CO/11160/2011 
Neutral Citation Number: [2012] EWHC 154 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Thursday, 19 January 2012
 
B e f o r e: 

MR JUSTICE OUSELEY
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Between: 
THE QUEEN ON THE APPLICATION OF C 
Claimant

v 

STRATFORD MAGISTRATES' COURT 
Defendant 
THE CROWN PROSECUTION SERVICE
Interested Party

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Computer‑Aided Transcript of the Stenograph Notes of  
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Mr S Field (instructed by SJ Law) appeared on behalf of the Claimant
Mr B Douglas‑Jones (instructed by CPS Appeals Unit) appeared on behalf of the Interested Party
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J U D G M E N T
1.	MR JUSTICE OUSELEY:  This is a challenge by way of judicial review to a decision of District Judge Hamilton sitting at Stratford Youth Court on 1 November 2011.  He adjourned sentence on the claimant in order to obtain a pre‑sentence report which would consider all options including custody.  The claimant was 17 years old at the time.  
2.	The claimant contends that that decision involved a breach of a legitimate expectation and was unjust in the light of an indication given by lay magistrates on 11 October 2011 that he would not receive a custodial sentence.  The District Judge took the view that the exclusion of consideration of custody from the range of sentencing options was perverse.  
3.	The issues raised in this challenge concern the nature of the indication given by the lay magistrates, the reasonableness of the view of the facts which they took, the guidelines relied on or ignored, and other information which may or may not have been known to them.
4.	On 23 April 2011, the claimant attacked the owner of a small convenience store, who refused to sell him and two friends cigarettes.  I have seen CCTV footage of the incident, as did the lay magistrates and District Judge Hamilton.  It shows three youths trying for some minutes to buy cigarettes in the shop over the counter.  They become aggressive and agitated, as body language and hand gestures clearly demonstrate.  The shopkeeper then threw something small over their heads or around the level of their heads, as their hand gestures and ducking indicate.  He then came round from behind the counter with a stick or baton in his hand, and two out of the three of them retreated out of the shop.  One was left, although he played no part in what then happened.  
5.	A few seconds later the claimant came back into the shop, followed by his other friend.  The claimant was carrying a stepladder as a weapon.  He grabbed the shopkeeper around the neck from behind, wrestling him into the display stand face first, and appearing to be trying to get him to the floor.  Another person came to the shopkeeper's rescue, and not long afterwards, the claimant and his friend were forced out of the shop.  
6.	After the claimant was charged, he first pleaded not guilty to assault occasioning actual bodily harm, contrary to section 47 of the Offences Against the Person Act 1861, and using threatening words or behaviour, contrary to section 5 of the Public Order Act 1986.  
7.	On 11 October 2011 the matter was listed for trial.  He pleaded guilty at that hearing to those two charges, and a third charge was dropped.  According to the fairly skimpy witness statement produced by his solicitor advocate, the legal adviser to the Bench advised the magistrates that the current guidelines showed this to be a case with custody as a starting point.  He continues: 
"The lay bench wished to have the case adjourned for a pre‑sentence report with a high level community order in mind in view of the fact that the guidelines were based on a person who had not pleaded guilty [but had] been found guilty after a trial." 
It appears that they later accepted that a full one‑third credit for the guilty plea could not be given.
8.	The legal adviser's continuing insistence that the guidelines showed a custodial starting point led to the magistrates viewing the CCTV, which I have already described.  The Bench thereafter agreed that an item had been thrown at the defendant, and that the shopkeeper had himself advanced with a weapon.  The witness statement of the claimant's solicitor continues: 
"The bench reiterated that they had considered the legal adviser's advice, and that they wished to have a pre‑sentence report ordered with a high level community penalty in mind, this was following consideration of the CCTV evidence." 
No CPS representations were made about sentence.  
9.	The witness statement, which I have described as skimpy, is silent about anything else which may have transpired at the hearing, including any manner in which the prosecution opened the facts and any reference which may have been made to the claimant's antecedents, which, in addition to a number of offences, would have included the fact that this offence was committed when the claimant was subject to a conditional discharge imposed in February 2011 for an offence of theft.  
10.	Notwithstanding the indication which it is said the magistrates had given, the magistrates did not reserve the case to themselves.  A pre‑sentence report was produced.  Two paragraphs are relevant.  Paragraph 2 says:  
"His case was adjourned to 1 November 2011 to allow for the preparation of a pre‑sentence report with a 'community penalty' indication." 
11.	Paragraph 17 says: 
"The court has requested that this report explore 'community penalty' options in regard to [C's] current offences.  The indication received from the court was that this report should only consider "high end" options, and as such I have referred only to the option of a youth rehabilitation order in this instance.  I have explained this type of order to [C], and he has agreed to comply with any conditions imposed by the court.  He is aware of the consequences of non‑compliance, and his mother has agreed to support him with his obligations." 
12.	As the report makes clear from those passages, it does not consider custody, either from the point of view of its harmful effect on C or its public benefit.
13.	The District Judge then came to deal with the matter on 1 November.  He took the view that the exclusion of custody from the range of sentencing options examined in the pre‑sentence report was perverse.  In his decision, he said: "I do find the restrictions set out by the previous Bench perverse".  There appear to be two bases upon which the District Judge reached that conclusion.  The first is that he regarded it as perverse that the magistrates should regard there as having been significant provocation so as to provide any significant mitigation in relation to the offence of assault.  It is clear from the grounds that the magistrates did regard what they saw on the CCTV footage as showing provocation that was significant in relation to the assault, and thus significant in relation to sentence.  The District Judge said that it was not that he found "no provocation"; he said this in the notes of the hearing made by his legal adviser: 
"The application for judicial review places emphasis on a claim that I found no provocation in the case and consequently reopened sentencing.  I think this significantly misrepresents my analysis as I found the whole argument about provocation a little bit of a red herring.  It seemed to me that the far more important point was that, having been chased out of the shop, the defendant then chose to return shortly afterwards armed with a weapon and viciously attacked the shopkeeper when he had had ample opportunity to leave the scene altogether." 
14.	The second basis upon which he regarded the magistrates' decision perverse concerned the guidelines.  He said in his decision that the sentencing guidelines on assault, which were in effect from 13 June 2011 in relation to adults, would have put this as a category 2 offence, which contained the range from a low level community order up to 51 weeks' custody, with a starting point of 26 weeks.  He recognised that age would be mitigation, as the claimant was 16 years old at the time of the offence and 17 at the time of sentencing.
15.	The District Judge's note said that it had been brought to his attention after the hearing that the justices were strongly advised that their restriction on sentencing was contrary to the sentencing guidelines and to the legal adviser's advice.  It appears that it was not so much the absence of attention to the guidelines that concerned him; it was simply that the guidelines he was referring to showed a range that meant that custody could not be excluded.
16.	There are a number of authorities which set out the legal principles to be applied.  The starting point is the well‑known case of R v Gillam [1980] 2 Cr App R (S) 267, but it needs to be considered with some caution nowadays.  In Gillam, Watkins LJ said that when a report had been requested with a view to considering whether or the defendant should perform community service, that created an expectation that that is the sentence he would receive if the probation officers recommended such a course to the court in the report which it had been invited to produce:  
"When a judge in these circumstances purposely postpones sentence so that an alternative to prison can be examined and that alternative is found to be satisfactory one in all respects the court ought to adopt the alternative.  A feeling of injustice is otherwise aroused." 
17.	Of course those were in days when, as I understand it, pre‑sentence reports were not required, at least for the persons that the court was dealing with in Gillam.  
18.	More recently, in Nicholas v Chester Magistrates' Court [2009] EWHC 1504 (Admin), Wilkie J (with whom Stanley Burnton LJ agreed) had to deal with a case where magistrates seeking a pre‑sentence report indicated a high community penalty.  This was a case in which the Divisional Court agreed with the District Judge, to whom it later fell to sentence, that the assessment that the Bench had given was perverse and unreasonable.  
19.	In Thornton v the Crown Prosecution Service [2010] 2 Cr App R (S) 65, Aikens LJ (sitting with Openshaw J in the Divisional Court), held that where a court at a preliminary stage of the sentencing process gave a defendant an indication as to the sentence which would or would not be passed upon him "in terms sufficiently unqualified to found a legitimate expectation in the mind of the defendant that any court which later passed sentence upon him would act in accordance with the indication, and any court, without reason which justified departure from the earlier indication, passed sentence inconsistently and more severe than the sentence indicated, the court would ordinarily feel obliged, however reluctantly, to adjust the sentence passed so as to bring it into line with the indication."  (I take that from the head note.)  
20.	I emphasise the words "in terms sufficiently unqualified to found a legitimate expectation" and "without reason which justified departure".  Aikens LJ reviewed a number of cases and concluded that they were examples of a principle that no judicial review would lie on the basis of legitimate expectation as used in these sorts of cases if the expectation was founded on a decision of the Bench which was so unreasonable as to be perverse, or one which ignored the sentencing guidelines which they were required to consider.  Clearly, if a sentence is unlawful because magistrates had ignored important material considerations, a District Judge later hearing it is bound to reconsider it.
21.	I would wish to emphasise, while I am dealing with the authorities, that those last two emphasise that where an indication is given by one Bench, it is that same Bench which must pass sentence.  It is quite wrong, as happened here, and it has been pointed out to be wrong on a number of occasions, for one Bench to give an indication which founds a legitimate expectation in the mind of the defendant and is thus binding on the conscience of the court, and for another judge, who may disagree with it on its merits, to be bound to give effect to it when passing sentence, however reluctantly, unless he can conclude, fairly, that that indication was perverse or unlawful.  
22.	Issues which therefore arise for consideration in this case are whether there was a sufficiently unqualified indication so as to give rise to a sense of injustice unless there were reasons justifying departure, and secondly whether there was perversity in the decision of the magistrates, or it ignored relevant factors, including the true understanding of the way the guidelines worked.  
23.	I had raised the question, in the light of Mr Douglas‑Jones' submissions on behalf of the CPS, as to whether the lay magistrates had been aware that this offence was committed in breach of a conditional discharge.  The witness statement is surprisingly silent about that matter.  It ought to have dealt with it, but I am disposed, in the absence of any other material, to accept Mr Field's submission that it is more probable than not that the magistrates did have presented to them the antecedents on which the conditional discharge appears and from which the fact that this offence was committed in breach of the terms of the conditional discharge would have been apparent.  
24.	I turn first of all to the question of whether a sufficiently unqualified indication was given.  The witness statement is, as I have said, unsatisfactory in terms of the description of the sentencing proceedings and in terms of what the justices themselves said.  But I have concluded that a sufficiently unqualified indication was given in the light of the way in which the pre‑sentence report clearly interpreted the instructions given to the Probation Service, and in the light of the way the District Judge approached the matter.  He clearly approached it on the basis that there had been a restriction on what the pre‑sentence report should consider, and it seems to me that the right conclusion is that the indication given by the magistrates for those purposes, known as it would have been to the claimant, was sufficiently clear.
25.	The second question therefore is whether that indication was perverse.  I take first of all the effect of the CCTV footage.  It is my view that the District Judge was entitled to conclude that the magistrates' evaluation or interpretation of the footage, or the significance which they were minded to ascribe to it, was clearly perverse.  The three youths remain in the shop, getting more aggressive and agitated.  They do not leave for some minutes.  The shopkeeper takes steps to get these youths out of his shop, which include throwing something at them and advancing on them with a weapon.  He is one person against three youths.  They leave the shop.  
26.	It is my judgment that the District Judge is entirely right to say that it is the return into the shop with a weapon and then grabbing the shopkeeper from behind and forcing him into the display stand which constitutes the significant part of the offence.  The fact that he may have got them out of the shop after they had been clearly bothering him, using what measures he did, whether it annoyed them or made them angry, seems to me really beside the point.  It is a factor, but it cannot possibly be rationally regarded as a significant one, or more precisely the District Judge was entitled to reach the view that it was a perverse view taken by the magistrates.  
27.	This does, I have to say, emphasise the importance of those who wish to take a particular view of the facts making sure that they keep the case in front of them so that they have to deal with the consequences of their views, rather than forming a view and then requiring somebody else, who may form a different view of those facts, to abide by their view when coming to sentence.
28.	So far as the second point is concerned, in the light of the way in which the District Judge phrases it, he clearly did not reach the view that the magistrates were perverse because they had looked at the wrong guidelines, although that could, on the evidence before me, have been a proper basis upon which such a conclusion could have been reached.  It is perfectly clear however that the magistrates were refusing to have regard to the sentencing guidelines for assault which came into effect on 13 June 2011.  
29.	Mr Field submits that they would have been wrong to have had regard to them, and indeed that the District Judge was wrong to apply them.  So not merely was his view that the magistrates were perverse wrong; he was himself wrong in his approach to sentencing.  For these purposes, Mr Field rightly points out that the sentencing guidelines on assault say on their face at their outset, so there is no room for doubt about it, under the heading "Applicability of guideline": 
"It applies to all offenders aged 18 and older, who are sentenced on or after 13 June 2011, regardless of the date of the offence." 
Later: 
"This guideline applies only to offenders aged 18 and older.  General principles to be considered in the sentencing of youths are in the Sentencing Guidelines Council's definitive guideline, Overarching Principles ‑ Sentencing Youths."  
30.	He points out that those youth sentencing guidelines make clear that age and maturity are mitigating factors, but go further in emphasising the need in relation to those aged under 18 to avoid criminalising them and put the emphasis on rehabilitation, developing maturity and a sense of responsibility.
31.	The guidelines for youths do not include any offence‑specific guidelines for the most part ‑ those that there are irrelevant to this case.  However, the summary of the guidelines in the Archbold supplement says: 
"... where the offender is age 15, 16 or 17, the court will need to consider the maturity of the offender as well as age.  Where there is no offence‑specific guideline it may be appropriate, depending on maturity, to consider a starting point from half to three‑quarters of that which would have been identified for an adult offender.  The closer the offender was to being 18 when the offence was committed, and the greater the maturity of the offender, or the sophistication of the offence, the closer the starting point is likely to be to that appropriate for an adult.  For younger offenders, greater flexibility is required to reflect the potentially wider range of culpability." 
32.	The District Judge took the view that those guidelines were relevant.  He, in my judgment, was right to regard them as relevant.  If the magistrates had had regard to them as relevant, as they ought to have done, it is difficult to see how they reasonably could have excluded a custodial sentence from the range of options which had to be examined.  Of course, the custodial starting point would have been lower.  The custodial starting point, they might have concluded, could never have been reached because the range permits something significantly less.  But it is clear that they ought to have considered those guidelines in order to give themselves some framework of reference for considering the appropriateness of a custodial sentence.  Their exclusion of it showed that they were not paying attention to the relevant guidelines.
33.	So far as the District Judge is concerned, Mr Field criticises his reliance on the adult guidelines as showing that his approach to the magistrates' decision was itself wrong.  In my judgment, the District Judge did not fall into the error attributed to him.  Reading his decision, in particular the part that is headed "Decision", as well as the preceding discussion, it is perfectly clear that he was aware of the significance of the claimant's age, and that the decision on sentencing did not involve a straight application of the adult guidelines to him.  
34.	Be that as it may, even if the District Judge had got his application of the guidelines wrong, and even if he had at that time misunderstood what the magistrates had done, I would not exercise my discretion in favour of the claimant because the magistrates themselves have made it clear in what they said and what I have been told that they did not pay attention to useful offence‑specific guidelines (although they were not bound by them). 
35.	Accordingly, in my judgment, the District Judge was entitled to conclude that the lay magistrates reached a perverse conclusion on provocation, and that they had not paid attention to or apply relevant guidelines, which would have meant that a custodial option could not be excluded.  This claim therefore fails.  
36.	I have considered the question of whether the claim should be dismissed on the grounds that it was premature.  I do not think it appropriate to lay down any rules for claims of this sort.  Mr Field makes the point, perfectly properly, that if a custodial sentence is passed in breach of a legitimate expectation, then there will have been a period served in custody, before there could be proceedings taking issue with the lawfulness of that decision.  Conversely, it may very well be the case here, in the light of the most recent pre‑sentence report, which is an all options report, but nonetheless recommends against custody and reaches the same conclusion that the previous report had reached, there is a case for saying that these proceedings would have been better left to wait.  There may well be no custodial sentence.  I have found it not easy to see what is the answer to such a point; it depends on the facts, and in those circumstances, I would not propose to dismiss these proceedings on the prematurity ground as a further alternative.  
37.	Nonetheless, on the merits, I consider that the claim must fail. 
38.	MR FIELD:  My Lord, I do not know if my learned friend has an application at this stage.  I certainly have one procedural application for detailed assessment of the claimant's publicly funded costs. 
39.	MR JUSTICE OUSELEY:  You may have that.
40.	MR FIELD:  I am grateful.
41.	MR DOUGLAS-JONES:  My Lord, might I answer the question?  There is no application on my part.
42.	MR JUSTICE OUSELEY:  Thank you very much.