Neutral Citation Number: [2011] EWHC 1193 (Admin)
Case No: CO/8207/2010
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12/05/2011

Before:

LORD JUSTICE TOULSON
and
MR JUSTICE LLOYD JONES
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Between:

	THE QUEEN ON THE APPLICATION OF A (BY VA LITIGATION FRIEND)	Claimant	
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	LEWISHAM YOUTH COURT
-and-
THE DIRECTOR OF PUBLIC PROSECUTIONS	Defendant

Interested Party	

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Ms Maya Sikand (instructed by GT Stewart) for the Claimant
Ms Esther Schutzer-Weissmann (instructed by CPS) for the Interested Party
The Defendant being neither present nor represented

Hearing dates: 31 January 2011
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Judgment

Lord Justice Toulson: 

1.	This claim concerns the remand in custody of a 15 year old boy by order of a Youth Court on his appearance following arrest and charge for an offence of murder.  The question is whether the court had any responsibility for deciding the type of accommodation to which he was to be remanded.  If he had been charged with an offence other than murder, the court’s power to remand him in detention would have been governed by section 23 of the Children and Young Persons Act 1969, as amended (“CYPA 1969”), which allows for different forms of detention and regulates the way in which the court’s power is to be exercised.  The question is to what extent, if any, those provisions have been displaced in the case of a 15 year old charged with murder as a result of section 115 of the Coroner’s and Justice Act 2009 (“CAJA 2009”).  The question has caused uncertainty, and has led to different opinions.  In granting permission to the claimant to apply for judicial review, Cox J described the issue as one of general importance and of growing concern to Youth Courts.
2.	On 5 May 2010 two rival gangs of youths met in Home Park, Sydenham.  There was a fatal stabbing.  On 11 May 2010 the claimant was arrested at his home address on suspicion of being involved.  He was released on police bail while further enquiries were conducted.  On 14 July 2010 he was informed that he would be re-interviewed and probably charged with murder.  He attended the police station with his father, was interviewed, charged with murder and detained in police custody until he appeared on the following day at Lewisham Youth Court before District Judge Purdy.  
3.	The solicitor representing the claimant made no application for bail, since he recognised that the judge had no power to grant bail by reason of CAJA 2009, section 115, but he submitted that it was necessary for the court to determine the form of custody in accordance with the CYPA 1969, section 23.  The judge rejected the submission.  He issued two warrants.  One was a warrant of committal to the Central Criminal Court on a date and at a time to be fixed for consideration of the question of bail.  The warrant required the claimant to be taken to a prison service establishment and held in custody until produced at the Crown Court.  The other was a remand warrant requiring him to be taken to the same prison establishment and held in custody until produced at the next hearing in the Youth Court.  The judge held that CAJA 2009, section 115(4) gave him no choice as to the type of accommodation to which the claimant was to be remanded.  The judge has indicated that he would welcome the guidance of this court as to the effect of CAJA 2009, section 115 on CYPA 1969, section 23.  The claimant remained in a prison establishment until he was granted bail at the Crown Court on 9 August 2010.
4.	The Director of Public Prosecutions (DPP) has been made an interested party in these proceedings and has instructed counsel in order that the court should have the benefit of argument in support of the judge’s ruling.  We are grateful to him.  It would have been unsatisfactory to decide the question without hearing both sides of the argument.  
CYPA 1969, section 23
5.	Generally speaking, section 23 controls the power of the court to order a secure remand in the case of a child or young person.  For this purpose, a young person is a person who has attained the age of 14 and is under the age of 17: section 23(12).  A child is a person under the age of 14: CYPA 1933 (“CYPA 1933”), section 70.  Since the age of criminal responsibility is 10, a child for the purpose of CYPA 1969, section 23 is one who has attained the age of 10 and is under the age of 14.
6.	CYPA 1969, section 23 has been amended many times.  In its present form, or forms, section 23 is remarkably difficult to follow.  I use the word “forms”, because part of the complexity is that there are effectively two versions of the section: one version for boys aged between 10 and 14 and girls aged between 10 and 16, and the other version for boys aged 15 or 16.  This comes about because section 98 of the Crime and Disorder Act 1998 provides:
“1.	Section 23 of the 1969 Act shall have effect with the modifications specified in subsections (2) to (6) below in relation to any male person who –
(a)	is of the age of 15 or 16; and
(b)	is not of a description prescribed for the purposes of subsection (5) of that section; and 
(c)	is not remanded in connection with proceedings under the Extradition Act 2003.”
7.	There follow a considerable number of modifications.  
8.	This makes it difficult for a court to navigate its way through the section, because in the case of a 15 or 16 year old boy it is necessary to read the other version as subject to a large number of amendments.  Helpfully, the Youth Justice Board has produced a rewritten version of section 23 as it applies to 15 and 16 year old boys.  An additional complication is that the Violent Crime Reduction Act 2006, section 61, introduced further amendments but they have not yet been brought into force.  All in all, the section is a recipe for confusion.  
9.	As it currently applies to a 15 or 16 year old boy (ignoring immaterial exceptions), the section provides:
“(1)	Where
(a)	a court remands a child or young person charged with or convicted of one of more offences or commits him for trial or sentence; and
(b)	he is not released on bail, then, unless he is remanded to a remand centre or a prison in pursuance of subsection (4) (b) or (c) below, the remand or committal shall be to local authority accommodation; and in the following provisions of this section, any reference (however expressed) to a remand shall be construed as including a reference to a committal.
(2)		A court remanding a person into local authority accommodation shall designate the local authority who are to receive him; and that authority shall be
(a)	in the case of a person who is being looked after by a local authority, that authority; and
(b)	in any other case, the local authority in whose area it appears to the court that he resides or the offence or one of the offences was committed. …
(4)		Where a court, after consultation with an officer of a local probation board, an officer of a provider of probation services, a social worker of a local authority or a member of a youth offending team, declares a person to be one to whom subsection (5) below applies
(a)	it shall remand him to local authority accommodation and require him to be placed and kept in secure accommodation, if
(i)	it also, after such consultation, declares him to be a person to whom subsection (5A) below applies; and
(ii)	it has been notified that secure accommodation is available for him;
(b)	it shall remand him to a remand centre, if paragraph (a) does not apply and it has been notified that such a centre is available for the reception from the court of persons to whom subsection (5) below applies; and 
(c)	it shall remand him to a prison, if neither paragraph (a) nor paragraph (b) above applies. …
(5)		This subsection applies to a person who
(a)	is charged with or has been convicted of a violent or sexual offence, or an offence punishable in the case of an adult with imprisonment for a term of 14 years or more; or
(b)	has a recent history of absconding while remanded to local authority accommodation, and  is charged with or has been convicted of an imprisonable offence alleged or found to have been committed while he was so remanded,
If (in either case) the court is of opinion that only remanding him to a remand centre or prison, or to local authority accommodation with a requirement that he be placed and kept in secure accommodation, would be adequate to protect the public from serious harm from him.
(5A)	This subsection applies to a person if the court is of opinion that, by reason of his physical or emotional immaturity or a propensity of his to harm himself, it would be undesirable for him to be remanded to a remand centre or a prison. ”
10.	In the case of children aged 10 or 11 there is no power under section 23 to order secure remand.  In the case of children aged 12 to 14 of either gender and girls aged 15 or 16 there is a power (subject to conditions) to order secure remand, but it must be to a local authority rather than a remand centre if local authority secure accommodation is available.
CAJA 2009, section 115
11.	This section was introduced after a man who was on bail pending trial for the murder of his wife killed his mother-in-law before taking his own life.  It provides:
“(1)	A person charged with murder may not be granted bail except by order of a judge of the Crown Court.
(2)	Subsections (3) and (4) apply where a person appears or is brought before a Magistrates’ Court charged with murder.
(3)	 A judge of the Crown Court must make a decision about bail in respect of the person as soon as reasonably practicable and, in any event, within the period of 48 hours beginning with the day after the day on which the person appears or is brought before the Magistrates’ Court.
(4)	The Magistrates’ Court must, if necessary for the purposes of subsection (3), commit the person to custody to be brought before a judge of the Crown Court.”
12.	District Judge Purdy considered that subsection (4) required him to commit the claimant to a prison establishment and precluded the operation of section 23 of CYPA 1969.
The arguments
13.	Ms Sikand submitted that CAJA 2009, section 115 does not affect the operation of CYPA 1969, section 23.  CAJA section 115(4) requires the Youth Court to “commit [the claimant] to custody”, but the Youth Court has to determine the form of custody.  CYPA 1969, section 23 identifies the forms of custody to which a child or young person, who is not released on bail, may be remanded or committed.  The possibilities are a simple remand to the custody of the local authority, a remand to local authority accommodation coupled with a requirement that the defendant be kept in secure accommodation, and remand to a remand centre or prison.  Before remanding the defendant to local authority secure accommodation or a prison establishment the court must consult with a member of a youth offending team (YOT) or one of the categories of social worker specified in section 23(4).
14.	Ms Schutzer-Weissmann submitted that when a Youth Court “commit[s] to custody” a child or young person under CAJA 2009, section 115(4), it does not “remand” that child or young person within the meaning of CYPA 1969, section 23.  The expression “commit to custody” is not apt to include all the forms of custody permitted under CYPA section 23.  In particular, it is not apt to include a simple remand into the custody of a local authority.  The clear purpose of CAJA 2009, section 115 was that anyone charged with murder should be detained in secure conditions unless and until a judge of the Crown Court decided to grant bail.
15.	Ms Sikand observed that a consequence of this interpretation would be that a child aged 10 or 11 who was charged with murder would have to be held in a prison establishment, which would be quite inappropriate for such a child.  Children of that age have not been committed to prison establishments for many years.
16.	Ms Schutzer-Weissmann responded that it would be possible for a Youth Court to avoid sending such a child to a prison service establishment by having recourse to CYPA 1933, section 44.  This provides:
“Every court in dealing with a child or young person who is brought before it, either as…an offender or otherwise, shall have regard to the welfare of the child or young person and shall in a proper case take steps for removing him from undesirable surroundings, and for securing that proper provision is made for his education and training.”
The argument was that CAJA 2009, section 115 must be read with the general provisions of CYPA 1933, section 44, but not with the much more specific provisions of CYPA 1969, section 23, at the stage when the child or young person appears before the Youth Court.  (It is common ground that section 23 would continue to apply at the stage when the defendant appears at the Crown Court.)  
Discussion and conclusion
17.	CYPA 1969, section 23 contains a carefully calibrated, if confusingly complex set of provisions for determining how young defendants in criminal cases who are not granted bail should be detained.  CAJA 2009, section 115 is capable of being read in harmony with CYPA section 23 in the way that the claimant contends.  This is the most straightforward way of reading the two sections and in my judgment it is the right way.  In other words, a Youth Court cannot grant bail to a child or young offender charged with murder, because that can only be granted by the Crown Court, but in determining the form of custody it must apply section 23 as it would in any other case.
18.	It is common ground that prior to the enactment of CAJA 2009, section 115 the provisions of CYPA 1969, section 23 applied to a child or young person charged with murder.  When CAJA 2009, section 115 was enacted, Parliament did not expressly amend CYPA 1969, section 23 so as to exclude children and young people charged with murder from the scope of the section at the Youth Court stage.  I would reject the argument that Parliament should be taken to have brought about such a change by necessary implication.
19.	Besides linguistic considerations, there is a constitutional point here of some importance.  If the drafter conceived it to be the purpose of the minister promoting the Bill that CYPA 1969, section 23 should be qualified so as not to apply to a child or young person appearing at a Youth Court on a charge with murder (albeit that it would continue to apply at the Crown Court), this should have been made clear in the Bill by express language. I have no doubt that Parliamentary Counsel would in truth have done so. This would have alerted the public, particularly children’s organisations, and members of Parliament to the proposed amendment.  It would have been a matter crying out for further consideration, as the arguments in this case have demonstrated.  Among other things, it would have raised a serious question as to its conformity with the UN Convention on the Rights of the Child, and that would have been a matter of likely concern to the Parliamentary Joint Committee on Human Rights.  Counsel for the DPP has helpfully researched the debates on the Bill including in committee.  It is striking that the position of children and young people appears never to have been mentioned.  It is plain that the implications of section 115 for which the DPP contends passed unnoticed because they were never spelled out.  
20.	If the DPP’s argument is right, the result would be disjointed legislation.  The suggestion by Ms Schutzer-Weissmann that Parliament silently intended the general words of CYPA 1933, section 44 to provide a means of escape from CAJA 2009, section 115 is ingenious but unrealistic.  Putting that aside, the interpretation of section 115 advanced by the DPP would be liable to produce most unsatisfactory consequences including, at the extreme, the imprisonment of 10 year olds.  Even for a child or young person charged with an offence as grave as murder, remand in a prison establishment should be the final resort.  It is impossible to believe that Parliament can have intended it to be mandatory, regardless of whether the defendant could be safely kept in more suitable accommodation.
21.	Ms Schutzer-Weissmann emphasised that the duration would be short.  She also suggested that there might be difficulty in a Youth Court being able to carry out the necessary consultation with a member of the YOT team at the time of the defendant’s first appearance.  However, we were informed that in practice YOTs co-operate with Youth Courts in being available for consultation in serious cases at very short notice.  Moreover, although the Act requires a defendant to be brought before the Crown Court within 48 hours, the present case shows that the reality is sometimes different.  In this case the claimant was first due to appear before the Crown court by video link on Monday 15 July 2010 (four days after his appearance before District Judge Purdy), but he was not produced and there was no representative from the local authority, probation or YOT in attendance.  So the case was adjourned.  More fundamentally, it is not a good argument for implying a mandatory requirement to detain a child or young person in a prison establishment, even where another form of custody would be more suitable, that the period of such detention would be not be likely to be long.
22.	For those reasons I would grant the claimant’s application for judicial review of the judge’s decision and declare that his ruling that CYPA 1969, section 23 does not apply in the case of a child or young person who appears before a Youth Court charged with murder was wrong in law.
Mr Justice Lloyd Jones:
23.	I agree.