BH (A Child), R (On the Application Of) v Llandudno Youth Court

When deciding whether to commit a child to the Crown Court, the Youth Court must ask whether there is a real prospect that the Crown Court would impose custody under section 91 of the Powers of Criminal Courts (Sentencing) Act. The court must consider the child’s age, maturity, antecedents, mitigation and the circumstances of the offence. Children under 15 will rarely receive custody, and the possibility of a sentence below two years does not by itself justify declining Youth Court jurisdiction. The unavailability of a detention and training order because of age is not an unusual feature. Adult sentencing tariffs provide no reliable starting point for assessing the sentence likely to be imposed on a child. On judicial review, the question is whether the committal decision was wrong, rather than whether it fell within the range of Wednesbury-reasonable decisions.

BH, aged 11 when the alleged sexual offence occurred, sought judicial review of a Youth Court decision committing him to the Crown Court under section 51A(3)(b) of the Crime and Disorder Act 1988. The alleged offence involved causing or inciting a 10-year-old child to engage in non-penetrative sexual activity. The District Judge considered the adult sentencing range, reduced it for BH’s age, and concluded that custody was inevitable. The central issues were the correct committal test for a child under 12 and whether the District Judge had applied it correctly.

1. The claim succeeded. The decision committing BH to the Crown Court was quashed. The proper venue for his trial was the Youth Court.
2. The applicable question was whether, assuming conviction on the prosecution case and allowing for age, previous good character, mitigation and aggravating features, there was a real prospect that the Crown Court would exercise its power under section 91 to impose a custodial sentence. The court had to bear in mind that sentences under section 91 of less than two years would rarely be imposed.
3. The guidance in R (H, A and O) v Southampton Youth Court [2004] EWHC 2912 (Admin) remained the leading authority. Children under 15 would rarely attract detention, and custody was even less likely for a child under 12. The absence of power to impose a detention and training order was not an unusual feature justifying committal.
4. The District Judge had approached the matter from the wrong direction. He had begun with the sentence an adult might receive and attempted to reduce it for BH’s age. Adult tariffs afforded no guidance to the sentence likely to be imposed on an 11-year-old child.
5. On the facts assumed for the judicial review, there was no real prospect that the Crown Court would impose custody under section 91. The District Judge’s decision was therefore wrong. His separate decision that a joint Crown Court trial would be in the interests of justice did not require determination, because BH should not have been committed to that court.

The judgment does not state a prior appellate decision in the same proceedings. It concerns judicial review of the Youth Court’s committal decision.