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C, R (on the application of) v Sussex (Central) Magistrates' Court [2003] EWHC 1157 (Admin) (30 April 2003)
URL: https://www.bailii.org/ew/cases/EWHC/Admin/2003/1157.html
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[2003] EWHC 1157 (Admin)
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Neutral Citation Number: [2003] EWHC 1157 (Admin) |
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CO/4924/2002 |
IN
THE
HIGH
COURT OF
JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL
COURT
|
|
Royal Courts of Justice Strand London WC2
|
|
|
30 April 2003 |
B e f o
r
e :
MR JUSTICE SCOTT BAKER
MR JUSTICE PITCHFORD
____________________
____________________
Computer-Aided Transcript
of the
Stenograph Notes
of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to
the Court
)
____________________
MR A SELBY (instructed by Tremletts Solicitors, 69 Grand Parade,
Brighton
BN2 9TS) appeared
on
behalf
of the
CLAIMANT
THE
DEFENDANT DID NOT APPEAR AND WAS NOT REPRESENTED
____________________
HTML VERSION
OF
JUDGMENT
____________________
Crown Copyright ©
- MR JUSTICE PITCHFORD: This is an
application
to quash a decision
of Brighton Youth Court
made
on
16th August 2002 declining jurisdiction to try this applicant upon charges
of
burglary and criminal damage and committing him instead to Lewes Crown
Court
for trial.
- I shall call
the
applicant
C
,
the
single judge having made an order under section 39
of the
Children and Young Persons Act 1933.
C
was born
on
9th July 1987.
The
prosecution case against him is that
on
2nd June 2002 (when he was still aged 14) he and three others, aged between 11 and 15, entered as trespassers a dwelling house in
Brighton
and stole property to a value
of
£125. While inside
the
house, for upwards
of
an hour, they caused substantial damage by a variety
of
means; most distressing to
the
occupiers was
the
destruction
of
goldfish and defecation upon
the
living room carpet. In short,
the
culprits engaged in
the
despoilation
of
a family home,
the
occupants
of
which were known to them and known by them to be away
on
holiday.
On
16th August 2002
C
, together with two co-accused, appeared before
Brighton Youth Court
.
The
prosecution represented that these were grave crimes,
the
damage serving to aggravate
the
burglary
of
a dwelling house at night. Drawn to
the
justices' attention were
the
authorities
of
Winn [1995] 16 Cr App
R
(S) 53 and Brewster and Others [1998] 1 Cr App
R
(S) 181. In Winn
the Court of
Appeal (Criminal Division) upheld
the
sentence
of
five years' imprisonment upon a 26-year-old man for burglary and theft
of
property worth £2,500 at a dwelling. Damage
of the
kind which accompanied this burglary was also committed.
The
appellant had seven previous
court
appearances, none for burglary, and had served a previous custodial sentence.
- Brewster was
the
guideline case in which Lord Bingham, CJ, gave guidelines in sentencing burglary cases. After a trial an adult defendant could expect a sentence
of
three years' imprisonment for burglary
of
an unoccupied dwelling.
- Notwithstanding objections from advocates for
the
defendants,
the
justices were persuaded to decline jurisdiction under section 24(1)(a) Magistrates'
Court
1980. When
C
and others appeared in
the
Crown
Court on
27th September 2002 for a plea and directions hearing, HHJ Brown granted an adjournment for consideration
of
this
application
. Permission to proceed was granted by Lightman J
on
5th December 2002.
The
Crown Prosecution Service, having been served with
the
papers, indicated that it did not wish to contest
the application
. Section 24(1)(a)
of the
Act
of
1980 reads as follows:
"Where a person under
the
age
of
18 appears or is brought before a magistrates'
court on
an information charging him with an indictable offence other than homicide, he shall be tried summarily unless-
(a)
the
offence is such as is mentioned in subsection (1) or (2)
of
section 91
of the
Powers
of
Criminal
Court
(Sentencing) Act 2000 (under which young persons convicted
on
indictment
of
certain grave crimes may be sentenced to be detained for long periods) and
the court
considers that if he is found guilty
of the
offence it ought to be possible to sentence him in pursuance
of
subsection (3)
of
that section."
"Grave offences" for this purpose are defined by section 91(1)
of the
Powers
of
Criminal
Courts
(Sentencing) Act 2000, they include:
"... (a) an offence punishable in
the
case
of
a person aged 18 or over with imprisonment for 14 years or more, not being an offence
the
sentence for which is fixed by law ...."
Burglary is such an offence. That being
the
case,
the
justices were empowered by section 1A Magistrates'
Court
Act 1980 to commit both
the
charge
of
burglary and
the
charge
of
criminal damage for trial at
the
Crown
Court
, provided
the
justices were satisfied it ought to be possible to sentence under section 91
of the
Act
of
2000.
- Section 91(3) provides:
"If
the court
is
of the
opinion that none
of the
other methods in which
the
case may legally be dealt with is suitable,
the court
may sentence
the
offender to be detained for such period, not exceeding
the
maximum term
of
imprisonment with which
the
offence is punishable in
the
case
of
a person aged 18 or over, as may be specified in
the
sentence."

The
correct approach to
the
exercise
of the
power under section 24(1) Magistrates'
Court
Act 1980 has been considered by this
court
in several previous cases, recently and notably
R
(
On the Application of
D)
v
Manchester City
Youth Court
[2002] 1 Cr App
R
(S) 573;
R
(
On the Application of
W) and Thetford
Youth
Justices
v
Director
of
Public Prosecutions, together with
R
(
On the Application of
M)
v
Waltham Forest
Youth Court
Justices and
the
Director
of
Public Prosecutions [2002] EWHC 152 Admin, and
R
(
On the Application of
W)
v
Southampton
Youth Court
, together with
R
(
On the Application of
K)
v
Wirral Borough Magistrates'
Court
[2002] EWHC 1640 Admin
The
latter was a decision
of the
Lord Chief Justice, Lord Woolf, and Kay LJ
of
23rd July 2002.
The court
agreed with
the
reasoning
of
Gage J in both
the
Manchester and Thetford cases; justices should not decline jurisdiction unless
the
offence and
the
circumstances surrounding it and
the
offender are such as to make it more than a vague or theoretical possibility that a sentence
of
detention for a long period may be passed. It would be in very exceptional and restricted circumstances that it would be appropriate to pass a sentence
of
less than two years under section 91 rather than a detention and training order under section 100
of the
Powers
of
Criminal
Courts
(Sentencing) Act 2000.
- At paragraph 16
of
his judgment in
the
Southampton case,
the
Lord Chief Justice drew attention to
the
effect
of the
legislation in
the
light
of
T and
V v
United Kingdom [2003] EHRR 121 in
the
European
Court of
Human Rights. He said:
"While
the
need to impose
the
appropriate sentence is important, so is
the
need to ensure that wherever possible
the
trial should take place in
the
appropriate setting. That is more satisfactorily achieved in a
Youth Court
than in a Crown
Court
."
He continued:
"18.... In an attempt to underline what was said by Gage J in that case [
the
Lord Chief Justice was referring to Thetford
Youth
Justices], I would indicate that justices should start off with a strong presumption against sending young offenders to
the
Crown
Court
unless they are satisfied that that is clearly required, notwithstanding
the
fact that
the
forum for trial will not be so appropriate as
the Youth Court
.
19.
The
other guidance which justices should have in mind is that they must be
of the
view that, if they are going to send a case to
the
Crown
Court
, it is such a serious case that detention above two years is required, or it is one
of
those cases where they consider that
the
appropriate sentence is not only a custodial sentence, but a custodial sentence which is approaching
the
two-year limit which is normally applicable to older offenders with whom they have to deal. To do otherwise would not comply with
the
intention
of the
legislation to which I have referred."
It seems to me that
the Youth Court
should have been assisted further by reference at least to
the
Manchester and Thetford cases, certainly if
the
justices were to be faced with a submission, as they were by
the
Crown, that committal was appropriate.
The
test is whether there is more than a theoretical or vague possibility that
the
Crown
Court
would impose a sentence approaching two years' detention or more. If
the
defendant's guilt is established, he committed a serious and deeply unpleasant offence. Were he an adult with a criminal record, it is almost certain he would face a significant period
of
imprisonment. He is, however, aged 15 years and
of
good character. Notwithstanding
the
decision in Winn and
the
guidance in Brewster, it was in my view highly improbable that
the
Crown
Court
would have sentenced this
youth
to a period
of
detention under section 91.
- Furthermore,
on
18th December 2002 Lord Woolf, CJ, sitting with Silber J and Grigson J handed down judgment in
the
appeals
of
McInerney and Keating [2002] EWCA Crim 2003.
The court
issued fresh guidelines upon sentencing in cases
of
burglary in consequence
of
advice from
the
Sentencing Advisory Panel
of
9th April 2002. It is unnecessary to consider
the
guidelines in detail, but sufficient to identify
the
offence alleged in this case as "a standard, first time domestic burglary with
the
high level aggravating feature
of
vandalism
of the
premises and
the
mitigating feature that, if proved, this is a first offence." Paragraphs 32 and 34
of the
judgment indicate that
the
starting point for an adult committing such an offence would be 18 months' imprisonment, subject to discount for a plea
of
guilty;
the
principle
of
discount for
youth
in such circumstances is well known. At paragraph 50
of
his judgment Lord Woolf issued a reminder that
the Youth
Justice Board is spearheading effective punishment in
the
community and
the
importance
of
juvenile offenders being dealt with in
the Youth Court
where appropriate.
- Mr Selby's submissions, which lost nothing in their brevity, correctly drew our attention to two further decisions in
the Court of
Appeal (Criminal Division) upon
the
correct approach to sentencing young offenders who pass a relevant age threshold between
the
date
of
commission
of the
offence and
the
conviction. In Ghafoor [2002] CLR 739, [2002] EWCA Crim 1857, decided
on
19th July 2002,
the court
identified and explained
the
principle as it applied to defendants who passed
the
age threshold
of
18 between commission
of the
offence and conviction.
The court
recognised
the
fact that, as a matter
of
law,
the
sentencing regime which applied to a defendant was that which applied to his age as at
the
date
of
conviction. However, in delivering
the
judgment
of the court
, Dyson J said:
"31.
The
approach to be adopted where a defendant crosses a relevant age threshold between
the
date
of the
commission
of the
offence and
the
date
of
conviction should now be clear.
The
starting point is
the
sentence that
the
defendant would have been likely to receive if he had been sentenced at
the
date
of the
commission
of the
offence. It has been described as 'a powerful factor'. That is for
the
obvious reason that, as Mr Emmerson points out,
the
philosophy
of
restricting sentencing powers in relation to young persons reflects both (a) society's acceptance that young offenders are less responsible for their actions and therefore less culpable than adults, and (b)
the
recognition that, in consequence, sentencing them should place greater emphasis
on
rehabilitation, and less
on
retribution and deterrence than in
the
case
of
adults. It should be noted that
the
'starting point' is not
the
maximum sentence that could lawfully have been imposed, but
the
sentence that
the
offender would have been likely to receive.
32. So
the
sentence that would have been passed at
the
date
of the
commission
of the
offence is a 'powerful factor'...
33. That is not to say that
the
starting point may not be tempered somewhat in certain cases. We have in mind in particular cases where there is a long interval between
the
date
of
commission
of the
offence and
the
date
of
conviction. By
the
date
of
conviction, circumstances may have changed significantly."
- This reasoning was applied by
the court
, differently constituted, in
R v
LM [2003] Crim LR 204, [2002] EWCA Crim 3047. A boy aged 14 at
the
time
of the
offence was convicted
on
indictment
of
wounding contrary to section 20
of the
Offences Against
the
Person Act 1861 as an alternative to section 18, causing grievous bodily harm with intent. He was sentenced by
the
trial judge to a detention and training order for 18 months.
The Court of
Appeal (Criminal Division), applying Ghafoor, took note
of the
fact that had
the
appellant been convicted at
the
age
of
14, he could not have received a custodial sentence. Adopting that starting point
the
appeal was allowed and a supervision order imposed in substitution.
- Mr Selby submits, correctly in my view, that similar considerations faced
the Youth Court
in this case, but they were missed.
- It seems to me that there was no prospect that
the
Crown
Court
would have exercised its power to sentence this applicant under section 91
of the
Act
of
2000. Accordingly,
the
committal should not have occurred. I would allow this
application
.
- LORD JUSTICE SCOTT BAKER: I agree.
The
order is that
the
case should be remitted to
the Youth Court
and dealt with as expeditiously as possible.
The
section 39 order maintains in
the meantime.
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URL: https://www.bailii.org/ew/cases/EWHC/Admin/2003/1157.html