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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> W (A Minor), R (on the application of) v Leeds Crown Court [2011] EWHC 2326 (Admin) (28 July 2011) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2011/2326.html Cite as: (2011) 175 JP 467, [2012] 1 WLR 2786, [2012] Crim LR 160, [2011] EWHC 2326 (Admin), [2012] 1 Cr App R 13, [2012] ACD 8

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE DIVISIONAL COURT

		Leeds Combined Court Centre 1 Oxford Row Leeds West Yorkshire LS1 3BG
		28th July 2011

1. THE PRESIDENT: As will be apparent to their authors, this judgment relies heavily, and with gratitude, on the skeleton arguments of counsel before the court, for which I am very grateful.
2. Youth courts are a specialist subset of magistrates' courts and a court of summary jurisdiction constituted in accordance with section 45 of the Children and Young Person's Act 1933 as amended. They sit for the purpose of hearing any charge against a child or a young person or for the purpose of exercising any other jurisdiction conferred on youth courts by or under any Act. They have power to give detention and training orders of up to 24 months, as well as a range of sentences in the community. Youth courts are less formal than magistrates courts, are more open and engage more with the young person or child appearing in court and his or her family. Youth courts are essentially private places and members of the public are not allowed in. Victims of the crime, however, do have an opportunity to attend the hearings of the court if they want to, but they must make a request of the court if they wish to do so.
3. The claimant presently before the court was born on 14th February 1997 and is accordingly aged 14. He has no previous convictions, although he has received one reprimand and one warning. He is not a persistent offender within the meaning of section 100(2) of the Powers of Criminal Courts (Sentencing) Act 2000. He is charged with the burglary of a dwelling house on 11th March 2011 and with a connected offence of witness intimidation alleged to have been committed on the same day. He denies both these charges. On the burglary charge, but not the witness intimidation charge, he was charged with a co-accused, who was born in May of 1991 and is accordingly aged 20. For that reason the hearings in the magistrates' court took place in the adult court and not in the youth court.
4. On 18th May 2011 the claimant and the 20 year old appeared before the magistrates' court for mode of trial to be dealt with. The 20 year old indicated no plea and the magistrates declined jurisdiction in his case. They sought an indication of plea from the claimant and not guilty pleas were indicated. The magistrates concluded that it was in the interests of justice for the claimant to be committed alongside the adult under section 24(1)(b) of the Magistrates' Court Act 1980 and they accordingly committed both defendants to the Crown Court under section 6(2) of the 1980 Act.
5. A plea and case management hearing in the Crown Court took place before His Honour Judge Grant on 15th June 2011. At that hearing the adult pleaded guilty and his case was therefore adjourned for sentence. The claimant pleaded not guilty and it was submitted on his behalf that since the link with the adult had been broken, his case should be remitted to the youth court for trial. However, the judge concluded that he had no power so to order. The plea and case management hearing continued and a trial date in the Crown Court was fixed for 17th August 2011.
6. In due course, in a separate but similar case concerning a person called "G" and an adult who pleaded guilty, a different judge at the Crown Court at Leeds concluded that he did have power under section 8(2) of the 2000 Act to remit the case to the youth court for trial, although the youth court in due course refused to accept the case.
7. Given these different rulings in two different Crown Courts and the uncertainty in the case of G, the prosecution took what I consider to have been the entirely sensible step of having both cases listed before the Recorder of Leeds to enable clarification to be sought and, if appropriate, directions to be given.
8. The Recorder of Leeds heard argument on 18th July 2011 and on the following day he delivered a reasoned judgment. He expressed himself very sympathetic to the arguments advanced on behalf of each of the youth defendants and stated that it would be much better if they were dealt with in the youth court. However, he concluded that he had no power to remit the cases for trial in the youth court. He recognised that he might be wrong about this and indicated an understanding that the Divisional Court might be willing to hear argument about this matter very quickly. The judicial review claim form and application for urgent consideration were lodged on 21st July and my Lord, Langstaff J, gave permission to apply for judicial review on the same day.
9. The expedited judicial review proceedings have been heard before this court today, 28th July, a mere nine days after the Recorder delivered his reasons, and all those concerned, court staff, lawyers and judges alike, are to be commended for the efficiency and co-operation that has enabled this to happen. It is a signal example of the operation of the Administrative Court acting with efficiency and expedition out of London.
10. The claimant challenges the decision of the Recorder of Leeds that he had no power to remit the case to the youth court for trial. The challenge does not, it is submitted, relate to the quality of the decision which the Crown Court had an established jurisdiction to make; rather, the challenge relate to the jurisdiction of the Crown Court itself. In short, the claimant contends that the Recorder of Leeds wrongly concluded that he had no power to make an order that he would otherwise have wished to make; that is, it is contended that his decision was a jurisdictionally flawed act. The decision under challenge is therefore outside the scope of the Crown Court's jurisdiction in matters relating to trial on indictment, and judicial review is, it is submitted, not excluded.
11. Both parties and the court are agreed that this is a competent judicial review application which is not precluded by section 29(3) of the Senior Courts Act 1981 in that it is not, and in my view is plainly not, a matter relating to trial on indictment. It is not necessary to elaborate on this, but we have helpfully been referred to a number of cases, including R v Maidstone Crown Court, ex parte Harrow London Borough Council [2000] QB 719, R (Kenneally) v The Crown Court at Snaresbrook [2002] QB 1169, and R (on the application of "O") v Central Criminal Court [2006] EWHC 256 Admin We have also considered, but it is not necessary to elaborate on, a number of cases, including in Re Smalley [1985] AC 622, in Re Sampson [1987] 1 WLR 194, in Re Ashton [1994] 1 AC 96, and R v Manchester Crown Court, ex parte Director of Public Prosecutions [1993] 1 WLR 1524, and we have also considered other cases looked at in Archbold chapter 7 section 2. As I say, it is not necessary to elaborate on that because it is agreed, and I agree, that this is a competent judicial review application.
12. The basic principle is that a youth court must hear a charge against a child or young person. That is provided for by section 46 of the Children and Young Persons Act 1933. There are, however, exceptions, and that includes by section 46(1)(a) that a charge made jointly against a child or young person and a person who has attained the age of 18 years shall be heard by a magistrates' court other than a youth court. So it is that the problem in this case arises because the child or young person, the claimant, was jointly charged in the magistrates' court with an adult.
13. Section 29 of the 1980 Magistrates' Court Act deals with the situation in which a child or young person appears before a magistrates' court, that is an adult court, under section 46(1)(a) of the 1933 Act where he is jointly charged with an adult, but on the court proceeding to summary trial the adult pleads guilty. In short, the magistrates' court is expressly empowered to remit the accused to a youth court for trial. That is expressed in these relevant parts of section 29 of the 1980 Act:

"(1) Where -

(a) a person under the age of 18 years ('the juvenile') appears or is brought before a magistrates' court other than a youth court on an information jointly charging him and one or more other persons with an offence; and

(b) that other person, or any of those other persons has attained that age,

subsection (2) below shall have effect notwithstanding proviso (a) in section 46(1) of the Children and Young Persons Act 1933...

(2) If -

(a) the court proceeds to the summary trial of the information in the case of both or all of the accused, and the older accused or each of the elder accused pleads guilty; or ...

then, if in either situation the juvenile pleads not guilty, the court may before any evidence is called in his case remit him for trial to a youth court acting for the same place as the remitting court or for the place where he habitually resides.

(3) A person remitted to a youth court under subsection (2) above shall be brought before and tried by a youth court accordingly.

(4) Where a person is so remitted to a youth court -

(a) he shall have no right of appeal against the order of remission."

It is not necessary to read any more of that section.

14. It is an important consideration in the present claim that it is that section of the Magistrates' Court Act 1980 which the claimant wishes to persuade us should be read to include provisions which it is accepted are not expressly there.
15. The difficulty, as will be understood, is that although the magistrates' court in the circumstances described in section 29 has express power where the adult pleads guilty to remit the remaining child or young person to the youth court, there is, and it is accepted that there is, no such express power for the Crown Court to do the same in circumstances where the case has been remitted to the Crown Court because the child or young person is jointly charged with an adult.
16. The statutory arrangement is that a young person will appear in the Crown Court for trial and sentence only in limited circumstances. Those are, firstly, when he or she is charged with an offence of homicide; secondly, when the charge is subject to a minimum statutory sentence; thirdly, when the charge is what is referred to as a "grave crime" and a youth court has determined that if the defendant is convicted a sentence beyond its powers should be available -- it has incidentally never been suggested that that applies in the present case; and, fourthly, when the child or young person is charged together with an adult who has been sent to the Crown Court and it has been determined that the cases should be kept together. It is that last provision which is relevant to the present proceedings.
17. The situation is dealt with in section 24(1) of the 1980 Act, which provides that:

"Where a person under 18 appears or is brought before a magistrates' court on an information charging him with an indictable offence [except where it is an offence of homicide or certain other offences], he shall be tried summarily unless ...

(b) he is charged jointly with a person who has attained the age of 18 and the court considers it necessary in the interests of justice to commit them both for trial."

18. As we have indicated, the claimant was jointly charged with an adult and the magistrates' court were therefore empowered to commit him along with his adult co-accused for trial under section 6(2) of the Magistrates' Court Act 1980.
19. Whilst it is apparent from witness statements that were before the court that there were concerns about the way in which that power was exercised in the claimant's case, it is now at least conceded that those concerns were not sufficient to support a challenge to the decision to commit, and accordingly the claimant's claim must be considered on the basis that he was properly committed to the Crown Court by the magistrates' court for trial.
20. When the adult pleaded guilty in the Crown Court it is submitted, and is obviously in general terms correct, that the only reason why the claimant had been committed to the Crown Court had disappeared. He was, it is suggested, no longer charged jointly with a person who had attained the age of 18, at least not for the purposes of trial. It is submitted that his case plainly should have been remitted to the youth court for trial if the power to achieve that result exists, and indeed it is clear, and we think this is right from the ruling of the Recorder of Leeds, that he would have remitted the case to the youth court if he considered that he had the power to do so.
21. Statute does provide in section 8(2) of the Powers of Criminal Courts (Sentencing) Act 2000 that where a child or young person has been convicted of a criminal offence his case may be remitted to the youth court for sentence. It was apparently under this section that the Crown Court judge in the other case attempted to remit the young person there to the youth court. In the present case at least section 8(2) of the 2000 Act did not apply. This claimant has not been convicted and the section plainly does not empower the Crown Court to remit a child or young person such as the claimant to the youth court for trial, as distinct from for sentence.
22. There is no other express power to remit such a defendant to the youth court currently provided by statute and accordingly it is accepted on behalf of the present claimant that the Recorder of Leeds was correct to conclude that there is no express power to remit a defendant such as this claimant to the youth court for trial, even in the circumstances of the claimant's case.
23. However, the claimant contends that the judge was nevertheless wrong to conclude that it was necessary for the claimant's trial to take place in the Crown Court, that is to say to conclude that the court had no power in the circumstances of the case to remit the matter to the youth court. It is submitted that the judge could and should have remitted the case to the youth court for trial, either by deciding to sit as a District Judge Magistrates' Court under section 66 of the Courts Act 2003 and in that capacity re-visiting the issue of mode of trial under section 24 of the Magistrates' Court Act 1980, or by interpreting section 29 of the 1980 Act so as to give him power to do so. It is accepted by and on behalf of the claimant that neither route is without difficulty.
24. I should say parenthetically that it was not, I think, open to the Recorder of Leeds to do either of these things if indeed there was power to do so because he was not, as I understand it, sitting as the trial judge in either case. He could of course, however, in the circumstances that he was sensibly asked to decide a question of disagreement between two Crown Court judges, have delivered a judgment the effect of which no doubt would have been that the trial judges in each of those two cases would have acted accordingly.
25. This is a problem which is not new. The absence of specific statutory provision to allow the remittal of a youth from the Crown Court to the youth court is a quandary that has arisen in more than one recent case, including a case called R v "W" and "M" [2010] EWCA Crim 1926, which occurred in May of 2010 at the Central Criminal Court in a matter presided over by Saunders J. It was a widely publicised trial of two boys, aged ten and eleven, charged with rape and attempted rape of a girl aged eight. At the time of the alleged offence the defendants were aged ten years and three months and ten years and six months respectively. The boys were committed to the magistrates' court under section 24(1)(a) of the Magistrates' Court Act, and in that case they were tried at the Central Criminal Court after their case had, as it turned out, been wrongly committed by the magistrates' court, it having been found that there was no power that enabled the Crown Court to remit the case to the youth court. The matter came before the Court of Appeal Criminal Division on an occasion presided over by Hughes LJ, the Vice President. Hughes LJ made the following comments:

"38. We add a postscript. Having spent quite a long time reading the transcripts in this case, we want to express our admiration for the manner in which the judge, counsel and solicitors all did their level best to adapt the machinery of an adult trial in a formal courtroom at the Crown Court to the needs of the three principal parties in this case, none of whom was more than 11. We are unable, however, to leave the case without recording our dismay that it became necessary for two 10 year olds and an eight year old, all of impeccable upbringing, to be the key participants in a trial before the Crown Court. We are particularly concerned about the effect of a publicly staged trial in this arena was likely to have on the ability of the little girl, whatever had happened, to move on with her life with the minimum adverse impact.

39. We pass no comment on the decision that this particular charge needed to be brought in a case of this kind, rather than some lesser offence which if proved would more than adequately equip the court with powers to deal with the children accused. We are not privy to that decision and it is not for us. But even if this charge had to be brought, we are unable at present to see why it could not be tried in the Youth Court. We are told that the view was taken by the Crown Prosecution Service that because rape was a 'grave crime', that is to say one within section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, the necessity for committal followed. That proposition having been put to the Justices, as we understand it, they agreed. That however is not the test. All those who are concerned with cases involving children as young as this, if they ever arise, need to have in their briefcases the report of R (on the application of) H, A and O v Southampton Youth Court [2004] EWHC 2912 (Admin). The judgment of the court delivered by Leveson J (as he then was) makes clear at paragraph 33 the following three cardinal principles:

1. The general policy of the legislature is that those who are under 18 years of age and particularly children of under 15 should, wherever possible, be tried in the Youth Court. It is that court which is best designed to meet their specific needs. A trial in the Crown Court with the inevitably greater formality and greatly increased number of people involved, including a jury and the public, should be reserved for the most serious cases.

2. It is a further policy of the legislature that, generally speaking, first time offenders aged 12 to 14, and all offenders under 12, should not be detained in custody and decisions as to jurisdiction should have regard to the fact that the exceptional power to detain for grave offences should not be used to water down that general principle.

3. Those under 15 will rarely attract a period of detention and even more rarely those who are under 12.

40. The test, in other words, is the real likelihood of a sentence which would be beyond the powers of the Youth Court. If the Justices' minds were not in this case directed to that test, then they should have been. The Youth Court is particularly attuned to enquiries into the alleged activities of children, whether as witnesses, or as defendants, or both. It is staffed by judges who are used to dealing with them. It does not have to sit in a formal courtroom. It can adapt the court premises so as to make the necessary exercise of the trial one more suited to the very young. It has judges who may well have encountered very similar factual disputes also in the family jurisdiction where this kind of thing is not in the least uncommon. We do express the hope that if similar facts should recur again those principles will be kept in mind and every effort be made to keep the proceedings as low key as possibly can be done."

The two boys in question were convicted of attempted rape and Saunders J stated from the bench, in comments that were reported as follows by the press association:

"I will at some stage be sending my views about the procedure to those who are most concerned with it. That is not to indicate that there is anything wrong, but we should do everything we can to improve how we deal with these things by looking at the lessons that we can learn."

26. The present case before this court does not concern section 91 of the 2000 Act and there is no criticism to be made of the decision of the magistrates to remit this case to the Crown Court, nor indeed any criticism of anyone else. The judgment of the Vice President in the case to which we have just referred does, however, demonstrate the clear policy relating to children and young persons and underlines the undesirability of this claimant being tried in the Crown Court for want of a simple statutory power to remit to the magistrates' court.
27. The claimant in the present case underlines the relevant policy by reference to the Sentencing Guidelines Council Definitive Guidelines entitled "Overarching Principles - Sentencing Youths", where we find this at paragraph 12:

"12.1. There is a clear principle (established both in statute and in domestic and European case law) that cases involving young offenders should be tried and sentenced in the youth court wherever possible. This section summarises the relevant statutory provisions and case law.

12.2. It has long been recognised that the Crown Court should be reserved for the most serious cases, noting the greater formality of the proceedings and the increased number of people likely to be present. These factors present additional obstacles in ensuring that proceedings in the Crown Court involving young offenders are conducted in accordance with international obligations.

12.3. Accordingly, it is rare for a young offender to be tried or sentenced in the Crown Court and for a sentence beyond the powers of the youth court to be imposed except where that sentence is substantially beyond those powers."

28. The valiant attempt to use section 66 of the Courts Act 2003 to achieve what everyone considers is desirable in the present case, in my judgment, does not work. Section 66 of the 2003 Act provides for judges holding certain offices, including circuit judges, to have the powers of a justice of the peace who is a District Judge Magistrates' Court in relation to criminal causes or matters. The tentative suggestion is that it was open to the Recorder of Leeds to sit as a district judge on 18th July 2011 in order to re-visit the issue of the mode of trial under section 24 of the Magistrates' Court Act 1980 in order to achieve an appropriate result now that the adult had pleaded guilty.
29. This, in my judgment, does not work for the simple reason that the matter is no longer in the magistrates' court to be re-visited. The Recorder had to sit, or the individual judges of the Crown Court had to sit, and act as judges of the Crown Court. There is a further major difficulty in this tentative suggestion to be found in the judgment of Jackson J in the case of R (on behalf of DPP) v Camberwell Green Youth Court [2003] EWHC 3217, to the effect that a body of case law has built up on the 1980 Act which treats decisions as to the mode of trial as irrevocable unless section 25 applies. In Jackson J's view, with which I agree, it is now too late for this court to discard 20 years of decisions on the operation of section 80 of the Act. Jackson J did consider it desirable as a matter of policy that magistrates should have the power to change decisions concerning the mode of trial when good grounds exist to do so, however he regarded that as a matter for Parliament. As the Crown Prosecution Service observe in the present case, this judgment was subsequently applied, albeit reluctantly, by the Divisional Court in R (on behalf of "W") v Warrington Magistrates' Court [2009] 1538 Admin, and attention is also drawn to the decision of the Divisional Court in R (on behalf of "C") v Grimsby and Cleethorpes Magistrates' Court [2004] EWHC 2240 Admin
30. As I have said, section 66 of the 2003 Act is, in my judgment, a non-starter, and Mr Greaney's skeleton and submissions more or less recognised that.
31. The question therefore turns to the interpretation of section 29 of the 1980 Act. Here, Mr Greaney accepts that, on its face, the words of section 29 provide the power to remit only to the magistrates' court. However, the submission is that the court should read into that section words to provide a Crown Court with an equivalent power. Such an approach, it is submitted, may be permissible, although the claimant accepts that the court will wish to be cautious before adopting this approach.
32. There are, I think in theory at least, two possible approaches. The first would be to identify a plain legislative oversight and read the legislation so as to supply an omitted provision which Parliament must have intended but failed by mistake to provide. The second possibility might be to resort to section 3 of the Human Rights Act 1998 so as to read the legislation in a way that is compatible with the Convention. There is no suggestion in the present case that there might be a declaration of incompatibility, but for my part I think the claimant's advisers were right not to press the Human Rights Act route. An over-ingenious human rights lawyer might make something of a case for an infringement here of Article 6, or conceivably Article 8, of the European Convention on Human Rights, but the reality is that the claimant would get a fair trial in the Crown Court, and that is accepted. It is only that it would be strongly preferable for policy reasons if he were in the youth court.
33. As to the first and main possibility, it is necessary to refer in some detail to the opinion of Lord Nicholls sitting in the House of Lords in the case of Inco Europe v First Choice Distribution [2000] 1 WLR 586. Lord Nicholls said at page 592:

"I freely acknowledge that this interpretation of section 18(1)(g) involves reading words into the paragraph. It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross' admirable opuscule, Statutory Interpretation, 3rd ed., pp. 93-105. He comments, at page 103:

'In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.'

This power is confined to plain cases of drafting mistakes the courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation: see Lord Diplock in Jones v Wrotham Park Settled Estates [1980] A.C. 74, 105."

34. Mr Greaney submits that the court can be "abundantly sure" of the three matters identified by Lord Nicholls. He submits first that the clear purpose of the Magistrates' Court Act 1980 and the broader legal framework relating to the trial of children and young persons is to ensure that such defendants are tried in the youth courts, save in narrowly defined circumstances, which circumstances include where the child or young person is charged jointly with an adult. Furthermore, section 29 is designed, it is submitted, to ensure that where the link between the child or young person and the adult is broken in the adult magistrates' court, the normal course of events is resumed with the case of the child or young person being remitted to the youth court. The need to achieve that result, it is submitted, applies just as much if the link is broken following committal to the Crown Court as it does if the link is broken in the magistrates' court, arguably more so. It must have been intended that the Crown Court should have the same power to remit as the magistrates' court.
35. Support for this decision is provided, Mr Greaney submits, by the definitive guideline to which we have referred and also by authority upon which it is based, including a judgment of the Divisional Court in R v Tottenham Youth Court ex parte Fawzy [1999] 1 WLR 1350, where Schiemann LJ re-stated the policy behind section 24(1) in somewhat different circumstances. It is not, I think, necessary to refer to that particular judgment in any great detail, but nevertheless it is of some general relevance.
36. Mr Greaney secondly submits that there is a proper basis for concluding that by inadvertence the draftsmen and Parliament failed to give effect to the purpose which he identifies in the provision in question. He submits there is no explanation for the failure to give effect to what must have been intended to be the true purpose of section 29 except that it was through inadvertence. Thirdly, he submits that the substance of the provision Parliament would have made, although not necessarily its precise words, can be identified, and proffers as a possibility the following additional subsection (6) in terms "the power of a magistrates' court to remit under subsection (2) a juvenile for trial to a youth court shall apply also to the Crown Court where, having been committed to the Crown Court for trial with an older accused or older accused under section 24(1)(b) of the Magistrates' Court Act 1980, the older accused or each of them before evidence is called in the case of the juvenile pleads guilty". Thus conveyed it seems to me to smack of judicial legislation, that is to say by adding a whole new subsection, but it could, I think, be done more subtly if that were possible with fewer words.
37. Mr Greaney submits orally that the intended purpose of the statute is plain: there is no necessity for the child to be tried in the Crown Court once the adult has pleaded guilty and he should in those circumstances be remitted to the youth court, or at any rate there should be a power to do so. He submits that no single statute describes all the circumstances relevant to these questions, there are a series of powers under various legislation, but that this court is entitled to look at the overall intention of the legislation in this area and to conclude that the intention of the legislature generally must have been to create a power to remit in these circumstances by the Crown Court to the youth court. Unless something is done there is no power to remit, and that would fly in the face of the legislative intention.
38. Faced with the submission which is obviously correct that section 29 is a section of a statute all about magistrates, he submits that section 29 sought to bring about a situation where a child or a young person is in an adult court only because he is jointly charged with an adult and the link is broken the intention should be, and is, that trial should take place in the youth court. Section 29 legislates for the situation only where the link is broken in the magistrates' court, but it cannot have been intended, he submits, that the power should be exercisable only in that situation. There is an equivalent, and for present purposes indistinguishable, need, if not a greater need, for the power to exist in the Crown Court. There would be a less satisfactory trial, generally speaking, of the child in the Crown Court than in the magistrates' court and it cannot therefore, it is suggested, have been the intention that the power should exist only in the magistrates' court. He suggests to us that it is possible to conclude that this can only have arisen from oversight by the draftsmen and it can be put right as long as we are satisfied of those two conditions.
39. Mr Kovats QC, on behalf of the Crown Prosecution Service, is, as I understand it, entirely sympathetic in general terms to the submissions that are made, but with, I think, regret the Crown Prosecution Service does not feel able to support either of the ways in which the claim is put before this court.
40. Mr Kovats makes essentially four submissions. First, that the statutory provisions currently in force show that Parliament has enacted a detailed and complex set of provisions which set out the powers of the Crown Court and of magistrates' courts to determine mode of trial and to re-visit previous decisions. Because these provisions are so specific, it is difficult to contend that the absence of a power such as is sought to insert in the present case was due to legislative inadvertence. Secondly, he submits that statutory provisions that are not yet in force will remove or at least ameliorate the problem by providing for an indication of plea to be given before the committal takes place. Thirdly, he submits that the Crown Court is seised of the claimant's and G's cases and the powers of magistrates' courts are no longer relevant -- that, if I may say so, is the complete answer to the section 66 route out of this dilemma which I have already discarded. Fourthly, he submits that the Crown Court has power to adapt the trial procedure to accommodate the needs of defendants who are minors. In certain cases, but not the present case, there is a long stop option of discontinuing the proceedings and starting afresh in the magistrates' court. The second and fourth of these submissions are to an extent correct, but they do not by themselves meet the point that in a lot of cases, including perhaps this one, children and young persons ought, as a matter of policy, to be tried in the youth court.
41. On what is perhaps his main submission, and as I think the main difficulty of the claimant's case before us, Mr Kovats points out the obvious but nevertheless important point that section 29 of the Magistrates' Court Act 1980 is all about magistrates. It is headed "The power of a magistrates' court to remit a person under 17 -- it should in fact be 18 -- for trial to the youth court in certain circumstances". It is obvious, but needs to be stated, that this is a section in a Magistrates' Court Act and it is not the place, Mr Kovats submits, where you would naturally expect to find a power of the Crown Court. That seems to me to be correct. One only needs to look at the relevant parts of section 29 to see that it is all about magistrates' courts. Magistrates' courts are mentioned expressly at least twice, as you would expect in a statute about magistrates' courts, and the power with which we are concerned is introduced by the words "The court proceeds to the summary trial of the information", obviously intending that this should apply to a trial which would otherwise take place in the magistrates' court.
42. Mr Kovats refers as, I have done, to what Lord Nicholls said in the case of Inco and suggests that where section 29 of the 1980 Act is from start to finish concerned with the powers of the magistrates' court, it becomes very difficult to find that either the first or the second of Lord Nicholls' criteria are fulfilled.
43. The Powers of Criminal Courts (Sentencing) Act section 8 confers on any court before which a minor is convicted of an offence other than homicide a power, and unless the court is satisfied it is undesirable a duty, to remit the offender to a youth court for sentence. Parliament having made this provision in respect of sentence, Mr Kovats submits that it is all the harder to contend that the absence of a similar power or duty in respect of trial was an inadvertence. Section 8 is not a power, as I agree and as I have said, to remit for trial. He then refers to section 25(5)(b) and (7) of the Magistrates' Court Act 1980, which enables the magistrates' court to switch from committal proceedings to summary trial if at any time during the committal proceedings it appears that the case is, after all, one under which section 24(1) ought to be tried summarily. Thus, if the adult had pleaded guilty before the end of the committal proceedings the magistrates would have been able to transfer the case to the youth court for trial. The absence of any similar provision after a case has been committed to the Crown Court for trial is a further indication, he submits, that Parliament has carefully chosen which decisions in this area of law may be re-visited and which may not. In summary, he submits that it is extremely difficult for this court to construe or interpret or add to section 29 of the 1980 Act in the way that is submitted because it is surrounded by other provisions indicating that Parliament has thought very hard about this matter.
44. We have had drawn to our attention the fact that section 29(2) itself has been looked at by Parliament on at least two occasions in the last few years, that is to say by a provision of the Crime and Disorder Act 1998 and a provision of the Criminal Justice Act 2003, and although those two amendments are not precisely of the words in issue in this case, they do indicate that Parliament has looked at the very section with which we are concerned twice in the last few years.
45. As to statutory provisions relating to the subject matter with which this court is concerned, Mr Kovats draws attention to section 24A of the Magistrates' Court Act 1980, inserted by the Criminal Justice Act 2003 section 41 and schedule 3 from a date yet to be appointed, which provides for a magistrates' court to seek an indication of plea from a minor before determining whether to commit him to the Crown Court for trial. Section 17A makes similar provision in respect of adults. When these provisions are fully in force they should prevent, or at least ameliorate, a repeat of the situation which arose in the present case. I am not for myself absolutely sure about the last of those, but it is certainly correct that this is recent legislation on the general subject matter that we are talking about. He refers also to section 52(6) and schedule 3 paragraph 13 of the Crime and Disorder Act 1998. Again, this is not yet in force, but it makes provision for a minor who has been sent to the Crown Court for trial for a specified indictable-only offence that has yet to be arraigned, and following amendment of the indictment, or for any other reason, the indictment no longer includes an offence that is triable only on indictment, to remit the minor to a magistrates' court for trial. This is subject to the proviso unless he is jointly charged with an adult with an offence triable either way and the Crown Court considers it necessary in the interests of justice that they both be tried for the offence in the Crown Court, which is legislation very close to that which this court is encouraged to enable in the present case.
46. Mr Kovats also drew our attention to earlier paragraphs of schedule 3 where equivalent provisions in other circumstances have already been brought into force, and he submits that the fact that Parliament has enacted these provisions makes it all the more difficult to contend that the Inco Europe criteria are satisfied in respect of section 29(2) of the 1980 Act. He adds that the provisions that he has mentioned are just one small part of the amendments relating to the determination of mode of trial that are not yet in force. It is suggested, and I agree, that this court should be very cautious before resorting to Inco Europe principles to intervene in an area that has been the subject of such detailed recent Parliamentary activity and to widen that particular point where, as anyone concerned with these matters knows only too well, there has been a whole mass of Criminal Justice Act legislation in the last few years. It would be a bold court that intervened to do what in effect was legislation.
47. Mr Kovats points out that courts have on a number of occasions drawn attention to the complexities of criminal justice legislation and the difficulties resulting from not bringing into force all the provisions of the Criminal Justice Act 2003.
48. There are further submissions which Mr Kovats makes, which I do not think it is necessary to refer to in detail, of the adaptations which can be made in the Crown Court to see to it that proceedings concerning children and young persons as defendants are conducted in a way which is as compatible as they can be with not intimidating them or otherwise overpowering the proceedings in the Crown Court.
49. In conclusion, Mr Kovats submits that the editors of the current edition of Archbold are correct to say, as they do in paragraph 1-117, that once a juvenile has been validly committed for trial with an adult, he must be tried in the Crown Court, even if the adult pleads guilty. With regret, as I understand it, the Crown Prosecution Service agrees with that and suggests that the Recorder's ruling of 19th July was correct. It is submitted that this court should, again with regret, dismiss this claim.
50. I regret to conclude that I agree with that conclusion. My regret is not of course that I agree with the Recorder's ruling, but that I am unable to see a legitimate way under the current legislation of achieving the result which everyone thinks ought to happen. The reasons for this are very largely those advanced by Mr Kovats, which I express in my own words as follows. There is no doubt but that it would be highly desirable for the Crown Court to have the power that is contended for in this case. It would only be a power which the Crown Court would not be obliged to operate if there were good and compelling reasons for not doing so, as for instance where the adult who had pleaded guilty remained to be sentenced and the court reckoned that it ought to hear the evidence in the case of the child or young person before proceeding to sentence the adult. But there is universal agreement, which I share, that there should at least be the power in the Crown Court in the circumstances prevailing in this case to remit the case for trial to the youth court. However, this court is not the legislature and cannot engage in judicial legislation at will, however desirable it might be. We have to limit ourselves to interpretation of that which Parliament has enacted and we could only contemplate filling a perceived lacuna in the limited circumstances discussed and described by Lord Nicholls in Inco. What is more, we would have to find the lacuna in a particular statute and be sure that Parliament, by sheer oversight, omitted the provision which it is sought to be inserted. I can see that the submissions that are made before us are that Parliament must have intended this power to exist. I am not sure that I am fully persuaded of that, but even if I was, I am not persuaded that Parliament must have intended this to be provided in this particular statute. We would have to find the lacuna in a particular statute and be sure that Parliament, by sheer oversight, omitted the provision which it is sought to be inserted, and here we are invited to supplement section 29(2) of the Magistrates' Court Act 1980, which is about magistrates' courts and not the plainly obvious place to legislate for a power in the Crown Court. The very sub-section has been the subject of an amendment twice in recent years and there is much related legislation where Parliament has considered matters of general relevance. There is also a general mass of criminal justice legislation which increases, I think, the caution with which this court should obviously proceed. I am, again with regret, not sufficiently confident that I can perceive a plain lacuna in section 29 of the 1980 Act, and being required to approach the task with great caution, I regret that I feel unable to take the leap that we are invited to take.
51. Nevertheless, I feel strongly that this is a matter which requires Parliamentary attention, and I trust that those concerned will feel able to give effect to what should be a straightforward and short piece of amending legislation. In saying this I am very conscious that the interests of children and young persons, although not in this sphere the only consideration, nevertheless are interests of huge importance and this matter should therefore weigh heavily not only in this court, as it does, but with those concerned with future legislation.
52. For these reasons and with regret, I would dismiss this claim.
53. MR JUSTICE LANGSTAFF: I agree. I would also wish emphatically to associate myself with the concluding remarks in my Lord's judgment.
54. THE PRESIDENT: The claim is dismissed. Is there any other matter we need to deal with?
55. MR KOVATS: My Lord, no. Only to express our gratitude to the Administrative Court for, to repeat your Lordship's word, commendably dealing with this case so swiftly and efficiently.
56. THE PRESIDENT: I am very grateful for that, and I would reiterate what you just said. Thank you.
57. MR GREANEY: My Lord, may I seek an order for legal aid taxation please.
58. THE PRESIDENT: Yes.
59. MR GREANEY: Thank you.