B e f o r e :
LORD JUSTICE LAWS MR JUSTICE DAVID STEEL ____________________
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Computer-Aided Transcript of the Stenograph Notes of 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 I WISE (instructed by Harrison Bundey & Co) appeared on behalf of the CLAIMANT MR A WATERMAN (instructed by Crown Prosecution Service) appeared on behalf of the INTERESTED PARTY ____________________
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LORD JUSTICE LAWS: This application for judicial review, for which Hodge J gave permission on 17th March 2005, is about the appropriate venue for the trial of the claimant, "C", who is a minor born on 22nd February 1990, upon two charges of being concerned in the supply of heroin.
On 2nd February 2005, which was the day after he had been arrested, C appeared with two co-accused before District Judge Kitson at the Leeds Youth Court. After hearing submissions for the Crown and for C, but not apparently for the co-accused, the District Judge decided to decline jurisdiction in the youth court and directed that C and the co-accused be committed for trial in the Crown Court. That is the decision under challenge. Hodge J stayed the criminal proceedings until the judicial review should be determined and ordered that the case be expedited.
Here are the outline facts. The first charge related to an occasion on 24th November 2004 when two test purchase officers were deployed in the Chapeltown area of Leeds. The Crown case was that two males approached the officers and sold them heroin and that video footage shows C in the background acting as a lookout while the deal was taking place. The second charge concerned the same two test purchase officers and an occasion on or about 7th December 2004, again in Chapeltown.
The Crown case was that C was one of two males who met with the officers and directed them to a location where they might obtain heroin. C is also said to have given one of the officers a telephone number which the officer rang two days later. He was then given details of a meeting place but did not pursue it. C and his two co-accused were, as I have indicated, arrested on 1st February 2005.
In a submission which forms the substantive part of the acknowledgment of service in the judicial review proceedings, District Judge Kitson states that:
It is convenient at this stage to set out the statutory framework which defined the District Judge's task on 2nd February 2005. Section 24 of the Magistrates' Courts Act 1980, so far as relevant, provides:
Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, so far as relevant, provides:
Thus it can be seen that the general rule is that a minor under 18 charged with an indictable offence is to be tried summarily, that is in effect in the youth court; but if certain conditions are met he is to be committed for trial to the Crown Court under section 24(1) of the Magistrates' Courts Act.
The authorities in this area, and I refer in particular to the decision of the Divisional Court presided over by the Lord Chief Justice in W and K [2002] EWHC Admin 164 and also H, A and O [2004] EWHC Admin 2912 , have emphasised the primary statutory policy that minors are to be tried in the youth court and have emphasised also the duty of the courts to promote that policy. Guidance was given in both of these cases. However neither of them, nor any other authority, was cited by prosecution or defence to the District Judge in the present case.
In W and K both the Lord Chief Justice and Kay LJ endorsed the approach of Gage J (as he then was) in D [2002] 1 Cr App R (S) 573. Gage J had said this in D :
The Lord Chief Justice in W and K for his part also said this:
In H, A and O , Leveson J, with whose judgment Collins J agreed, made these general remarks:
Mr Waterman for the Crown Prosecution Service cites in his skeleton argument other authority, not least the decision of Stanley Burnton J in R v Sheffield Youth Court [2003] EWHC Admin 309 and that of Scott Baker LJ in R v Balham Youth Court [2004] 1 Cr App R (S) 330. He seeks to distil the principles to be got from the cases generally in paragraph 55 of the skeleton:
There are other considerations canvassed by Mr Waterman into which, given the facts of this case, it is unnecessary to travel.
C's judicial review grounds, elaborated in Mr Wise's skeleton argument, refer to other legal sources, such as section 44(1) of the Children and Young Persons Act 1933 and Article 3(1) of the United Nations Convention on the Rights of the Child, which emphasise the primacy, or at least the importance, of the interests of the child in proceedings where a child is involved. Emphasis is placed on the decision of the Court of Appeal Criminal Division in Khalid Hussain [2001] 2 Cr App R (S) 273 in order to mount a comparison with the facts of the present case in light of the guidelines in W and K and H, A and O .
In Hussain the appellant was 15 at the time he committed offences of supplying heroin and possession with intent to supply. In this case C was 14 at the time the offences were committed. As in this case, in Hussain a test purchase officer was involved. The appellant pleaded guilty and was sentenced in the Crown Court to three years' detention. That was varied by the Court of Appeal Criminal Division to a detention and training order for 24 months. It is submitted for C that this present case is less grave than Hussain : C, as I have said, was 14 at the time of the offences; he was acting as a lookout rather than actually holding the drugs; no drugs were actually supplied. It is accordingly submitted, having regard to the guidelines and the importance of the best interests and welfare of the child, that there was no real prospect of C being sentenced to custody for two years or more and accordingly the District Judge was wrong to commit him to the Crown Court.
I shall return to the merits of this argument shortly. First it is convenient to notice that it is also submitted by Mr Wise, in light of authority such as R v Burton upon Trent Justices ex parte Hussain [1997] 9 Admin LR 233 and learning from the European Court of Human Rights at Strasbourg, that the District Judge owed a duty to give reasons for his decision, which he failed to fulfil. C's case is that the District Judge disposed of the matter in a single sentence: "I hear what you say, but this is not a suitable case for summary trial for any of them". There is no transcript of what was said by the District Judge. However, in his observations set out in the acknowledgment of service, to which I have already referred in passing, the District Judge says this:
It is right to notice that in R v Sheffield Youth Court [2003] EWHC Admin 309, Stanley Burnton J said this at paragraph 47:
It is clear that the condition for committal to the Crown Court established by the PCCSA 2000 section 91(1)(a) was met here: that is to say, that the offences in question were "punishable in the case of a person aged 21 or over with imprisonment for 14 years or more". The question for the District Judge arising under section 24(1)(a) of the Magistrates' Courts Act was accordingly whether he considered that if C was found guilty of the offence it "ought to be possible to sentence him in pursuance of subsection (3) of section 91 of the PCCSA". I repeat section 91(3) for convenience:
Mr Waterman for the CPS submits that on the facts here, according to the prosecution case summary, C was part of a group of men, or men and boys, involved in the commercial supply of heroin and crack cocaine in an area where such dealings are prevalent. He, that is C, had a street alias. On an occasion not forming the subject of a charge against him, he was seen with known drug users at the same location where he had acted as a lookout. It is said that this goes to rebut any suggestion that he was "peripheral to what was taking place": see Mr Waterman's skeleton argument paragraph 74(c). C denied the offences in interview.
Counsel refers to the judgment given by Hooper J (as he then was) in R v Djahit [1999] 2 Cr App R (S):
Mr Waterman would not I think accept that the case was as low-level, to use that expression, as is being contemplated there.
As for the case of Hussain relied on by Mr Wise, Mr Waterman points to the fact that Hussain pleaded guilty yet still received a 24 month detention and training order. An appropriate sentence after a contest might therefore have been 27 to 36 months. Moreover, the basis of plea in Hussain was that Hussain had found the drugs and only sold to acquaintances he knew. These points, and in particular the latter, seem to me to be very significant factors: albeit, Hussain, unlike C, was actually in possession of drugs and in fact sold drugs to others.
It seems to me that the District Judge may have said more than is attributed to him by C in the grounds, but on his own account given in the acknowledgment of service there is no sign of his having considered the guidance in the authorities to which I have referred, and I have already said that no learning was cited to him. I have been concerned whether, notwithstanding the fact that short reasons may no doubt suffice. (as Stanley Burnton J explained) the District Judge may in those circumstances have failed to direct himself properly or failed to have regard only to relevant considerations. It should be remembered that this is a judicial review case to be decided on public law principles. A want of reasons is a familiar, indeed nowadays elementary, basis of challenge.
In my judgment, the District Judge's reasoning, taking it from his own explanation in the acknowledgment of service, did not fulfil the standards which it should have done. It is not apparent that he had regard to the correct approach as explained by decisions of this court. That would justify an order to quash the decision and a remission for a re-hearing in the youth court, unless it be the case that, in truth, only one outcome on the merits was available here. In my judgment, while certainly the District Judge should have made it explicitly clear that he had had regard to the approach to sections 24 and 91 spoken for in the authorities, nevertheless, despite Mr Wise's strenuous submission to the contrary, this is in fact a case in which the court was really bound to conclude that there was at least a real prospect that C would receive a sentence of two years or more detention.
It is important to have in mind that neither the District Judge nor this court is concerned actually to sentence C; we are merely considering the proper application of section 24 of the Magistrates' Courts Acts and section 91 of the Powers of Criminal Courts (Sentencing) Act in light of the guidance given in cases which I have described. That being so, in my judgment the District Judge's decision, far from being beyond the permissible range of conclusions open to him, was really the only available conclusion. There must have been at least a real prospect here that C would be sentenced to a term of detention of two years or more. In those circumstances it would be idle to quash the District Judge's decision and remit the matter. For all those reasons, for my part I would dismiss this application.
MR JUSTICE DAVID STEELE: I agree.
MR WISE: My Lord, I do have the benefit of public funding. May I have a detailed assessment?
LORD JUSTICE LAWS: Certainly, Mr Wise.
MR WISE: I am obliged.
LORD JUSTICE LAWS: Thank you very much.