Att Gen v Youth Court

JurisdictionCayman Islands
Judge(Smellie, J.)
Judgment Date26 July 1996
CourtGrand Court (Cayman Islands)
Date26 July 1996
Grand Court

(Smellie, J.)


A. Roberts, Crown Counsel for the Crown.

Cases cited:

(1) -Att. Gen. v. S (A Juvenile), 1994–95 CILR 109.

(2) -R. v. Fisher, [1969] 1 W.L.R. 8; (1968), 112 Sol. Jo. 905, followed.

(3) -R. v. Reah, [1968] 1 W.L.R. 1508; [1968] 3 All E.R. 269; (1968), 112 Sol. Jo. 559, followed.

(4) -R. v. Whittaker, 1986–87 CILR 189.

(5) -Yew Bon Tew v. Kenderaan Bas Mara, [1983] 1 A.C. 553; [1982] 3 All E.R. 833; (1982), 126 Sol. Jo. 729, dictum of Lord Brightman applied.

Legislation construed:

Interpretation Law (1995 Revision) (Laws of the Cayman Islands, 1963, cap. 70, revised 1995), s.24:

‘Where a Law repeals wholly or partially any former Law and substitutes provisions for the Law repealed, the repealed Law shall remain in force until the substituted provisions come into operation.’

s.25(2): The relevant terms of this sub-section are set out at page 119, lines 23–40.

Juveniles Law, 1990 (Law 19 of 1990), s.19(1): The relevant terms of this sub-section are set out at page 120, lines 14–16.

Youth Justice Law, 1995 (Law 8 of 1995), Schedule 1, para. 3:

‘Where a young person is found guilty before any court of any offence other than an offence mentioned in paragraph 2, punishable in the case of a person who has attained the age of seventeen with imprisonment, then, if the court is of the opinion that none of the other methods in which the case may legally be dealt with is suitable, the court may sentence the offender to be detained for such period, not exceeding the maximum term of imprisonment with which the offence is punishable in the case of a person who has attained the age of seventeen, as may be specified in the sentence.’

Criminal Procedure-juvenile offenders-court of trial-indictable offences-Interpretation Law (1995 Revision), s.25(2)(c) and common law presumption against retrospectivity prevents application of Youth Justice Law, 1995 to charges laid under Juveniles Law, 1990-removal of ‘right’ to elect summary trial and increase of liability to penalties

Criminal Procedure-juvenile offenders-court of trial-discretion to preserve charges after repeal of law-by Interpretation Law (1995 Revision), s,25(2)(e), discretion to preserve charges laid under repealed Juveniles Law, 1990 lies with prosecution not court-Youth Court to comply with prosecutor”s decision

The applicant sought an order of certiorari to quash a decision of the Youth Court to commit three juvenile defendants for trial by the Grand Court.

The accused were charged with offences involving firearms and robbery before the Youth Justice Law, 1995 came into force. The 1995 Law repealed the Juveniles Law, 1990 thereby removing the right of juveniles to elect summary trial for indictable offences such as robbery, and introduced more severe maximum sentences of detention for juveniles in line with those available for adult offenders.

After the commencement of the 1995 Law, the accused appeared before the Youth Court, which took the view in purported reliance on s.24 of the Interpretation Law (1995 Revision) that the Juveniles Law, 1990 ceased to apply as soon as the 1995 Law came into force, but that it had a discretion under s.25(2) of the Interpretation Law to deal with the defendants under the law as it applied when they were charged. Section 25(2)(e) allowed for proceedings commenced under a repealed statute to be continued as if it had not been repealed, whilst s.25(2)(c) preserved rights and liabilities acquired or incurred under the old legislation. The court decided not to exercise the discretion and directed that the proceedings be treated as committal proceedings.

On appeal against this direction, the Crown submitted that (a) the Youth Court had erred in considering the Interpretation Law, s.24, since that section merely concerned the coming into force of the 1995 Law, which was not in issue; (b) both the Interpretation Law, s.25(2)(c) (which in the absence of a contrary intention appearing in the 1995 Law, preserved the accused”s right to elect summary trial and their liability to

lighter maximum sentences) and the common law presumption against retrospectivity weighed against applying the new legislation with its heavier penalties to offences committed before it came into force; and (c) the discretion conferred by s.25(2)(e) lay not with the court but with the prosecuting authorities, and the Crown wished to exercise that discretion in favour of continuing the proceedings under the pre-existing Law, thereby allowing the accused their rights under the Juveniles Law, 1990.

Held, granting the order of certiorari:

(1) The Youth Court had erred in relying on s.24 of the Interpretation Law, which was not relevant to the issue of which Law should apply to offences committed and offenders charged before the commencement of repealing legislation. To the contrary, both s.25(2)(c) of that Law and the common law presumption against giving retrospective effect to legislation made it clear that the commencement of the 1995 Law was not intended to affect any ‘right’ or ‘liability’ the accused had acquired under the Juveniles Law, 1990. In the present context there was no evidence that the new statute was intended to apply increased penalties to pre-existing charges; nor was it intended to remove the accused”s right to elect summary trial in the Juvenile Court for the indictable offence of robbery (page 121, lines 6–11; page 121, line 39 – page 122, line 13; page 122, lines 29–34).

(2) Moreover, the discretion...

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