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Cite as: [2014] EWCh 2300 (Admin)

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Neutral Citation Number: [2014] EWCh 2300 (Admin)
Case No: CO/2751/2014:CO/2846/2014


Royal Courts of Justice
Strand, London, WC2A 2LL

B e f o r e :


REGINA (On the Application of ZN & AM)
- and -



Interested Party


John Blandford (instructed by Dobsons Solicitors) for the 1st Claimant
Mr Daniel Bunting (instructed by Ewings & Co Solicitors) for the 2nd Claimant
Mr Simon Heptonstall (instructed by CPS Appeals Unit) for the Interested Party
Hearing dates: 24th June 2014



Crown Copyright ©

    Mr Justice Hayden :

  1. These two Claimants seek permission to apply to Judicially Review the decision of District Judge Hunter, sitting at the Bromley Youth Court on the 25th March 2014. On that date the District Judge determined that both claimants, AM (aged 16 years) and ZN (aged 16 years), should be sent for trial at the Croydon Crown Court in order that they might be tried together with an adult co-defendant concerning an allegation of robbery, contrary to Section 8 Theft Act 1968.
  2. The Claimants had already appeared before the Youth Court on a number of occasions prior to the 25th of March 2014. On the 11th Febraury the Lay Justices accepted jurisdiction, pleas were entered and the case was adjourned for trial in the Youth Court. It seems likely that the Prosecution would at that stage have outlined the case to the court from a standard case summary document, in order for the Justices to determine venue for trial. Whether the court was told of the existence of a potential further defendant is uncertain.
  3. The Prosecution puts its case on the basis that this offence was a 'Joint Enterprise' perpetrated by three defendants acting together each having anticipated or foreseen that force would be used against the complainant, force or the threat of it being an essential constituent of the offence of robbery. With commendable efficiency the case was listed for trial in the Youth Court on the 4th April 2014.
  4. The third Defendant, an 18 year old man, had in fact appeared in the Bromley Magistrates Court on 3rd March on which occasion his case was sent to the Crown Court at Croydon, robbery being an indictable only offence. On the 17th March 2014, the adult Defendant made his first appearance in the Crown Court before His Honour Judge Gower QC. There is an ex-post facto note made of the Judge's observations on this date prepared by counsel following a subsequent hearing on the 1st May to which I will refer in due course. The Judge has not been asked to approve this note but is has been compiled by experienced counsel, Mr Bunting who appears on behalf of AM and I am confident in its accuracy. (It would be helpful to invite the Judge to approve this document). It is plain that the Judge was troubled by the consequence of splitting the trials. His concern, which I share, can be distilled thus:
  5. i) The Complainants are young people and one, I am told, is an additionally vulnerable witness. Splitting the trial requires them to give evidence twice which is both profoundly undesirable and manifestly unfair to the Complainants;
    ii) It must surely be an obstacle to the Crown's case of 'Joint Enterprise' that one Defendant should be tried separately. The integrity of the trial is, at least potentially, compromised and the public interest in the effective administration of the Criminal Justice System is not served.
  6. A letter reflecting the Judge's concerns was sent to the Court Manager at the Bromley Magistrates' Court by the Crown Prosecution Service on the 17th March 2014. The salient paragraphs of the letter are these:
  7. i) "I am told the allegations against [ZN] and [AM] have been listed for trial at Bromley Youth Court on the 4th April 2014. The case against, Dangerfield was hearing before Judge Gower QC today and the Judge ordered the Prosecution to write to the court asking the court to consider its powers under Section 46 subsection 1 of The Children and Young Persons Act 1933 in order to send this case forthwith to the Crown Court where the court finds that it is necessary in the interests of justice to do so" [it is agreed that the relevant section is in fact Section 51(7) of The Crime and Disorder Act 1998].

    ii) "The case against Connor Dangerfield has been adjourned for trial in week commencing 7th July 2014. The Complainants currently would be required to attend and give evidence twice, first in the trial against the youths on the 4th April and then again against the adult defendant... on the 7th July".

    iii) "I therefore write to the Court in order that this matter maybe listed for mention for consideration to be given to the issue of having a single trial in the Crown Court where the young vulnerable witness's may give their evidence once, before the same trial tribunal that hears the evidence against the adult and youth defendant to allow consistency of decision making and in the interests of justice".

  8. On the 25th March the Claimants' case was listed before the Bromley Youth Court. The eminent good sense of the CPS approach plainly commended itself to District Judge Hunter who heard the application and the case was sent to the Croydon Crown Court. The trial date of the 4th April in the Youth Court was vacated.
  9. On the 8th April the case was listed for a plea and case management hearing before His Honour Judge Flahive. It was here that concerns were first raised in respect of the potential illegality of the revised decision in the Youth Court. The case was listed for legal argument on the point on the 1st May 2014 before His Honour Judge Gower QC. At that hearing the Judge, rightly to my mind, concluded that he did not have jurisdiction to review the decision of the Magistrates' Court and the proper course lay in Judicial Review proceedings before this court. I should add, by way of completeness, that the Judge offered to recuse himself from that hearing if any party wished him to do so, given that he had initiated and encouraged the process of transfer himself. There were no objections.
  10. On the 23rd June I indicated that both claims should be heard together the following day. On the 24th I heard submissions. Counsel on behalf of the DPP had very recently been instructed and had not had the opportunity to prepare a skeleton argument; prior to his instruction the Interested Party had served an Acknowledgement of Service agreeing with the claimants' grounds. There are skeleton arguments on behalf of both Claimants. The Claimants in essence contend:
  11. i) When a Magistrates or Youth Court determines mode of trial, it is irrevocable however undesirable the consequences of that decision maybe;

    ii) The Magistrates' Court has no inherent jurisdiction enabling it to review earlier decisions it being, essentially, a creature of statute;

    iii) There is therefore no jurisdictional basis for the Claimants being sent to the Crown Court;

    iv) The grounds for Judicial Review are plainly arguable;

    v) The applications should be 'rolled up' and the relevant orders quashed.

  12. In the concluding paragraph to his skeleton Mr Bunting observes:
  13. "Whilst it is accepted that it is desirable that there is such a power in cases such as this, it is submitted that without an expressed power there is nothing a court can do".

  14. On the morning of the 24th June counsel on behalf of the DPP indicated, in accordance with the pleadings, they were not minded to resist the claim. I was troubled by that because of the plainly unpalatable consequences that follow. Of course the fact, that an outcome may be irrational does not mean that the process leading to it is necessarily so. The starting point for analysis is the statutory frame work. Section 51 (7) of the The Crime and Disorder Act 1998 provides as follows;
  15. (7) Where –
    (a) the court sends an adult("A") for trial under subsection (1), (3) or (5) above; and
    (b) a child or young person appears or is brought before the court on the same or a subsequent occasion charged jointly with A with an indictable offence for which A is sent for trial under subsection (1), (3) or (5) above, or an indictable offence which appears to the court to be related to that offence,
    the court shall, if it considers it necessary in the interests of justice to do so, send the child or young person forthwith to the Crown Court for trial for the indictable offence.

  16. These provisions also have to be read in conjunction with section 24 A of The Magistrates' Court Act 1980
  17. 24A Child or young person to indicate intention as to plea in certain cases
    (1) This section applies where—
    (a) a person under the age of 18 years appears or is brought before a magistrates' court on an information charging him with an offence other than one falling within section 51A(12) of the Crime and Disorder Act 1998 ("the 1998 Act"); and
    (b) but for the application of the following provisions of this section, the court would be required at that stage, by virtue of section 51(7) or (8) or 51A(3)(b), (4) or (5) of the 1998 Act to determine, in relation to the offence, whether to send the person to the Crown Court for trial (or to determine any matter, the effect of which would be to determine whether he is sent to the Crown Court for trial).
    (2) Where this section applies, the court shall, before proceeding to make any such determination as is referred to in subsection (1)(b) above (the "relevant determination"), follow the procedure set out in this section.
    (3) Everything that the court is required to do under the following provisions of this section must be done with the accused person in court.
    (4) The court shall cause the charge to be written down, if this has not already been done, and to be read to the accused.
    (5) The court shall then explain to the accused in ordinary language that he may indicate whether (if the offence were to proceed to trial) he would plead guilty or not guilty, and that if he indicates that he would plead guilty—
    (a) the court must proceed as mentioned in subsection (7) below; and
    (b) (in cases where the offence is one mentioned in section 91(1) of the Powers of Criminal Courts (Sentencing) Act 2000) he may be sent to the Crown Court for sentencing under section 3B or (if applicable) 3C of that Act if the court is of such opinion as is mentioned in subsection (2) of the applicable section.
    (6) The court shall then ask the accused whether (if the offence were to proceed to trial) he would plead guilty or not guilty.
    (7) If the accused indicates that he would plead guilty, the court shall proceed as if—
    (a) the proceedings constituted from the beginning the summary trial of the information; and
    (b) section 9(1) above was complied with and he pleaded guilty under it,
    and, accordingly, the court shall not (and shall not be required to) proceed to make the relevant determination or to proceed further under section 51 or (as the case may be) section 51A of the 1998 Act in relation to the offence.
    (8) If the accused indicates that he would plead not guilty, the court shall proceed to make the relevant determination and this section shall cease to apply.
    (9) If the accused in fact fails to indicate how he would plead, for the purposes of this section he shall be taken to indicate that he would plead not guilty.
    (10) Subject to subsection (7) above, the following shall not for any purpose be taken to constitute the taking of a plea—
    (a)asking the accused under this section whether (if the offence were to proceed to trial) he would plead guilty or not guilty;
    (b)an indication by the accused under this section of how he would plead.

  18. The difficulty identified here is that neither of these young people appeared with the adult defendant at 'the same time'. They did however appear in the Youth Court 'subsequent to' (see section 7 (b)) the adult defendant's appearance in the Magistrates' Court. Unfortunately it appears the administration did not make any link between the two cases. Certainly it seems unlikely that any lawyer drew the Justices' attention to the existence of an adult involved in the same charge as having appeared earlier in the Magistrates' Court and having been committed to the Crown Court.
  19. When referring to the adult Defendant here it is important to emphasise that he is 18 years of age. His Co-Defendants are 16years. They are all therefore broadly of the same cohort. This must be a common situation to encounter in the Youth Courts and the facts of this case, it seems to me, are unlikely to be either exceptional or rare. The problem identified and its potential impact upon Complainants needs to be considered very carefully. The consequence of a restricted interpretation of Section 7 (b) is illustrated most graphically by positing the example of a sexual offence where the same problem arises i.e. subjecting 'victims' to the ordeal of giving evidence twice.
  20. Mr Simon Heptonstall for the Director of Public Prosecutions drew my attention to the case of R (on the application of the DPP) v Camberwell Green Youth Court Defendant CWK and A interested parties 2003 EWHC 3217 (Admin). In that case at part 4 of his judgment Jackson J (as he then was) reviewed all the previous relevant decisions concerning Sections 18 to 25 of the 1980. The Judgment itself of course is now some 11years old. None of the decisions referred to in that judgment nor the judgment itself presents the same factual matrix as that arising here. Nonetheless it is said that R (on the application of the DPP) v Camberwell Green Youth Court Defendant CWK and A interested parties 2003 EWHC 3217 (Admin) and its powerful exegesis of the relevant statutory framework supports the core proposition that where (as here) a bench of Justices had considered all the factors placed before it relevant to the exercise of their discretion under Section 24 of the Magistrates Court Act and ordered a summary trial, a differently constituted bench of Justices had no power to re-examine that decision on the same facts.
  21. In the more recent case of W (a minor, on the application of ) v Leeds Crown Court [2011] EWHC 2326, 2012 [1WLR 2786] Sir Anthony May (P) reminded us that Youth Courts are a specialist subset of the Magistrates Court and a Court of Summary Jurisdiction constituted in accordance with section 4 of The Children and Young Persons Act 1933, as subsequently amended. They sit for the purpose of hearing any charge against a child or a young person or for the purpose of exercising any other jurisdiction conferred on the Youth Courts by or under any Act. In that case the Claimant who was a 14 year old youth appeared before the Magistrates' Court with a 20 year old Co-Defendant. The Magistrates declined jurisdiction in his case and the Claimant indicated Not Guilty pleas. The Magistrates concluded that it was in the interest of justice for the Claimant to be committed alongside the adult under Section 24 (1) (b) of the Magistrates Courts Act 1990 and both Defendants were therefore committed under Section 6 (2) of the 1980 Act to the Crown Court. In the Crown Court the adult Defendant pleaded guilty and his case was accordingly adjourned for sentence. The Claimant pleaded not guilty and it was submitted on his behalf that as the effective link with the adult had been broken, his case should be remitted to the Youth Court for trial. The Crown Court Judge concluded he had no power to do so and it was those facts that gave rise along with a separate but similar case, to a Judicial Review claim. There are plainly similar, though not identical issues to those raised by this case.
  22. At paragraph 32 Sir Anthony May observed
  23. "There are, I think in theory at least, two possible approaches. The first would be to identify a plain legislative oversight and read the legislation so as to supply an omitted provision which Parliament must have intended but failed by mistake to provide. The second possibility might be to resort to Section 3 of the The Human Rights Act 1998 so as to read the legislation in a way that is compatible with the convention. There is no suggestion in the present case that there might be a declaration of incompatibility, but for my part I think the Claimant's advisors were right not to press the Human Rights Act route. An over ingenious human rights lawyer might make something of a case for an infringement here of Article 6, or conceivably Article 8, of the European Convention on Human Rights, but the reality is the Claimant would get a fair trial in the Crown Court, and that is accepted. It is only that it would be strongly preferable for policy reasons if he were in the Youth Court".
  24. Here, of course, we are not considering fairness to the Defendants. It is not suggested that the fairness of their trial in the Youth Court will be in any way compromised by separation from the adult co-defendant, indeed one might easily contemplate forensic advantage. The concern is with fairness to the Complainants and to the Prosecution. It is not necessary to consider the Article 6 rights of the individual Complainants to a fair trial, those rights it seems to me are subsumed by the clear rights of the Prosecution to a fair hearing. The Prosecution's prospects of achieving a conviction in respect of all these Defendants are weakened by the need to put its vulnerable witness through the ordeal of cross examination on two occasions and in two separate Court arenas. Not only does that risk disengagement of the Complainants from the process but it is manifestly at variance with the evolving framework of the criminal law which has, particularly during the course of the last decade, come to appreciate the importance of minimising distress to alleged victims wherever possible.
  25. Mr Heptonstall though, as I have said, initially inclined to concede the Judicial Review, plainly considered the DPP to be in an invidious position. As the submissions evolved it is fair to say that he began to revise his position acting more by way of amicus to the Court. If I may say so that struck me as entirely the correct approach to take. During the course of exchanges scrutinising the issues Mr Heptonstall volunteered that on reflection, whilst the Claim was plainly 'arguable', this, of course, being the test at the permission stage, he also considered that there may well be an equally arguable defence. He concluded the DPP should not therefore concede the claim and the case should proceed expeditiously to hearing in the Divisional Court, this Court making the necessary case management directions. Ultimately all the advocates accepted that was the right course.
  26. It does seem to me that it is very least arguable that Section 51(7)(b) of the The Crime and Disorder Act 1998 in conjunction with Section 24 of The Magistrates' Court Act 1980 does not require an 'over ingenious' Human Rights Lawyer to give it purposive effect by looking at it through the lens of Section 3 of The Human Rights Act 1998. Section 3 of the HRA is of course the interpretative provision that requires all domestic legislation to be read compatibly with convention rights. It is a strong adjuration which can permit reading in of words and reading down of the meaning of words in legislation. In Ghaidan v Godin Mendoza [2004] 2 AC 557 the House of Lords considered the obligations in Section 3 to read legislation compatibly with the ECHR. Lord Roger explained that reading words into a statute would only be permissible if they were 'consistent with the scheme of the legislation or with its essential principles as disclosed by its provisions' see para 121 &122.
  27. 121. For present purposes, it is sufficient to notice that cases such as Pickstone v Freemans plc and Litster v Forth Dry Dock & Engineering Co Ltd suggest that, in terms of section 3(1) of the 1998 Act, it is possible for the courts to supply by implication words that are appropriate to ensure that legislation is read in a way which is compatible with Convention rights. When the court spells out the words that are to be implied, it may look as if it is "amending" the legislation, but that is not the case. If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the Convention rights. And, by its very nature, an implication will go with the grain of the legislation. By contrast, using a Convention right to read in words that are inconsistent with the scheme of the legislation or with its essential principles as disclosed by its provisions does not involve any form of interpretation, by implication or otherwise. It falls on the wrong side of the boundary between interpretation and amendment of the statute.
    122. When Housman addressed the meeting of the Classical Association in Cambridge in 1921, he reminded them that the key to the sound emendation of a corrupt text does not lie in altering the text by changing one letter rather than by supplying half a dozen words. The key is that the emendation must start from a careful consideration of the writer's thought. Similarly, the key to what it is possible for the courts to imply into legislation without crossing the border from interpretation to amendment does not lie in the number of words that have to be read in. The key lies in a careful consideration of the essential principles and scope of the legislation being interpreted. If the insertion of one word contradicts those principles or goes beyond the scope of the legislation, it amounts to impermissible amendment. On the other hand, if the implication of a dozen words leaves the essential principles and scope of the legislation intact but allows it to be read in a way which is compatible with Convention rights, the implication is a legitimate exercise of the powers conferred by section 3(1). Of course, the greater the extent of the proposed implication, the greater the need to make sure that the court is not going beyond the scheme of the legislation and embarking upon amendment. Nevertheless, what matters is not the number of words but their effect. For this reason, in the Community law context, judges have rightly been concerned with the effect of any proposed implication, but have been relaxed about its exact form. See, for example, Lord Keith of Kinkel and Lord Oliver in Pickstone v Freemans plc [1989] AC 66, 112D and 126A - B.

  28. Lord Roger also observed that the limit on permissible interpretation had been expressed in terms of an interpretation that would remove the "very core and essence", the "pith and substance" of the measure that Parliament had enacted "a meaning that departs substantially from a fundamental feature of an Act" (at 111- 113).
  29. Here it is arguable that a purposive interpretation which permits the Youth Court to reconsider its decision on jurisdiction when apprised of the full factual matrix could not be said to be 'inconsistent with the scheme of the legislation'. Significantly subsection 7 (b) itself indicates that its objective is to facilitate that which is 'necessary' and "in the interests of justice". Moreover it is potentially significant that these concepts are not mirrored in those sections of the Act which relate to determining jurisdiction in respect of an adult Defendant.
  30. Of course Judicial Review is overwhelmingly concerned with the law and not the merits of a case, the Administrative Court will normally not interfere with a public authority's assessment of evidence or facts but it is generally recognised that review of fact had been permitted in circumstances; a) where the existence of a set of facts is a condition precedent to the exercise of a power (See eg. R v Secretary State of the Home Department ex parte Khawaja [1984]1 AC 74); b) where there has been a misdirection, disregard or mistaken material fact; c) where the decision is unsupported by substantial evidence.
  31. It does seem to me to be additionally at least arguable that in the initial decision the Justices either disregarded or mistook a material fact, namely the existence of an adult Co- Defendant which had the effect of vitiating the rationality of their decision on jurisdiction rendering it reviewable. Of course it is not that decision that is being reviewed, it is the District Judge's decision to rectify it that is in focus here. These are merely two potentially arguable lines of defence, the DPP has not yet had the opportunity to formulate her arguments properly. On the exchanges in submissions, which I have sought to summarise, I am satisfied that there is an arguable case for a claim for Judicial Review.

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