Naming Child Defendants: In the Public Interest?

England and Wales: A Brief Resumé

This tension is addressed in England and Wales primarily by protective provisions within the Children and Young Persons Act (CYPA) 1933 (‘the 1933 Act’). ³ The nature of the statutory protection varies according to court venue. As regards proceedings of a youth court, s.49 of the 1933 Act imposes an automatic ban on the publication of any report that reveals the name, address or school or any other particulars likely to lead to the identification of any child or young person concerned (whether as a defendant, witness or otherwise) in the proceedings. Exceptions apply, including most prominently the so-called ‘name and shame provision’ under s.49(4A) ⁴ empowering a court to dispense to any specified extent with the requirements of the section in respect of a child or young person who has been convicted of an offence where ‘satisfied that it is in the public interest to do so’. In contrast, in proceedings before a magistrates’ court or the Crown Court, CYPA 1933 s.39 confers a discretionary power to impose reporting restrictions ⁵ on the identification of children and young persons concerned ‘in relation to any proceedings in any court’, whether as defendant, witness or victim, ‘except in so far (if at all) as may be permitted by the direction of the court’. In other words, protection of the child defendant under s.39 requires affirmative action without which the scope for publicity constitutes the default presumption. ⁶

The logical justification in principle for this twin-track approach is not easy to follow. It appears to stem from the fact that youth court proceedings are closed to the public but s.49 also applies to appeals from a youth court which are heard in the Crown Court to which the public has access. Furthermore, it can be somewhat arbitrary whether the child comes before a youth court or an adult court, as will be the case where he or she is jointly charged with an adult and it is in the interests of justice for them to be tried together (see Stone, 2012a). Although the statutory regimes are distinct, principle would suggest that the approach to whether to make an exception in respect of a child under s.49(4A) should inform the application of discretionary protection under s.39(1). In an early judgment addressing the scope to name a child defendant under sub-section 4A, McKerry v Teesdale & Wear Valley Justices [2000] 164 JP 335, after respectful reference to the relevant provisions of international law, Bingham CJ observed:

It is in my judgment plain that power to dispense with anonymity, as permitted in certain circumstances by section 49(4A), must be exercised with very great care, caution and circumspection. It would be wholly wrong for any court to dispense with a juvenile’s prima facia right to anonymity as an additional punishment. It is also very difficult to see any place for ‘naming and shaming’. The court must be satisfied that the statutory criterion that it is in the public interest to dispense with the reporting restriction is satisfied. This will very rarely be the case, and justices making an order under section 49(4A) must be clear in their minds why it is in the public interest to dispense with the restrictions.

Notwithstanding the unambiguously restrictive tenor of that interpretation, the Divisional Court in McKerry nevertheless upheld the youth court’s direction to dispense largely with reporting restrictions on grounds that the young person concerned ‘constituted a serious danger to the public and had shown a complete disregard for the law’. ⁷

Unsurprisingly, it has been argued that Lord Bingham was seeking to espouse a principle as validly applicable to s.39 as to s.49, namely that publication identifying a child offender should be permitted only in exceptional instances. However, this has been roundly refuted in the pre-ss.4A context, prominently by the Court of Appeal, reconstituting itself as a Divisional Court, in R v Lee [1993] 2 All ER 170, with Lloyd LJ stating:

There is nothing in s.39 about rare or exceptional cases. There must, of course, be a good reason for making an order under s.39, just as there must be for lifting the restriction on publicity of proceedings in the juvenile court under s.49 … The rule under s.49 … is the reverse of the rule under s.39. The onus is, so to speak, the other way round. If the discretion under s.39 is too narrowly confined, we will be in danger of blurring the distinction between proceedings in the [youth] courts and proceedings in the Crown Court, a distinction which Parliament clearly intended to preserve.

Affirming that view in R on the application of T. v St Albans Crown Court and others [2002] EWHC 1129 (Admin), Elias J., when referring to the balancing exercise to be conducted between the public interest in disclosure and the child’s welfare, stated that ‘the requirement to be cautious and circumspect would not properly describe the court’s approach when it is considering an order under s.39’. The approach to be adopted in applying this section was distilled in R v Winchester Crown Court, ex parte B [2000] 1 Cr App R 11 by Simon Brown LJ, his proposed tenets including the following:

More recently, the Administrative Court in Aylesbury Crown Court (see above) has augmented those tenets by adding the following:

The Ambit of Protection: Into Adulthood?

With that scene-setting backcloth in mind, we can now focus on a further dimension of the publication versus protection dilemma – does the ambit of protection, once applied, have permanent effect or only for the period prior to the juvenile’s attainment of adulthood? In terms of the UN Convention, what limits might apply in respect of ‘all stages of the proceedings’? So far as s.49(1) of the 1933 Act is concerned, this was in issue in T. v DPP & North East Press [2003] EWHC 2408 (Admin), involving the prosecution of a male youth for an assault allegedly committed when he was aged 17. Although T. attained age 18 shortly after his initial appearance before a youth court and his ensuing not guilty plea, his trial continued before the youth court (pursuant to the provisions of CYPA 1963 s.29(1)). On changing his plea to guilty, T. incurred a 4-month detention and training order. When a representative of the local newspaper applied either for an order that s.49(1) had ceased to apply, given T.’s present age, or for a s.49(4A) direction, the magistrates ruled in favour of the former, prompting a reference to the Divisional Court by way of case stated.

Concluding that the magistrates’ decision had been ‘eminently sensible’ and correct in law, Sullivan J. stated:

The purpose underlying s.49 is not, in my judgment, to protect the interests of young persons once they have ceased to be such and have become adults. A purposive interpretation of s.49(1) would therefore lead one to the conclusion that any restriction on reporting applies only for so long as the person concerned in the proceedings continues to be a young person as defined in the Act.

It was argued on T.’s behalf that ‘proceedings’ for the purposes of section 49(1) are a continuum rather than a single hearing. As the proceedings had commenced before the youth court when he was a juvenile, he should have benefited from the statutory protection throughout the proceedings, despite the fact that he had turned 18 by the time they had concluded. However, the Divisional Court considered that to focus narrowly upon the word ‘proceedings’ would serve to ignore the further element of s.49(1) preventing the identification of a person who is a child or young person. ‘Once the person concerned in the proceedings is 18 years old he or she can no longer be described as a child or young person … and so the restrictions imposed by s.49 fall away’.

Furthermore, the interpretation of s.49(1) contended for on T.’s behalf would leave lacunae in respect of sub-sections (4A) and (5). While s.41(1) applies to ‘a child or young person who has been convicted of an offence’, the latter sub-sections would not apply so as to enable the identification of a person who had become an adult during the course of proceedings before the youth court. T. had ceased to be a ‘young person’ by point of conviction. If s.49(1) still applied to him, the youth court would have no authority to direct publication in the public interest and he would have an advantage not enjoyed by a defendant who remained a young person. Finally, s.49 specifies that identification of a young defendant in breach of the statutory safeguard constitutes a criminal offence. Sullivan J. observed that the provision should therefore be ‘narrowly construed with any ambiguity being resolved in favour of maintaining the general freedom to report court proceedings’.

As regards s.39 of the 1933 Act, the question of the ambit of protection beyond 18th birthday had, perhaps surprisingly, not been definitively determined prior to consideration by the Administrative Court in R (on the application of JC and RT) v The Central Criminal Court [2014] EWHC 1041. Simply put, can an order made under s.39 prohibiting the identification of a defendant aged under-18 years last indefinitely or does it automatically expire when that person attains age 18? At age 17, both claimants had appeared before the Crown Court where they had pleaded guilty to an offence committed at age 15 of joint possession, without lawful reason, of an explosive substance. Although a young co-defendant was facing considerably more serious charges, including under the Terrorism Act 2000, the prosecution accepted that they had acquired the explosives without any intention of endangering life or causing serious injury to property. All three had had the benefit of a s.39 protective order. On sentencing the two youths to community orders, the third defendant meantime still awaiting a retrial, the judge ruled that their s.39 orders would expire on their respective 18th birthdays, then imminent. They sought judicial review of the latter decision. The BBC (British Broadcasting Corporation), participating as an Interested Party and supported by other media and press organisations who wished to report fully the retrial of the third defendant in which the role of the applicants, now aged 18, would feature, opposed the application. The media relied in no small part on the provision under s.39(2) (as under s.49(9)) specifying that any breach of reporting restrictions constitutes a summary offence. The familiar argument was put that, in instances of statutory ambiguity, as was clearly the case in this instance, penal sections of statutes should be construed narrowly, in favour of the defendant.

Although previous decided cases (for example R (ex parte W, B & C) v Central Criminal Court [2001] Cr App R 2) had proceeded on the assumption that s.39 would cease to apply at age 18, this point had not been definitively determined and the claimants sought to argue that as s.39(1) refers only to the conditions precedent for an order being made, at the time such an order is made, and is silent on its expiry, it would follow that any such order has indefinite duration unless discharged or set aside. ¹⁰ They submitted that the true purpose of the legislation, particularly when interpreted in the light of social change, international protocols and the impact of the Human Rights Act 1998, is to support the rehabilitation of youthful offenders who should be allowed to ‘leave their past behind them’. In effect for these purposes, once a child, always a child, and any s.39 order made in criminal proceedings commencing in their childhood should have enduring effect. ¹¹

Outwith the ambit of s.39, protection from publicity had been achieved in Venables v News Group Newspapers Ltd and others; Thompson v News Group Newspapers Ltd and others [2001] Fam 430 by issue of a High Court injunction protecting the identity of two individuals who had been convicted as very young juveniles of the much publicised murder of a younger child. Although they had not been afforded the benefit of s.39 at the time of trial and sentence, they had both been subject of earlier injunctions to protect them from publicity up to age 18 while they were detained in secure children’s homes in preparation for adulthood. Now at the point of release back into the community with new identities, they secured indefinite relief on the basis that they remained ‘uniquely notorious’ and at serious risk of attack. In the highly exceptional circumstances of the case, and applying English domestic law and the right to life enshrined in ECHR Article 2 (right to life), their lives and well-being were deemed to require protection that outweighed the countervailing ECHR Article 10, right to freedom of expression. Although that case had not been considered a precedent with much relevance to young persons more widely, it was now argued on JC’s and RT’s behalf that that form of remedy was burdensome and unfair, requiring young persons to apply to the High Court before an unfamiliar judge rather than seeking s.39 protection, properly interpreted, from the trial judge who would be familiar with the facts and their circumstances.

The Crown Prosecution Service (CPS) also acted in the role of Interested Party in the case and concentrated its focus on the predicament of young witnesses, equally the subject of s.39 protection, in contrast to their adult witness counterparts. Under the eligibility for protection provisions afforded to witnesses aged 18 and older by s.46 of the Youth Justice and Criminal Evidence Act (YJCEA) 1999 protection applies ‘during the witness’s lifetime’ (s.46(6)). Given the absence of paralleling provision for life-long anonymity for those testifying aged under-18, the CPS had come round to supporting the claimants’ construction of s.39 as the only means of overcoming this anomalous lacuna in the legislation.

Giving judgment for the Administrative Court, comprising a three-member constitution, Sir Brian Leveson, the President of the Queens Bench Division, did not regard ‘international instruments, such as the Beijing Rules’ ¹² as helpful to the task of construing the statutory provision under scrutiny by the Court. Neither did he consider that ECHR ‘Articles 8 and 10 impact on a purposive interpretation of s. 39’, there being ‘no incompatibility of the legislation with human rights, whichever construction is to be preferred’. After reviewing the relevant body of case law, Leveson P. concluded there to be considerable force in the view expressed by Sullivan J. in North East Press (cited above) that ‘the purpose of the 1933 Act was to protect young people from publicity during the currency of their youth, and not into adulthood’. While acknowledging that the advent of the Internet, for example, through access to newspaper on-line archives, has posed ‘a far greater risk of material being available now when, in previous generations, it would have passed into history’, thus exposing past juvenile offending to the wider public, Leveson P. considered that the principle as regards Parliament’s intention in enacting s.39 remained unchanged. ‘I do not accept that the true purpose behind the 1933 Act was to aid the rehabilitation of young offenders, allowing them “to leave their pasts behind them”’.

The Administrative Court paid particular heed to the ambit of s.39, in that it applies to ‘three entirely different classes of children involved in adult criminal courts: as defendants, as victims, and as witnesses’. ‘Whilst there may be many reasons for defendants to be concerned with later reports of their criminality … victims and witnesses do not need protection for rehabilitative purposes or to leave their pasts behind them in the same way’. Although it might well be asserted that all child participants would benefit from anonymity, in whatever capacity they feature, Leveson P. was unpersuaded by arguments as regards the interpretation of s.39 that were centred on the predicament only of youthful defendants. Furthermore, the Court had close regard to YJCEA 1999 s.45, still awaiting implementation but enacted to replace s.39 (though not s.49) of the 1933 Act in respect of criminal proceedings. Section 45(3) specifies that

The court may direct that no matter relating to any person concerned in the proceedings shall while he is under the age of 18 be included in any publication if it is likely to lead members of the public to identify him as a person concerned in the proceedings.

This provision is in contrast to the corresponding statutory protection afforded by s.46 of the 1999 Act in respect of adults, noted above. Observing that it is ‘beyond argument’ that the protection intended under s.45(3) extends only to those under the age of 18 and not beyond, Leveson P. considered it

truly remarkable that Parliament was prepared to make provision for lifetime protection available to adult witnesses in appropriate circumstances … but not to extend that protection to those under 18 once they had reached the age of majority even if the same qualifying conditions were satisfied.

He agreed that there are ‘powerful arguments’ that young victims, witnesses and other children concerned in criminal proceedings (other than as defendants) should have, ‘at the very least’, similar protection to that afforded to adults. However, the Court resisted the invitation to adopt a broad construction of s.39 to overcome that disparity, asserting that ‘there are too many public policy issues involved’:

It would be wrong to seek to create a solution out of legislation that was simply not designed to have regard to what is now understood of their needs and to the primacy attached to their legitimate interests.

Accordingly, ‘it is for Parliament to fashion a solution: the problem requires to be addressed as a matter of real urgency’. The Government has duly included ameliorative measures in the Criminal Justice and Courts Bill, currently before Parliament. ¹³

Concluding Note

Although the Administrative Court sought to send a clear signal that early statutory reform was required in this respect, the Court evidenced little if any appetite for pursuit of an agenda grounded in enhancing the rehabilitative and reintegrative prospects of child defendants. In line with the broad thrust of judicial authority in respect of CYPA 1933 s.39, Leveson P. displayed little appreciation of the principles that should govern that crucial dimension of youth justice. ¹⁴ The tenor of judicial readiness to embrace the public exposure of child defendants has recently been starkly illustrated in the widely reported case of a boy who at age 15 fatally stabbed a teacher at his school. Following his guilty plea to murder and thus becoming liable to mandatory indefinite detention ‘at Her Majesty’s pleasure’, the sentencing judge, Coulson J., (when specifying that he should serve 20 years before becoming eligible for release) lifted the previous s.39 direction that the boy should not be named, thus exposing him to national notoriety with widespread publication of his photograph. ¹⁵ In a subsequent formal explanation of this decision Coulson J. asserted ¹⁶ that his decision had been in the public interest, for two particular reasons:

In my view, naming him has a clear deterrent effect. Ill-informed commentators may scoff, but those of us involved in the criminal justice system know that deterrence will almost always be a factor in the naming of those involved in offences such as this.

There are wider issues at stake, such as the safety of teachers, the possibility of American-style security measures in schools, and the dangers of ‘internet loners’ concocting violent fantasies on the internet.

The debate on those issues will be informed by the identification of … the killer. That is not least because he cannot be dismissed as the product of a hopeless background or a dysfunctional family: on the contrary … he came from a loving and supportive family who have been devastated by what he did.

What is striking about those remarks is first the airy manner in which (a) a vaguely sketched but ‘powerful’ deterrent effect of public identification (as expressed earlier by Simon Brown LJ in Winchester Crown Court (above)) is presumed to follow, without any supporting evidence (particularly in respect of a crime of such an uncommon nature, the clear product of a disturbed mind), and (b) the belief that a theory of general deterrence has a valid place in youth justice (see Stone, 2014). Second, it is open to question why the identity of the child concerned in any way facilitates the kind of debate the judge appears to have had in mind, such as the promotion of greater safety in schools. Third, it is unclear how the presumed nature of the child’s family circumstances serves to inform debate or will be better appreciated by publishing his identity when the more obvious consequence will be to demonise not only the child but also members of his family who will be further devastated by the glare of hostile publicity. The suspicion remains that promotion of the public interest has been mistaken for and conflated with the gratuitous appeasement of public curiosity.

The question remains whether the public are appropriately served by steps likely to inhibit a young person’s personal development and to impede their rehabilitation? It is open to doubt whether admission of the public to the ‘secret garden’ (see endnote 4) is ever justified. Further, what is deemed confidential should surely remain confidential, certainly for so long as the subject pursues and sustains their rehabilitation.