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High Court judgment – sending children to the Crown Court should be rare

R (on the application of BB) v West Glamorgan Youth Court  [2020] EWHC 2888 (Admin)

The Court examined the circumstances in which BB, a child aged 13 charged with robbery and attempted robbery, was sent to the Crown Court for trial. The Court quashed the decision to send BB’s case to the Crown Court and made clear that the guidance to be applied in such cases was set out by Sir Brian Leveson in R (on the application of the DPP) v South Tyneside Youth Court [2015] EWHC 1455 (Admin) which makes clear that the circumstances in which a child is sent to the Crown Court for trial should be rare, and that it would be very rare for a defendant under the age of 15 to be sent to the Crown Court for trial.

Details

 BB was alleged to have been involved in the robbery of a pouch of tobacco and the attempted robbery of a moped from the victim, BA.  It was alleged that three other children, Z, L and H threatened BA with a knife and an imitation handgun and demanded the keys to his moped. It was further alleged that H punched BA, and that BB subsequently stole a pouch of tobacco from BA.  BB also alleged that he was punched from behind and stabbed in the upper arm as he walked away, and was then attacked by more than one of the youths which resulted in him being stabbed in the thigh.

All of the defendants were under the age of 18, however, BB was the youngest, aged 13.

BB was charged with robbery of the tobacco and attempted robbery of the moped. His case was heard separately from Z, L and H who appeared first and were all sent to the Crown Court for trial under the provisions of section 51A of the Crime and Disorder Act 1998 (“the 1998 Act”), following the Crown’s successful submission that the offences with which they were charged amounted to grave crimes.

When BB appeared before the Youth Court the Crown submitted that the offences with which BB was charged amounted to grave crimes and that his case should also be sent to the Crown Court. The Crown further submitted that it was in the interests of justice for BB to be sent to the Crown Court in order to avoid the complainant being required to give evidence at two separate trials.

The justices considered the Sentencing Council guidelines for street robbery both in relation to youths and to adults and concluded that a sentence in excess of 2 years’ custody would be appropriate in BB’s case. They also took into account that BB’s co-accused had been sent for trial and that it would be in the interests of justice for there to be one trial. This was the basis on which they sent BB to the Crown Court for trial.

The Administrative Court considered this reasoning and noted that the justices had no clear indication of BB’s role in the incident other than the theft of the tobacco, and that there was no attempt to determine what, if any, direct role BB played in the violence. The Administrative Court considered that the justices’ reasoning did not take into account the guidance given by Sir Brian Leveson in R (on the application of the DPP) v South Tyneside Youth Court, although it was noted that the case did not appear to have been drawn to their attention. If it had been, and had it been properly considered, BB should not have been sent to the Crown Court.

The Administrative Court was also critical of the justices’ interpretation of the Sentencing Guidelines, given that they did not consider the guideline in relation to Sentencing Children and Young People which emphasises that a custodial sentence will be particularly rare for a child or young person aged 14 or under.

The Administrative Court further noted that the justices fell into error in applying the interests of justice test when considering that BB’s co-accused had been sent to the Crown Court. The justices had no power to apply this test; the provisions of s.51(7) of the 1998 Act make clear that the interests of justice test applies where a child or young person appears before a magistrates’ court jointly charged with an adult, and the adult is sent for trial to the Crown Court. This sub-section does not apply if there is no adult involved in the case. Further authority for this proposition can be found in R (W and others) v Brent Youth Court and others [2006 EWHC 95 (Admin).

Commentary

 This case helpfully restates a number of principles to have in mind when faced with the prospect of a child being sent to the Crown Court for trial. The guidance as set out in the case of R (on the application of the DPP) v South Tyneside Youth Court is key, but the key principles to take from both cases can be summarised as follows:

  • The Youth Court can commit a defendant for sentence after conviction if it considers the offences to be grave crimes. This means that the decision to send a young person to the Crown Court due to the insufficient sentencing powers of the Youth Court should generally be taken after trial as the court has had the opportunity to determine the full circumstances of the offence;
  • The result of this development in the law is that it should be rare for a Youth Court to send a child or young person for trial, and cases in which a defendant under 15 is sent to the Crown Court for trial should be very rare;
  • In considering the question of whether the Youth Court has sufficient sentencing powers for a defendant under the age of 15, the starting point is the guideline in relation to Sentencing Children and Young people which requires an individualistic approach to sentencing focusing on the offender not the offence;
  • There is an expectation that a custodial sentence will be particularly rare for a child or young person aged 14 or under.

The case also includes a reminder that interests of justice arguments in favour of sending a young person to the Crown Court for trial because their co-accused have been sent apply only when a youth is jointly charged with an adult. The Youth Court has no power to take the interests of justice into account if the co-accused who were sent for trial are also youths. The judgement should therefore increase the opportunity for and bolster severance applications in the youth court.

This judgment also makes a highly important observation in relation to the limited powers of the Youth Court in sentencing a child under the age of 15 who pleads guilty, has no previous findings of guilt and who cannot be categorised as a persistent young offender. In these circumstances, the only sentence the Youth Court can impose is a Referral Order, however, that does not justify the sending of the child or young person to the Crown Court.