High Court finds District Judge correct to retain jurisdiction of a rape case despite defendant being 18 at start of trial

BH v Norwich Youth Court [2023] EWHC 25 (Admin)

BH applied for judicial review of the decision of the District Judge to retain jurisdiction in relation to three charges of rape, alleged to have been committed when he was 16 years old, and to order summary trial of those charges. The High Court dismissed the claim in order to prevent any further delay.


BH is charged with three offences of rape alleged to have been committed between April and August 2020. He was aged 16 and his complainant was aged 15 at the time.

BH and the complainant were friends. They met in secret at night at both the complainant’s and the Claimant’s home. It is events during these visits that give rise to the three charges of rape.

Although the complainant reported what happened to the police in August 2020, and the result of DNA examination of the complainant’s clothing was available in December 2020, criminal proceedings were not commenced until December 2021. The Court condemned this delay and stressed the need for expedition given the involvement of both a young defendant and complainant.

On 20 January 2022, despite submissions from both the CPS and BH’s solicitor that the case should be sent to the Crown Court, the judge decided it should remain in the Youth Court.

BH was given permission to apply for judicial review on three grounds. The Court dismissed all of them.

First ground

The first ground was that the judge failed to follow the mandatory procedure set out in Section 24A of the Magistrates’ Court Act 1980. That is, no indication was sought of BH’s plea before the determination of venue for trial. Since it did not, it was argued that the judge had no jurisdiction to make the decision on jurisdiction. On that basis, the decision should be quashed – and since BH was now aged 18, his case would be sent to the Crown Court to be tried as an adult.

The Court rejected this argument. At [24], they said they were ‘satisfied that Parliament at no stage intended that a failure to comply with the procedure set out in Section 24A should remove the jurisdiction of the Youth Court to try indictable offences summarily.’ That is, a procedural failing does not render a subsequent decision on jurisdiction invalid. However, the Court held that a procedural failure could be a basis for challenge to allocation ‘if it were to affect the fairness of proceedings or prejudiced BH’ [25]. The failure was of no practical effect in this case.

Second ground

The second ground was that the judge was wrong to retain jurisdiction in four ways.

First, counsel relied on Billam [1986] 1 WLR 349 for the proposition that ‘a Magistrates’ Court dealing with a juvenile charged with rape should never accept jurisdiction…’ That was dismissed as, among other reasons, the case pre-dated the current approach to children (as exemplified in the Sentencing Children and Young People guideline).

Second, that the judge erred in assessing that BH’s alleged offending fell into Category 3B in the adult guideline. The Court held the approach taken was appropriate, particularly in light of Paragraph 2.10 of the Children guideline. That highlights that:

‘In most cases it is likely to be impossible to decide whether there is a real prospect that a sentence in excess of two years’ detention will be imposed without knowing more about the facts of the case and the circumstances of the child or young person. In those circumstances the youth court should retain jurisdiction and commit for sentence if it is of the view, having heard more about the facts and the circumstances of the child or young person, that its powers of sentence are insufficient.’

Third, that the judge failed to have proper regard to BH’s desire for a jury trial based on the complexity of the case. There were issues of third party disclosure and forensic and electronic evidence. The Court rejected this proposition as unsustainable: the allegations related to the same complainant, there were no complex issues of law or fact indicated on the PET form and District Judges frequently try complex cases.

Fourth, that the judge failed to take into account that BH would be 18 or older by the point of any conviction and as such, the Sentencing Children and Young People guideline would no longer apply. The Court rejected that proposition. It acknowledged that a person convicted at 18 would be subject to the purposes of sentencing applicable to adults but that, as per 6.3 of the guideline, ‘it will rarely be appropriate that a more severe sentence than the maximum that the court could have imposed at the time the offence was committed should be imposed.’

Third ground

The third ground was that the Claimant was properly entitled to elect trial by jury now that he was 18 on the proper construction of domestic statutory provisions and by virtue of Article 14 ECHR protections. The court also rejected this ground.

It held that the venue is determined on the occasion on which the mode of trial is determined and as such, BH had no right to a jury trial under domestic law. On the ECHR complaint, it found that it had no merit. The ambit requirement was not met and it failed on the comparator issue because they did not consider BH had demonstrated a summary trial before the Youth Court is less favourable than a jury trial. Further, any difference of treatment was justified as a legitimate aim to try cases in the Youth Court. That yielded important benefits: privacy, adaptations and expedition.


This case is a helpful reminder that the circumstances in which a child will be sent to the Crown Court for trial will be rare, even where the case appears to be of a complex nature (that is, three charges of rape involving third party disclosure and forensic and electronic evidence). The threshold for complexity such that it would not be suitable for the Youth Court is high. The High Court stressed that District Judges are ‘well used to trying cases of rape’, including cases of greater complexity than BH’s. That the child would have turned 18 by the start of trial is accommodated for by the Children and Young Person’s guideline. A sentencing court would not be free to sentence BH as an adult but would take into account the purpose of sentencing adult offenders.

The Court clearly had expedition at the forefront of its mind when considering jurisdiction. Sending the case to the Crown Court would have involved further delay. Particularly in the context of the needs of children and young people, this was deemed unacceptable. The Court commented that a Youth Court trial is not, to adopt a term used by counsel, sub ‘Rolls Royce’ and that it provides many benefits to a defendant.

However, the fact that children are being tried for very serious crimes in the youth court and denied a denied a jury, makes scrutiny of the system more important than ever. There is a need to ensure the principles of the youth court are being effectively applied and considered in the same way procedures, such as ground rules hearings, would be in the crown court. The consequences of not doing so are considerable. It is also vital that both defence and prosecution advocates undertake regular specialist training.

Written by Tommy Seagul, a barrister at Garden Court.