An application for judicial review was refused on the basis that there was no restriction, by either the statutory instrument or the non-statutory guidance, on the power of the youth court to order a late DTO release. This entitled the youth court to take into consideration the concerns about the increased risk to the public of terrorist activity unless release was delayed.
X had been convicted at age 17 of two offences of encouraging terrorism contrary to s1(2) Terrorism Act 2006. At age 18, he was sentenced on each count concurrently to a DTO for 18 months. An application was made by the Secretary of State to delay X’s release by two months. 1. This was not because of particularly bad behaviour in custody as per the guidance,2 but because the National Probation Service had assessed X to pose a high risk of harm to himself and the public if released at the mid-point. This was based on his psychological vulnerabilities to grooming combined with his conversion to Islam, previous association with Sudesh Amman, and the general context of recent terrorist attacks. Thus, the National Probation Service had prepared a detailed training plan for the additional two months in detention to combat these concerns. The judge, considering the application, considered the delay order to be necessary and appropriate to the risks and thus granted the application. X’s counsel argued two grounds for judicial review: 1) that the youth court erred in law by admitting evidence that was not provided to the court or X and; 2) the court took into account an irrelevant consideration and/or exercised its power for a purpose extraneous to the statutory purpose.
The court rejected the second ground, holding that there was no restriction or limitation placed on the power of the youth court to order late release, other than the requirements that the order is made on an application by the Secretary of State for that purpose, and that the order must delay release by either one month or two months. Parliament did not include an express qualification or limitation in the statute, nor did the non-statutory guidance mentioning delays for exceptionally poor progress in custody expressly exclude any other circumstance from warranting a successful application for a delayed release. Therefore, the youth court’s discretion was unfettered. Furthermore, the context of recent and publicised terrorist incidents demonstrated that a person who seems to have made good progress in detention might be hiding an intention to commit a very serious crime. Therefore, focusing solely on the offender’s progress according to his sentence plan is not a sufficient measure.
The court also rejected the first ground, holding that the application is analogous to bail proceedings and proceedings before the Parole Board. Thus, the youth court is not confined to receiving formal evidence which would be admissible in a criminal trial. The evidence contested – a gist of intelligence that X may be practising an extreme form of Islam – was held to be relevant, given an appropriate weighting by the judge and its limitations could have been challenged by X if he wished to do so. Therefore, the judge’s conclusion that an order for late release was necessary and proportionate was rationally open to her based on the evidence and information she considered. Thus, permission to apply for judicial review was refused.
As noted in the case, applications for DTO delayed releases are anticipated to be rare [paragraph 47]. This case nevertheless demonstrates that the balance between protecting public protection and having regard to the principal aim of the youth justice system, will be challenging in relation to terrorism.