Law Report: 21 May 1998: Detention for grave offence could be two years or less

Regina v B; Court of Appeal (Criminal Division) (Lord Bingham, Lord Chief Justice, Mr Justice Smedley and Mr Justice Thomas) 6 May 1998

A COURT could sentence an offender aged 15 on the date of conviction to detention for two years or less under section 53(2) and (3) of the Children and Young Persons Act 1933 on the ground that none of the other methods in which the case might legally be dealt with, including detention for the same period in a young offender institution, was "suitable".

The Court of Appeal allowed the appellant's appeal against a total sentence of two years' detention in a young offender institution, and substituted a sentence of two years' detention under section 53(2) and (3) of the Children and Young Persons Act 1933.

The appellant had pleaded guilty to offences of robbery and assault with intent to rob. She was 14 when the offences were committed, but 15 when convicted.

Six days after her sentence had been passed, the appellant returned to the Crown Court, and the judge was asked to vary or rescind the sentence and to substitute a sentence of detention under section 53(2) and (3). He declined to do so.

Graham Cooke (Registrar of Criminal Appeals) for the appellant; David Perry (Treasury Solicitor) as amicus curiae.

Lord Bingham CJ said that it had been argued for the appellant that there was no statutory minimum period applying to a sentence under section 53, and that the only pre-condition for making an order under the section was that the court was of the opinion that "none of the other methods in which the case may legally be dealt with is suitable".

The judge had had the benefit of written reports and oral evidence to the effect that detention in a young offender institution would be detrimental to the appellant's development. She was judged to be in need of close supervision and help, counselling, education and guidance. A place was available for her at a secure unit, but only if a sentence of detention under section 53 were passed.

The judge had considered himself bound by authority, having decided that a sentence of two years was long enough, to pass a sentence of detention in a young offender institution. The judge's approach undoubtedly reflected the view which the courts had traditionally taken of section 53(2) and (3).

However, it seemed clear, as a matter of everyday English, that the word "suitable" in section 53(2) was not a synonym of "sufficient". On a proper construction of the section, it was open to the court to make an order even though the detention was for a period no longer than that for which the offender could be sentenced to be detained in a young offender institution, provided that the court was of the opinion that none of the other methods in which the case might legally be dealt with (including detention in a young offender institution) was suitable. Such a construction gave effect to the important welfare principle embodied in section 44 of the Act.

The exercise of the power must, however, be subject to important practical constraints in any case where the effective choice was between detention in a young offender institution and detention under section 53(2) and (3). The court must found its opinion on clear and compelling evidence to show that, in the case of the particular offender, detention in a young offender institution was for demonstrable reasons clearly unsuitable.

The court should not exercise its power under section 53(2) and (3) unless it was in receipt of a clear current indication that there was a place for the defendant in an institution other than a young offender institution and that that institution was willing to accept the defendant, nor should it, save in quite exceptional circumstances, exercise its power to make an order under section 53(2) and (3) for two years or less in the case of a defendant aged over 15 at the date of conviction on the ground that detention in a young offender institution would not be suitable.

Kate O'Hanlon, Barrister