X, R (On the Application Of) v The Ealing Youth Court

A youth court has an unfettered discretion under section 102(5) of the Powers of Criminal Courts (Sentencing) Act 2000 to order delayed release under a detention and training order. The power is not confined to cases involving poor custodial progress or bad behaviour. Non-statutory guidance does not fetter that discretion, although the court must act rationally.

The court may consider relevant information that would not be admissible in a criminal trial, including intelligence provided in gist form. It must assess the weight of that material carefully, have regard to the consequences of delayed release, and give the offender a fair opportunity to respond and give evidence.

X, aged 17 when he committed offences of encouraging terrorism, received an 18-month detention and training order. The Ealing Youth Court ordered, under section 102(5) of the Powers of Criminal Courts (Sentencing) Act 2000, that his release be delayed by two months.

X sought judicial review. He argued that the statutory power was limited by published guidance to cases involving particularly poor custodial progress or bad behaviour, and that the youth court had improperly relied on undisclosed intelligence and irrelevant risk considerations. The central issues were the scope of the youth court’s discretion and the material it could consider.

1. Claim for judicial review refused. The youth court’s order delaying X’s release was not shown to involve an error of law.
2. Section 102(5) of the Powers of Criminal Courts (Sentencing) Act 2000 is expressed in unqualified terms. Parliament could have confined the power to cases of exceptionally poor progress or bad custodial behaviour, but did not do so. The youth court therefore has an unfettered discretion to order late release, subject to the statutory requirements that the application is made by the Secretary of State and that the permitted period of delay is observed.
3. The published guidance was non-statutory and was addressed to the administration of the scheme, not to the independent decision-making of the youth court. It was guidance, not instruction, and imposed no fetter on the statutory discretion. Resort to external aids to statutory interpretation was unnecessary.
4. The youth court must act rationally. It may consider an increased risk to the public and whether further rehabilitative work could realistically reduce that risk and be most effectively undertaken in custody. Protection of the public is not irrelevant merely because the offender was under 18 when convicted and the youth justice system has a principal aim of preventing offending.
5. The youth court is not confined to formal evidence admissible in a criminal trial. Material must be relevant, and the court must carefully assess the weight of material that would not satisfy criminal-trial admissibility requirements. It must consider the consequences of extending custody and reducing community supervision, and give the offender an opportunity to answer the allegations and give evidence.
6. The judge was entitled to take the intelligence gist into account. X knew its substance and could make submissions about its weight or give evidence. The judge gave it only some weight and rationally relied on its combination with other evidence, including X’s vulnerabilities and the proposed rehabilitative work. The conclusion that delayed release was necessary and proportionate was open to her.

The Ealing Youth Court ordered that X’s release under an 18-month detention and training order be delayed by two months under section 102(5) of the Powers of Criminal Courts (Sentencing) Act 2000. The Administrative Court refused permission to apply for judicial review.