G v Burnley Magistrates Court

Neutral Citation Number: [2007] EWHC 1033 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION DIVISIONAL COURT CO/714/2007 Royal Courts of Justice Strand London WC2 Date: Tuesday, 24 April 2007 B E F O R E: LORD JUSTICE GAGE MRS JUSTICE RAFFERTY - - - - - - - G -v- BURNLEY MAGISTRATES COURT - - - - - - - Computer-Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - (CLAIMANT) (DEFENDANT) MR TJ STORRIE (instructed by NGA Solicitors) appeared on behalf of the CLAIMANT THE DEFENDANT DID NOT ATTEND AND WAS NOT REPRESENTED (instructed - - - - - - - J U D G M E N T LORD JUSTICE GAGE: This is an application for judicial review of a decision of the Burnley Youth Court made on 17 November 2006. The claimant applies for judicial review of that decision with permission granted by the single judge. The claimant and four other young persons challenge the decision of the defendant, the Burnley Youth Court, committing them for trial and sentence to the Crown Court. As I have already indicated, the decision was made on 17 November 2006. To deal first with procedural matters, the four other youths have been cited as interested parties, as has the Crown Prosecution Service. In fact, the Crown Prosecution Service and the defendant, the Burnley Youth Court, have neither entered acknowledgments of service nor have taken any part. So far as the other four interested parties are concerned, through solicitors they have sought to join themselves to this application. For the purposes of the procedure, it is unnecessary for us to do other than to say that it is quite clear that the decision we reach must bind all the parties, including the interested parties, so that if the application succeeds, it will succeed against the defendant and the Crown Prosecution Service in respect of both of the four other young men concerned in the alleged offence. The application is one of a long line of applications in which challenges have been made to decisions of youth courts to commit charges to the Crown Court. Despite clarification by this court of the test to be applied, the application of that test to the facts continues to raise problems. The alleged offences in this case took place in August 2004. The victim, a young girl, was aged 13 at the time. The claimant was aged 13, as was one other of the interested parties. Three of the other interested parties were aged 14. A brief summary of the alleged facts is as follows. On a date in August 2004, the victim attended a party (at the home of the claimant). It is common ground that during the course of the party, the victim consumed a substantial quantity of alcohol. In her video interview, she admitted consuming half a litre of Diamond White Cider, and two one-litre bottles of Blue WKD, all this in the course of 30 minutes. She says in her interview that at some stage she went upstairs to go to the lavatory. She was followed by a number of youths of about the same age. When she got to the upstairs landing, she was grabbed by one of the youths and pushed into a bedroom. One of them, thought to be the interested party, SC, pulled down her trousers. She kicked him in the head and he released her. She then ran into the bathroom. When in the bathroom she said she was grabbed by five people and pulled to the floor. A hand was placed over her eyes and her jacket unzipped. Her breast was felt, she believed by one of the five youths. Her trousers were removed, as was her thong. Someone inserted into her vagina what she believed was a vibrator or some other instrument. She said the whole incident took about five minutes and everyone involved had been drinking. Initially all five youths were charged with sexual assault and sexual activity, contrary to sections 3 and 4 of the Sexual Offences Act 2003. However, at the hearing before the magistrates in November 2006, those two charges were stayed and for them substituted charges under section 13 of the Act. The significance of that is that the maximum penalty in respect of section 13 is five years on indictment and 6 months on conviction of a summary offence. There followed before the magistrates what we are told was a lengthy hearing in which the prosecution invited the youth court to consider whether these offences were grave crimes for the purposes of section 24 of the Magistrates' Courts Act 1980. It appears that at one stage the justices seemed to indicate that the offences were not grave crimes. However, following a retirement, they returned and stated that they were satisfied that they were grave crimes. They committed the claimant and the four interested parties to the Crown Court for trial and sentence. That is the decision which is challenged by these proceedings. The justices expressed their reasons in the following terms: "We have adopted the approach suggested in the Southampton case i.e. there are 3 elements to the approach. It is the policy of the legislature that those under 18 and particularly those under 15 should be tried wherever possible in the youth court. Trial in the Crown Court should be reserved for the most serious cases. In general first time offenders aged 12-14 and all offenders under 12, should not be detained in custody. The exceptional power to detain for grave offences should not be used to weaken the general principle. Those aged under 15 should rarely attract a period of detention. The court should ask itself whether [there] is a real prospect, having regard to the age of the defendant, that this defendant might require a sentence of two years or more. We conclude that a period of detention of two years or more would be a real prospect in relation to this matter and more than just a vague or theoretical possibility. We have noted the pronouncement in the Southampton case that it would be inappropriate to find a matter to be a grave crime simply because of the absence of a power to impose a Detention and Training Order because the defendant was under 15. We have examined the facts of the Southampton case and feel that there are aggravating factors, as outlined above, which distinguish it, such that this matter should be treated as a grave crime." Before turning to the submissions, I must summarize shortly the applicable law. Section 24 of the Magistrates' Courts Act 1980, which for ease of reference can be found in paragraph 22 of H, A and O v Southampton Youth Court (Southampton No 2) [2004] EWHC 2912 Admin, sets out the terms of section 24 so far as they are material: "Summary trial of information against a child or young person for SMITH BERNAL WORDWAVE indictable offence 24(1) Where a person under the age of 18 years 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 the Criminal Courts (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; or (b) ...; and accordingly in a case falling within paragraph (a) or (b) of this subsection the court shall commit the accused for trial if either it is of the opinion that there is sufficient evidence to put him on trial or it has power under section 6(2) above so to commit him without consideration of the evidence." Whether or not an offence is a grave offence has been the subject of considerable judicial comment. In Southampton No 2, Leveson J (as he then was) sought to draw together all the strands of judicial guidance given by the courts on this topic. There is no dispute that in this case the justices in their reasons, to which I have referred, demonstrated that they correctly directed themselves in respect of the test to be applied. To this I would add that, since the decision in Southampton No 2, the Sexual Offences Act 2003 has come into force. Section 13 provides a sentence, as I have said, of a maximum on conviction on indictment of five years, and six months on summary conviction. Paragraph 43 of Schedule 6 of the 2003 Act amends section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. By that amendment, an offence under section 13 of the 2003 Act becomes one which under section 91 the court has power to make an order of detention of a person under the age of 18. It is a scheduled offence; that is to say, an offence for which the court has powers under section 91 of detention. It follows from this that the Crown Court has power to sentence young offenders under the age of 18 up to a maximum of five years' detention for an offence under section 13. The Magistrates' Court's maximum powers are 6 months. The question therefore for this court comes down to the issue of whether the justices' decision is open to challenge as manifestly wrong. In C and others v the Croydon Youth Court and Central Herts Youth Court [2006] EWHC 2627, the description as to the test to be applied by this court is whether or not the decision of the youth court was, as I have just said, manifestly wrong: see paragraph 36 of Wilkie J's judgment, given as the first judgment in that decision. Auld LJ, in the same case, said : SMITH BERNAL WORDWAVE "38 ... If their determination [the magistrates' determination] is challenged -- as in this case -- by way of a claim for judicial review, the question for this court is whether their determination was wrong in law or otherwise irrational, or, as my Lord has put it, whether the decision was manifestly wrong. 39. It has to be remembered that the decision under challenge is not itself a sentence. That task or that stage has not yet been reached. It is a determination as to venue in which the relevant statutory sentencing provisions and the sentencing guidelines, to which my Lord has referred, allow for some elasticity -- some range at the borderline, in which a reasonably made determination as to venue can go either way." On behalf of the claimant and the four interested parties, Mr Storrie submits that the decision of the magistrates in this case to commit these five young men to the Crown Court was manifestly wrong. He relies on a number of factors in support of that general proposition. First, he points to the fact that the alleged offenders were all 13 or 14 at the time. They were all of good character. He relies on the fact that the authorities suggest that there is a strong presumption against an offender aged 13 or 14 being tried at the Crown Court rather than the youth court. It is clear that the defendant youth court were well aware of these principles, and it has to be remembered that the youth court made its decision in 2006 when the claimant was 15, as was one other, and the others were aged 16. Mr Storrie relies on the facts in Southampton No 2 in support of his submission. In that case the court allowed judicial review to proceed and quashed the committal by the Magistrates' Court to the Crown Court. Mr Storrie points to the fact that the facts alleged in that case were really quite similar with the facts alleged in this case, save that the alleged victim was a young boy; in this case it was a young girl. In that case, Leveson J, giving the judgment of the court, at paragraph 7 said: "That the position would be different for an older person is obvious. Had an adult behaved in this manner to a 13 year old boy, sexual gratification would have been an obvious motive and a substantial custodial sentence would indeed have been justified. An older teenager could also lose his liberty. In my judgment, however, 13 and 14 year olds behaving in this way to one of their school friends, while deeply reprehensible and demanding condemnation, does not come within that category, and certainly not at the level of a sentence approaching two years." That has, as Mr Storrie submits, some application to this particular case. For my part, I recognise that this was an unpleasant incident, when all parties concerned had far too much to drink. But, on the other hand, it lasted a short time. The claimant and the interested parties, as I have already said, are all of good character. Each of them was either aged 13 or 14 at the time. Apart from the insertion of the vibrator, nobody could possibly suggest that there was any real possibility that an order for detention of more than two years was appropriate. SMITH BERNAL WORDWAVE It is also to my mind significant that the maximum sentence on indictment for this offence is five years, indicating that there will be a range of sentences for offences against this section some way below the maximum, particularly in the of young offenders of good character. Taking all these factors into account, I have reached the conclusion that in the case of both the claimant and each of the interested parties, the decision to commit them to the Crown Court for trial and sentence was, as is submitted, manifestly wrong. Accordingly, I would quash it. In doing so, it also seems to me relevant to bear in mind that if, having heard all the evidence in the case, the magistrates are of the view that their powers are insufficient to deal with these four, or any of them, it can then commit one or other, or all of them, to the Crown Court for sentence. But as I have said, for the reasons which I have endeavoured to explain, in my judgment the decision of the magistrates was manifestly wrong. I would grant an order quashing it. MRS JUSTICE RAFFERTY: I agree. LORD JUSTICE GAGE: Very well, that will be the order of the court. MR STORRIE: I am obliged, my Lord. So far as costs are concerned, I understand I am to ask for a detailed assessment of the costs out of central funds. LORD JUSTICE GAGE: Yes, very well, you are granted that. Thank you very much, Mr Storrie. SMITH BERNAL WORDWAVE