indicate a plea of guilty is a course to be approved. It is a procedure designed to improve efficiency. However, on the facts of this case, the failure was of no practical effect.

The jurisdiction of the Youth Court to try indictable offences is subject to Section 51A of the Crime and Disorder Act 1998. Where “….the court considers that if (the defendant) is found guilty of the offence it ought to be possible to sentence him…” to a period of detention exceeding two years, the defendant shall be sent for trial. That was the statutory context in which the judge considered whether the Youth Court should retain jurisdiction of BH’s case. Mr Rule submits that the judge should not have retained jurisdiction for BH’s trial. Rather, he ought to have sent him for trial at the Crown Court.

For the challenge to the judge’s decision to retain jurisdiction to succeed, BH must persuade us that the decision was “wrong” within the meaning of that term as set out in R(D) v Sheffield Youth Court [2003] EWHC 35 (Admin); (2003) 167 JP 159. The test requires us to act as a review court rather than the one making the original decision.

The proper approach to Section 51A of the 1998 Act is set out in R(DPP) v South Tyneside Youth Court [2015] 2 Cr App R (S) 59 as confirmed in R(BB) v West Glamorgan Youth Court [2021] 1 Cr App R (S) 62. The introduction of the extended power to commit for sentence introduced in 2015 to which we already have referred changed the approach to be taken by a Youth Court when deciding whether to retain jurisdiction. The principles now to be applied are as set out at [13] of R(BB) v West Glamorgan Youth Court citing the relevant paragraphs of R (DPP) v South Tyneside Youth Court:

There were four strands to Mr Rule’s argument in relation to the judge’ decision to retain jurisdiction. He began by placing considerable emphasis on what was said in Billam [1986] 1 WLR 349, the first guideline judgment delivered by the Court of Appeal Criminal Division in relation to the offence of rape:

The next limb of the submission in relation to the decision to retain BH’s case in the Youth Court was that the judge erred when he rejected the submission made by Mr Crimp on behalf of the Crown Prosecution Service that BH’s alleged offending would fall within Category 2B in the Sexual Offences Definitive Guideline in relation to rape, a submission supported by Mr Haroon on behalf of BH. Mr Crimp argued that the case fell into Category 2 harm because the complainant had suffered severe psychological harm and because she was particularly vulnerable due to personal circumstances. Mr Rule developed the submission that the judge erred in his categorisation of the offence by reference to “uninvited entry in victim’s home” as a relevant factor. He also argued that the judge failed to reflect aggravating factors that would further increase the adult sentence.

The acknowledgment of service from the court indicates that this approach was rejected by the judge. He began with a consideration of the guideline on Sentencing Children and Young People rather than the adult sentencing guideline in relation to rape. That involved an individualistic approach. It also reflected the approach to jurisdiction as set out in R(DPP) v South Tyneside Youth Court. Paragraph 2.10 of the Children guideline is as follows:

We consider that the approach taken by the judge was entirely appropriate. He was right to avoid the mechanistic approach adopted by the parties. He applied the guidance in the Children guideline and in R(DPP) v South Tyneside Youth Court in a conventional fashion. He rightly concluded that, on the information available to him, the case fell into Category 3B in the adult guideline. We do not consider that it can properly be said that he was wrong either in his analysis or in his final decision. It is not necessary for us to conclude that we would have made the same decision although, as a matter of fact, we would have done so. This was precisely the type of case which Sir Brian Leveson P considered in his judgment. It certainly was not one of the rare cases requiring the Youth Court to decline jurisdiction because the offending was so grave. This is not to say that the court might not in due course conclude that the offending merits a sentence in excess of two years’ detention. That is a judgment to be reached once the court is fully seized of all of the facts and circumstances.

The third point relied on by Mr Rule is that the judge failed to have proper regard to BH’s desire to be tried by a jury. He pointed to the reference to “the desire for a jury trial” at [31] of the judgment in R(DPP) v South Tyneside Youth Court. Mr Haroon’s witness statement dealt with this issue as follows:

The final submission made by Mr Rule under this ground was that the judge failed to take into account the fact that BH inevitably would have passed his 18^th birthday by the time of any conviction. Therefore, the Sentencing Children and Young People guideline would not apply in his case. The judge fell into error because he ignored the fact that any sentencing court would be free to sentence BH as an adult. Mr Rule referred to what was said in R v Bowker [2008] 1 Cr App R (S) 72 as being of particular relevance.

We accept that the crossing of the age boundary at BH’s 18^th birthday was a relevant consideration. However, we do not agree that Bowker is of assistance to us. First, the appellant in that case (who appeared with a number of other young adults aged 19 and 20) was 2 days shy of his 18^th birthday when he committed an offence of violent disorder. The court said this about the effect of his age:

Second, Bowker was decided some years before the Sentencing Children and Young People guideline was introduced. Any judge is required to follow a relevant guideline: Section 59(1) Sentencing Act 2020. The Children guideline was relevant in BH’s case.

We reject the proposition that any sentencing court would be free to sentence BH as an adult. In the event of conviction, any custodial sentence would be of a type appropriate to someone aged 18 or over. But the length of that sentence would be largely dictated by his age at the time of the offence. The judge properly considered the Children guideline. We accept that there may be cases where a more nuanced approach is necessary. If a young person very close to their 18^th birthday makes their first appearance in the Youth Court in relation to an offence allegedly committed only shortly before that first appearance, the court will give consideration to the likely sentence with those features in mind. They might allow the court more easily to conclude that there is a real prospect of a sentence in excess of 2 years. That will be a matter of judgment in each case i.e. as to whether the facts put the case so near to the boundary that a nuanced approach is required. We are sure that this is not such a case. It follows that we are satisfied that the judge did not err when he took into account the Children guideline.

In his skeleton argument Mr Rule summarised this ground as “Right of 18 year old to trial by jury (and Convention protections)”. The first part of his argument is that proper construction of the domestic statutory provisions allows for someone in BH’s position who achieves his 18^th birthday after the Youth Court has retained jurisdiction to obtain a trial in the Crown Court. We use the word “obtain” since, in a case such as this where the offence is indictable only, the court will be obliged to send him for trial. In oral submissions Mr Rule submitted that the correct statutory construction would also lead to a person in the position of BH vis-à-vis age being given a right to elect trial were they charged with an either way offence. The second part of the argument under this ground relates to Article 14 of the ECHR. We shall deal with the submissions relating to domestic law first.

Mr Rule argued that the authorities establish that a right to trial by jury exists for any accused person whose trial has not yet commenced with evidence being called. He relied particularly on R v St Albans Juvenile Court ex parte Godman [1981] Q.B. 964. This was a case concerning the right of a young defendant who had passed the age of 17 (then the age at which the offender was to be treated as an adult) to elect trial in relation to the either way offence of theft. The defendant (then aged 16) previously had pleaded not guilty and the case had been adjourned for summary trial. The court was concerned with the provisions of the Criminal Law Act 1977 in relation to election for trial. Beyond that, the facts are irrelevant. The simple point for the purposes of Mr Rule’s argument is that the court found that the point of no return was when evidence began to be called. Since he had passed his relevant birthday prior to that point, the defendant had the right to elect trial.

The first objection to this authority providing any support for Mr Rule’s argument is that it was concerned with an either way offence and the right to elect trial. In addition, it was concerned with different statutory provisions to those with which we are concerned. The second and more fundamental objection is that Godman was considered by the House of Lords in R v Islington North Juvenile Court ex parte Daley [1983] AC 347. The House of Lords in that case had to consider conflicting authorities (of which Godman was one) relating to the point at which venue for trial was made final in relation to either way offences. Lord Diplock gave the only speech. He emphasised that the right to elect trial required the accused actually to appear in court in person. He noted the practice whereby a magistrates’ court could inform an accused that, if they intended to plead not guilty, they could indicate that in writing in which event the case would be adjourned for trial in their absence. In those circumstances, the first point at which an accused could elect trial would be at the start of the trial. However, that did not mean that the right to elect persisted until that point. Lord Diplock stated the principle at p364E:

The application of these principles to a person in BH’s position was specifically considered in R v Nottingham Justices ex parte Taylor [1992] 1 Q.B. 557. A submission was made to the court not dissimilar to that made to us by Mr Rule, namely that Godman permitted a person who became an adult before the start of a summary trial to elect trial by jury. The court said that Godman should be disregarded insofar as it was inconsistent with the ratio in ex parte Daley. The conclusion at p132E was as follows:

Mr Rule’s argument did not provide any mechanism for sending BH to the Crown Court. He suggested that Section 47(1) of the Crime and Disorder Act 1998 was a route which could be adopted. This reads:

We also observe that this argument is not strictly a challenge to the decision of 20 January 2022. It seeks to provide BH with a route to the Crown Court by some later decision. It is not immediately apparent how that arises from the claim for judicial review as it has been formulated. We turn then to the Convention argument.

For the reasons we have given above, thus far we have concluded as follows:

Accordingly, under domestic law, BH, aged 17 at the allocation date, had no right to a jury trial in the Crown Court in respect of the rape charges even though it was known he would be 18 years of age at the start of his trial in the Youth Court.

It is in the context of those conclusions that the European Convention on Human Rights (“ECHR”) issues are to be considered. However, it was not altogether clear to us how Mr Rule put his Article 14 ECHR case and the form of the argument appeared to change between the Claim Form, the written submissions, and during his oral submissions. We will summarise the position, as we understood it, below.

In the Statement of Facts and Grounds the argument was put as follows: “The Claimant is properly entitled to elect trial by jury now that he is 18 and in the circumstances of these proceedings and/or a denial of the right to elect jury trial to this 18 year old Claimant is unlawful and prohibited by section 6 of the Human Rights Act 1998, giving effect to the protection of Article 14 in the ambit of Article 6 of the European Convention on Human Rights”.

The obvious problem with that formulation is that the decision under challenge in the Claim Form was only the decision of 20 January 2022 made when BH was aged 17 and not any later decision when he was 18 years of age. Further, the Statement of Facts and Grounds did not identify any specific provision of domestic legislation which BH argued had to be given an ECHR compliant interpretation.

In Mr Rule’s skeleton argument for the substantive hearing, again it was not clearly identified which specific provision of domestic legislation he argued was potentially ECHR non-compliant. His argument appeared to be that if the overall effect of domestic law was to put BH in a position where he could not elect for a jury trial in the Crown Court that result in itself was contrary to the ECHR.

In oral argument, Mr Rule first appeared to suggest that in all cases where a young person who is charged with an indictable offence turns 18 before trial in the Youth Court, they must be sent for jury trial in the Crown Court. However, during later oral submissions, he clarified that his argument was that if the effect of domestic law is that BH (a person who was 17 at the time of the decision but who it was known would be 18 by the date of the proposed Youth Court summary trial) will be tried in the Youth Court without an option for a jury trial, that is a violation of Article 14 read together with Article 6.

As we understood that final form of the argument, Mr Rule submitted that BH (a 17 year old who would be 18 by the time of the summary trial) is a victim of discrimination when compared to any other 18 year old who has a right to trial by jury in the Crown Court on a charge of rape. He argued that to avoid this discriminatory outcome the final allocation decision for someone in his client’s position has to be made at the start of a trial not an earlier allocation hearing (thereby giving him a right to jury trial).

As to how this would be achieved, in his reply submissions, Mr Rule referred for the first time to section 142(1) of the Magistrates’ Courts Act 1980 as providing a power to a court to revisit a decision on venue to avoid the claimed discriminatory outcome. It is not clear to us how and when it is said that the District Judge in this case was meant to invoke this power (presumably when the summary trial came on before him, something which is yet to occur and which has been held up by the present judicial review).

Section 142(1) provides as follows:

“(1)

A magistrates’ court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so; and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make”.

We do not accept that section 142(1) can be deployed for this purpose: it has a much more limited corrective function, as its language makes clear. We do not however need to express any concluded view on the scope of this provision because in our judgment the Article 14/Article 6 complaint has no merit.

In answering the ECHR case, Counsel for the Interested Party understandably went in his skeleton argument straight to the question of the justification for different treatment of 17 and 18 year olds. However, that is the end point of any consideration of a violation of Article 14. There are a number of important hurdles which the Claimant must overcome before that stage.

It is well-established that to establish differential treatment amounts to a violation of Article 14, it is necessary to consider four elements: R (Stott) v Secretary of State for Justice [2018] UKSC 59; [2020] AC 51 at [8]. First, the circumstances must fall within the ambit of a Convention right. Secondly, the difference in treatment must have been on the ground of one of the characteristics listed in Article 14 (the issue of status). Thirdly, the claimant must demonstrate a comparator who is in an analogous position. Fourthly, if BH has proven the first three matters, the state must establish an objective justification for the different treatment. We will take each of the four elements in turn and apply them to the final form of Mr Rule’s argument as we understand it.

The ECHR provision relied upon by Mr Rule is Article 6. He argues that the circumstances of differential access to a jury trial fall within the ambit of Article 6. In particular, he submitted that there has been discrimination against BH in denial of access to what he described as the “Rolls Royce” benefits of a jury trial as compared to summary process before the Youth Court.

Although the Article 14 complaint fails for a number of other reasons which we set out below, as a threshold issue we do not consider the ambit requirement is met. It is well-established that Article 6 is concerned with the procedural fairness and integrity of a state’s judicial system, not with the substantive content of its national law. Under domestic law a person in BH’s position as at the 20 January 2022 (the date of the decision under challenge) had no right to a trial by jury. Rather, domestic law created a system where the default of Youth Court trial might not be applied in certain circumstances of grave offences. There is no right to jury trial under substantive domestic law for a 17 year old. The effect of BH’s argument is that such a right must be provided to him (and indeed to anyone retained in the Youth Court for summary trial on indictable/either way matters which have not come on for hearing until after they have reached 18 years).

However, as long as access to an Article 6 compliant process overall is provided to a litigant, no ECHR complaint lies under Article 6 that domestic law provides claimed additional beneficial aspects to a claimed comparator. It is significant in this regard that it was conceded by Mr Rule that trial in the Youth Court for his client would comply with Article 6 in all respects.

We have not overlooked Mr Rule’s reliance upon certain obiter observations of Sedley LJ in R (W) v Thetford Youth Court [2003] 1 Cr. App. R (S) 323 at [43]. That case was the opposite of that before us. There, children made complaints about their cases being sent for trial in the Crown Court (as opposed to being retained in the Youth Court). Sedley LJ said no more than that situation might raise an issue under Article 5 (rights to personal liberty) rather than Article 6 (fair trial rights). Notably, Sedley LJ was clearly not impressed by the Article 6 submission. In short, that case does not assist BH. No other authority was drawn to our attention which even arguably supported the submission that the form of Article 6 complaint made by BH in this case satisfies the ambit requirement of Article 14.

In our judgment, BH fails on the ambit element. We will however consider the remaining three elements if we are wrong on this matter.

We accept that age is a relevant status.

BH must demonstrate that he has been treated less favourably than an appropriate comparator, a person in a relevantly similar position. Mr Rule argues that the person in an analogous position is an 18 year old facing rape charges. We do not accept that is an appropriate comparator because at the time of the only decision challenged in the Claim Form (20 January 2022), BH was not 18 years of age – he was 17. It is only by deeming himself an 18 year old for the purpose of the argument (contrary to the known facts at the time of the decision under challenge), BH creates a situation of comparison where he can then argue there is no difference between his position and that of another 18 year old yet to be tried.

He fails on the comparator issue but he would also have failed on the “less favourable” treatment question, because we do not consider BH has demonstrated a summary trial before the Youth Court is in fact less favourable than a formal jury trial in the Crown Court.

However, as explained by Lady Black in Stott, it is not always easy to keep the third (comparator) and the fourth (justification) elements entirely separate, and it is not uncommon to see judgments concentrate upon the question of justification, rather than upon whether the people in question are in analogous situations. We turn therefore to that fourth element, justification.

A difference of treatment is discriminatory if it has no objective and reasonable justification. In our judgment, BH fails on this element for the following reasons:

First, it is a legitimate aim to try cases involving children and young people in the Youth Court. That court allows trials to be conducted in private, in a manner specifically adapted to the needs of young people. It is also relevant that Youth Court trials allow the proceedings to be expedited and avoid the delays that are frequently encountered in Crown Court listing. This expedition is in itself, a legitimate aim when considering the needs of children and young people. BH, charged with rape, will be properly represented by counsel and will be tried by a specialist and professional judge who will give full reasons for his decision. It is not suggested that a defendant in the Youth Court will not have a fair hearing (it is not sub Rolls Royce) and indeed is in many respects much more beneficial to a defendant.

Second, as the Interested Party rightly submits it is inevitable that there must be a threshold at which to determine mode of trial and Parliament has determined that this is when “a person under the age of 18 appears or is brought before a magistrates’ court” (sections 24 and 24A of the MCA), not the point at which evidence is called. That is a sound and justifiable policy choice based on considerations of certainty and speed.

Third, any threshold must be applied consistently, even for defendants at the margin of the threshold. This consistency would be difficult to achieve if the relevant threshold was the start of the trial. Again, that is a matter of legislative choice.

Fourth, the existence of a cut-off age for Youth Court proceedings, and the need to apply this cut-off consistently, is a proportionate means of achieving the legitimate aim of protecting the interests of children in the criminal justice system. Again, this a legitimate policy choice made by the legislature.

In our judgment, the operation of the domestic law creates no ECHR non-compliance on the facts of the Claimant’s case.

It was for all of these reasons that we dismissed the claim for judicial review. BH has yet to be tried. The complainant is still waiting for her evidence to be heard in court. The case involves events which occurred in the summer of 2020. As a matter of urgency a trial date must be fixed. Fortunately we anticipate that Norwich Youth Court will be able to accommodate the trial within a relatively short time. That certainly would not be the position had the case been sent to the Crown Court.