H & Ors, R (on the application of) v Southampton Youth Court

When deciding whether to commit a defendant under 15 to the Crown Court for a grave offence, a Youth Court must assess the likely sentence for the defendant’s actual age. It must ask whether there is a real prospect of a sentence of, or exceeding, two years, or whether an unusual feature justifies declining jurisdiction despite a shorter sentence. The absence of power to impose a detention and training order because the defendant is under 15 is not itself unusual. The statutory policy favours trial in the Youth Court wherever possible, particularly for first-time offenders aged 12 to 14. The Crown Court should be reserved for the most serious cases.

Three 14-year-old boys were charged with indecent assault arising from an alleged bullying incident involving a BB gun and a kitchen implement. The Southampton Youth Court committed them to the Crown Court under section 24 of the Magistrates’ Courts Act 1980, having accepted that a sentence approaching two years might be available to an older youth. One claimant obtained permission to seek judicial review; the other two were joined and permission was granted out of time. The central issue was whether the Youth Court had applied the correct test when deciding whether the alleged offence was sufficiently grave for committal.

1. Outcome. The court quashed the Youth Court’s decisions in relation to all three claimants. The matters were remitted to the Youth Court for determination.
2. The formulation used by the prosecutor and adopted by the Youth Court was legally flawed. The relevant question concerned the sentence that might be imposed on each actual 14-year-old defendant, not the sentence available to a youth aged 15 to 17. Age necessarily affects the sentence.
3. The statutory scheme gives priority to trying children and young persons in the Youth Court. The youth justice system’s principal aim is preventing offending, and courts must have regard to the welfare of the child or young person. First-time offenders aged 12 to 14 will generally not be detained, while detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 is exceptional.
4. The governing inquiry is whether, having regard to the defendant’s age, there is a real prospect that a sentence of, or in excess of, two years might be required. Alternatively, the court must identify an unusual feature justifying a custodial sentence of less than two years under section 91(3). The lack of power to impose a detention and training order because the defendant is under 15 is not an unusual feature.
5. On the assumed facts, the incident was deeply reprehensible and had seriously affected the victim. Nevertheless, conduct of this kind by 13- or 14-year-old school friends, without evidence of sexual gratification, did not realistically approach a sentence of two years’ detention. The committal decision was therefore outside the reasonable boundaries of a lawful decision.
6. Permission was granted to A and O despite the delay. All procedural steps were dispensed with, the claims were treated as finally heard, and the usual detailed-assessment order was made subject to the necessary legal-aid certificates.

The judgment does not state an earlier appellate decision in the same proceedings. The claim arose from the Southampton Youth Court’s committal decisions dated 11 August and 16 September 2004.