A, R (on the application of) v Lewisham Youth Court & Anor

Where a child or young person charged with murder appears before a Youth Court, the court cannot grant bail, but it must still determine the appropriate form of custody under Children and Young Persons Act 1969, section 23. Coroners and Justice Act 2009, section 115 requires committal to custody pending a Crown Court bail decision; it does not, by necessary implication, disapply the carefully calibrated accommodation provisions in section 23. Any intention to require detention in a prison establishment regardless of suitability would need clear express language.

The claimant, a 15-year-old charged with murder, appeared before Lewisham Youth Court after arrest. His solicitor accepted that the Youth Court could not grant bail because of Coroners and Justice Act 2009, section 115, but submitted that the court remained required to determine the form of custody under section 23 of the Children and Young Persons Act 1969.

The District Judge rejected that submission and issued warrants directing that the claimant be held in a prison establishment pending production before the Crown Court and at the next Youth Court hearing. The judicial review concerned whether section 115 displaced section 23 at the Youth Court stage.

1. The claim for judicial review was granted. The District Judge’s ruling that section 23 of the Children and Young Persons Act 1969 did not apply to a child or young person appearing before a Youth Court charged with murder was wrong in law.

2. Section 23 contains a carefully calibrated scheme governing the accommodation of children and young people who are remanded without bail. It permits different forms of custody, including local authority accommodation, secure local authority accommodation, a remand centre and prison, subject to specified conditions and consultation requirements.

3. Section 115 of the Coroners and Justice Act 2009 prevents the Youth Court from granting bail to a person charged with murder and requires custody where necessary to bring that person before a Crown Court judge. It does not determine the type of accommodation in which the person must be held.

4. The two statutory schemes can and should be read together. Parliament had not expressly amended section 23 to exclude murder charges at the Youth Court stage. The court rejected the suggestion that such a substantial change should be inferred by necessary implication.

5. That conclusion was reinforced by constitutional considerations and by the highly unsatisfactory consequences of the contrary interpretation, which could require even very young children to be held in prison establishments despite the availability of more suitable forms of custody. Even in a case as grave as murder, prison accommodation should be a final resort.

6. Mr Justice Lloyd Jones agreed. The declaration was made accordingly.

The judgment describes an earlier decision by District Judge Purdy at Lewisham Youth Court, who held that section 115 of the Coroners and Justice Act 2009 required committal to a prison establishment and excluded section 23 of the Children and Young Persons Act 1969. Permission to apply for judicial review had been granted by Cox J. The Divisional Court granted judicial review and declared the District Judge’s ruling wrong in law.