England and Wales Court of Appeal (Criminal Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		Monday, 27th January 2014

1. LORD JUSTICE JACKSON: This is a claim for judicial review. We have set out the background facts of this case in our previous judgment in which the court dismissed an appeal against conviction made by the claimant in the present proceedings. Two members of this court who dealt with the appeal against conviction, namely Griffith Williams J and myself, now reconstitute ourselves as a Divisional Court of the Queen's Bench Division in order to deal with a judicial review claim.
2. The claimant in these judicial review proceedings, formerly the appellant in the unsuccessful appeal, has been convicted of two serious offences of kidnapping and sexual assault upon a child. The claimant challenges a decision made by the Recorder to vary an earlier order made under section 39 Children and Young Persons Act 1933. The original order made under section 39 of the 1933 Act banned the publication of any details relating to either the claimant or the victim of those two offences, since both people were under the age of 18.
3. On 1st July 2013 the Recorder varied that order so that the claimant's name could be made public. The victim's anonymity remains in place. The Recorder gave a helpful and detailed judgment setting out the reasons for his decision. In essence, we would summarise the Recorder's reasons given for his decision as two-fold. First, the claimant is a dangerous offender with a bad previous record who has just been convicted of a very serious offence. There is a public interest in knowing the identity of the offender. Secondly, the claimant may already have trouble in custody. Also, local people are aware of his behaviour. In those circumstances publishing the claimant's name will not cause great additional harm for him. Mr Heptonstall, who appears for the respondent in these judicial review proceedings, accepts that as a fair summary or distillation of the reasons given by the Recorder.
4. The Recorder's order relating to publication of the claimant's name has not yet been put into effect pending the hearing of the present judicial review proceedings. Three recent decisions are relevant to the issues which are before us. First, there is the decision of the Divisional Court in R v Winchester Crown Court ex parte B [2000] 1 Cr.App.R 11. In that case Simon Brown LJ reviewed the authorities in relation to the publication of an offender's identity on page 13 at sub-paragraphs (1) to (7). We bear in mind the principles there set out, although in the interests of brevity, now being late in the afternoon, we shall not read that passage out. The court in the Winchester case also held that by reason of section 29(3) Senior Court Act 1981 the Divisional Court did not have jurisdiction to challenge an order of the kind which is in issue in the present claim. However, the jurisdiction decision in Winchester no longer stands. In R v Manchester Crown Court ex parte H and D [2000] 1 Cr. App. R. 262 the Divisional Court reconsidered the jurisdiction issue and came to the conclusion that where the order lifting anonymity was made at the end of a case after verdict and sentence, the order would not be one relating to a trial on indictment. Accordingly, it would be collateral to the trial and as such would be amenable to judicial review. So the jurisdiction problem which was identified in the Winchester case no longer applies.
5. In R (Y) v Aylesbury Crown [2012] EWHC 1140 Admin, Y, a young man aged 18, was convicted of arson. The judge lifted an existing order under section 39 Children and Young Persons Act 1933 banning the publication of his name. The judge gave two reasons for his decision. These were (1) the claimant's identity is already known to local people; (2) the limited publication of the claimant's name and address, together with the fact that he had already pleaded guilty to one arson and been sentenced accordingly, would give the claimant on his release some protection from those who thought him to have been involved in more arsons. The Divisional Court held that both of those reasons were unsatisfactory and quashed the judge's decision.
6. In the present case, as Mr Heptonstall for the respondent points out, it is necessary to balance the competing considerations. Both Mr Barton for the claimant and Mr Heptonstall for the respondent have helpfully drawn our attention to all the considerations on both sides.
7. The relevant factors to consider are helpfully identified in Y at paragraph 26. Again we do not read that passage out at this stage in the afternoon.
8. We must balance on the one hand the public interest in the claimant's identity being made public after his conviction for serious offences against the public interest in his effective rehabilitation and his own interest in maintaining his anonymity. The fact remains that he is still under 18 and the court is under a statutory duty to have regard to his welfare.
9. Mr Heptonstall is quite right when he says that if young people who commit these offences are not only imprisoned but also publicly identified, their punishment becomes the worse and that will be a deterrence against committing such offences.
10. It seems to us that there is a powerful interest in promoting the rehabilitation of this offender. He has an appalling criminal record for one so young. He is still aged only 17 years and three months. Fortunately those who are fellow prisoners with him do not at the moment know the nature of the offences for which he has been convicted. The Recorder appears to have been wrong in thinking otherwise. Furthermore, those who live in his locality, as we understand it, do not currently know that he is the person who has been convicted of these two most unpleasant offences. If his identity is made public it will no doubt go onto the internet, word will go around his own locality, word will go around prisons and detention centres. Life for the claimant will be made very much more difficult. There is a strong public interest in promoting his rehabilitation, if that can possibly be achieved. Otherwise he is looking at a long career of crime and spending most of his future years in prison.
11. Mr Heptonstall very fairly accepts that of the two reasons which the Recorder gave, as summarised earlier in this judgment, the second reason does not really stand up to analysis. Mr Heptonstall takes his stand on the first reason given by the Recorder.
12. Looking at the factors which have been identified as relevant both in the Winchester case and in the Y case, we can see that there are factors pointing in both directions. In our view, however, the Recorder gave insufficient consideration to the overwhelming need for rehabilitation in this case. The Recorder proceeded on an erroneous assumption as to the small amount of harm which the claimant would suffer and his rehabilitation would suffer if his identity was made public. In addition to that, the sole reason advanced by the recorder which stands as a relevant consideration is in our view of only modest weight. The public know that the prosecution has been successful. The public know that a young man has been convicted of these two very serious offences. The benefit of knowing the identity of the young man who has been so convicted is modest. In our view those factors in favour of publication are outweighed by the other powerful considerations to which we have referred.
13. In the result therefore, we quash the Recorder's decision. The consequence is that the order originally made on 6th December 2012 under section 39 Children and Young Persons Act 1933 remains in force.
14. MR HEPTONSTALL: My Lord, as matter of formality in the judicial review, the application for permission was adjourned at the previous hearing. Would your Lordships grant permission and then grant leave?
15. LORD JUSTICE JACKSON: Yes. We grant permission to apply for judicial review, we allow the claim and quash the order which is under challenge.