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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Minister for Health and Social Services v the Attorney General [2019] JRC 137 (18 July 2019) URL: http://www.bailii.org/je/cases/UR/2019/2019_137.html Cite as: [2019] JRC 137 |
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Motoring - Appeal against a decision of the Youth Court.
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Before : |
Sir William Bailhache, Bailiff and Ms Joanne Moore, Mr Jonathan Bugbird and Mr Matthew Beddoe. |
Minister for Health and Social Services
-v-
Attorney General
Advocate P. F. Byrne for the Minister
Advocate I. C. Jones, Amicus Curiae.
JUDGMENT
THE BAILIFF:
1. The Appellant appeals by way of case stated as an aggrieved party against a decision of the Youth Court dated 20th November, 2018, whereby that Court ordered compensation to be payable by the Appellant in the sum of £1,711.96 in respect of loss and damage caused by a child, then aged 16, who was in the care of the Minister and accommodated under Article 17 of the Children (Jersey) Law 2002 ("the Children's Law"). The child was before the Youth Court for taking and driving away a motor vehicle without the consent of the owner. The car in question was left parked with the keys inside the vehicle in Minden Place car park, and the defendant gained access, and in driving to the exit, he damaged the car. Subsequently the car was abandoned and the defendant identified as the driver and prosecuted. The compensation is in respect of the damage to the vehicle caused on exiting the car park.
2. The owner made a claim for compensation under Article 3 of the Criminal Justice (Compensation Orders) (Jersey) Law 1994 ("the 1994 Compensation Law") which provides as follows:-
3. The Youth Court had before it an amount of background relating to the defendant, who had been the subject of an application to the Royal Court for a secure accommodation order some months before. It was plain that the Youth Court gave anxious attention to the right sentencing outcome given that the defendant then aged 16, was in care, and a number of professionals were there to assist, including the manager at the premises where the defendant was living, the team manager at the Children In Need Warning team, Mr John Ruddick, and a social worker. The Youth Court also had an email from the guardian for the defendant in the proceedings in the Royal Court, and of course the defendant was represented, in this case by Advocate Haines. The defendant's grandmother was also present.
4. At the conclusion of the hearing, the learned Magistrate indicated that the Court was going to make a compensation order. She said this:-
5. The Court subsequently went on to deal with sentencing matters in relation to the probation order which was imposed.
6. The first question which arises concerns the procedural technicalities in relation to the appeal. Article 6 of the 1994 Compensation Law provides for an appeal, but it does not provide for an appeal by way of case stated. The request for a case stated was made because the Minister was not legally represented at the Youth Court hearing and it was not apparent what the grounds for appeal might be. At all events, having expressed some procedural reservations, the Magistrate accepted the request for a case stated and duly stated a case which we have had put before us.
7. Ordinary appeals from the Youth Court to the Youth Appeal Court arise from Article 29(2) of the Criminal Justice (Young Offenders) (Jersey) Law 2014 ("the 2014 Law"). This provides:-
8. On the face of it, the 2014 Law does not provide for a person aggrieved by a decision of the Youth Court to appeal. This is different from the Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949 ("the 1949 Law") Part 5 of which contains inter alia the following provision:-
9. Article 15(2) of the Criminal Justice (Young Offenders) (Jersey) Law 1994, the predecessor of the 2014 Law, also contained no provision to appeal by way of case stated. Article 15(2) of that earlier law was drafted in the same terms as the 2014 Law in so far as appeals are concerned. In Le G v Attorney General [2004] JLR 204, the Court found the co-accused had locus standi to apply for a case stated in relation to the Youth Court's acceptance of her co-accused's pleas of common assault, as she was a "person aggrieved" under Article 18(1) of the 1949 Law. At paragraph 26 of its judgment in that case, the Court referred to Taylor on Appeals with approval, noting that the words "person aggrieved" have a wide definition and should not be given a restrictive interpretation. They include a person who has a legitimate grievance because an order has been made which prejudicially affects his or her interests.
10. We are satisfied in this case that the Minister is a person aggrieved because a compensation order has been made against him and his interests are therefore prejudicially and materially affected.
11. Although Article 29(2) of the 2014 Law only applied in terms to appeals by those who have been convicted, it is not desirable that it should be construed restrictively so as not to extend to persons aggrieved as well. If it were so restricted, then it would follow that the only remedy to such persons who had had an order made against them would be by way of judicial review. In our judgment, the legislature must have intended that as a judicial review at the instance of a person aggrieved might lead to a quashing of the order made and thus a return of the case to the Youth Court thereby affecting a defendant in that court, the Youth Appeal Court would have jurisdiction at the instance of a person aggrieved; and that is why Part 5 of the 1949 Law is incorporated mutatis mutandis as a whole.
12. Accordingly we consider that the Court has locus standi to receive an appeal by case stated from the Minister in the present case.
13. The Youth Court responded to the application for a case stated on 31st January, 2019. It confirmed that a compensation order had been made in favour of the owner of the motor vehicle in the sum of £1,711.96, and that, under Article 3(4) of the 1994 Compensation Law that order had been against the Minister as the defendant's guardian. The transcript to the proceedings on 20th November was attached to the statement of case, and the Court noted that the Minister was not legally represented but was in fact represented by Mr John Ruddick. The Court referred to those parts of the transcript which related to the compensation order, and indicated that the Youth Court was satisfied of the following facts:-
(i) The owner left his vehicle unlocked in Minden Place car park.
(ii) On 5th October the defendant took and drove away that vehicle without the owner's consent.
(iii) In doing so, he damaged the vehicle.
(iv) The vehicle was recovered by the police on 6th October.
(v) The cost of repair of the vehicle was shown to be £1,061.96.
(vi) The vehicle was valued at £500 but is was worth more to the owner.
(vii) The owner should not have to suffer the cost of buying a replacement vehicle if he would rather repair his existing vehicle.
(viii) The owner had his tools in the vehicle. He returned to Minden Place at 7am on 6th October to find the vehicle missing. It was entirely credible that he was going to work and therefore credible that the absence of his vehicle and tools would cause him loss of earnings.
(ix) Due to the vehicle being out of his control for an unknown period of time he suffered loss of earnings.
(x) The Youth Court accepted the owner's claim for loss of earnings in the sum of £650.
(xi) The owner was a victim of the crime committed by the defendant and as such, should be compensated financially if possible.
14. The Court considered that the defendant, aged 16, was not in paid employment nor was paid employment imminent. His time in the near future was likely to be occupied by undertaking therapy, completing court orders and, it was hoped, education. It was neither practical nor reasonable to require him to pay the compensation.
15. As to his parents, there had never been any contact with the defendant's father, and he had not lived with his mother for some time. His grandmother was in court to provide emotional support, but the defendant did not live with her, she had no parental responsibility for him, and she did not act as his guardian.
16. As neither parent was in court, no enquiry could be made of their means, and the defendant's father had never played a role in the defendant's life. His mother was no longer the person responsible for his day to day care, nor was she in a position to influence his behaviour. The Court therefore thought it was not appropriate or reasonable to make a compensation order against either of the parents.
17. The defendant was not subject to a care order, but was voluntarily looked after by the States of Jersey. The Court noted that the responsibilities of the staff employed in the accommodation provided for the defendant by the Minister were such that they had day to day care of the defendant and they try to help him to overcome his problems. Although the Minister did not have parental responsibility, the Court considered that in the ordinary usage of the word, the Minister was in fact the guardian of the defendant. Although the Minister had not been legally represented, the Court had had the opportunity to consider whether the Minister should be treated as the guardian because defence counsel had raised the matter for consideration. The Court expressed a conclusion that the Minister was guardian of the defendant at the time he took the owner's vehicle; the defendant's offending was the direct cause of financial loss and it was right that a compensation order should be made. It was made not to punish the guardian for the behaviour of a young offender, but is was part of the responsibilities that a parent or guardian bears in relation to a child or young person. The amount of the claim seemed appropriate and in those circumstances the compensation order was made.
18. Four challenges to the decision of the Youth Court were raised:-
(i) The Court erred in concluding that the Minister was the guardian of the defendant at the material time, or at all, and therefore made an unlawful decision;
(ii) Even if the Minister had been correctly described as the guardian of the defendant, the Court erred by failing to consider properly whether it was reasonable to make the order in the circumstances of the case;
(iii) The quantum of the order was excessive in that the value of the vehicle was substantially less than the sum awarded to repair it; and
(iv) Insufficient evidence was provided to support the victim's claim for loss of earnings.
19. Article 1 of the 2014 Law defines guardian in these terms:-
20. The relevance of the definition is demonstrated in two ways: Article 11 provides that where a child or young person is brought before a court, the parent or guardian of that person if resident in Jersey must attend the court before which the case is held. There is an exclusion if the Court is satisfied it would be unreasonable to require the parent or guardian's attendance. At paragraph 11(3) there is a specific reference to the Minister:-
21. The second reason for the definition arises because of Article 12 which contains a power in the Court to order that any fine or costs awarded against a child or young person be paid by the parent or guardian of the offender instead of by the offender himself or herself. Interestingly, there is no comparable provision in Article 12 to that contained in Article 11(3). That might suggest that in so far as the 2014 Law in concerned, it was contemplated that the Minister would be prepared to support the child when it came to Court attendances but would not have financial responsibility for any orders made against the child pursuant to that legislation. Advocate Byrne relied heavily upon the difference between the two Articles.
22. It was submitted on behalf of the Minister that the relationship between the child and the Minister was defined by the Children's Law. Under Article 17 of that law, the Minister is required to provide accommodation for any child in need as a result of there being no person who has parental responsibility, the child being lost or abandoned, or the person who has been caring for the child being prevented for whatever reason from providing the child with suitable accommodation or care. The obligation imposed on the Minister by that Article is not an obligation which involves parental responsibility - it is merely the requirement to provide support in the shape of accommodation.
23. By Article 19, where the Minister is looking after any child, he shall safeguard and promote the child's welfare. It is noteworthy that by paragraph (2) of that Article, the Minister is obliged, so far as is reasonably practicable, to ascertain the wishes and feelings of the child, the child's parents, any person who has parental responsibility and any other person whose feelings and wishes the Minister considers to be relevant with regard to the matter to be decided in respect of all looked after children.
24. Article 7 of the Children's Law provides for the appointment of guardians where the child has no parent with parental responsibility or a residence order has been made with respect to the child in favour of a parent or guardian who has died. That power to appoint guardians may also be exercised in any family proceedings if the Court considers that the order should be made. The Minister submits that the combination of these Articles reveals the true relationship between the Minister and the child in this case. In this context the Minister also submitted that the language of Article 7 requires that a guardian be an "individual" or a "person", and as the Minister is a corporation sole, Article 7 cannot possibly mean that the Minister is the guardian. We considered that to be a false trail because by Article 4 and Part 1 of the Schedule of the Interpretation (Jersey) Law 1954 "person" includes any body of persons corporate or unincorporated.
25. Nonetheless the Minister's primary submission is that the relationship is defined by the Children's Law and that accordingly the Minister should not be construed as a guardian in circumstances where a child is accommodated by the Minister under Article 17.
26. Advocate Jones, as amicus, submitted that although there was a statutory obligation to provide accommodation under Article 17, there was seemingly no obligation on the child to accept such an offer. Without an order of the Court, it was not obvious that the Minister had any power to compel a child to take up the offer of accommodation and indeed the Minister is required to take into account the child's wishes. If the child was sufficiently in need and the Minister's offer of accommodation was not accepted, the Minister might consider an application for a care order which would provide shared parental responsibility. Given the content of Articles 17 and 19 of the Children's Law, Advocate Jones submitted that the Youth Court had failed to consider properly or at all the statutory role of the Minister vis à vis the defendant at trial.
27. The distinction between the Minister's duties under Article 17 and those where there is a care order is demonstrated in Article 26(1)(c) which provides:-
We note there is a distinction between the Minister's obligations and those of a parent or guardian.
28. The transcript of the proceedings before the Youth Court reveals that the Magistrate had a number of exchanges with Mr Ruddick. At page 23 there is this extract:-
"Magistrate: Thank you. Now, [the child's] status is as a looked after child, so do you accept that any compensation order would be payable by the Minister?
Mr Ruddick: To who?
Magistrate: Compensation would be payable by the Minister.
Mr Ruddick: Sorry, I don't know about that.
Magistrate: Like the parents. The parents are responsible for compensation if the child cannot pay. [The child] is in your care.
Mr Ruddick: Right, well, that is the first time I have heard anything about compensation, but, if you deemed that it has to be paid ...
Magistrate: Yes, but you would accept that that has to be paid by the Department?
Mr Ruddick: ... Yes, we, we would have to accept that, yes. If [the child] had parental responsibility with, with [indistinct], there is a voluntary arrangement at the moment, we would take responsibility.
Magistrate: OK, right."
29. At that stage of the proceedings, the Magistrate was clearly under the impression that the Minister had parental responsibility. Subsequently, at page 35 there was a further exchange after defence counsel had indicated that the Minister was not somebody who had parental responsibility for the child in this case:-
"Magistrate: I thought they had shared responsibility?
Defence: They don't have parental responsibility, Ma'am, because they would only acquire that under an interim care order and that is their difficulty - in order to take steps for [the child], they have to go back to the people who have parental responsibility, which is his mother, I think, is the only person, but ...
Magistrate: Can you clarify that, please? Sorry.
Mr Ruddick: My apologies for that. Yes, he is accommodated, he is a looked after child, but it is under a voluntary arrangement, so we don't have parental responsibility.
Magistrate: You don't have parental responsibility, but would you accept that you were his guardian for the time being?
Mr Ruddick: Certainly."
30. It seems to us that two things emerge immediately from that transcript:-
(i) The Magistrate was told in fairly unequivocal terms that Mr Ruddick accepted that the Minister acted as the guardian for the child; but
(ii) Mr Ruddick was not legally advised, and may well have understood the question in more general terms, notwithstanding that it was addressed in the context of compensation. He was there, after all, to provide support for the child under Article 11(3) of the 2014 Law, and not for any other purpose.
31. We recognise that the Youth Court may well have taken into account the fact that if no compensation order were made against the Minister, there was no practical basis upon which the owner of the car would receive any recompense for the damage to his car or his loss of wages. We also recognise that the Court was given a clear indication from Mr Ruddick that he regarded the Children's Service as the guardian for the child. Nonetheless, neither of those features is in our judgment sufficient to create in law a status which the Minister did not have.
32. First of all we consider the matter as a question of everyday practice. If a person goes on holiday leaving his 16 year old child with a relative, it would come as a surprise to the relative to be told that he or she was responsible for any criminal damage which the 16 year old child caused unless there was some other circumstances which made that a legitimate outcome. Common sense says that our community would not operate in such a way as to impose a liability simply on someone who provides accommodation for a child; because if it did impose that obligation, the likelihood of finding someone to care for the child in those circumstances would be very much reduced. It does not seem to us that it ought to make any difference if one is considering not a voluntary arrangement of the kind we have just described but an arrangement under which the Minister has a statutory obligation to provide that care. The central point is that in each case, the obligation on the person having care of the child is to provide accommodation and nothing more.
33. Secondly, it is right to look at the relationship between the Minister and the looked after child through the eyes of the Children's Law. In our judgment, the obligation to provide accommodation is quite distinct from the taking of parental responsibility, which happens on an interim care order or a final care order. We do not think that conferring parental responsibilities where there is no parental responsibility is appropriate.
34. Thirdly, in our judgment the differences between Article 11(3) and Article 12 of the 2014 Law do emphasise that there is no intention in Article 12 that the Minister should be liable for fines or costs imposed upon the child. It may be that consideration should be given to an amendment of that piece of legislation in order to impose such a liability, and no doubt that could be the subject of political discussion. One assumes that, in that event, it would be limited to cases where the Minister had parental responsibility, and would not extend to cases where the Minister had a looked after child in his care; but regardless of the way in which any such political decision were taken, the fact remains that the legislation at present does not provide for the Minister to be left with a fine or costs order. In those circumstances, we think it would be artificial to construe the 1994 Compensation Law in such a way as to include the Minister having care of a looked after child in the definition of "guardian".
35. In Leeds City Council v West Yorkshire Metropolitan Police [1982] 1 All ER 274, a boy aged 12 pleaded guilty to robbery and was placed under the care of a local authority pursuant to a care order made under the Children and Young Persons Act 1969. He was accordingly accommodated and maintained by the local authority in a home which it managed. Sometime after he was so accommodated, the child, on a weekend visit to his parents, attacked and robbed an old lady in her home. The local authority was ordered to pay compensation to his victim under Section 55b of the Children and Young Persons Act 1933 on the ground that he was under the care of the authority when he committed the offences. The local authority applied for judicial review and the case went to the House of Lords which decided that a local authority into whose care a child or young person was received, whether under a care order or pursuant to its statutory obligations to receive into care orphans and deserted or abandoned children was not the child's guardian for the purposes of Section 55 of the 1933 Act because "guardian" in that section only referred to the de facto guardian ie the individual person who assumed the charge and control of the child and did not therefore extend to the local authority which was the legal guardian by virtue to its statutory obligation. In reaching that conclusion Lords Scarman and Diplock construed the phrase "parent or guardian" as requiring that the person should be an individual human being who was either the parent or the person having charge and control of the child. One assumes that the Interpretation Act at the time contained similar provisions to Article 4 and the Schedule to our Interpretation Law 1954, but perhaps the House of Lords construed the language in its context as requiring that the relevant provision in the Interpretation Act, if there was one, did not apply.
36. What is of interest however, is that, when comparing the different statutes (and they have quite different statutory provisions from those which are in point in Jersey), their Lordships attributed different definitions to the word "guardian" according to the different statutes. It is of interest that Lord Scarman, with whose judgment the other Law Lords agreed, said this at page 280:-
37. We have noted that the Criminal Justice Act 1991 has amended s55 of the Children and Young Persons Act 1933, such that local authorities are now potentially responsible for financial penalties incurred by young offenders where the local authority has parental responsibility. Jersey has not made that amendment yet, and even if it had, the Minister does not in this case have parental responsibility.
38. In the circumstances, we are satisfied that the compensation order made against the Minister was not a lawful order and the Minister's appeal must be allowed.
39. In the light of these conclusions, it is not necessary to consider the other matters raised on appeal, but we think it might be useful to add a few words on the remaining challenges described at paragraph 18 above.
40. In Bedfordshire County Council v Director of Public Prosecutions [1996] 1 Cr. App. R.(S) 322, the Court of Appeal was considering compensation orders made against two youths in the care of the council. At page 327 Butterfield J said this:-
41. At page 328 of the Bedfordshire case, guidelines are set out when the courts are to consider making compensation orders against a local authority. It seems to us that these guidelines are useful in Jersey assuming that the Court is faced with a position where the Minister has parental responsibility:-
(i) The prosecution must be strictly neutral in any case in which the issue is whether the local authority should pay compensation.
(ii) If the Court is minded to make an order for payment of compensation against a local authority, the Court should first notify the local authority in writing that it is considering making an order, informing the local authority of its right to make representations, to produce evidence and to be legally represented. The local authority should be provided by the Court with copies of any relevant documents.
(iii) The local authority should notify the Court in writing whether there is likely to be any dispute about the amount of compensation claimed or the issue as to whether an order for compensation should be made.
(iv) If there is any dispute on the amount of compensation claimed or the liability of the local authority to pay, a hearing must be arranged with reasonable notice to the local authority.
(v) In advance of that hearing, the local authority should supply to the Court and the prosecution copies of any statements, reports or other documents relied upon.
42. For the words "local authority" in that case, one can transpose the words "Minister" in Jersey.
43. In the present case, the transcript does not reveal any detailed or structured enquiry, nor does it show that the Minister was formally convened even though a member of the Children's Service staff was present. In proceeding in that way, the Youth Court misdirected itself.
44. We also note that the value of the repair significantly exceeded the value of the vehicle. In effect therefore by ordering compensation equal to the value of the repair, the Youth Court conferred a benefit on the owner of the vehicle. Had it been an insurance claim, the owner of the vehicle would have recovered his loss, which was the value of the car. There is no reason why the Minister should have been required to pay more than that even if a compensation order had been appropriate.
45. Finally the compensation application form was unsigned and there was no evidence provided for the claimed loss of earnings. There was therefore no sufficient factual basis upon which the Youth Court could have reached the conclusion that compensation for these loss of earnings should have been ordered.
46. The consequences of the matters we have just mentioned are that, had the Youth Court had jurisdiction to make an order against the Minister in the circumstances of this case, we would have allowed the appeal and returned the matter to the Youth Court for assessment of any causative link between the fault proved and the offences committed, with a detailed enquiry as to the sums of money which were properly to be the subject of an order. However, it is unnecessary to remit the matter to the Youth Court because it did not have jurisdiction to make a compensation order against the Minister on the grounds that by providing a child with accommodation under the Children's Law the Minister was to be treated as a guardian of that child for the purposes of the 1994 Compensation Law.
47. In the event, for the reasons given the appeal is allowed and the order of the Youth Court that the Minister pay compensation in the sum of £1,711.96 is set aside.
