R v S

Where a child is convicted in the Crown Court, the duty under section 25(2) of the Sentencing Act 2020 to remit the case to the Youth Court unless remission is undesirable must be exercised with close regard to the likely youth-court disposal. If a referral order would be mandatory, that is a powerful consideration. A Crown Court judge may sit as a District Judge in the Youth Court under section 66 of the Courts Act 2003 and make that order. Concerns about delay, expense and sentencing consistency may thereby be met. Absent a truly persuasive reason to depart from the mandatory youth-court disposal, failure to use that route is wrong in principle.

The appellant, aged 17, pleaded guilty in the Crown Court to two domestic burglaries committed with his father and another adult. The Magistrates’ Court had sent the case to the Crown Court because of the adult co-defendant.

The sentencing judge refused both to remit the appellant to the Youth Court and to sit as a District Judge in order to impose a referral order. He instead imposed concurrent two-year youth rehabilitation orders with supervision. The appellant, previously of good character, appealed on the basis that a referral order was the required disposal or, alternatively, that the two-year order was excessive.

1. Appeal allowed. The youth rehabilitation order was quashed and the matter was remitted to the Medway Youth Court for sentence.

2. There had been no error in sending the appellant to the Crown Court for trial. Section 51(7) of the Crime and Disorder Act 1998 permitted that course where a child or young person was jointly charged with an adult sent to the Crown Court and justice required it.

3. After conviction, however, section 25(2) of the Sentencing Act 2020 required remission to the Youth Court unless it was undesirable. R v Lewis (1984) 79 Cr.App.R 94 identified potentially relevant considerations, including the trial judge’s knowledge of the case, disparity between co-defendants, delay, duplication and expense. They were not exhaustive.

4. The likely mandatory referral order was a powerful consideration. Under section 66 of the Courts Act 2003, the judge could remit the case and then sit as a District Judge in the Youth Court. R v Gould and others [2021] EWCA Crim 447 established that route. The contrary views reflected in R v Dillon [2019] 1 Cr.App.R (S) 22 and R v Koffi [2019] 2 Cr.App.R (S) 17 were incorrect.

5. The considerations of consistency and delay did not justify refusing remission because they could have been met by the judge exercising those powers. The appellant fulfilled the compulsory referral conditions, and no exception arose. The pre-sentence report strongly supported rehabilitation within a 12-month referral order. The failure to adopt the available route to that mandatory disposal was wrong in principle and made the two-year order manifestly excessive.

• Court of Appeal (Criminal Division): Allowed the appeal in [2021] EWCA Crim 960, quashed the two-year youth rehabilitation order and remitted the case to the Medway Youth Court.
• Crown Court at Maidstone: On 5 March 2021, refused remission and imposed concurrent two-year youth rehabilitation orders with supervision following guilty pleas to two burglaries.
• Medway Magistrates’ Court: Sent the jointly charged appellant to the Crown Court because his adult co-defendant was sent there for trial.