Neutral Citation Number: [2004] EWHC 1805 (Admin)

Case No: CO/2710/2004 & CO/2905/2004

IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Strand, London, WC2A 2LL

Date: 23 July 2004
Before :

LORD JUSTICE KENNEDY
and
MR JUSTICE TREACY
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Between :

	R (DPP)		
	- and -		
	Camberwell Youth Court
R (H)
- and -
Camberwell Youth Court		

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Mr Richard Horwell and Miss Catherine Pattison (instructed by CPS) for the DPP
Mr C. Adrian Kayne (instructed by G.T. Stewart, Electra House, SE22 8PL) for the Defendants

Hearing date: 16th July 2004
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REASONS FOR JUDGMENT

Lord Justice Kennedy: 
Introduction.
1.	On 16th July, 2004 we heard an application for permission to apply for judicial review brought by the DPP which had been referred to the Divisional Court by Harrison J on 8th July 2004, and an application for judicial review brought by the mother and litigation friend of a minor H, permission for that application having been granted by Stanley Burnton J on 30th June 2004.  At the conclusion of the hearing we refused both applications, and said that we would give our reasons later, which we now do in this judgment.  We were then asked to consider an application by the DPP for a Voluntary Bill of Indictment which, although it would only have been directly relevant if the DPP’s primary application had been successful, raised issues on which the DPP wants to have guidance from this Court.  We therefore deal with that issue at the end of this judgment.
2.	Both the DPP’s primary application and the application of H arise out of decisions of the same Youth Court on different occasions as to whether to commit defendants aged between 12 and 16 to the Crown Court for trial, or to retain jurisdiction.  In the DPP’s case ten defendants jointly charged with three offences of street robbery were not committed to the Crown Court, whereas in the case of H three defendants charged with religiously aggravated criminal damage were committed to the Crown Court.  Both of those decisions of the Youth Court are now challenged in this court, in the first case by the DPP, and in the second case by those acting on behalf of one defendant.  Before we look at the two cases individually we must consider the legal framework within which the Youth Court had to make its decisions, and the powers of this court.
Powers and Duties of the Youth Court.
3.	The relevant statutory provisions which the Youth Court have to bear in mind are to be found in section 24(1) of the Magistrates Courts Act 1980, and sections 91, 100 and 101 of the Powers of Criminal Courts (Sentencing) Act 2000.  As applied to the present cases, they can be summarised as follows –
(1) When anyone under the age of 18 is convicted of an offence punishable with imprisonment in the case of an adult, and the case is so serious as to be unsuitable for non-custodial disposal, then the Youth Court can make a detention and training order for a maximum of 24 months, but –
(2) if the offender is under the age of 15 at the time of conviction no such order can be made unless he is a persistent offender.  Such offenders are not normally to be subjected to custody.
(3) However, for grave offences, punishable in the case of an adult with a sentence of 14 years or more (and both robbery and religiously aggravated criminal damage are so punishable), if the Youth Court considers that no other method of dealing with the offender is suitable it can commit the offender to the Crown Court which, under section 91(3) of the 2000 Act, has power to order that he be detained for a period up to the maximum sentence of imprisonment available in the case of an adult.”
An additional factor to which the Youth Court must always have regard is that it is generally much better equipped than the Crown Court to deal with young offenders.  The lay-out of the court and the procedures are better adapted.
4.	The statutory provisions have been considered by this court on a number of occasions.  We can restrict ourselves to four of them.  In R (W) v Southampton Youth Court [2002] EWHC (Admin) 1640 Lord Woolf CJ adopted what had been said by Gage J in an earlier case, namely that the use of section 91 should be regarded as exceptional, and it should not be used to enable the Crown Court to impose a custodial sentence of less than two years on a non-persistent offender under the age of 15.  At paragraph 25 in the Southampton case Kay LJ said –
“The simple principle underlying the current legislation for sentencing very young offenders is that, generally speaking, first-time offenders aged 13 and 14, and all offenders aged 11 and 12, should not be detained in custody.  For 13 and 14 year olds, where the youth persists in offending, the position changes.  Clearly some offences or offending are so serious in themselves that the court has to contemplate the possibility of sending an under age 15 year old for a period in custody, despite the general approach of the legislation.  That may be to protect the public or it may be that the long-term interests of the offender require such a drastic course, even though he is under 12 or under 15 but not a persistent offender.  To cater for this possibility Parliament has left open to the courts the use of section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.  The need in exceptional cases to make use of these powers cannot, however, have been intended to water down the general principle.”
5.	In R(C and D) v Sheffield Youth Court [2003] EWHC (Admin) 35 Stanley Burnton J said at paragraphs 39 and 40 that in making its decision the Youth Court should take into account any undisputed fact put forward in mitigation, such as the good character of the accused.  All of the accused with whom we are concerned were of good character.  He also said that the Youth Court must consider the sentencing powers of the Crown Court under section 91(3) and the guidance that has been given as to their exercise -
“If, on the basis of that guidance, there is no real possibility of such a sentence, committal is inappropriate.”
In R(C) v Balham Youth Court [2003] EWHC (Admin) 1332 Scott Baker LJ at paragraph 33 reiterated what had been said by Gage J, namely -
“The fact than an offender … does not qualify for a detention and training order because he is only 14 and not a persistent offender is not an exceptional circumstance to justify passing a sentence of less than two years under section 91 of the 2000 Act.”
At paragraph 34 he said that the relevant question in that case was whether it was such a serious case that detention above two years would or might realistically be required.
6.	In R(M and W) v West London Youth Court [2004] EWHC (Admin) 1144 Leveson J at paragraph 17 put the same question in slightly different terms –
“Whether there is a real prospect that a custodial sentence of, or in excess of, 2 years might be required, or is there any unusual feature of this case which might justify a sentence of less than two years, pursuant to section 91(3), for which purpose the absence of a power to impose a detention and training order because the offender is under the age of 15 is not an unusual feature?”
Plainly therefore it is necessary in each of the cases in which we are concerned to consider the gravity of the alleged offending.
Powers of the Divisional Court
7.	As to the powers of this court, we adopt what was said by Stanley Burnton J at paragraph 41 in the Sheffield case, namely –
“Was the decision of the Youth Court wrong?  The test is one appropriate to a review court rather than one making the original decision.  Parliament has clearly given the original decision to the Youth Court, and in terms that admit of some latitude: ... There is normally a range of appropriate sentencing decisions available, and a sentence within that range cannot be said to be wrong: ….It is not sufficient for the High Court to consider that it would have made a different decision under section 24(1) to that of the Youth Court.  Only if the High Court is satisfied that the original decision was wrong may it interfere.”
Robbery – The DPP’s application.
(A) The facts alleged.
8.	At about 7.15 p.m. on Saturday 28th February 2004 three white boys G, W and T, were waiting at a bus stop in Dunkery Road, London, SE9.  G and T were thirteen years of age and W was twelve years of age.  They were fellow students at the same technology college in Sidcup.  There were also two adults at the bus stop, Karen Holdup and her partner Anthony Evans.
9.	A bus stopped on the other side of the road, and a number of black youths got off.  They crossed the road towards G, W and T.  One of the black youths asked “who’s G?” and G replied “that’s me”.  G was then attacked.  He was asked if he had a mobile phone, he said he had not, and was asked if he had any money.  His pockets were searched, revealing a bus pass, a booklet and a pair of red Nike gloves.  The first two items were returned to him, but the gloves were stolen.  They were recovered on 8th March 2004 from BO.  
10.	The aggressors asked who had stabbed Marcus.  G knew nothing about that, and said so.  His interrogator then took out a Coca Cola bottle and threatened him with it.  G thought that if hit he might be killed.  He was then punched on the back of the head by another youth, and pulled to the ground.  He curled up to protect himself whilst he was being kicked and stamped on.
11.	Meanwhile the other black youths were attacking T.  He was dragged towards a wall and asked if he had a mobile phone.  He was threatened and searched and a pair of black Nike gloves were stolen from him, as well as the gloves he was wearing.  They were later recovered from AS.  T was not allowed to zip up his jacket, and he too was knocked to the floor and kicked.  
12.	Whilst this was going on W was dragged against a wall and hit in the ribs.  He was asked if he had money or a phone and was searched.  He had no phone, but his money was stolen. 
13.	G tried to run off.  He was chased and kicked in the head by his original assailant.  He ran into a house to seek help.  W followed and was hit on the back of the head by the black youth who had chased G.
14.	The two adults, Miss Holdup and Mr Evans, saw some of what occurred.  A large group of black youths was kicking T as hard as they could, and when they ran off the adults went to his aid.  He was on the floor crying in pain and spitting out blood.  He had some visible injuries, and Miss Holdup telephoned the police, as did Mr Frenchman from the house to which G and W had fled.  T was later found to have a number of bruises and abrasions to various parts of his body and was detained in hospital overnight for observation.
15.	Two police officers located a group of six black youths.  Some were identified by W and G, and all six were arrested.  They were BW, TG, RT, AS, SO and BO.   When cautioned none of them replied.
16.	BW was 14.  When interviewed he admitted being in the posse which crossed the road.  He heard the victims being asked if they had mobile phones.  He saw T have his jacket taken and on the ground being kicked.  He also saw G pulled to the ground and kicked but he denied active involvement.  
17.	TG, aged 15, when interviewed said he was with the others, but denied being at the scene.  
18.	RT, aged 14, answered “no comment” to all questions.  So did AS, aged 15, SO, aged 15, and BO, aged 14.
19.	On 2nd March 2004, a couple of days after the incident, DB, aged 14, was arrested at home.  He said “I know about it, I was sitting at the bus stop.”  A jacket resembling one seen during the attack was found at his home.  He said he had been given it by VW and went on -
“That’s not the jacket.  The one taken was similar, but it was thrown in the front garden by someone else.”
A search where he indicated produced nothing.  When interviewed he admitted some discussion about phones and a scuffle, during which a boy was punched in the face and his jacket was taken.  He denied involvement.
20.	DL, aged 14, was arrested at home on 3rd March 2004.  He admitted being there and knowing of the offence, but made no comment in interview.
21.	SS, aged 14, was arrested on 4th March 2004.  He made no comment in interview.  
22.	IB-T, aged 13, who was also arrested on 4th March 2004, admitted knowing of the incident and being there with others, but denied involvement and claimed to have being on the other side of the road.
23.	On 9th and 11th March 2004 all ten black youths were charged with three offences of robbery.  On 18th March 2004 they made their first appearance in Camberwell Youth Court.  The case was adjourned to 15th April 2004, when the issue of jurisdiction was considered, and the District Judge decided to accept jurisdiction.  It seems from the clerk’s note that she was only given a very brief outline of the material facts, and she observed that no weapon was used.  She also expressed the view that the defendants were “not likely to get more than two years”.
B. Possible Sentences.
24.	Plainly this was a nasty offence with a gang of ten youths attacking the three boys at the bus stop in the dark, threatening to use a bottle as a weapon and inflicting significant injury on at least one of the victims.  It is not clear whether there was any racial element, but that is an obvious possibility.  The immediate objective seems to have been the theft of money and mobile phones.  As Mr Kayne for the defendants (the interested parties before us) points out, no weapon was actually used, no grave physical injury was sustained, the value of the goods stolen was not great, if there was pre-planning it was probably of short duration, and the alleged offenders are all young and of previous good character.  
25.	Mr Horwell for the DPP reminded us that in Bol Joseph [2001] 2 Cr App R (S) 398 the Court of Appeal Criminal Division upheld a sentence of three years detention imposed under section 91(3) of the 2000 Act on a 14 year old boy who had with others attempted to rob a man of his computer and his wallet.  The offence was worse than the offence with which we are concerned in that it was later at night, the appellant produced a knife with a four inch blade, and he was the one who had taken the prime role.  Furthermore, although young, he was larger than his victim. 
26.	In Attorney General’s Reference Nos 4 and 7 of 2002 (Lobban and Sawyers) [2002] 2 Cr App R (Sentencing) 345 Lord Woolf CJ at 348 accepted that for a mobile phone street robbery by an adult where no weapon is used “the upper limit is three years”, but an important factor is whether a team of offenders is involved.  In Balham (supra) where two 14 year olds attempted to rob another 14 year old and no weapons were used, although one was threatened, this court found it inappropriate to think in terms of two years or more; but Scott Baker LJ contrasted the case with those involving “multiple assailants, a weapon and offences committed at night”.  Mr Horwell submits that the present case falls on the other side of the line.  But Mr Kayne points out that in its report to the Sentencing Guidelines Council of March 2004 the Sentencing Advisory Panel classified offences of robbery by reference to the level of violence and the age of the offenders.  For an offence at level 2, that is to say involving significant force equating to actual bodily harm, and/or the use of a weapon to threaten or to put the victim in fear, the suggested sentencing range in the case of a young offender was up to 24 months detention, with a starting point of 10 months detention.  It was recognised that group offending is an aggravating circumstance, as is the involvement of a weapon in the use or threat of force, but, Mr Kayne submits, if the panel’s approach were to be adopted no sentence in the present case would exceed two years.   At the moment as far so we are aware the panel’s advice has yet to be acted on, so it has no legal force, but it is helpful as an indication of a considered response to the sentencing problem posed by a case such as this.  We also derived some assistance from the very recent decision of the Court of Appeal Criminal Division in Attorney General’s Reference 31, 42, 43 , 45 and 51 of 2003.
Our conclusion.
27.	Mr Kayne conceded that this was a borderline case.  In our judgment he was right to do so.  We think it possible that a different Youth Court might have come to the conclusion that there is a real prospect that a custodial sentence of, or in excess of, two years might be required, and if that had been the conclusion of the Youth Court in the present case we would not have thought it right to interfere.  But, as Mr Kayne pointed out, the District Judge does seem to have adopted a sensible approach to the very brief outline of the facts with which she was provided, and in the light of the authorities we cannot say that she was plainly wrong.  That is why we decided that her decision must stand.
Religiously Aggravated Criminal Damage – The application of H.
A. The facts alleged.
28.	Charlton Cemetery in southeast London has a section for those of Turkish or Cypriot descent and Muslim faith.  The graves in that area have headstones on plinths, and some headstones have photographs on them of the deceased.  As is clear from the photographs before us, the cemetery was well maintained with flowers on many of the graves.  During the night of Wednesday 17th March 2004 the Muslim section of the locked cemetery was desecrated.  Forty seven headstones were pushed over or smashed, some photographs were smashed or went missing, and it was estimated that the damage would cost £12,500 to repair.  However, the real gravamen of the offence was the anguish caused to the relatives of the deceased, and the justifiable sense of outrage experienced by the local community.  
29.	On 3rd April 2004 H, born 28th May 1990, so then not quite 14 years of age, was arrested.  A claw hammer was recovered from under his bed.  He admitted presence at the scene with two others, and participation until a headstone fell on his foot.  But he denied any religious or racial motivation.  Two slightly older youths who were arrested on 4th April 2004 also admitted involvement, and on 13th April 2004 all three were charged.
30.	Further investigations at the cemetery revealed damage or desecration to about 72 graves, and on 4th May 2004 the Youth Court declined to accept jurisdiction.
31.	This was not only a group offence.  It seems to have been pre-planned.  It was necessary to pass a number of other graves in order to reach the Muslim section of the cemetery.  Only one of the damaged headstones was outside that section, and it was in an adjacent section.  So it can be inferred that this was a religious or racial attack, causing considerable damage, distress to many, and inflaming tensions.
B. Possible Sentences. 
32.	As Mr Horwell pointed out, the maximum penalty for the offence charged is 14 years imprisonment in the case of an adult, and where it is possible to show that an offence has been racially or religiously aggravated that is likely to increase the sentence by at least 40%.  There are no directly comparable authorities but Mr Kayne invited us to consider Ward and others 31st October 1996 unreported, where three defendants who were intending to attack a Jewish cemetery received sentences of 12 to 18 months imprisonment.  Their appeals against sentence were dismissed.  In that case the situation was complicated by the fact that had the offenders done as they intended and had they been charged with the substantive offence they could not at the time have received more than three months imprisonment, so the decision is really of no assistance in the present case.  The only other decision to which our attention was invited, namely O’Brien [2003] 2 Cr App R (S) 390 is also of limited assistance.  The defendant in that case threw bricks through the window of a neighbouring house in which asylum seekers were housed, and used an iron bar to attack a car which he believed to belong to them.  He was sentenced to 14 months imprisonment.  He had a medical history, and the sentencing judge considered that without the element of racial aggravation the appropriate sentence would have been as low as two months imprisonment.  The Court of Apopeal reduced that over all sentence to 6 months imprisonment.
C. Our conclusion.
33.	We bear in mind the age of H and his previous good character, but it seems from what his co-defendants said in interview that he may have played a leading role in a very serious offence which not only caused damage and grief but which could easily have caused serious unrest.  We can well understand why the District Judge concluded that in his case there is a real prospect that a custodial sentence of, or in excess of, two years might be required.  We are satisfied that he was entitled to reach that conclusion and that is why we dismissed his application.
Application for a Voluntary Bill of Indictment
34.	When the DPP is concerned about the decision of a Youth Court to retain jurisdiction he can either apply for judicial review or seek a Voluntary Bill of Indictment.  Time considerations apart, Mr Horwell readily accepted that the better course is to seek judicial review, because that gives both the Youth Court and the Interested Parties a full opportunity to be heard.  That is also the thrust of what was said by Brooke LJ in R v Crown Court at Snaresbrook ex parte SFO [1998] EWHC Admin 985 at paragraph 41.  But, as Mr Horwell pointed out, if there is an application for a Voluntary Bill the consolidated Practice Direction [2002] 1 WLR 2870 at paragraph 35.5 and 35.6 does now safeguard the position of defendants to a considerable extent.  In particular, save where there are good grounds for doing otherwise –
(1) They must receive notice of an application for a Voluntary Bill with copies of all documents relied upon to support the application:
(2) They must have an opportunity to make written submissions, and –
(3) They may be invited to make oral submissions if the judge considers it necessary or desirable to hear their oral submissions.
35.	Nevertheless an application for a Voluntary Bill does not give to a defendant the rights he enjoys when acting as an interested party in response to an application for Judicial Review, and, as is said in paragraph 35.3 of the Practice Direction –
“The preferment of a Voluntary Bill is an exceptional procedure.  Consent should only be granted where good reason to depart form the normal procedure is clearly shown and only where the interests of justice, rather than considerations of administrative convenience, require it.”
Why then should there be resort to this exceptional procedure in the type of case with which we are concerned?  As Mr Horwell points out, an application for judicial review normally takes three to four months from the commencement of proceedings to the delivery of judgment, and after that there is always the possibility of an appeal, whereas a decision in relation to an application for a Voluntary Bill can normally be obtained within two or three weeks, so the DPP feels obliged to consider that alternative because of his statutory duty to deal with cases involving children and young people expeditiously, both for the sake of the defendants and for the sake of the witnesses, who may also be young.  That need for expedition has been emphasised in recent years, for example in guidance from the Youth Justice Board.
36.	As Mr Kayne helpfully pointed out when urging caution in the use of the Voluntary Bill procedure, an application for a Voluntary Bill is plainly a useful procedure where, for example, the prosecution assert that the Youth Court was wrong to find no case to answer, and it can also be useful in support of an application by the DPP for judicial review in a jurisdictional case because, if the application for judicial review is successful, the hearing in the Crown Court can then be expedited.  But if an application to prefer a Voluntary Bill is successful there is no right of appeal, nor can the decision be made subject to judicial review (see R v Manchester Crown Court ex parte Williams and Simpson [1990] CLR 654).  So, Mr Kayne submits, the rights of the defendant are better safeguarded if the DPP in any case where he wishes to challenge the decision of a Youth Court in relation to jurisdiction seeks judicial review.  We agree with that submission, and in our judgment that is the course which should normally be followed.  However we do consider it necessary to meet the concerns of the DPP as to time, and to that end we have made enquiries of the judge in charge of the Administrative Court and of the Head of the Administrative Court Office, as a result of which we are satisfied that if jurisdictional challenges are brought by way of judicial review, and if an expedited hearing is sought (by completing form N463), the matter can be dealt with within the sort of timescale mentioned in relation to obtaining a Voluntary Bill.  Accordingly that it is the procedure which should now be used, and if without adequate explanation an application for a Voluntary Bill is made other than in a supporting role in a jurisdictional case the court will probably refuse consent on the basis that no good reason has been shown to depart from the normal procedure, and the interests of justice do not require it.
Mr Justice Treacy:

37.	I agree.