TAYLOR v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicant, Mark James Taylor, is a United Kingdom national, who was born in 1983 and lives in London. He is represented before the Court by Breeze, Benton & Co., Solicitors, London. The Government are represented by their Agent, Ms J. Foakes, Foreign and Commonwealth Office, London. The facts of the case, as submitted by the parties, may be summarised as follows. On 25 March 1997 the applicant along with another youth (C.) were arrested by the police for suspected involvement in offences relating to the theft of a ring and causing severe injuries to its owner, a boy aged 11. The victim was rendered unconscious as a result of the attack and had to be detained in hospital for three days. He was treated for multiple and extensive bruising to his face and head as well as to the rest of his body. At the time of the commission of these offences, the applicant was aged 14 years and 24 days. On 3 April 1997 the applicant, who had earlier been released on bail, was formally charged with the offence of robbery contrary to section 8 (1) of the Theft Act 1968. He was again released on bail and attended Stratford Youth Court for the first time on 7 May 1997. C. failed to attend and a warrant was issued for his arrest. At the first hearing before Stratford Youth Court on 7 May 1997, the applicant’s lawyer obtained a two-week adjournment to allow him to consider the case outline served by the Crown Prosecution Service (“CPS”). At the hearing, although the matter was discussed, no decision was taken as to the court’s jurisdiction to sentence the applicant, if convicted, under section 53(2) and (3) of the Children and Young Persons Act 1933 (“the 1933 Act”). The applicant was released on bail. At the resumed hearing on 21 May 1997, Stratford Youth Court stated its intention to commit the applicant to the Crown Court for trial, given that the Crown Court had greater sentencing powers. The proceedings were adjourned until 16 July 1997 to enable the case to be prepared for committal. At the hearing on 16 July 1997, the CPS withdrew the robbery charge and replaced it with charges of theft contrary to section 1 of the Theft Act 1968 and assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861 (“the 1861 Act”). Stratford Youth Court accepted jurisdiction over these charges since they were within its sentencing remit. The applicant pleaded not guilty. The case was adjourned for two weeks to allow the CPS to obtain and review further medical evidence with a view to a possible preferment of a more serious charge of causing grievous bodily harm with intent, contrary to section 18 of the 1861 Act. According to the applicant, the CPS created unnecessary delay by not reviewing the charges earlier. There was no reason why the trial date could not have been fixed at the 16 July hearing and the medical evidence submitted in due course. Instead, Stratford Youth Court allowed a two-week adjournment to enable the CPS to review the medical evidence. In the applicant’s view, the CPS should in any event have known the extent of the victim’s injuries by 16 July 1997, without having to be given a two-week adjournment to review the medical evidence. At the next hearing on 30 July 1997, Stratford Youth Court fixed a pre-trial review hearing for 8 October 1997 and the trial for 4 November 1997. The medical evidence sought by the CPS was still not available. However, the CPS did not request a further adjournment. On 8 October 1997 Stratford Youth Court had to adjourn the pre-trial review since the co-accused C. had failed to attend. The pre-trial review was adjourned until 15 October 1997. On that occasion, the date of the trial was fixed for 20 and 21 November 1997. According to the Government, the applicant’s representative did not object to these dates. The applicant denies this and states that objection was made regarding further delay. On 20 November 1997 the applicant failed to attend Stratford Youth Court. An application by the CPS to proceed in his absence was refused. A warrant was issued for his arrest. The applicant turned up at Stratford Youth Court on 21 November 1997. He stated that he had forgotten that he was due to attend court the day before. The court adjourned the proceedings to 26 November 1997 so that arrangements could be made for another trial date to be set. At the directions hearing on 26 November 1997,Stratford Youth Court fixed the date of the pre-trial review hearing for 17 December 1997. The trial was set down for 12 March 1998. The pre-trial review had to be adjourned twice and was eventually held on 25 February 1998 and again on 4 March 1998. On the latter occasions the defence made submissions on disclosure of materials in the possession of the CPS. The applicant points out that the CPS should have disclosed the materials requested at a much earlier stage of the proceedings, for example at the hearing on 17 December 1997. In the meantime the applicant had turned fifteen on 1 March 1998. On 12 March 1998, 340 days after the applicant was first arrested and 11 days after his fifteenth birthday, trial commenced. The victim gave evidence and was cross-examined by live video link. The defence made unsuccessful applications for disclosure of evidence and to have other evidence excluded at the trial, especially the victim’s evidence identifying the applicant and his co-accused. On 13 March 1998 the applicant was convicted of theft and assault occasioning actual bodily harm. Stratford Youth Court, pursuant to section 37 of the Magistrates’ Court Act 1980 (“the 1980 Act”), committed the applicant to Snaresbrook Crown Court for sentence, being of the view that its powers of sentencing were inadequate and that the applicant should be given a heavier sentence than it had power to impose. On 17 June 1998 Snaresbrook Crown Court adjourned the case to 18 August 1998 so that pre-sentence reports could be prepared. On that date His Honour Justice Smith, sitting with two lay justices, sentenced the applicant to 18 months’ detention in a Young Offender institution. The applicant was given leave by a Single Judge to appeal to the Court of Appeal against his sentence. Before the Court of Appeal counsel for the applicant contended that the sentence handed down was unlawful on the grounds that the fact that the applicant has passed his fifteenth birthday during the proceedings, but before conviction, meant that he should be liable only for the same penalties as a fourteen-year old. Accordingly, he maintained, a sentence of detention in a Young Offender institution could not be passed on him. On 22 September 1998 the appeal was refused. In dismissing the appeal, Mr Justice Turner stated: “The simple truth is that [the applicant] was indeed fortunate not to have been charged with, and then convicted of, the even more serious offence of robbery. ... We consider that for the circumstances of the offence ... any right-thinking member of the public would have been appalled if the result had not been the deprivation of liberty of those who committed these offences against such a young boy and with such obvious violence and persistence which were involved in this case. It is urged upon us that because the co-accused has absconded and there was a delay of about 18 months between the commission of the offence and sentence, this would have enabled the court to impose a sentence of custody in a young offender institution. That sentence became available because [the applicant] had turned 15 between the date of the offence and the date of sentence. As a submission, that is entirely accurate. As a submission that leads this court to doubt the correctness of the sentence passed on [the applicant], we not only doubt, we profoundly disagree. In any event it would have been open, given the seriousness of the offences with which [the applicant] was charged and been found guilty, to have considered sentencing under the provisions of section 53 of the Children and Young Persons Act 1933.” The applicant’s request for an extension of the time-limit for an application to the Court of Appeal to have a question of public importance certified for an appeal to the House of Lords was refused on 29 January 1999. Lord Justice Rose stated: “It may be some comfort to those who have appeared on behalf of this applicant to be reminded that in any event a case in which a sentence has been passed which was within the discretion of the sentencing court cannot properly be regarded as a point of law of general public importance worthy of consideration of the House of Lords.” There are three kinds of criminal offences in English law: summary offences (triable only in the Magistrates’/Youth Court); “either way” offences (triable either in the Magistrates’/Youth Court or on indictment in the Crown Court); and indictable offences (triable only in the Crown Court). The offences of which the applicant was eventually convicted and sentenced (theft and assault occasioning actual bodily harm), were “either way” offences. If an offender is aged under 21, neither the Crown Court nor a Magistrates’ Court can pass a sentence of imprisonment, but they can pass a sentence of detention in a Young Offender institution. If the magistrates consider that their power of sentencing is inadequate, as occurred in the applicant’s case, they may commit an offender to the Crown Court for sentence. A person under 18 – a juvenile – is normally tried in a Youth Court. According to section 24(1) of the Magistrates’ Courts Act 1980, a juvenile must be tried in a Youth Court, subject to defined exceptions, including where the magistrates sitting in the Youth Court consider that a juvenile accused, charged with particularly serious offences, could properly be sentenced under section 53(2) and (3) of the Children and Young Persons Act 1933 if he were convicted on indictment (see below). In that event, the juvenile will be tried in the Crown Court. A Youth Court’s sentencing powers are less extensive than those of the Crown Court. At the time the applicant came to be sentenced, the only form of custodial sentence available to the Youth Court was detention in a Young Offender institution. Moreover, at the material time detention in a Young Offender institution was only available in respect of offenders whose age on the date of conviction (according to the Government) was 15 (as in the applicant’s case), 16 or 17. In this connection, section 1A of the Criminal Justice Act 1982 provided at the date of the applicant’s conviction: (1) Subject to section 8 below and to section 53 of the Children and Young Persons Act 1933, where - “(a) an offender under 21 but not less than 15 years of age is convicted of an offence which is punishable with imprisonment in the case of a person aged 21 or over; and: (b) (...) the sentence that the court is to pass is a sentence of detention in a young offender institution.” The Youth Court was restricted to a maximum sentence of six-months’ detention in a Young Offender institution for a single offence or a total maximum of twelve months where, like the applicant, the offender was convicted of two offences triable either way. Pursuant to section 37 of the Magistrates’ Courts Act 1980, if a Youth Court found a 15, 16 or 17 year old guilty of an indictable offence or “either way” offence (as in the applicant’s case), and it was of the opinion that the offender should be sentenced to more than six-months’ detention in a Young Offender institution (or twelve months’ detention in the case of an offender like the applicant convicted of two offences), then it could commit him to the Crown Court to be sentenced. Following committal, the Crown Court could then pass a sentence of up to 24 months’ detention in a Young Offender institution for the offence (section 1B of the Criminal Justice Act 1982), or deal with the offender in any way in which the Youth Court could have dealt with him. Detention in a Young Offender institution can only be imposed inter alia if the offence was one of violence and the court was of the opinion that only a custodial sentence would be adequate to protect the public from serious harm, or that offence was so serious that only a custodial sentence could be justified. In the case of offenders aged 14 or under (like the applicant at the date of the commission of the offences of which he was eventually charged and convicted), the Youth Court may, inter alia, impose a fine, make a compensation order or make a supervision order. It has no power in law to sentence an offender under the age of 14 to a Young Offender institution for summary or “either way” offences. In addition, it has no power to commit such children to the Crown Court for trial or for sentencing. There are exceptional circumstances in which children of 14 may receive a custodial sentence. Thus, according to section 53 of the Children and Young Persons Act 1933, a young person aged between 10 and 17 may be given a custodial sentence if he is convicted of an offence, such as robbery, punishable in the case of an adult with imprisonment for 14 years or more, not being an offence the sentence for which is fixed by law. Of relevance to the applicant’s case, under section 7 of the Theft Act 1968 the maximum sentence for an adult convicted on indictment of an offence of theft is seven years’ imprisonment. Of equal relevance to the applicant’s case, under section 47 of the Offences Against the Person Act 1861 the maximum sentence for an adult convicted on indictment of an offence of assault occasioning actual bodily harm is five years’ imprisonment. According to the Government, in English law the basic rule for determining what power the court has in relation to sentencing an offender is his age at the date of conviction. The age at the date of conviction rule, as opposed to the date of sentence, was approved by the Court of Appeal in R. v. Danga ([1992] Q.B. 476) and later in R. v. Pespane (13 Cr. App. R (S) 438), R. v. Robinson (14 Cr. App. R. (S) 48) and R. v. Starkey (15 Cr. App. R. (S) 576). The applicant draws attention to his view that section 29 of the Children and Young Persons Act 1963 contradicts the age-at-the-date-of-conviction-rule. This section makes provision for defendants who reach their eighteenth birthday after their case has begun in the Youth Court. It reads: “Where proceedings in respect of a young person are begun ... for an offence and he attains the age of 18 before the conclusion of the proceedings, the court may deal with the case and make any order which it could have made had he not attained that age.” If a juvenile has not attained his or her eighteenth birthday at the time of plea, the Youth Court has the power to hear the case and impose sentence. If the defendant’s eighteenth birthday falls after the plea and before final disposal of the case, the Youth Court may nevertheless sentence the defendant as if he or she was still a juvenile. If, however the juvenile has reached age 18 by the time he or she is asked to enter a plea to the offence, the court must treat him or her as an adult (R. v. Islington North Juvenile Court, ex parte Daley [1983] AC 347). In R. v. West London Justices ex parte Siley Windit (reported in Criminal Law Review 2000, p.p. 926-927), the Divisional Court held that the relevant age for determining a juvenile accused’s right to elect for jury trial was his age on the date he entered a plea of guilty. The applicant further points out that the domestic case-law relied on by the Government is of limited value to the applicant’s case since there are no decisions dealing with the situation of a fourteen-year old who becomes fifteen before conviction and thus moves from a non-custodial to a custodial bracket.