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High court finds age assessment of a child by youth court ‘unlawful’

R (on the application of M) v Hammersmith Magistrates’ Court (2017), Divisional Court, Unreported

A youth court, who had deemed the claimant to be 18 for the purposes of criminal proceedings, had not made proper enquiries into the claimant’s age as is required by section 99 Children and Young Persons Act 1933. A visual assessment was not sufficient or appropriate.

Details

The claimant appeared before the court charged with theft and being in posession of a false ID card. He was of Algerian ethnicity and spoke little English. He told police officers he was 16 years old and informed the court that he had been in school in France before coming to England. The magistrates undertook a visual assessment of him and deemed him to be 18.

There was no evidence from the police or a local authority and no Merton compliant assessment. [A Merton compliant assessment is the term used to describe age assessments which comply with the Administrative Court’s guidance on appropriate procedures to be adopted by a local authority when assessing a young person’s age set out in R (B) v Merton London Borough Council [2003] EWHC 1689 (Admin).]

The claimant in this case was not even given the opportunity for the case to be adjourned in order for him to present evidence of this age from school records. His case was sent to the Crown Court. He was remanded into custody on the basis that there were substantial grounds for believing that he would fail to attend court and/or commit further offences.

The claimant brought this case by way of Judicial Review on the basis that no proper age assessment was undertaken and therefore the assessment was unlawful.

The Divisional Court found the assessment had been unlawful. Where there is a real issue about a defendant’s age, the case should be adjourned for a proper age inquiry to take place under section 99 Children and Young Persons Act 1933, R. v Steed (Gareth) (1990-91) 12 Cr. App. R. (S.) 230, applied. When the issue of age arose much more than a superficial observation of the defendant in the dock was required, R. v L [2013] EWCA Crim 991, applied. As stated in R v L, when an age issue arose, the court had to be provided with all the relevant evidence.

As a result of the Divisional Court ruling, the claimant has been transferred to appropriate local authority accommodation under section 91 Legal Aid, Sentencing and Punishment of Offenders Act 2012 and an age assessment is being carried out.

Conclusion

The Divisional Court decision in this case has important procedural implications and confirms the correct approach to be taken in all cases in the magistrates’ or youth court where there is a real dispute as to age.

Practitioners should use this case in court when the age of a defendant is disputed. The proper course of action is for an adjournment to be given and directions to be made for an age asessment to be conducted.

In cases where the police or court have reasonable grounds to believe a person is a victim of trafficking and their age is uncertain, but believe they may be under 18, the court must presume they are a child (section 51 Modern Slavery Act 2015). See our legal update on the the statutory defence for child victims of trafficking and slavery under section 45 Modern Slavery Act 2015.  here.

Defence practitioners should also be aware of the case of L, HVN, THN and T [2013] EWCA Crim 991.