Neutral Citation Number: [2014] EWHC 1833 (Admin)
Case No. CO/130/2014 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT
Mold Crown Court
Civic Centre
Mold,
Flintshire
Wales
CH7 1AE

Date: Friday, 28th February 2014
 
B e f o r e: 

MRS JUSTICE ANDREWS DBE
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Between: 
THE QUEEN ON THE APPLICATION OF BH (A CHILD) 
Claimant
v 

LLANDUDNO YOUTH COURT 
Defendant 
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Mr Mintz appeared on behalf of the Claimant
Mr Scholz appeared on behalf of the Defendant
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J U D G M E N T
1.	 MRS JUSTICE ANDREWS:  This is a claim for judicial review, brought by the claimant BH, who is now aged 12.  He seeks judicial review of the decision of District Judge Shaw made in the Youth Court to commit him for trial to the Crown Court, pursuant to what is now section 51A(3)(b) of the Crime and Disorder Act 1988, that section having replaced what was previously section 24(1)(a) of the Magistrates' Court Act 1980.  The decision was made on 29th October 2013.
2.	BH was 11 years old at the time of the offence with which he is charged.  It is a single offence of causing or inciting a boy under the age of 13 to engage in sexual activity of a non‑penetrative nature, namely to suck on his penis, contrary to section 8(1) and (3) of the Sexual Offences Act 2003.
3.	As I have said, at the time of the alleged offence BH was 11 years old.  His co‑defendant, TL, was also aged 11 and the complainant, TB, was 10.  All three of them were Year 6 pupils at the same primary school.  TL has been committed to the Crown Court in respect of this alleged offence and another more serious offence, namely one of the alleged anal rape of the same complainant which is said to have taken place the week before the index offence with which BH is charged.
4.	The facts that are stated, which one has to assume for present purposes the Crown would establish at trial, are that BH and TL had asked TB to go with them into the school toilets where TL and BH had pretended to kiss each other, pretending that they were homosexual. Both of them then exposed their penises.  BH is said to have said to TB: "suck on the one you think is best" before grabbing his head and trying to force his mouth towards his penis, causing his penis to touch the outside of the complainant's mouth.  The complainant managed to escape and reported the incident to a teacher.  
5.	There were no further relevant incidents involving BH although there was a general complaint of bullying by both him and TL.
6.	The statutory framework for sentencing juveniles requires the court to have regard to the principal aim of the youth justice system, which is to prevent offending by children and young people, but also to have regard to the welfare of the offender.  There are Sentencing Guidelines which have been promulgated to assist the courts in this difficult balancing exercise. The Overarching Principle of Sentencing Youths states in paragraph 4.2: 
7.	 
"The younger an offender (taking account of maturity and not just chronological age) the more likely it is that considering the welfare of the young person will be of greater significance."  
In paragraph 5.2 of those Guidelines there is a direction that where an offender crosses a relevant age threshold between the dates of offence and conviction (as BH did in this case) the court should take as its starting point the offender's age at the date of the offence.  That is a departure from the normal rule that in sentencing one looks at the offender's age at the date of the sentencing exercise.
8.	Parliament has determined that an offender who is under 14 should be sentenced to detention only where it is necessary for the protection of the public either because of the risk of serious harm from future offending or because of the persistence of offending behaviour. A detention and training order is not an available sentence where the child is under 12. Where the offence that is committed is a grave offence, the court has power, under section 91 of the Powers of Criminal Courts (Sentencing) Act, to impose a custodial sentence.  It is clear that the court may impose a custodial sentence of less than 2 years under that provision, but in practice the power to do so is rarely exercised.
9.	In determining whether or not this is a case in which the decision to commit should be quashed, the court has to have regard to the specific guidance that has been given by the Divisional Court in a number of decisions. Most pertinently there is the case of R (H, A and O) v Southampton Youth Court [2004] EWHC 2912 (Admin), [2005] 2 Cr App R(S) 30.  That is a decision of a strong Divisional Court, comprising Collins J and Leveson J, as he then was (now Leveson LJ, President of the Queen's Bench Division). It is still the leading authority.  
10.	It is noteworthy that in that particular case the defendants had been charged with indecent assault. There are some similarities between that case and the present. The defendants were three boys who were friends with the complainant.  They had been playing at home in the house of one of the boys, and in the course of playing on the computer in the bedroom one of them is said to have pointed a ball-bearing gun at the head of the complainant while another physically restrained him. The complainant then had a kitchen spatula put between his buttocks. He believed that he was penetrated to some extent (although there was no medical evidence to support it and no physical injury).  That was on any view a fairly serious assault, but the Divisional Court decided that it was wrong for the Youth Court to have sent the matter for trial to the Crown Court.
11.	Leveson J carried out a very extensive examination of previous case law, which I need not repeat for the purposes of this judgment.  Suffice it to say that he made it very clear that he agreed with the approach that had been taken by the Divisional Court in earlier cases to the interrelationship of the various relevant statutory provisions.  In particular, he approved observations made by Gage J in the case of D v Manchester City Youth Court [2002] 1 Cr App R (S) 135 at paragraph 22:
12.	  
"In my judgment, the effect of section 24 is that a Magistrates' Court should not decline jurisdiction unless the offence and the circumstances surrounding it and the offender are such as to make it more than a vague or theoretical possibility that a sentence of detention for a long period may be passed. Although, under section 91 and pursuant to recent authority, it is no longer necessary for a court to pass a sentence of at least three years, in my judgment section 91 is primarily applicable to cases of such gravity that the court is or may be considering a sentence of at least two years. Anything less, it seems to me, falls primarily to be dealt with as a detention and training order."
13.	Gage J went on to say that although there was no statutory restriction on a court using its powers under section 91 so as to pass a sentence of less than 2 years, it seemed to be only in very exceptional and restricted circumstances that it would do so. However, he resiled from that gloss of “very exceptional and restricted circumstances” in the subsequent case of R (W) v Thetford Youth Justices [2003] 1 Cr App R (S) 67. In that case, he said:
14.	  
"I accept that there may be cases where, despite the fact that the offender is under 15 and no detention and training order can be made, the only appropriate sentence is a custodial sentence pursuant to section 91 and possibly for a period of less than two years. But I remain of the opinion that the circumstances of the offence and offender will only rarely call for a sentence pursuant to section 91, particularly if the court is dealing with an offender under the age of 12. In expressing my views, as I did, in D v Manchester City Youth Court, my use of the expression 'very exceptional' may be more restrictive than was strictly necessary or justified. But, I remain of the view that the mere fact that a youth court, unable to make a short detention and training order, considers that the option to pass a short custodial sentence should be available, does not mean that it should decline jurisdiction. It seems to me that in such circumstances the fact that a detention and training order is not available indicates that Parliament intended that generally a non‑custodial sentence should be passed. Perhaps it would be better to say that cases involving offenders under 15 for whom a detention and training order is not available will only rarely attract a period of detention under section 91; the more rarely if the offender is under 12."
Sedley LJ, who was the other member of the Divisional Court on that occasion, agreed with that analysis. So too did a Divisional Court presided over by the Lord Chief Justice, Lord Woolf, in the case of R v Southampton Youth Court, ex parte W. [2002] EWCA 1640 (Admin) [2003]1 Cr App R (S) 87.
15.	Leveson J, having looked at those authorities, had reformulated the test in R (M and W) v West London Youth Court [2004] EWHC 114, where at paragraph 16 he said:
16.	 
"The test was 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 that might justify a sentence of less than 2 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." 
That particular formulation of the test was repeated by Leveson J in the leading case of R (H, A and O) v Southampton Youth Court to which I have already referred. He set out at paragraphs 33 to 35 some clear guidance for magistrates or district judges in the Youth Court as to how the matter should be approached.  He said: 
"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. 
34.  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.	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."
17.	On behalf of the Crown Prosecution Service Mr Scholz (who did not appear below) urged upon the court that this was an unnecessary gloss that departed too far from the words of the statute.  He pointed out that it is only as a result of Leveson J's reformulation of the test that the question of an “unusual feature” has come into play.  In my judgment that was simply the way in which Leveson J was paraphrasing Gage J's approach, and he was not adding anything new to it. The emphasis in that case, as in all the earlier authorities, is upon how rarely it would be appropriate to pass a custodial sentence (of any length) on someone who is under 15 years of age, and that such a sentence is even less likely in the case of an offender under 12.  
18.	In such a case as the present, when approaching the question whether or not to decline jurisdiction and send the matter to the Crown Court, having regard to the age of the offender and the circumstances of the offence, (assuming for these purposes that they are established in accordance with the way that the Crown puts the case) and bearing in mind any uncontroversial mitigating features that arise, the District Judge in the Youth Court has to ask himself: is there a real prospect that the court will exercise its powers under section 91 to impose a custodial sentence, that being the only power that the Crown Court would have to impose a custodial sentence on a child of that age? In so doing the judge must take into account the fact that the court would rarely impose a sentence under s.91 of less than two years.
19.	Here we have a child of previous good character.  There are aggravating features which are pointed to by Mr Scholz, who says this was a case of joint enterprise with the co‑defendant. He says that obviously there was an element of pre-planning, because the complainant was invited into the toilets.  There was no consent.  There was an element of force, and obviously there was an aim to exploit or degrade the complainant.  In those circumstances he submitted that the proper test on judicial review is whether or not the District Judge was entitled to conclude that a custodial sentence was a real option.  It does not matter whether or not it was a custodial sentence of 2 years or more, the question would be whether or not this was a case that should attract custody. On these facts the District Judge was entitled to conclude that it was.
20.	In a case of this nature it is quite clear that the test to be applied by the court of review is not whether or not the decision came within the ambit of reasonable decisions in the sense of Wednesbury reasonableness. The question is whether or not this court comes to the conclusion that the decision was wrong.  I have no hesitation in reaching the view that the way in which the Judge approached the matter was wrong, and in consequence so was the decision that he reached.  
21.	On examining the District Judge’s reasoning it appears that he did look at the sentencing guidelines for children of that age. He said that they did not carry the same weight or directive effect as they do with adults. Having observed that the task of the Youth Court was invidious, and having rightly referred to the fact that the authorities from higher courts urged the youth court to retain jurisdiction most strongly, he said that it was his task to establish a possible range of sentences if there was a conviction. He then said this:
22.	  
"If I picture the sentencing guidelines in shades of grey rather than in the bold black print that they would be for an older child or adult, it seems to me no amount of reduction could sensibly place this case within the Youth Court's jurisdiction."  
It appears from those remarks, and from what Counsel were able to ascertain about the way in which the CPS representative had presented the case before him, that the District Judge took as his starting point the range of sentences that an adult offender might have received for like behaviour, and then applied a reduction for the age of the child. That was the process by which he came to the conclusion that however great the reduction, a custodial sentence was inevitable. 
Without the benefit of the considerable assistance that this Court has had from Counsel, especially on the authorities, it is understandable how the District Judge came to fall into error, but he plainly approached the matter from the wrong direction. The tariff that an adult offender might receive for an offence of this nature affords no guidance to the sentence that a child, especially a child who was 11 at the time of the offence, is likely to receive.  
The question that the Judge should have asked himself is the one that Mr Scholz has actually suggested is the right question for this court, on an assumption that the child is convicted of the offence and the facts are as alleged by the prosecution. Bearing in mind the age, and the previous good character of the child concerned, and any other mitigation that is known and uncontroversial, and bearing in mind the aggravating features, is there a real prospect that the Crown Court would exercise its powers under section 91 to impose a custodial sentence? In this regard the authorities would have given a very clear pointer to the correct answer.
23.	In the light of how such cases have been approached by the Divisional Court, especially in H, A and O (the many similar features of which I have already rehearsed) it is plain to me that there is no real prospect that a Crown Court would impose a custodial sentence under section 91 in a case such as this, bearing in mind all of the features to which I have been taken.
24.	There are numerous other cases on which one can rely as guidance.  Mr Scholz very fairly said that he could not find any authority in which a custodial sentence had been passed, (certainly not one approaching 2 years) for a child of this age engaging in a criminal offence of this type. By contrast, one does see that in cases similar to this one, involving behaviour as bad, if not worse, time and again decisions to commit have been quashed. A number of such cases were referred to in the skeleton argument for the claimant.
25.	Take for example the case of R (W) v Thetford Youth Justices [2003] 1 Cr App R(S) 67, to which I have already referred, where the defendant was an 11‑year‑old of previous good character. He pleaded guilty to four specimen counts of indecent assault against young girls aged between 7 and 10, which included forcing them to engage in sexual activity by the use of violence, or threats of violence, and forcing three of them to touch and lick his penis.  This conduct had continued over a number of months, but the court quashed the decision to commit, Gage J observing that the most likely sentence for this very young appellant of hitherto good character was a supervision order.
26.	A similar result was reached in another of the cases considered by Sedley LJ and Gage J on that occasion, R(M )v Waltham Forest Youth Court: there, a slightly older offender, aged 13, was charged with digital penetration of a 12‑year‑old complainant. Once again the decision to commit was quashed.  In another case, R(K) v Wirral Borough Magistrates Court, one of the two cases decided by the Divisional Court in R v Southampton Youth Court, ex parte W. [2002] EWHC 1640 (Admin), [2003] 1 Cr App R(S) 87, there was a plea of guilty to two indecent assaults against a much younger complainant of 6 years old. The offender (who was aged 13) had placed his penis against the complainant's bottom and on another occasion rubbed again him. Lord Woolf CJ observed, in deciding to quash the decision to commit, that it did not seem to him that the case came “anywhere near the threshold”.  In my judgment, and without in any way seeking to minimise the seriousness of what is alleged to have happened, the same observation can be made about the present case.
27.	Bearing in mind these and the other cases to which I have been referred by Mr Mintz on behalf of the claimant, it seems to me, with the greatest respect to this very experienced District Judge, that on this occasion he fell into error and that the decision to commit must be quashed.
28.	I should simply add this. A further criticism was made by Mr Mintz of the District Judge's decision on the basis that he went on to refer to the interests of justice in determining that BH should be committed to stand trial together with his co‑defendant, TL. Having looked at the explanation given in the acknowledgement of service by the District Judge, and also at the notes of the hearing that have been helpfully provided, it does seem to me that this criticism is misplaced. 
29.	It is clear that the District Judge quite rightly approached the matter by firstly giving independent consideration to the question of whether he should exercise his power under s.51A to commit BH to the Crown Court for trial. It was only after deciding that he should, and after having been addressed by the CPS representative who was then present on the question whether there should be two trials or one, that the Judge came to the conclusion that the interests of justice dictated that there should be one trial involving both defendants.  That is a decision with which this court would not and could not quarrel if both defendants were facing trial in the Crown Court. However, in my judgment, it does not arise, because the venue for trial of this child should be the Youth Court and the decision to send him to the Crown Court was plainly wrong.  
30.	I am indebted to both counsel for their very helpful submissions.
31.	MR MINTZ:  The only further application is for legal aid taxation of the claimant's costs.
32.	 MRS JUSTICE ANDREWS:  Yes, I will grant that.  Thank you both very much.