Anonymity protection for under age defendants expires when they are 18: High Court

9 April 2014 by Rosalind English

JC and another v the Central Criminal Court [2014] EWHC 1041 (QB) (08 April 2014) – read judgment

This case raises the question whether an order made under s. 39 of the Children and Young Persons Act 1933 … prohibiting the identification of (among others) a defendant under the age of 18 years, can last indefinitely or whether it automatically expires when that person attains the age of 18 years. It has wide implications not only for young defendants but also for victims, witnesses, others concerned in proceedings and, of course, the media. [Sir Brian Leveson P, giving the judgment of the court , opening the case at para 1]

Background

On 15 November 2013, the claimants JC and RT, then 17 years of age, each pleaded guilty at the Central Criminal Court to an offence in early 2012 of joint possession of explosives. In both cases, the Crown accepted that they obtained this property without any intention of endangering life or causing serious injury to property. 

A third defendant, also 17 years of age, admitted similar offences but faced more serious charges, including under the Terrorism Act 2000 in respect of which he was tried. All three had the benefit of an order under s. 39 of the 1933 Act restricting any newspaper or broadcast media outlet from reporting the name, address, school or other identifying particulars that might identify them.

The trial then proceeded against the third defendant alone but the jury could not agree on verdicts and a retrial was ordered. By the time of the retrial, all three defendants had, in fact, attained that age. The third defendant, then facing his re-trial, had been named as Michael Piggin: he was over 18 and a defendant in a criminal trial and there was no basis upon which his identity was entitled to protection. As for JC and RT, whose involvement with Michael Piggin was relevant to the latter’s trial, they sought to argue that they remained entitled to the protection of the 1933 Act. They thus sought judicial review of the decision of the Recorder that the order expired on their 18th birthdays.

The intermeshing legislation on this issue is extremely complex and it is set out as clearly as possible in the judgment.  Suffice it to say here that the net effect of various anonymity provisions means that this kind protection only extends to those under the age of 18 and not beyond. As Sir Brian Leveson observes,

It is truly remarkable that Parliament was prepared to make provision for lifetime protection available to adult witnesses in appropriate circumstances (because the witness has to be over the age of 18: s. 46(1) of the [Youth Justice and Criminal Evidence] 1999 Act) 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.

In other words, this kind of anonymity direction lasts for life but does not assist anyone under the age of 18. Thus, however much in need of protection a young person might be, the only presently operative statutory mechanism to protect identity in criminal proceedings is s. 39 of the 1933 Act. This was one of the reasons why, in Venables v News Group Newspapers [2001] Fam 430, arising out of media interest in the new identities of the child killers of James Bulger, Dame Elizabeth Butler-Sloss P accepted a concession from both counsel that a s.39 order would expire upon maturity, and so, relying on the inherent jurisdiction of the High Court, granted an injunction to protect any new identity which they might assume.

Arguments before the court

The claimants argued, inter alia,  that the plain reading of s.39(1) identified that it spoke only of the conditions precedent for an order being made, at the time such an order is made, and was silent on its expiry. They submitted that any order was therefore indefinite unless discharged or set aside. They also contended that the true purpose of the legislation was (or, in light of social change and the influence of the Human Rights Act 1998, is now) to support the rehabilitation of youth offenders. Children and young persons should, they argued, be allowed to ‘leave their past behind them’.  Article 8 should be properly balanced against Article 10 of the ECHR and to the analogous measures contained within the definitive guidelines on sentencing youths and the provisions of the Rehabilitation of Offenders Act 1974. They pressed their point by referring to the practicality of the construction for which they contended:

rather than children needing to apply for injunctions in the High Court before an unfamiliar judge, the burden would fall on the wealthy institutional media corporations, who would be applying (primarily, at least) to the trial judge familiar with the facts so as to avoid imposition of an order.

The BBC (interested party) on the other hand contended that penal sections of statutes are to be construed narrowly, in favour of the defendant where there is ambiguity, and it was conceded by the claimants that s.39 was at the very least ambiguous. The BBC argued that both a literal and a purposive interpretation of s. 39 favoured the construction that an order could not cover an adult after the conclusion of proceedings, even though that adult had been under the age of 18 when the s. 39 order in the proceedings was made.

The Court dismissed the claim for judicial review

Reasoning behind the judgment

In the President’s view, the purpose of the 1933 Act was to protect young people from publicity during the currency of their youth, and not into adulthood.

The glare of publicity arising from contemporaneous reporting of proceedings that themselves are highly stressful is a heavy burden even on adults, and it is sensible that children should usually be protected from that combination. But once the proceedings are over, news reports of proceedings are and always have been less likely and there is no reason to provide the same protection.

He did not accept the claimants’ contention that the true purpose behind the 1933 Act was to aid the rehabilitation of young offenders, allowing them ‘to leave their pasts behind them’. One of the significant features of s. 39 was that it made no separate provision for the treatment of 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 (although, as I have said, the point never seems to have been taken), victims and witnesses do not need protection for rehabilitative purposes or to leave their pasts behind them in the same way.

As for the Article 8 versus Article 10 balancing argument, that was nothing to the point: s.39 does not mandate any protective anonymity order but allows a discretion in the judge: it is the judge who will balance Articles 8 and 10 at and immediately after the trial. There was thus no reason to ‘read in’ or ‘read down’ the words of s. 39 using this court’s power under s. 3 of the Human Rights Act 1998. There was “no incompatibility of the legislation with human rights, whichever construction is to be preferred”.

 My conclusion is straightforward. An order made by any court under section 39 of the Children & Young Persons Act 1933 cannot extend to reports of the proceedings after the subject of the order has reached the age of majority at 18. The Recorder of London was correct so to rule and did not make an error of law. Accordingly, this claim for judicial review fails.

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