Neutral Citation Number: [2009] EWHC 1538 (Admin)
Case No: CO/2057/2009
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/06/2009

Before :

LORD JUSTICE PILL
And 
MR JUSTICE CRANSTON
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Between :

	W	Claimant	
	- and -		
	Warrington Magistrates Court 	Defendant	
	- and -		
	Crown Prosecution Service 	Interested Party	

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(Transcript of the Handed Down Judgment of
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Mr Michael Davies (instructed by Forshaws, Solicitors) for the Claimant
Mr Andrew Green (instructed by Crown Prosecution Service, Warrington ) for the Interested Party 

Hearing date: 11 June 2009
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Judgment
Lord Justice Pill : 
1.	This is an application for permission to apply for judicial review with the hearing to follow if permission is granted.  W seeks to quash decisions of Warrington Magistrates Court by which, at a Youth Court, he was convicted of attempted rape on 17 October 2008 and of three sexual assaults on 13 November 2008.  
2.	He was 14 years old at the time of trial and 13 when the offences are alleged to have been committed.  The attempted rape was both oral and vaginal.  The alleged victim was his cousin, aged 8 years.  The two victims of the alleged sexual assaults were a 5 year old boy and a 13 year old girl, both known to but not related to the applicant.      
The challenge
3.	The decisions challenged are, first, the decision of justices on 26 June 2008 not to commit the charge of attempted rape for trial before the Crown Court under the Magistrates Court Act 1980 Section 24(1)(a) (“the 1980 Act”).  Secondly, it was submitted that His Honour Judge Teague QC sitting as a District Judge at the hearing of the Warrington Youth Court on 16 October 2008 should have committed the applicant for trial at the Crown Court.  The cases were assigned to Judge Teague who was requested to exercise his powers as a District Judge under Section 66 of the Courts Act 2003.  Thirdly, it was submitted that Judge Teague ought not to have heard the cases of sexual assault, having previously heard the case of attempted rape.  Fourthly, it was submitted, though barely pursued, that Judge Teague ought not to have heard either case having earlier considered an interlocutory application for joinder.  
The facts
4.	When the applicant appeared before the Youth Court on 26 June 2008, both prosecution and defence urged the court (the parties are not agreed as to its constitution) to commit him for trial at the Crown Court at Warrington.  The court refused to do so and listed the attempted rape for hearing on 16 October 2008.  
5.	On 8 September 2008, the applicant was charged with the three sexual assaults, alleged to have been committed on dates after the offence of attempted rape.  On 30 September 2008, Judge Teague heard a prosecution application for the joinder of the four charges.  He refused the application on the ground not of legal principle but because the date fixed for trial of the attempted rape could not accommodate the increased length of hearing.  He stated that he would otherwise have granted joinder but that it was important not to delay the trial, given the age of the complainant and defendant.
6.	Judge Teague conducted the attempted rape trial on 16 and 17 October and the sexual assaults trial on 11 to 13 November.  At neither trial was renewed application made to commit the cases to the Crown Court.  Having found the applicant guilty of all four offences, Judge Teague committed him to the Warrington Crown Court for sentence, reserving the case to himself.  The judge gave reasoned judgments.    
7.	The applicant was represented by counsel at both trials.  His present counsel, Mr Michael Davies, was instructed on 9 December 2008, after the trials had taken place.  Application was made for legal aid to consider judicial review.  
8.	On 29 January 2009, the applicant was sentenced to imprisonment for public protection (“IPP”).  A minimum term of 2 years was ordered for the offence of attempted rape.  Sentences of 12 months for the sexual assaults were ordered to run concurrently with each other and with the sentence for attempted rape.  An appeal against conviction has been made to the Crown Court and has been adjourned pending the present application.  
9.	Application to apply for judicial review was lodged on 10 February 2009.  It was returned by the Administrative Court on 16 February because insufficient copies had been lodged and was re-presented on 3 March.  The prosecution oppose the application and also submit that it is defeated by delay in bringing it.  
The law 
10.	Section 24(1) of the 1980 Act provides, in so far as is material:
“Where a person under the age of 18 appears or is brought before a magistrates’ court on an information charging him with an indictable offence . . .  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 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 paragraphs (a) or (b) of this subsection the court shall commit the accused for trial if either it is of 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.”
11.	Section 25 provides, in so far as is material:
“(5) Where a person under the age of 18 appears or is brought before a magistrates’ court on an information charging him with an indictable offence other than homicide, and the court -
(a) has begun to try the information summarily on the footing that the case does not fall within paragraphs (a) or (b) of section 24(1) above and must therefore be tried summarily, as required by the said section 24(1); or
(b) . . . 
subsection (6) . . . below, . . .  shall have effect.
(6) If, in a case falling within subsection (5)(a) above, it appears to the court at any time before the conclusion of the evidence for the prosecution that the case is after all one which under the said section 24(1) ought not to be tried summarily, the court may discontinue the summary trial and proceed to inquire into the information as examining justices and, on doing so, shall adjourn the hearing.”
12.	Section 91 of the 2000 Act confers power to detain for a specified period offenders under 18 convicted of certain serious criminal offences.  These include the offences of which W has been found guilty.  Section 91(3) provides: 
“If the court is of the opinion that neither a community sentence [youth rehabilitation order] nor a detention and training order is suitable, the court may sentence the offender to be detained for such period, not exceeding the maximum term of imprisonment with which the offence is punishable in the case of a person aged 21 or over, as may be specified in the sentence.”
Submissions 
13.	Mr Davies submitted that, either on 26 June 2008 or, failing that, before the close of the prosecution case on attempted rape on 16 October 2008, W ought to have been committed to the Crown Court for trial.  It “ought to be possible” to sentence under section 91(3).  For the prosecution, Mr Green submitted that decisions not to commit were within the jurisdiction of the court, properly exercised.  He accepted that there was a duty on the court on 16 October 2008 to consider the question, even though the application made on 26 June 2008 (and supported by the prosecution) was not repeated.  An important submission made by Mr Davies was that there was an apparent inconsistency between a decision not to commit, applying the correct test, and the judge’s finding, on 23 January 2008, that a sentence of IPP was required together with a minimum term of 2 years on the attempted rape charge alone, indicating a notional sentence of 4 years.  
14.	Mr Davies also submitted that it was always possible that the sentence for attempted rape would be higher than the two year threshold for committal to the Crown Court.  While the Definitive Guidelines issued by the Sentencing Guidelines Council provide that, when dealing with non-consensual offences, “the youth and immaturity of the offender must also be taken into account in each case”, they state that “the extreme youth or old age of a victim should be an aggravating factor”.  In the Guidelines, substantial custodial sentences are contemplated for rape.        
15.	Mr Green accepted that the crimes were “grave crimes” as described in section 24(1)(a).  In defending the decision not to commit for trial under that section, he relied on the limited information available to the court on 26 June 2008.  It was only during the trial and when the pre-sentence report was received that the seriousness of the offences became clear.  In the course of her evidence on the attempted rape charge, the complainant, whom the judge found to be credible and reliable, stated that the defendant had “grabbed her by the front of her top and dragged her through the living room and took her upstairs to his bedroom”.  She successfully resisted his attempt at oral intercourse but he succeeded in vaginal intercourse without her consent.  She was “scared and felt a stinging pain”.  In his judgment, the judge did not find whether or not there had been full vaginal intercourse.  
16.	In the pre-sentence report dated 1 December 2008, the reporting officer stated that he was “extremely concerned about the defendant’s attitude towards his offences”.  The officer stated: 
“There is clearly a strong pattern of offending against young people both male and female.  On this basis I would therefore consider that W presents a high risk of offending.  In my assessment, W’s behaviour indicates a compulsion to fulfil his own physical urges to the detriment of vulnerable victims. . . . W lacks any insight into the harm caused by his behaviour . . . I must conclude that the defendant presents a high risk of causing serious harm.”
17.	Mr Green referred to Fuller [1992] 13 Cr App R (S) 680 (buggery), TW [2001] 1 Cr App R (S) 128, CB [2000] 1 Cr App R (S) 177, Attorney General’s Reference No. 61 of 1999 [2000] 1 Cr App R (S) 516 and Jonathan Paul W [1999] 1 Cr App R (S) 488.  Either supervision orders, probation orders or a custodial sentence limited to 12 months were ordered in cases of offenders aged between 13 and 16, some involving serious sexual assaults, though not rape.    The victims in several of the cases were about the same age as the victim of attempted rape in this case.  Of its own initiative, this court found the report of the decision in O [2006] 1 Cr App R (S) 102 in which a sentence of 2 years detention was imposed, on a guilty plea, on a boy aged 15 for the attempted rape of his cousin aged 4.    
Conduct of both trials 
18.	Before considering that issue more fully, I consider the submission that Judge Teague ought not to have tried the three counts of indecent assault, having tried W for attempted rape and found him guilty.  Mr Davies relied on the judge’s finding, following the trial for attempted rape, that the complainant was credible and reliable: 
“It follows that I reject the defendant’s evidence as being wholly untruthful.”
19.	Mr Davies referred to the decision of this court in R v Sandwich Justices, Ex parte Berry, [1982] Crim LR 121, Donaldson LJ presiding.  Offences under the Road Traffic Act 1972 were alleged to have been committed on six different days.  The magistrates agreed to try each case separately but refused an application that each offence be tried by a different bench of justices.  Refusing an application for judicial review, the court stated: 
“It was essentially a matter for the discretion of the justices whether the same bench should try all the charges or whether a differently constituted bench should try each set of charges.  There may be cases in which there would be real problems in approaching the matter in a proper and impartial manner and in such cases justices should refuse to try the second or subsequent case.  In the present case, the evidence showed that the justices had applied their minds judicially and it could not be said that there was a wrongful exercise of the discretion.  It was also right that the justices should review their discretion after hearing each case.  In the present case they had done so.”
Mr Davies submitted that the judge’s strong comment about W’s evidence made impossible an impartial approach to his evidence in the second trial.  
20.	In this case, the counts of indecent assault involved different complainants and different circumstances.  Judge Teague was, in my judgment, entitled, in his discretion, to hear the cases of indecent assault.  It is accepted that he could have heard all four charges together.  Hearing them one after the other did not render the second trial unfair on that ground.  Similarly, I do not consider that Judge Teague’s conduct of the joinder application, as a result of which he knew of the sexual assault allegations, was a bar to his trying the charge of attempted rape.    
The Protocol 
21.	As to the main issue, the court made enquiries in the course of the hearing about the assignment of a Circuit Judge to hear this case in the Youth Court.  It emerged that the procedure resulted from a Protocol issued by the Senior Presiding Judge, Leveson LJ, in November 2007 and entitled ‘Rape Cases in the Youth Court’.  It provides: 
“Introduction 
1.	This protocol sets out the procedure regarding the hearing of rape cases in the Youth Court and has been written in consultation with HMCS and the Chief Magistrate. 
Commencement and amendment
2.	The protocol will take effect forthwith and may be amended as appropriate by the Senior Presiding Judge. 
Background
3.	Historically, the position was that the Youth Court should never accept jurisdiction in a rape case.  (R v Billam (1968) 1 All ER 985)
4.	However, recent authorities have also suggested that the rule set out in Billam could now properly be modified so that in the case of very young defendants it may be appropriate to accept jurisdiction.  (R (on the application of B & others) v The Richmond on Thames Youth Court (2006) EWHC 95 and Stones Justices Manual)
5.	Further, the Sexual Offences Act 2003 widened the definition of rape resulting in other circumstances in which it may be appropriate to try rape cases in the Youth Court. 
6.	The determination of venue in relation to Youth Court matters is governed by section 24 of the Magistrates’ Courts Act 1980 which provides that the youth shall be tried summarily unless the defendant has been charged with such a grave crime that long term detention is a possibility.  (Section 24(1)(a) of the Magistrates Court Act 1980) 
7.	A series of cases provided further clarification of what amounts to a grave crime.  In a recent case, it was stated that the court should ask itself whether there is a real prospect, having regard to the defendant’s age, that he or she might require a sentence of, or in excess of, two years.  (R (on the application of H, A and O) v Southampton Youth Court (2004) EHWC 2912, (Southampton Youth Court No.2) 
Procedure
8.	In considering whether the Youth Court should retain jurisdiction in a rape case, the court will need to consider:
(a)	The suitability of the Youth Court as a venue. 
(b)	The desirability of the case being heard by a Circuit Judge authorised to try serious sexual cases. 
9.	In the event that jurisdiction is retained, a request should be made to the regional listing co-ordinator for an authorised Circuit Judge to sit as a District Judge at the Youth Court.  (Section 66 of the Courts Act 2003) 
10.	The listing co-ordinator will liaise with the Resident Judge and/or the Presiding Judge where appropriate in determining the Circuit Judge. 
11.	The Justices Clerk for the region should be consulted and kept informed of all developments.”
Power to reconsider 
22.	In the course of the hearing, the court raised the question whether Judge Teague, when first seised of the case in order to consider joinder, could have reviewed and reversed the June decision not to commit to the Crown Court.  There is considerable learning on this subject, the authorities having been analysed fully in the judgment of Jackson J, with which Rose LJ agreed, in R (Director of Public Prosecutions) v Camberwell Green Youth Court and C, W, K and A [2003] EWHC 3217 (Admin).  The court found that there was no such power.    
23.	In C, W, K and A, Jackson J stated, at paragraph 79:  
“Accordingly, I for my part am not persuaded by any of Mr Perry's submissions [for the prosecution] that this court should depart from the consistent theme of two decades' authority concerning the correct interpretation of the 1980 Act, nor should this court depart from what appears to be the clear meaning of those provisions of the statute.”
24.	Jackson J stated that section 24 provided for “a single decision on the mode of trial.  It does not permit serial reconsideration of the same question, whether or not new material emerges. . . . [S]ub-sections (5) to (7) [of section 25] permit the Magistrates’ Court to change its mind as to mode of trial for persons under the age of 18 during the course of the summary trial or committal proceedings.  The statute is quite explicit as to the circumstances in which justices can change a decision as to mode of trial.  It is not permissible to read into the Act some vague power to change the mode of trial in other circumstances”.  
25.	Mr Perry had relied, amongst other things, on a judgment of Devlin J in R v Craske, Ex parte Metropolitan Police Commissioner [1957] 2 QB 591, at page 599, when considering the same issue under the similarly worded sections of the Magistrates Court Act 1952: 
“. . . I do not think that means that once the procedure is set in motion, the court has ineluctably to allow the wheels to revolve without any power to stop them if the accused wants to change his mind. I think it means no more than this, that if the summary trial is to be proceeded with in the way in which section 19 provides, those are the steps that must be taken, but I can find nothing in the words of subsection (5) which would deprive a magistrate or any court of the ordinary right which they must have in the interests of justice of allowing an accused who has given his consent ill- advisedly to abandoning his right to a trial by jury, to be given the opportunity of reconsidering it.”
In reaching that conclusion, Devlin J stated that it would be a “very cumbersome procedure” if reconsideration was not possible.  Mr Perry had also argued that the summary trial “may be attacked as a sham because it would have been launched solely for the purposes of satisfying the requirements of section 25”.  
26.	Reluctant as I am to apply Jackson J’s conclusion, I feel constrained to do so.  I agree, however, with his paragraph 77: 
“I think it desirable as a matter of policy that magistrates should have the power to change decisions concerning mode of trial (when good grounds exist to do so) even before the circumstances specified in section 25 of the Act have come into existence. It is to be hoped that Parliament, which devotes a great deal of time to the reform of criminal justice, will find an opportunity to make the sensible and beneficial reforms for which [counsel for the prosecution] contends. One would have thought that those reforms may well not be controversial.”
Review of section 24 decisions 
27.	Decisions under section 24 have been reviewed in many cases.  Each case depends on its own facts.  In Crown Prosecution Service v South East Surrey Youth Court & Ghanbari [2005] EWHC 2929 (Admin), Rose LJ stated, at paragraph 17:
“the policy of the legislature, as correctly identified by Leveson J in R (On the application of H, A and O) v Southampton Youth Court [2004] EWHC 2912 Admin, and approved by the Divisional Court in R (On the application of the Crown Prosecution Service) v Redbridge Youth Court [2005] EWHC 1390 Admin paragraph 11(2), is that those who are under 18 should, wherever possible, be tried in a Youth Court, which is best designed for their specific needs.”
28.	In H, A and O, the offenders were 13 years old and the victim was the same age.  Leveson J, as he then was, stated: 
“33. 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.
35. 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.”
29.	In R (H) v South and South East Hants Youth Court Justices & the Crown Prosecution Service [2006] EWHC 1147 (Admin), the offender was 14 years old and the victim, into whose vagina he put his finger, was 8 years old.  The act was done openly on the doorstep of a house while others the girl knew were close at hand.  Scott Baker LJ stated that the justices “should have accepted jurisdiction”.  
30.	However, in R (Crown Prosecution Service v Redbridge Youth Court & BS) [2005] EWHC 1390 (Admin), having referred to the aggravating features involved, which were substantial, Brooke LJ stated: 
“I am bound to say that there is, in my judgment, a real possibility, alternatively, a realistic prospect, that the Crown Court may pass an order of detention of 2 years or more.”
Brooke LJ added that it was the kind of case “in which it is very much more appropriate for a professional sentencer, such as will be found in the Crown Court, to determine what the appropriate sentence should be”.  By the procedure followed in the present case, that criterion was satisfied.    
Conclusions 
31.	Had Judge Teague had the opportunity to reassess the situation when considering the application for joinder, he may well have committed W for trial.  The pressure on him to continue the trial on 16 October 2008, when the section 25 trial had been organised and had begun, is obvious.  Whatever he might have done at an earlier stage does not, however, affect the decision this court has to make: whether the magistrates erred in law in failing to commit for trial in June 2008 and whether Judge Teague, in the absence of a fresh application for committal proceedings, erred in law in proceeding with summary trial on 16 October.  No reference appears to have been made at any stage (until this court made its own enquiries) to the Protocol of November 2007.  The decision makers at each stage were presumably aware of the Protocol and the substantial nudge it provides in favour of trial in the Youth Court with the importation of a Circuit Judge.  
32.	I have come to the conclusion that the decision of the Youth Court not to commit for trial can just be defended as a proper exercise of their discretion under section 24.  In Selby v DPP [1970] AC 304 at 342, Viscount Dilhorne cited with approval another statement of Devlin J, that in R v Cooke 43 Crim App R 138 at 147: 
“It is well settled that this court will not interfere with the exercise of a discretion by the judge below unless he has erred in principle or there is no material on which he could properly have arrived at his decision.” 
33.	At the time of the offences, W was thirteen years old and without previous convictions.  On the information before the Youth Court in June 2008, the offence of attempted rape was a serious one.  The court was, however, entitled to have regard to the age of the defendant and the age of the complainant and the view judicially expressed that, wherever it is possible, young offenders should be tried in the Youth Court.  I accept that the full seriousness of the offence of attempted rape, especially when combined with three indecent assaults, and which justified the sentence in the event imposed, only fully emerged at a later stage, with the applicant’s own evidence and the pre-sentence report.  When the relevant decisions were taken, the court was entitled to conclude that the test for committal expressed by Leveson J at paragraph 35 of H, A and O was not satisfied.  
34.	Valuable though the procedure encouraged by the Protocol may be, however, the court must apply the statutory test in section 24(1)(a) of the 1980 Act and not be diverted from it.  Parliament has seen fit to grant a right to a Crown Court hearing (including trial by jury) to young offenders in certain circumstances and that cannot be defeated administratively.  There will be alleged sexual offences involving very young defendants where committal to the Crown Court is the correct decision.  
35.	Subject to the above submissions, no complaint is made about the fairness of the trial in the Youth Court in either of the cases.  Nor is complaint made about the trial judge also being the sentencing judge.  There has been an appeal against conviction, and, if exercised, the applicant has the right to a full retrial before a judge of the Crown Court.  The first trial having been conducted by a Circuit Judge, it would be preferable if a Senior Circuit Judge heard the appeal.  Of course, a disadvantage of the procedure under the Protocol, given its stated objectives, is that it involves the possibility of two full scale trials.        
Result 
36.	While the decisions challenged were taken more than three months before these proceedings were commenced, I would, in this particular case, and bearing in mind that sentence was not imposed until 29 January, hold that the application is not defeated by delay.  I would grant permission to apply for judicial review and refuse the application.  
Mr Justice Cranston :
37.	I agree.