ZN & Anor, R (On the Application Of) v Bromley Youth Court

A youth court’s decision on venue may arguably be reconsidered where it was made without knowledge of a material fact, including the existence of an adult co-defendant whose separate trial would create serious difficulties for the prosecution and vulnerable witnesses. Section 3 of the Human Rights Act 1998 may require legislation to be read purposively and compatibly with Convention rights, provided the interpretation remains consistent with the legislation’s scheme and essential principles. Judicial review remains concerned principally with legality, but factual review may arise where a material mistake or disregard of fact affects the exercise of jurisdiction. Permission was therefore appropriate because the proposed claim was plainly arguable.

Two 16-year-old claimants challenged a decision of the Bromley Youth Court sending them to the Crown Court for trial with an 18-year-old co-defendant on a robbery allegation. The youths had previously been listed for trial in the Youth Court. The adult co-defendant was later sent to the Crown Court separately, creating the prospect that vulnerable complainants would give evidence twice and that the joint-enterprise prosecution would be fragmented.

The claimants argued that the youth court’s earlier venue decision was irrevocable and that it lacked jurisdiction to reconsider it. The central issue was whether Section 51(7)(b) of the Crime and Disorder Act 1998, read with the relevant provisions of the Magistrates’ Courts Act 1980 and, potentially, section 3 of the Human Rights Act 1998, permitted the later decision.

1. Permission and arguability. The court did not determine the substantive legality of the youth court’s decision. It held that the claims for judicial review were arguable and should proceed expeditiously in the Divisional Court. The Interested Party was not entitled simply to concede the claims without the issues being properly tested.
2. Statutory framework. Section 51(7)(b) of the Crime and Disorder Act 1998 applies where a child or young person appears before the court on the same or a subsequent occasion, charged jointly with an adult who has been sent for trial. The provision requires consideration of whether sending the child or young person to the Crown Court is necessary in the interests of justice. Its wording arguably supports a purposive construction addressing the full factual matrix, including a previously overlooked adult co-defendant.
3. Human-rights-compatible interpretation. Section 3 of the Human Rights Act 1998 is a strong interpretative obligation. Following Ghaidan v Godin-Mendoza [2004] 2 AC 557, words may be read into legislation where that is consistent with its scheme and essential principles. The court considered it arguable that such an interpretation could permit reconsideration of venue without impermissibly amending the legislation.
4. Judicial review of fact. Although judicial review is principally concerned with legality rather than merits, review of factual matters may be available where facts are a condition precedent to jurisdiction, where a material fact has been disregarded or mistaken, or where the decision lacks substantial evidential support. It was arguable that the original venue decision involved disregard or mistake of the material fact that an adult co-defendant existed.
5. The concern was not that the youths could not receive a fair trial in the Crown Court. It was the potential unfairness to vulnerable complainants and prejudice to the prosecution from requiring evidence to be given twice. Permission was granted, with the substantive claim to be determined after proper argument.

Not an appeal. The judgment concerned permission for judicial review of the Bromley Youth Court’s decision dated 25 March 2014. The Crown Court declined to review that decision and indicated that judicial review was the proper route.