High Court allows judicial review of Youth Court’s decision to determine a defendant’s age

 

A Divisional Court has quashed the decision of a Youth Court to determine a defendant's age in criminal proceedings. The decision has procedural implications for the approach of criminal courts where a dispute arises as to a defendant's age, and is of particular significance in the context of age-disputed defendants in the youth justice system.

 

Pursuant to s.99(1) of the Children and Young Persons Act 1933, the Youth Court is empowered to 'deem' a defendant's age for the purpose of criminal proceedings. Similar provisions exist in relation to the role of the Secretary of State under s.164(1) of the Powers of Criminal Courts (Sentencing) Act 2000 and s.150 Magistrates' Court Act 1980. In this case, the Claimant had appeared before a bench of lay magistrates in relation to first appearance for four either-way offences. He presented to the court as an unaccompanied child of Algerian ethnicity. He did not speak English. He had been treated as child by the police under PACE 1984 and had been assessed by the Youth Offending Team as suitable for a referral order. His date of birth made him sixteen years of age.  

 

Upon seeing the Claimant in the dock of court, the magistrates disputed that the Claimant was a child on the basis of his physical appearance. Without permitting the Claimant an adjournment to produce his birth certificate and without making a referral to the Local Authority (who otherwise owed the claimant a duty to accommodate under s.20 of the Children Act 1989), the magistrates determined that the Claimant was an adult, declined summary jurisdiction and sent his case for trial to the Crown Court under s.51 of the Crime and Disorder Act 1998. Thereafter, the Claimant was remanded in custody (as an adult) to a local men's prison. As a direct result of the magistrates' decision to deem him an adult, the Claimant could not be remanded to local authority accommodation pursuant to the LASPO youth remand framework, and was thereby unable to benefit from the welfare obligations that he would have been owed under LASPO and the duties that he was already owed under the Children Act 1989.  

 

The Claimant issued urgent judicial review proceedings and was granted anonymity. On his behalf, it was argued that the magistrates' approach was procedurally unfair and contrary to the settled law and guidance of the High Court and Court of Appeal in both the community care and criminal justice context. The Claimant also relied on the principles articulated in the United Nations Convention on the Rights of the Child, and Articles 6 and 8 ECHR. The Claimant relied in particular on the cases of R v Steed (1990) 12 CR.App.R.(S.) 230; R v L and others [2013] EWCA Crim 991 and R (B) v Merton LBC [2003] EWHC 1689 (Admin). Common to the principles of age assessment across the crime and community care contexts,  is the principle that an age assessment cannot be conducted on the basis of a person's physical appearance. In addition, the Claimant argued that his case raised the continuing problem identified by the High Court in R (on behalf of W) v Leeds Crown Court [2011] EWHC, namely, that the Crown Court has no power to remit a case to the Youth Court in the event that a defendant is subsequently accepted to be a child.

 

In quashing the decision of the magistrates to deem the Claimant an adult and the consequent decisions to send the case for trial and to remand the Claimant in custody, the Divisional Court, per Irwin LJ, held that there was "no doubt" that the magistrates in this case had acted inappropriately and that, where a "real dispute" arises as to a defendant's age, "the proper course is to make directions for an age assessment to be conducted".

 

In R (on the application of M) v Hammersmith Youth Court, Kate O'Raghallaigh was instructed by Ms. Perveen Hill of Hodge, Jones & Allen Solicitors, with Ms. Jennifer Twite of Just for Kids Law intervening. 

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