Case No: CO/5671/2010
Neutral Citation Number: [2010] EWHC 3412 (Admin)
IN THE HIGH COURT OF JUSTICE
LEEDS ADMINISTRATIVE COURT

Leeds Combined Court
1 Oxford Row
Leeds
West Yorkshire
LS1 3BG

Date:  Monday 1 November 2010
Before:
MR JUSTICE LANGSTAFF
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Between:

	FS	Claimant	
	- and -		
	Wakefield Magistrates’ Court

The Crown Prosecution Service	Defendant

Interested Party	
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(DAR Transcript of 
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Ms Baillie (instructed by Switalski’s Solicitors) appeared on behalf of the Claimant.

The Defendant did not appear and was not represented.
 
Mrs Taylor appeared for the Interested Party, who acted in person.

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Judgment

Mr Justice Langstaff:

1.	Section 24 of the Magistrates’ courts Act 1980 provides a power to a magistrates’ court to commit an offender to the Crown Court.  Section 24.1 provides as follows: 

"Where a person under the age of l8 years appears or is brought before a magistrates’ court on an information charging him with an indictable offence other than homicide, he shall be tried summarily unless — 

. . . the offence is such as is mentioned in subsection (2) of section 53 of the Children and Young Persons Act 1933 (under which young persons convicted on indictment of certain grave crimes may be sentenced to be detained for long periods) and the court considers that if he is found guilty of the offence it ought to be possible to sentence him in pursuance of subsection (3) of that section…”

2.	Section 53 has now been replaced by Section 91 of the Powers of the Criminal Courts Sentencing Act 2000.  That provides that where: 

“(a) a young person is convicted on indictment of any offence punishable in the case of an adult with imprisonment for fourteen years or more, not being an offence the sentence for which is fixed by law
(aa) a young person is convicted of — 

(i) an offence under section 1 of the Road Traffic Act 1988 (causing death by dangerous driving); or 

(ii) an offence under section 3A of that Act (causing death by careless driving while under influence of drink or drugs); or

(b)	a child is convicted of manslaughter, 

and the court is of opinion that none of the other methods in which the case may legally be dealt with is suitable, the court may sentence the offender to be detained for such period not exceeding the maximum term of imprisonment with which the offence is punishable in the case of an adult as may be specified in the sentence;” 

3.	In the appeal by way of judicial review before me a young man, FS, is accused of an offence of attempted rape which is said to have occurred on 12 September 2009.  He was then a little over the age of 15, but he has now turned 16.  The victim of the alleged attempted rape was a girl who had only just reached the age of 11.  The broad facts are these.  The victim, together with a male of the same age and FS, went from a street where they had been playing to a secluded place, known as a den.  When the 11-year-old male friend left to ride his bicycle elsewhere, the victim and FS were on their own.  Her account is that without warning he took hold of her by the hips and, despite her complaint, used some (though gentle) force to lower her trousers and knickers.  He then removed his own trousers and boxer shorts, and then, according to the police summary, said to be based upon what was both said and demonstrated in interview, used rather greater force when she protested to force her to the ground.  It may be a matter for later decision whether that view was justified by a full reading of the transcript, but it was undoubtedly in the police summary and put before the magistrates’ court in circumstances to which I shall come.

4.	He then placed himself on top of her.  She told him to get off; he did not.  He suggested that she might wait for a couple of minutes and, during that couple of minutes, he attempted to put his naked penis into her naked vagina.  He did not succeed.  That may, in part, be due to the fact that the companion returned and he, too, told FS to get off, and then he did.  

5.	She subsequently complained to an adult and her mother of what had happened.  He denied having been anywhere near the den first of all, when spoken to, but when his underwear was examined in the place where forensically it might be thought that there would be traces of her DNA if there had been sexual contact between his private parts and hers, a trace of her DNA was apparent on the inside of his clothing.  In a later interview he was to say that this was because she had made a sexual advance on him and had placed her hand down his trousers.  First he said this was to touch his penis through his clothing, but later between the clothing and the skin, hence her DNA on the inside of his underwear.  

6.	It is said, though no opportunity has yet been given for him to enter any plea, that he intends to deny having committed any offence at all.  

7.	When the matter came before the Youth Court it had to determine whether or not it should hear and determine the case at the Youth Court or whether it should exercise the power under Section 24 of the Magistrates’ Court Act 1980, bearing in mind the provisions of Section 91 of the Act of 2000.  The magistrates, having heard some representations, decided that they would not.  The crime was a grave one; there was a realistic possibility that the sentence would be greater than 2 years’ detention in these circumstances of attempted rape for apparent sexual gratification with some force.  

8.	The solicitors acting for the claimant did not feel that the magistrates had approached the matter properly in accordance with the guidelines, in particular those guidelines produced by the Sentencing Guidelines Council in respect to the sentencing of young offenders.  They wrote a detailed and careful letter to the court, asking it to exercise its powers under Section 25 of the Magistrates’ Courts Act 1980 to review the decision which had been made with the aim of reversing it.  That letter drew attention to the statutes which I have mentioned and to some case law, in particular the cases of R (H,A and O) v Southampton Youth Court [2004] EWHC 2912 (Admin), [2005] 2 Cr App R (S) 30, DC; the case of R (D) v Manchester City Youth Court [2001] EWHC Admin 860, a decision of Gage J, as he then was; and the divisional court case of R (W, S & B) v Brent Youth Court & CPS Interested Party, a judgment to which I shall come in due course.  

9.	Submissions were made which drew the attention of the court to the fact that FS had no previous convictions or cautions.  It was said that he had had significant difficulties in life in that he had been in the care system for many years.  He had, in all likelihood, intellectual difficulties, including a diagnosis of ADHD, and was therefore functioning at a far lower level than the age of 15 years might suggest.  (I interpose to say that no admissible evidence of this was ever put forward to the court at any stage and, although it may be true, it is at present evidentially unfounded.)  The offence with which the defendant was charged was not rape but an attempted rape, and thereby lesser.  No weapons or threats were said to have been used; no visible injuries were sustained.  The incident had only lasted a short time.  There was an absence of relevant convictions such that, generally, F was someone who was of good character.  

10.	In the light of that, it was said that there was no realistic prospect that a sentence of more than two years detention would be, or might be, imposed by a court.  District Judge Mallon considered those submissions and agreed to review the decision of the magistrates at a hearing on 6 May 2010.  Representations were put before her by both the claimant and by the interested party, the Crown Prosecution Service, for whom today Mrs Taylor appears.  

11.	The district judge regarded the test that she had to apply as being whether or not, if the case was proved against the defendant, there was a real prospect of a sentence of more than two years being imposed.  She indicated she had taken account of the matters which Switalski’s solicitors  had urged upon her on behalf of the defendant.  She noted that, whilst previous convictions might be said to be aggravating features for offences of this type, it was said in the guidelines that positive good character is of minimal relevance to sentencing courts, and that is undoubtedly so for offences of this type.  She indicated that she had looked at sentencing guidelines, indicating a starting point of 10 years for an adult, when the offence of attempted rape of a child under the 13 was made out.  

12.	She then referred generally to cases which had considered similar (though not identical) facts, where there had been a range of sentences which had been upheld.  She said that many of those did not assist, but made particular note of the case of R v C [2008], a decision of the Court of Appeal Criminal Division reported at [2008] EWCA Crim 2691.  She took account of the fact that the description of the events which I have given, if taken at the highest, which she felt obliged to do (that is, the reasonable highest), suggested that there might be some planning inferred from the defendant taking the complainant into the den, a degree of opportunism when the independent witness left and he committed the offence, assuming that he did, and that, whilst there were no physical injuries, there was said to be a degree of force, initially gentle but then more forceful.  The act of attempted penetration, whilst attempted rape, was if it happened close to being actual rape, in a manner which would be obvious from the description of the facts which I have given; and that, whilst the incident was not of the longest duration, the disparity in ages was significant, and in all the circumstances there was indeed a real prospect on conviction of a sentence of more than two years.  She therefore took the view that the original decision reached by the lay magistrates was correct.  

13.	This application for judicial review seeks to quash the decisions of the magistrates first, and second, the effective decision, that of District Judge Mallon on 6 May.  

14.	The grounds are essentially three: that the district judge erred in law in that she referred to sexual offences by adult offenders; that she failed to have any regard to sentencing guidelines for young offenders; and that he failed to give reasons for discounting other important cases in which jurisdiction had been accepted by the magistrates, though the circumstances might be said to be similar, or at least not dissimilar.  

15.	On a challenge against a magistrate’s decision in a case such as this, the test which this court must apply is not that of asking what decision it might reach for itself; it is too ask, as Wilkie J asked in the case of C & Ors v The Croydon Youth Court and Central Hertfordshire Youth Court [2006] EWHC 2627, whether the decision of the Youth Court was manifestly wrong. Auld LJ, in the same case, repeated that test, asking whether the decision was manifestly wrong, and he added: 

"It has to be remembered that the decision under challenge is not itself a sentence. That task or that stage has not yet been reached. It is a determination as to venue in which the relevant statutory sentencing provisions and the sentencing guidelines [....] allow for some elasticity -- some range of the borderline, in which a reasonably made determination as to venue can go either way."

Those remarks by both judges were expressly approved by the divisional court (Gage LJ and Rafferty J) in the case of G v Burnley Magistrates’ Court [2007] EWHC 1033 (see paragraph 13).  I therefore adopt that approach, standard as it is in cases of judicial review.  

16.	In the case of R (H,A and O) v Southampton Youth Court [2004] EWHC 2912 (Admin), otherwise reported, as I have noted, in the Criminal Appeal Reports, Leveson J, as he then was, set out guidance for the Youth Court.  This was necessary because there was a danger that Youth Courts might forget that young offenders are to be sentenced in the Youth Court and not in the Crown Court unless there are exceptional reasons for the latter course.  He said at paragraph 33(1): 

“1. The general policy of the legislature is that those who are under 18 years of age and in particular children of under 15 years of age should, wherever possible, be tried in the youth court. It is that court which is best designed to meet their specific needs. A trial in the Crown Court with the inevitably greater formality and greatly increased number of people involved (including a jury and the public) should be reserved for the most serious cases. 

2. It is a further policy of the legislature that, generally speaking, first-time offenders aged 12 to 14 and all offenders under 12 should not be detained in custody and decisions as to jurisdiction should have regard to the fact that the exceptional power to detain for grave offences should not be used to water down the general principle. Those under 15 will rarely attract a period of detention and, even more rarely, those who are under 12. 

3. In each case the court should ask itself whether there is a real prospect, having regard to his or her age, that this defendant whose case they are considering might require a sentence of, or in excess of, two years or, alternatively, whether although the sentence might be less than two years, there is some unusual feature of the case which justifies declining jurisdiction, bearing in mind that the absence of a power to impose a detention and training order because the defendant is under 15 is not an unusual feature.”

That guidance has received the express endorsement of appellate courts since. 

17.	In the subsequent divisional court case of R (W, S and B) [2006] EWHC 95 (Admin), Smith LJ and Bean J had to consider three separate cases in which the Youth Court had declined jurisdiction.  The first two were cases of robbery. Had it not been for a change in the guidelines recently promulgated before the court hearing there may have been borderline decisions to be made (see paragraph 18) but they are of no help in this present case.  However, the way in which the court approached the third case might be regarded as at least instructive.  The defendant was charged with two offences of rape when he was still 12; the victim was 13.  He and the alleged victim had stayed, with the agreement of parents, together in his house at night.  At some stage during the evening the victim claimed that he made a sexual approach which she rejected, and that then he got on to her, pushed her down, pulled her trousers down and had intercourse.  She objected and tried to kick him off.  She felt unable to leave the house afterwards and therefore stayed with her assailant and claimed that, at a later stage in the evening, they again had non-consensual sex.  He denied it.  

18.	That was instructive, not so much for the obvious similarities with the present case -  because there are undoubted differences: as Ms Baillie for the claimant points out, there were there actual rapes and two of them;  there might have been a question of unlawful imprisonment in the sense that she felt unable to leave the house of his parents and a suggestion that the door was locked - though on the other hand it might be said that he was very substantially younger than the 15 years plus of the defendant in this case, and that age has particular importance in the view of the courts dealing with sexual offences. There the victim was in fact older and not younger; nor was there any disparity in age.  But it is the points of principle rather than factual comparisons which, as always, are of great assistance.  This is an area in which illustrations may abound but principle has to be determinative.  

19.	From paragraphs 41 to 44 Smith LJ mentioned that the court had been referred to a passage from R v Millberry [2003] 1 WLR 546 in which Lord Woolf had said that the court, which was there laying down guidelines for sentences of rape in adults, observed:

"We agree with [the sentencing advisory panel] that even in the case of young offenders, because of the serious nature of the offence custody will normally be the appropriate disposal. Like the panel we nonetheless conclude that the sentence should be significantly shorter for young offenders."

20.	The next paragraphs indicate that Smith LJ had invited research by both counsel into the range of sentences imposed for rape and indecent assaults on very young offenders.  Although very few related to offenders as young as 12, in general the result was that custodial sentences were imposed on young offenders of about 14 who were convicted of rape, and she observed: 

"That being so, it seems to me that the conclusion of the Youth Court in this case cannot be criticised"

She added: 

"I would not wish it to be thought that I am suggesting that, if he is convicted, B will or should be sentenced to a custodial sentence. I am only saying that the Youth Court's conclusion is not unreasonable, and that there is indeed a real prospect that B might be sentenced to a two years’ custodial sentence."

21.	She added that, when the Court of Appeal Criminal Division had considered guidelines in the case of R v Billam [1986] 1 AE 985, it had expressed obiter the view that a Youth Court should never accept jurisdiction in the case of a minor who had been charged with rape, but observed that those remarks were made at a time when it was presumed that no child under the age of 14 could be guilty of such an offence.  Nonetheless, the view expressed by the court there, in the context of its time, the view expressed by the court in Millberry and the result of the researches of counsel to which reference was made in paragraph 42, indicated that, for those 14 or over convicted of rape, a custodial sentence would be a highly likely sentence. 

22.	That general view coincides with submissions made to me when I heard and determined a case called R (W & M) v Oldham Youth Court [2010] EWHC 661 (see paragraphs 16 to 21) as to the sentencing range indicated by decided cases in which generally rape, though also attempted rape, fell for consideration.  They were cases which had come before the Court of Appeal Criminal Division.  The sentences which were there imposed or upheld were consistent with sentences in excess of two years, and indeed substantially so.  I observed in conclusion that the cases indicated that, amongst the features which the court was entitled to regard as aggravating. should it wish to do so, were the age of the victim, the difference in age between perpetrator and victim, the nature and situation of the sexual activity engaged in, the number of occasions when penetration occurred (and, I would now add, whether it did or not), any remorse shown, the offender's maturity, and, it almost goes without saying, a guilty plea.  Nothing said to me today has persuaded me that that summary (though it necessarily cannot cover every eventuality) is insufficient, save in the respect that I have modified it in the light of the circumstances of this particular case.  Inevitably, all will depend upon a court's view of the circumstances, and it seems to me that a realistic view of those circumstances must be taken, not one which strains to make a point either for the prosecution or for the defendant.

23.	With that introduction I turn to look at the way in which the grounds relate to the reasons given by the district judge, so far as they were recorded by the advocate for the claimant who reported them fully, and to see how far they are justified.  As to the first, it is complained that the district judge wrongly began by looking at the sentencing provisions indicating a starting point of ten years for an adult.  Here Mrs Taylor submits that that was a proper starting point, albeit it would very quickly have to be modified, because, first, the guidelines for sentencing young offenders provide (at paragraph 11.16) for a relationship between sentences given, or normally given to adults in similar circumstances, and those which are appropriate for children.  Thus, paragraph 11.16 says in its opening bullet point: 

“…where an offender is aged 15, 16 or 17, the court will need to consider the maturity of the offender as well as age. Where there is no offence-specific guideline, it may be appropriate to consider a starting point from half to three-quarters of that which would have been identified for an adult offender.”

It later goes on to indicate that the closer the offender is to the age of 18 the less a deduction would be made.  It follows that the half figure of an adult offender might be thought appropriate in general terms across the general run of offences for those who are 15.  

24.	Ms Baillie counters by noting the very particular features of sexual offences which necessarily involve a growing sexual maturity in a way in which other offences of a physical or violent nature do not, and where small differences in age may make an enormous difference in sentence.  But it is specifically pointed out in further response by Mrs Taylor that when Parliament enacted the Sexual Offences Act of 2003 it made provision for a maximum sentence to be imposed for certain offences by a person under the age of 18.  It is there set out (see, for instance, Part 7 of the guidance of the Sentencing Guidelines Council) as to sexual offences.  Most significantly, she maintains Parliament did not think it appropriate that either rape or attempted rape should be sentences in which there was any such reduction of the statutory maximum.

25.	The sentencing guidelines for young offenders emphasize the same point as appears from the paragraphs in Leveson J's judgment in the Southampton Magistrates case.  He identified there the policy of Parliament.   It seems plain to me here that the district judge had those provisions well in mind.  If she had read Switalski’s letter she could not do otherwise, and she correctly identified the test which she had to apply: was there a real prospect of a sentence of more than two years being imposed?  To start at ten years is not to end up anywhere near ten years.  In my view, a very significant reduction and, in this case, probably beyond the 50% suggestion by the guidelines council, falls to be made (not least because the ten years was to be imposed where an adult took advantage of a child under the age of 13) where the disparity in age is nowhere near so great and the culpability of the offender might be thought to be nowhere near so great.  But this was a touchstone to which, it seems to me, it was permissible for the district judge to have regard: indeed, in the divisional court in the case of R (Prosecution Service) v Newcastle-Upon-Tyne Youth Court CO/6069/2010 determined Friday 23 July 2010, (Munby LJ and Langstaff J) the court referred to it as helping the court to the conclusion which it then expressed.  

26.	Turning then to the second of the criticisms which is made of the judge, that she, having dealt effectively with the first two, failed to give her reasons for discounting other reported cases in which jurisdiction in similar cases had been accepted.  Ms Baillie, in her submissions, accepted that there was no reported case to which she could refer me where a magistrates’ decision to decline jurisdiction, in a case of rape or attempted rape, had been overturned on review.  She could demonstrate that in the case of indecent assault, where the statutory maximum sentence is considerably less.  She helpfully drew my attention to a number of the factors demonstrated by the various cases which appear.  It is unnecessary to say any more than that they do not persuade me that the view expressed by Smith LJ, to which I referred earlier as to what the generality of cases showed in respect of rape, was unjustified, but I do need to deal in particular with two cases. 

27.	The first, because it is said it was inappropriate for the magistrate to have any regard to it, was one upon which she founded herself in part.  That was the decision of the Court of Appeal Criminal Division [2008] EWCA Criminal 2691 in the case of R v C.  That was a case in which there had been an attempted rape. The claimant was aged 16.  There is no indication that he was 15 at the time of the offence, and I assume therefore that he was that age at the time.  An 11-year-old boy had entered a toilet at leisure facilities in Doncaster.  C was there; he told the boy to take his trousers down and he complied after initial reluctance.  C lifted his shirt, started to kiss his stomach before opening his mouth and trying to place it over the boy's penis over his boxer shorts, before laying the boy on the ground and lying on top of him, attempting to roll him over onto his front.  At that stage he was interrupted.  There was evidence that the defendant in that case was dangerous.  The judge of the Crown Court sentenced him upon his plea to the offences to a sentence of imprisonment for public protection, adopting a four-year notional determinate sentence to give a two-year term to be served.  A four-year notional determinate sentence meant that, in the eyes of the judge, six years would have been an appropriate sentence for this 16 year old on those facts after trial had he been convicted.  The Court of Appeal took the view that that would have been manifestly, and was manifestly, excessive.  Instead it regarded the appropriate sentence on those facts as being one of three years’ determinate imprisonment.  That, of course, would equate, full credit being given for plea, to a starting point of four years and six months following conviction.

28.	It is right that there are features of that case which distinguish the case factually from the present.  It would appear to be a more serious case.  There was a greater element of panic; the claimant was dangerous; he was 16, not 15.  But it is not difficult to see why, if a case such as that attracted a sentence which the Court of Appeal felt merited four-and-a-half years after a contested trial, the magistrates’ court felt that there was a real possibility that an offence of attempted rape in these present circumstances might attract a sentence in excess of two years after conviction.  

29.	There is a second case of C which came before the Court of Appeal (Hooper LJ and Underhill J) reported at [2009] EWCA Criminal 2231, in which a defendant was successful in his appeal against custody in circumstances in which he had been accused of four counts of causing a child under 13 to engage in sexual activity, one count of attempted rape of a child under 13, and one count of rape of a child under 13.  The events there demonstrate why, in particular, sentencing in this area is heavily dependent upon the particular facts, and that particular appreciation needs to be given by any court to the youth and maturity of the alleged offender, because it is plain that the sexual episodes grew out of the relatively innocent practice of the appellant and his victim challenging each other to dares.  On none of the three occasions of which complaint was made was any overt force used, although the victim was younger and smaller than his cousin and did what he did unwillingly.

30.	The appellant in that case had pleaded guilty.  There was exceptional personal litigation available to him which was heavily relied upon by the court.  The court noted that, crucially, the appellant was himself only just over 14 when he committed the offences.  A supervision order was imposed in place of the custodial term which he had otherwise been ordered to serve.  

31.	This does not show that the range the District Judge had in mind was misconceived. It turned upon its own particular facts.

32.	The grounds therefore for attack upon this decision by the district judge are, in my view, not in any case made out, but that does not entirely determine the judgment of this court.  I have to ask whether, taken as a whole, the decision that the district judge came to was one which was manifestly wrong, applying the test which Wilkie J and Auld LJ had founded.  Was there, in short, and can there be said to be, a real prospect of what is known of a sentence of more than two years being imposed?  This is not to ask whether this court would impose such sentence; the magistrate herself would not fall into that error.  It is entirely possible that a court, having a view of the facts and having heard the evidence, will, if there is a conviction (and there may not be), come to the conclusion that no custodial sentence is necessary at all; and it is only if one is necessary for an offender of this age that one would be passed.  But that decision has, as the district judge said, to be approached upon the basis of taking the case at its reasonable highest.  There is no evidential basis which is before this court and was before the magistrates’ court for accepting that the defendant is immature. 

33.	The factors which the district judge identified as aggravating may turn out not to be in due course.  But, having regard to the general thrust of cases, the general principles of sentencing, insofar as they can be derived from the authorities, and the guidance which is given in both, I cannot say that, whatever the ultimate conclusion of a Crown Court may be, the decision to commit was necessarily wrong and in excess of her powers.  I in the light of the law which the district judge had to apply, I do not consider her decision as being manifestly unreasonable, manifestly wrong or in error.  It follows that this claim must fail.

MR JUSTICE LANGSTAFF: Would you, Mrs Taylor....
MRS TAYLOR:  I am sorry, my Lord?
MR JUSTICE LANGSTAFF:  …although you are the interested party, be so kind as to draft whatever you think the appropriate order ought to be as simply dismissed?
MRS TAYLOR:  Yes.
MR JUSTICE LANGSTAFF:  Now, is there any question of costs?
MRS TAYLOR:  The claimant is legally aided.
MR JUSTICE LANGSTAFF:  Do you want an order for taxation of your publicly funded costs?
MS BAILLIE:  Taxation, please.
MR JUSTICE LANGSTAFF:  Yes. Can I thank you both for your assistance.