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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> W (A Minor), R (on the application of) v Leeds Crown Court  EWHC 2326 (Admin) (28 July 2011)
Cite as:  1 WLR 2786,  1 Cr App R 13, (2011) 175 JP 467,  ACD 8,  Crim LR 160,  EWHC 2326 (Admin)
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QUEEN'S BENCH DIVISION
THE DIVISIONAL COURT
1 Oxford Row
B e f o r e :
(PRESIDENT OF THE QUEEN'S BENCH DIVISION)
MR JUSTICE LANGSTAFF
|THE QUEEN ON THE APPLICATION OF "W" (a minor)||Claimant|
|LEEDS CROWN COURT||Defendant|
|(1) CROWN PROSECUTION SERVICE|
|(2) "G" (a minor)||Interested Parties|
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr S Kovats QC(instructed by The Crown Prosecution Service) appeared on behalf of the Defendant
Crown Copyright ©
"(1) Where -
(a) a person under the age of 18 years ('the juvenile') appears or is brought before a magistrates' court other than a youth court on an information jointly charging him and one or more other persons with an offence; and(b) that other person, or any of those other persons has attained that age,
subsection (2) below shall have effect notwithstanding proviso (a) in section 46(1) of the Children and Young Persons Act 1933...
(2) If -
(a) the court proceeds to the summary trial of the information in the case of both or all of the accused, and the older accused or each of the elder accused pleads guilty; or ...
then, if in either situation the juvenile pleads not guilty, the court may before any evidence is called in his case remit him for trial to a youth court acting for the same place as the remitting court or for the place where he habitually resides.
(3) A person remitted to a youth court under subsection (2) above shall be brought before and tried by a youth court accordingly.
(4) Where a person is so remitted to a youth court -
(a) he shall have no right of appeal against the order of remission."
It is not necessary to read any more of that section.
"Where a person under 18 appears or is brought before a magistrates' court on an information charging him with an indictable offence [except where it is an offence of homicide or certain other offences], he shall be tried summarily unless ...
(b) he is charged jointly with a person who has attained the age of 18 and the court considers it necessary in the interests of justice to commit them both for trial."
"38. We add a postscript. Having spent quite a long time reading the transcripts in this case, we want to express our admiration for the manner in which the judge, counsel and solicitors all did their level best to adapt the machinery of an adult trial in a formal courtroom at the Crown Court to the needs of the three principal parties in this case, none of whom was more than 11. We are unable, however, to leave the case without recording our dismay that it became necessary for two 10 year olds and an eight year old, all of impeccable upbringing, to be the key participants in a trial before the Crown Court. We are particularly concerned about the effect of a publicly staged trial in this arena was likely to have on the ability of the little girl, whatever had happened, to move on with her life with the minimum adverse impact.
39. We pass no comment on the decision that this particular charge needed to be brought in a case of this kind, rather than some lesser offence which if proved would more than adequately equip the court with powers to deal with the children accused. We are not privy to that decision and it is not for us. But even if this charge had to be brought, we are unable at present to see why it could not be tried in the Youth Court. We are told that the view was taken by the Crown Prosecution Service that because rape was a 'grave crime', that is to say one within section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, the necessity for committal followed. That proposition having been put to the Justices, as we understand it, they agreed. That however is not the test. All those who are concerned with cases involving children as young as this, if they ever arise, need to have in their briefcases the report of R (on the application of) H, A and O v Southampton Youth Court  EWHC 2912 (Admin). The judgment of the court delivered by Leveson J (as he then was) makes clear at paragraph 33 the following three cardinal principles:
1. The general policy of the legislature is that those who are under 18 years of age and particularly children of under 15 should, wherever possible, be tried in the Youth Court. It is that court which is best designed to meet their specific needs. A trial in the Crown Court with the inevitably greater formality and greatly increased number of people involved, including a jury and the public, should be reserved for the most serious cases.
2. It is a further policy of the legislature that, generally speaking, first time offenders aged 12 to 14, and all offenders under 12, should not be detained in custody and decisions as to jurisdiction should have regard to the fact that the exceptional power to detain for grave offences should not be used to water down that general principle.
3. Those under 15 will rarely attract a period of detention and even more rarely those who are under 12.
40. The test, in other words, is the real likelihood of a sentence which would be beyond the powers of the Youth Court. If the Justices' minds were not in this case directed to that test, then they should have been. The Youth Court is particularly attuned to enquiries into the alleged activities of children, whether as witnesses, or as defendants, or both. It is staffed by judges who are used to dealing with them. It does not have to sit in a formal courtroom. It can adapt the court premises so as to make the necessary exercise of the trial one more suited to the very young. It has judges who may well have encountered very similar factual disputes also in the family jurisdiction where this kind of thing is not in the least uncommon. We do express the hope that if similar facts should recur again those principles will be kept in mind and every effort be made to keep the proceedings as low key as possibly can be done."
The two boys in question were convicted of attempted rape and Saunders J stated from the bench, in comments that were reported as follows by the press association:
"I will at some stage be sending my views about the procedure to those who are most concerned with it. That is not to indicate that there is anything wrong, but we should do everything we can to improve how we deal with these things by looking at the lessons that we can learn."
"12.1. There is a clear principle (established both in statute and in domestic and European case law) that cases involving young offenders should be tried and sentenced in the youth court wherever possible. This section summarises the relevant statutory provisions and case law.
12.2. It has long been recognised that the Crown Court should be reserved for the most serious cases, noting the greater formality of the proceedings and the increased number of people likely to be present. These factors present additional obstacles in ensuring that proceedings in the Crown Court involving young offenders are conducted in accordance with international obligations.
12.3. Accordingly, it is rare for a young offender to be tried or sentenced in the Crown Court and for a sentence beyond the powers of the youth court to be imposed except where that sentence is substantially beyond those powers."
"I freely acknowledge that this interpretation of section 18(1)(g) involves reading words into the paragraph. It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross' admirable opuscule, Statutory Interpretation, 3rd ed., pp. 93-105. He comments, at page 103:
'In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.'
This power is confined to plain cases of drafting mistakes the courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation: see Lord Diplock in Jones v Wrotham Park Settled Estates  A.C. 74, 105."