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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> W & Ors, R (on the application of) v The Brent Youth Court [2006] EWHC 95 (Admin) (13 January 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/95.html Cite as: [2006] EWHC 95 (Admin) |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand London WC2 |
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B e f o r e :
MR JUSTICE BEAN
____________________
1. R (ON THE APPLICATION OF W) | ||
2. R (ON THE APPLICATION OF S) | ||
3. R (ON THE APPLICATION OF B) | (CLAIMANTS) | |
-v- | ||
1. THE BRENT YOUTH COURT | ||
2. THE ENFIELD CROWN COURT | ||
3. THE RICHMOND ON THAMES YOUTH COURT | (DEFENDANTS) |
____________________
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 H SOUTHEY (instructed by Wilson & Co) appeared on behalf of S
MISS C HUNTLEY (instructed by Lloyd Brennand & Associates) appeared on behalf of B
MR J WHITLEY (instructed by CPS) appeared on behalf of THE BRENT YOUTH COURT
MR A MATIC (instructed by CPS) appeared on behalf of THE ENFIELD CROWN COURT
MR R O'SULLIVAN (instructed by CPS) appeared on behalf of THE RICHMOND ON THAMES YOUTH COURT
____________________
Crown Copyright ©
Friday, 13th January 2006
"15. I deal first with the sentencing regime relating to young persons and, in particular, to the Youth Court. First, section 37 of the Crime and Disorder Act 1998 makes it clear that it shall be the principal aim of the youth justice system to prevent offending by children and young persons, which provision should be considered alongside section 44(1) of the Children and Young Persons Act 1933 to the effect that every court in dealing with a child or young person brought before it, shall have regard to the welfare of the child or young person. There is then the overarching statutory restriction on all discretionary custodial sentences contained within section 79(2) of the Powers of Criminal Courts (Sentencing) Act 2000 as amended ('the 2000 Act'), which provides that the court shall not pass a custodial sentence unless satisfied that the offence was so serious that only such a sentence can be justified for it, or where the offence is a violent or sexual offence, that only such a sentence would be adequate to protect the public from serious harm from him.
"16. Moving from the general to the particular, section 100 of the 2000 Act then provides:
'(1) Subject to sections 90, 91 and 93 above, and subsection (2) below, where
(a) a child or young person (that is to say, any person aged under 18) is convicted of an offence which is punishable with imprisonment in the case of a person aged 21 or over, and
(b) the court is of the opinion that either or both of paragraphs (a) and (b) of section 79(2) above apply or the case falls within section 79(3), the sentence that the court is to pass is a detention and training order.
(2) A court shall not make a detention and training order --
(a) in the case of an offender under the age of 15 at the time of the conviction, unless it is of the opinion that he is a persistent offender;
(b) in the case of an offender under the age of 12 at that time, unless --
(i) it is of the opinion that only a custodial sentence would be adequate to protect the public from further offending by him; and
(ii) the offence was committed on or after such date as the Secretary of State may by order appoint.'
"17. It is important to appreciate that the Secretary of State has never appointed a date, with the result that in the case of an offender under the age of 12 there is no power to make a detention and training order. In the case of an offender under 15 there is no such power unless the offender is a persistent offender which can include an offender of good character who has committed a series of offences (see R v AS [2001] 1 Cr App Rep (S)62) but obviously does not include any person under the age of 15 at the time of conviction without previous convictions who is convicted of a single offence.
"18. What then are the powers of the Youth Court in respect of such an offender? If convicted, the court is restricted to non-custodial options such as supervision order, attendance centre order or action plan. If such a 14 year old pleads guilty, however, the only realistic option (ignoring absolute discharge) is a referral order; that is because the effect of section 16(2) and 17 of the 2000 Act is that if he pleads guilty, has never been convicted of an offence or bound over in criminal proceedings, and assuming that referral to a youth offending team is available, such an order is mandatory.
"19. That is the background against which the court considers the other strand of legislation which concerns the circumstances in which it is possible to commit for trial and the powers of the Crown Court.
"20. Section 91 of the 2000 Act provides as follows:
'(1) Subsection (3) below applies where a person aged under 18 is convicted on indictment of --
(a) ...; or
(b) an offence under section 14 of the Sexual Offences Act 1956 (indecent assault on a woman); or
(c) an offence under section 15 of that Act (indecent assault on a man committed after 30th September 1997).
(2) ...
(3) 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 imprisonment with which the offence is punishable in the case of a person aged 21 or over, as may be specified in the sentence.'
"21. In Ganley [2001] 2 Cr App R (S) 60, the Vice President, Rose LJ, said:
'The power to impose detention under section 53(3) of the Children and Young Persons Act 1933 [now section 91(3) of the 2000 Act] is unaffected. The principles set out in Mills (1998) 2 Cr App R (S) 128 in relation to such a sentence and as to the importance of avoiding, where possible, lengthy periods in detention on offenders under 18 will continue to apply. If detention for two years or less is called for, it will generally be appropriate to make a detention and training order rather than to have recourse to section 53.'
"22. It is now necessary to turn to section 24 of the Magistrates' Courts Act 1980. It reads:
'Summary trial of information against a child or young person for 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'."
"33. 1. The general policy of the legislature is that those who are under 18 years of age and in particular children of under 15 years of age 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.
"34. 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 the general principle. Those under 15 will rarely attract a period of detention and, even more rarely, those who are under 12.
"35. 3. In each case the court should ask itself whether there is a real prospect, having regard to his or her age, that this defendant whose case they are considering might require a sentence of, or in excess of, two years or, alternatively, whether although the sentence might be less than two years, there is some unusual feature of the case which justifies declining jurisdiction, bearing in mind that the absence of a power to impose a detention and training order because the defendant is under 15 is not an unusual feature."
"... there is a real prospect ... that this defendant whose case they are considering might require a sentence of, or in excess of, two years or, alternatively, whether although the sentence might be less than two years, there is some unusual feature of the case which justifies declining jurisdiction, bearing in mind that the absence of a power to impose a detention and training order because the defendant is under 15 is not an unusual feature."
"The court having heard the facts decline jurisdiction ... the Crown Court would pass a sentence in excess of two years if convicted given the gravity of these charges."
"We agree with the panel [that is the Sentencing Advisory Panel] that even in the case of young offenders, because of the serious nature of the offence custody will normally be the appropriate disposal. Like the panel we nonetheless conclude that the sentence should be 'significantly shorter for young offenders'."