Case No: CO/6355/2015
Neutral Citation Number: [2016] EWHC 1230 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 24/02/2016

Before :

LORD JUSTICE SIMON AND MR JUSTICE LEGGATT

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Between :

	B	Claimant	
	- and -		
	Leeds Crown Court	Defendant	
	-and-		
	Crown Prosecution Service	Interested Party	

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Mr De la Poer for the Claimant
Mr Douglas-Jones for the Interested Party

Hearing date: 24 February 2016

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Judgment
Mr Justice Leggatt : 
1.	This appeal by way of case stated from the Leeds Crown Court raises a question about the implications for the sentencing of youths of restrictions on the powers of a magistrates' court to sentence adult offenders.
2.	The appellant was sentenced by Leeds Youth Court on 10 September 2015 for the following offences: first, an offence of aggravated vehicle taking, committed on 24 July 2015, for which the sentence imposed was a 4 month detention and training order; second, an offence committed on the same occasion of driving without insurance, for which no separate penalty was imposed; third, an offence of aggravated vehicle taking committed on 18 August 2015, for which the appellant received a 4 month detention and training order consecutive to that imposed for the first mentioned offence; fourth, an offence of handling stolen goods, committed on the same occasion, for which a concurrent 4 month detention and training order was imposed; fifth, a Public Order Act offence, committed on 19 July 2015, for which there was no separate penalty.  The sixth and seventh offences for which the appellant was sentenced were offences of criminal damage for which again in each case there was no separate penalty.  In relation to all the offences the appellant pleaded guilty at the first reasonable opportunity.  
3.	The appellant was born on 5 May 1998 and was 17 years old at the time when all the offences were committed except one of the criminal damage offences which was committed when he was still 16 years old.  Prior to sentence the appellant had served 3 weeks in custody on remand, equivalent to 6 weeks for an adult.  
4.	He appealed against sentence to the Leeds Crown Court and the appeal was heard on 2 October 2015.  After hearing submissions and retiring to consider them, the court began to announce its decision.  The court indicated that all three detention and training orders would be quashed and replaced by detention and training orders of 3 months' duration.  It was pointed out, however, by the representative for the appellant that under section 101 of the Powers of Criminal Courts (Sentencing) Act 2002 the minimum duration of a detention and training order is 4 months.  Having retired again to reconsider the matter, the court concluded that in those circumstances the appeal would be dismissed.
5.	On the appeal to this court Mr De la Poer, who has argued the case most ably for the appellant, puts at the forefront of his submissions the principle reflected in the Overarching Principles for Sentencing Youths, issued by the Sentencing Guidelines Council, that generally a young person should be dealt with less severely than an adult offender albeit that the distinction diminishes as the offender approaches 18.  In reinforcement of that principle, Mr De la Poer has cited the case of P v Leeds Youth Court [2006] EWHC 2527 (Admin).  In that case the district judge had imposed a detention and training order of 4 months when sentencing a 17‑year‑old defendant for an offence of criminal damage.  Under the applicable legislation the maximum sentence which an adult could have received for the offence was one of 3 months' imprisonment.  It was held by the Divisional Court that in those circumstances the imposition of a 4 month detention and training order was unlawful.  Bean J, with whom Maurice Kay LJ agreed, referred in his judgment to section 101(2) of the Powers of Criminal Courts (Sentencing) Act 2000 which provides: 
"The term of a detention and training order may not exceed the maximum term of imprisonment that the Crown Court could (in the case of an offender aged 21 or over) impose for the offence."  
Bean J said (at para 6 of the judgment):  
"Strictly speaking, this section does not apply in the present case since the offence was only triable summarily.  But the section reflects the view of Parliament, in accordance with long‑standing elementary principles of sentencing, that it cannot be right to impose on a young offender a more severe sentence than could have been imposed on an adult who had committed the same offence.  As Mr Southey for the appellant puts it, the youth of a defendant before the criminal courts is a mitigating factor, not an aggravating one." 
6.	Mr De la Poer submitted that a similar analysis is applicable in the present case.  The sentence should be tested, in his submission, by considering the maximum sentence that an adult offender might have received in similar circumstances or, to put the point another way, the maximum sentence that this appellant might have received had he been a year older at the time when the offences were committed.
7.	Mr De la Poer referred to section 133 of the Magistrates' Court Act 1980, the effect of which is that, in the case of an adult offender, a magistrates' court can impose a sentence of more than 6 months in aggregate only where there are two or more offences triable either way which fall to be sentenced.  In this case, Mr De la Poer submitted, only one of the offences for which the appellant was sentenced was an offence triable either way, namely the offence of handling stolen goods.  All the other offences could be tried summarily only.  In those circumstances the effect of section 133 is that the magistrates' court could not have imposed a total sentence of more than 6 months' imprisonment for these offences if the appellant had been an adult offender.
8.	Mr De la Poer was prepared to assume, for the purposes of his argument, that the magistrates' court would have been entitled in the present case to take the 6 month maximum as the starting point in sentencing an adult offender for offences similar to those committed by the appellant.  (He went on later in his submissions to contend that this assumption was in fact unduly generous.)  He then submitted as the next stage of his argument that because guilty pleas were entered here at the first opportunity it was necessary in principle to reduce the sentence to reflect this fact.
9.	Mr De la Poer referred to paragraph 5.7 of the Definitive Guideline issued by the Sentencing Guidelines Council on Reduction in Sentence for a Guilty Plea, which states:
"When the total sentence for both or all of the offences is 6 months imprisonment, a court may determine to impose consecutive sentences which, even allowing for a reduction for a guilty plea where appropriate on each offence, would still result in the imposition of the maximum sentence available. In such circumstances, in order to achieve the purpose for which the reduction principle has been established, some modest allowance should normally be given against the total sentence for the entry of a guilty plea."
10.	Mr De la Poer submitted that, applying this principle, an adult in the circumstances of the appellant could not properly have received a total sentence of more than 5½ months' custody.  A further reduction must then in principle be made to reflect the period of time spent in custody on remand.  In this case the appellant had served the equivalent of a period of 6 weeks in custody for an adult.  When that time is deducted, the resulting maximum sentence that could in principle have been passed for an adult would have been one of no more than 4 months custody.
11.	Mr De la Poer submitted that it cannot in principle be right that the appellant in this case received a total sentence which was double that length, in particular once the principle is applied that a youth should be treated less severely or at any rate not more severely than an adult.  It must therefore follow that the sentence imposed by the magistrates' court and upheld by the Crown Court in this case was unlawful.
12.	Mr Douglas‑Jones, who has appeared today on behalf of the Crown Prosecution Service as an interested party, raised in his skeleton argument a question as to whether the premise of Mr De la Poer's submissions, that 6 months is the maximum total sentence that could have been imposed in this case for an adult offender, is correct.  In particular he pointed out that in certain circumstances an offence of aggravated vehicle taking may be triable either way.
13.	However, after the point had been canvassed in argument Mr Douglas‑Jones, on mature consideration, accepted – in my view clearly rightly – that on the facts of the present case, and in light of the way that the relevant charges of aggravated vehicle taking were framed in the magistrates' court, those offences were triable only summarily.  It follows that, had the appellant been an adult, there would indeed have been a ceiling of 6 months on the sentencing powers of the magistrates' court.
14.	Mr Douglas‑Jones also placed reliance on the decision of the Divisional Court in the case of LCC v DPP [2001] EWHC (Admin) 453.  In that case it was argued that the magistrates did not have power to impose consecutive detention and training orders for summary only offences falling to be sentenced on the same occasion, such that the total sentence was greater than 6 months.  The argument in that case focused on the correct interpretation of section 101 of the Powers of Criminal Courts (Sentencing) Act 2000.  Bell J, with whom the then Lord Chief Justice Lord Woolf agreed, held that on the proper interpretation of that section the magistrates did have power to impose such sentences.
15.	In that context Bell J, at paragraph 18 of the judgment, considered an argument made by counsel for the appellant that, if the construction which allowed such sentences to be imposed was adopted, the result would be that "a youngster of under 18 could end up with a custodial sentence for a series of summary offences which is longer than an adult co­defendant could receive either from the magistrates or from the Crown Court." Bell J observed: 
"But in my view that is to ignore the very special nature and objectives of a detention and training order or orders in respect of a young person, which are very distinct from those of imprisonment in the case of an adult."  
16.	Mr Douglas‑Jones relied upon that observation as support for an argument that a detention and training order is not to be equated with an adult sentence of imprisonment and that potentially it could be justifiable to impose on a young offender a detention and training order of longer duration than the sentence of imprisonment that would have been imposed on an adult in an equivalent case.
17.	The observation of Bell J which was relied on to support that argument was clearly obiter, as the LCC case was concerned only with the proper construction of section 101 of the 2000 Act and not with any argument equivalent to that which Mr De la Poer has developed in the present case.  In any case, whether or not one accepts Mr De la Poer's characterisation of modern British society, I would accept at least his submission that the approach to the sentencing of youths has changed significantly since the LCC case was decided.  In particular, that case predates by some years the Definitive Guideline on Sentencing Youths which was issued by the Sentencing Guidelines Council with effect from November 2009.  Paragraph 11.7 of that Guideline implicitly treats a detention and training order as the youth equivalent of an adult custodial sentence.  That approach is also reflected in the case of P v Leeds Youth Court to which I referred earlier.
18.	It seems to me that a detention and training order should generally at least be treated as equivalent to a sentence of imprisonment for an adult.  Moreover, any difference between them of the kind to which Bell J alluded in the LCC case could not possibly justify the sort of discrepancy that exists in this case between a sentence of 8 months in respect of a youth and, on the analysis referred to earlier, a maximum sentence of 4 months in the case of an adult.
19.	Finally, Mr Douglas‑Jones submitted that guidelines are only guidelines and that the facts of this case were egregious with many aggravating features.  Whilst it can of course be appropriate in some circumstances to step outside the sentencing guidelines, it is necessary for the court in such circumstances to justify doing so and, so far as I can see, no such justification was put forward and no such exceptional circumstances were suggested here by either of the courts below.  In any event, this submission seems to me to miss the mark, since the appellant’s argument assumes that, if he had been older, he would have received the maximum sentence permitted by law for these offences (before making necessary reductions) and no aggravating features could have justified a higher starting point than that.
20.	It is not necessary in these circumstances to consider the further arguments developed by Mr De la Poer to the effect that on the facts the magistrates should have taken a lower starting point than 6 months for these offences before giving credit for the appellant’s guilty pleas and time spent in custody on remand.  The arguments that he advanced under that heading are really matters for the judgment of the magistrates and do not raise any demonstrable error of law.  
21.	For the reasons developed by Mr De la Poer which I have outlined, it could not have been right, in my view, in sentencing this appellant, had he been an adult, to impose a custodial sentence of any more than 4 months as an absolute maximum.  It must follow that the total sentence of 8 months' detention and training made up of two consecutive 4 month detention and training orders in this case was an unlawful sentence.  I would accordingly hold that the sentence should be quashed and the case remitted to the magistrates' court for reconsideration.
Lord Justice Simon:  
22.	I agree for the reasons given by my Lord that it is clear that the Crown Court fell into error in relation to its jurisdiction and proceeded to re‑sentence on that basis and that that amounted to an error of law.  I also agree that in any event it resulted in a sentence so far outside the normal discretionary limits as to enable this court to say that its imposition must involve an error of law, those being the two approaches set out by this court in R v St Albans Crown Court ex parte Cinnamond [1981] QB 480.  
23.	In the light of these conclusions it is unnecessary to give specific answers to the four questions posed in the Case Stated at paragraph 2 beyond those matters that have been fully dealt with in the judgment of Leggatt J. 
24.	Is there anything else?  One further thing is to thank you both very much for your very clear submissions.