England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London WC2
		Monday, 20th May 2002

Monday, 20th May 2002

1. MR JUSTICE ELIAS: In this judgment I propose to deal with two cases that have been separately argued before me. The first is the case of The Queen on the application of T v St Albans Crown Court and the second is Chief Constable of Surrey v JHG and DHG. Both cases raise the issue whether it is appropriate for a court to make an order pursuant to section 39 of the Children and Young Persons Act 1933 to confer anonymity on children or young persons in respect of whom an anti-social behaviour order has been made pursuant to section 1 of the Crime and Disorder Act 1998.
2. I heard the first application a few days ago. The defendant was not represented in that case, although I heard some brief but helpful submissions from the editor of the local newspaper who has an interest in this matter. It came to my attention that shortly afterwards I would be considering the Surrey case in which similar issues have arisen. In the light of that, it seemed prudent, and counsel for T in the first action agreed, that I would delay giving judgment in that case until I had heard the arguments in the later application. Of course, the particular facts of each case are significantly different, as this judgment will make clear. Moreover, the two cases have come before this court by a different route. In the T case the challenge is by way of an application for judicial review against a decision of the Crown Court. In the Surrey case it is by way of a case stated from the District Judge who imposed the order. In the T case the court refused to impose an order under section 39; not so in the Surrey case. Before considering the facts of each case, I shall first analyse the legal principles relevant to making section 39 orders, and consider the nature of an anti-social behaviour order.

Section 1 of the Crime and Disorder Act 1998

3. First I set out the legislation under which the anti-social behaviour orders are made. Section 1(1) of the Crime and Disorder Act 1998 is as follows:

"An application for an order under this section may be made by a relevant authority if it appears to the authority that the following conditions are fulfilled with respect to any person aged 10 or over, namely: -

(a) that the person has acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself; and

(b) that such an order is necessary to protect persons in the local government area in which the harassment, alarm or distress was caused or was likely to be caused from further anti-social acts by him;

and in this section "relevant authority" means the council for the local government area or any chief officer of police any part of whose police area lies within that area."

4. Subsection (4) provides:

"If, on such an application, it is proved that the conditions mentioned in subsection (1) are fulfilled, the magistrates' court may make an order under this section (an "anti-social behaviour order") which prohibits the defendant from doing anything described in the order."

5. By subsection (7):

"An anti-social behaviour order shall have effect for a period (not less than two years) specified in the order or until further order."

6. By subsection (10) it is provided that:

"If without reasonable excuse a person does anything which he is prohibited from doing by an anti-social behaviour order, he shall be liable:-

(a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or

(b) on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both."

7. The imposition of an anti-social behaviour order does not constitute a criminal proceeding. That is plain from the judgment of the Court of Appeal in McCann v Manchester Crown Court. In that case Lord Phillips MR in his judgment analysed the nature of these orders in detail and held that they did not constitute criminal proceedings within the meaning of Article 6 of the European Convention on Human Rights. It follows that the civil evidential rules apply and, in theory, so does the civil burden of proof. However, as Lord Phillips pointed out at paragraph 65 of the decision, in practice the standard of proof is a very flexible one and the difference between the two standards in this context is largely illusory. In effect, the criminal standard will be applied in cases of this kind.

Section 39

8. Section 39 of the Children and Young Persons Act is as follows:

"(1) In relation to any proceedings in any court ... the court may direct that -

(a) no newspaper report of the proceedings shall reveal the name, address, or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person by or against, or in respect of whom the proceedings are taken, or as being a witness therein;

(b) no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in proceedings as aforesaid;

except in so far (if at all) as may be permitted by the court."

9. Accordingly, there will only be anonymity conferred under that particular provision if the court so directs, and it may so direct either generally or it may limit the nature of the publicity which can be given.
10. The relevant principles applicable to the making of a section 39 direction have been considered by the courts on a number of occasions. An issue arising in this case is the extent to which, if at all, those principles are to be modified, or their application is to be affected, in a context where the child or young person in question is the subject of an anti-social behaviour order.
11. In determining whether anonymity should be provided, the law has not applied a consistent set of rules applicable to all circumstances where a child or young person appears as a defendant in criminal proceedings. Where there are criminal proceedings in a youth court section 49(1) of the 1933 Act provides in effect that there should be no disclosure of information which would reveal the identity of the child or young person concerned, but an exception is then provided in subsection (4A) as follows:

"If a court is satisfied that it is in the public interest to do so, it may, in relation to a child or young person who has been convicted of an offence, by order dispense to any specified extent the requirements of this section in relation to any proceedings before it to which this section applies ..."

12. Accordingly, whereas in youth court proceedings anonymity is automatically conferred unless there is a particular order dispensing with it, the starting point for other proceedings is that there shall be a disclosure of the child or young person's identity unless a particular direction to the contrary is made restricting it. No doubt the reason for this different treatment is that, in general, only the more serious offences involving young persons are likely to be tried other than in a youth court.
13. In R v Crown Court at Leicester, ex parte S [1992] 2 All ER 659 Watkins LJ, giving judgment in the Divisional Court in a case which raised the question whether or not a section 39 direction should have been made, said this at page 662:

"In our judgment, the correct approach to the exercise of the power given by s 39 is that reports of proceedings should not be restricted unless there are reasons to do so which outweigh the legitimate interest of the public in receiving fair and accurate reports of criminal proceedings and knowing the identity of those in the community who have been guilty of criminal conduct and who may, therefore, present a danger or threat to the community in which they live. The mere fact that the person before the court is a child or young person will normally be a good reason for restricting reports of the proceedings in the ways permitted by s 39 and it will, in our opinion, only be in rare and exceptional cases that directions under s 39 will not be given or having been given will be discharged."

14. That dictum was quoted with approval by Lord Bingham in another Divisional Court case, McKerry v Teesdale & Wear Valley Justices [2000] Crim LR 594. That was a case in fact concerning the operation of section 49(4A) rather than section 39. Nonetheless, there was an approval by the Lord Chief Justice, as Lord Bingham then was, of the dictum of Watkins LJ. However, between those two cases the Court of Appeal had had cause to consider the observations of Watkins LJ in the case of R v Lee [1993] 2 All ER 170. In that case a 14 year old boy had been convicted of rape in 1991. In 1992 he was further convicted of other criminal offences which he had committed whilst on bail awaiting the rape trial. After being sentenced in relation to those offences, the judge refused to impose a section 39 order in respect of the second trial. An application was made to the Court of Appeal for it to impose a section 39 order of its own motion. It was not in fact an appeal to the court, but a request that the court should impose a section 39 direction by exercising its own original jurisdiction. The court concluded that it had no jurisdiction to do this, but it considered a review of the original decision after having reconstituted itself as a Divisional Court. It was unwilling to interfere with the decision of the judge below. It held that he had not erred in law or in any other way wrongly exercised his discretion. However, in the course of giving judgment, Lloyd LJ said this at page 175 to 176, after considering the case of R v Crown Court at Leicester, ex parte S:

"Before leaving R v Crown Court at Leicester, ex p S, we would add this comment. At the conclusion of the passage which we have already quoted from the judgment, the court said that the mere fact that the person before the court is a child will normally be a good reason for restricting reports of the proceedings. It will, the court said, only be in rare and exceptional cases that a direction will not be given or having been given will be discharged. For our part, we would not wish to see the court's discretion fettered so strictly. 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, namely to avoid injustice to the child. The rule under s 49, as has been pointed out, 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 juvenile courts and proceedings in the Crown Court, a distinction which Parliament clearly intended to preserve."

15. In another case in the Divisional Court, R v Central Criminal Court, ex parte W, B and C [2001] 1 Cr App R, two children aged 15 and 16 were charged with three adults in a particularly horrific murder. All parties were convicted. The learned judge then considered whether or not to impose a direction under section 39, but refused to do so. It was urged upon the Divisional Court that the judge had erred in law in refusing to grant the order. Reliance was placed on the dictum of Watkins LJ in ex parte S as approved by the Lord Chief Justice in the McKerry case. The Divisional Court, Rose LJ and Rafferty J, dismissed the application. They held that there was no basis for considering that the judge had wrongly exercised her discretion. In the course of giving his judgment, Rose LJ considered the apparent conflict between the approach of the court in Lee and in McKerry at paragraphs 17 to 23:

"17. Mr Clarke submits that, in identifying open justice, the learned judge did not go far enough in identifying what principle in the particular circumstances of this case justified, in the interests of open justice, naming of these juveniles.

18. Mr Clarke particularly relied on observations by Lord Bingham of Cornhill, the then Lord Chief Justice in McKerry v Teesdale and Wear and Valley Justices [2000] Crim LR 594. The relevant passage is at paragraph 25 of the transcript of the Lord Chief Justice's judgment which is in these terms:

'It is plain that in the present situation there was tension between competing principles.

It is a hallowed principle that justice is administered in public, open to full and fair reporting of court proceedings so that the public may be informed about the justice administered in their name.

That principle comes into collision with another important principle also of great importance and reflected in the international instruments to which I have made reference.

The privacy of a child or young person involved in legal proceedings must be very carefully protected and very great weight must be given to the welfare of such child or young person. 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 and caution and circumspection. It would be wholly wrong for any court to dispense with a juvenile's prima facie 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 criteria, that it is in the public interest to dispense with reporting restrictions, are 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.'

19. It is to be noted that that passage referring, as it does, to section 49 of the Children and Young Persons Act 1933, occurs in the context of a decision relating to the youth court.

20. Parliament, by section 39, has conferred powers to restrict the naming of juveniles in adult courts, which are different from those in relation to the naming of juveniles in the youth court, where the presumption is plainly against the naming of juveniles.

21. It is true that, in the course of his judgment, Lord Bingham referred to the judgment of Watkins LJ in Leicester Crown Court ex p S Court, ex parte S (1992) 94 Cr App R 153, at page 156, which was a decision under section 39. It is also apparent that the courts' attention in McKerry does not appear to have been drawn to Lee (1993) 96 Cr App R 188. In the course of giving the judgment of that Court which, as was pointed out in Manchester Crown Court, ex p H and D [2001] Cr App R 262, being a decision of the Court of Appeal (Criminal Division) is prima facie binding on the Divisional Court, Lloyd LJ at page 193 of Lee, said this by reference to Leicester Crown Court, ex p S..."

16. Rose LJ then sets out Lloyd LJ's judgment in the Lee case, which I have set out above. He then continued:

"22. Mr Clarke submits that that passage cannot survive the observations of Lord Bingham in McKerry. For my part, I do not accept that proposition. In my judgment, Parliament has clearly, in sections 39 and 49, drawn a distinction between juveniles appearing in youth courts and juveniles appearing in adult courts.

23. If, which I doubt, Lord Bingham in the passage relied on, was seeking to lay down a principle as equally applicable to section 39 as to section 49, that, as it seems to me, would not have been a course properly open to the Divisional Court in the light of Parliament's expressly different approach as identified by Lloyd LJ in the binding decision of Lee."

17. With due respect to Rose LJ, the passage of Lloyd LJ's judgment in Lee would not have been binding on the court in McKerry because in making that observation the court was not in fact sitting as a Court of Appeal, but rather in its reconstituted form as a Divisional Court. Nevertheless, I should plainly pay particular respect to the observations of the Court of Appeal, albeit in a reconstituted form, as well as to the reasoning in the judgment of Rose LJ itself.
18. It follows, therefore, that I should not start from the premise that there have to be exceptional circumstances justifying the refusal to make an order. That would be to depart from the approach identified in Lee and by Rose LJ in the ex parte W, B and C case. However, it would equally be a mistake to assume that the effect of these decisions is that it is only in exceptional circumstances that a section 39 direction can be made. There is a balancing exercise that has to be carried out in all cases where there is conflict between the public interest in disclosure and the welfare of the young person which may require anonymity. In carrying out that task, it is, in my view, incumbent on the court carefully to weigh the conflicting considerations. In McKerry, Lord Bingham said that when making an order under section 49(4A) the court should exercise its power with "great care and caution and circumspection". For the reason I have given, the requirement to be cautious and circumspect would not properly describe the court's approach when it is considering an order under section 39, but in my judgment the need to take great care in the albeit different balancing exercise facing a court in such circumstances is no less important. Whilst the court plainly does not have to refer to every factor which may weigh in favour of a section 39 direction being made, it is necessary, in my view, that it should briefly summarise the principal factors weighing in favour, even if the decision finally is that these factors are outweighed by the public interest in disclosure. In this connection, it is pertinent to bear in mind section 44 of the Children and Young Person's Act. This provides:

"Every court, in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person."

19. This is a mandatory obligation. Moreover, there are various international instruments which are recounted by Lord Bingham in his judgment in the McKerry case which also emphasise the importance of giving proper consideration to a juvenile's right to privacy.
20. In considering the range of factors that may be considered by a court when determining whether or not to issue a section 39 direction, it is helpful to have regard to the judgment of Simon Brown LJ in the case of R v Winchester Crown Court, ex parte B [2000] 1 Cr App R 11. I should point out that that case has in part been overruled in the later case of R v Manchester Crown Court, ex parte H and D [2000] 1 Cr App R 262, but not in a way which effects the observations which I am about to set out. Simon Brown LJ, giving judgment in the Divisional Court, identified a set of principles which should be considered when determining whether or not to make a section 39 direction. He said this:

"The principles to be distilled from the various authorities can, I think, fairly be summarised in this way (and substantially I use the language of the earlier judgments):

(i) In deciding whether to impose or thereafter to lift reporting restrictions, the court will consider whether there are good reasons for naming the defendant.

(ii) In reaching that decision, the court will give considerable weight to the age of the offender and the potential damage to any young person of public identification as a criminal before the offender has the benefit or burden of adulthood.

(iii) By virtue of section 44 of the 1933 Act, the Court must 'have regard to the welfare of the child or young person'.

(iv) The prospect of being named in court with the accompanying disgrace is a powerful deterrent and the naming of a defendant in the context of his punishment serves as a deterrent to others. These deterrents are proper objectives for the court to seek.

(v) There is strong public interest in open justice and in the public knowing as much as possible about what has happened in court, including the identity of those who have committed crime.

(vi) The weight to be attributed to the different factors may shift at different stages of the proceedings, and, in particular, after the defendant has been found, or pleads, guilty and is sentenced. It may then be appropriate to place greater weight on the interest of the public in knowing the identity of those who have committed crimes, particularly serious and detestable crimes.

(vii) The fact that an appeal has been made may be a material consideration."

21. As I have said, in addition to taking into account these factors where they are appropriate, it is, in my judgment, necessary for a court to spell out what the relevant competing considerations are when reaching its determination.
22. Are these principles affected by the fact that what is imposed is an anti-social behaviour order? In my judgment, where an anti-social behaviour order has been imposed, that is a factor which reinforces, and in some cases may strongly reinforce, the general public interest in the public disclosure of court proceedings. There are two reasons for this. First, disclosure of the identity of the individuals may well assist in making an order efficacious. If persons in the community are aware that the order has been made against specified individuals, then it must improve the prospect of that order being effectively enforced. Any subsequent breach is more likely to be reported back to the authorities. Second, the very purpose of these orders is to protect the public from individuals who have committed conduct or behaviour which is wholly unacceptable and of an anti-social nature. The public has a particular interest in knowing who in its midst has been responsible for such outrageous behaviour. In my judgment, this latter factor does not constitute simply "naming and shaming" which Lord Bingham in McKerry thought it would be difficult to justify. This is not simply publicity to satisfy a prurient public: the local community has a proper interest in knowing who has been seriously and persistently damaing its fabric. Moreover, insofar as shaming may, and often will, have a legitimate deterrent effect, it is a relevant factor to weigh against its potential adverse effects, as the judgment of Simon Brown LJ indicates. However, I do not accept that the consequence of this is that in every case it raises a presumption in favour of refusing to make a section 39 direction. It is a weighty factor to be taken into consideration against upholding any claim for anonymity, but, in my judgment, it is not helpful in a case of this kind to talk about presumptions one way or another. In each case there will be a wide variety of factors which will have to be considered, and in each case the balance has to be struck between the desirability of public disclosure on the one hand and the need to protect the welfare of the individual at trial on the other after a full appreciation of the relevant considerations.
23. In the two cases before me, counsel for the juveniles concerned have suggested that, the nature of the order being of a civil character, it should lead to the conclusion that they are less serious than many of the offences in respect of which section 39 applications are commonly refused in Crown Court proceedings. Moreover, the point is made that in relation to both these cases some of the particular incidents which have been relied on as constituting grounds for imposing the anti-social behaviour order, had they resulted in criminal prosecution, would have been heard in the youth court. In those circumstances the presumption in favour of anonymity would have operated and any disclosure would have had to be the result of an express decision to dispense with the right of anonymity under section 49(4A).
24. In my judgment, however, these submission give insufficient weight to the fact that we are, in orders of this kind, still talking of serious anti-social behaviour. The fact that the conduct is not such as to have given rise to criminal proceedings is not a matter of particular significance. In reality it is often more serious. Furthermore, it is still the case that the enforcement of the law will be assisted if the identity of the individuals is made public.
25. I turn then to consider the facts of each particular case.

The T case

26. T is an 11 year old boy. Notwithstanding that, he has sadly been harassing members of his local community. In late 2001 the Dacorum Magistrates' Court imposed an anti-social behaviour order. That was appealed to the St Albans Crown Court. That court consisted of a Crown Court judge and two lay justices. The appeal was dismissed. At the end of the proceedings, counsel for the child asked for a direction to be made under section 39 of the Children and Young Persons Act in order to conceal the identity of the child concerned. That application was refused.
27. It is necessary to say a little bit more about the nature of the conduct in that case. The court identified a number of incidents in which the child had been involved, extending over a period of almost a year. The allegations against the child included those of unpleasant abuse (some of which was of a racial and sexual nature), relatively minor criminal damage, various occasions where he had mimicked adults carrying out conversations which he overheard, and two extremely unpleasant assaults, one of which involved putting dog excrement into the face of a young baby. The judge, understandably, described that incident as one "beggaring belief".
28. Having heard evidence over two days, the court imposed an order in relatively broad terms. The order was to run for two years and it prohibited a variety of conduct, such as swearing at members of the public, using abusive language or behaviour, using threatening words or behaviour towards members of the public, threatening or intimidating children or other family members or witnesses who had given statements in the application, and damaging or removing property from a particular residential area.
29. When making the application for a direction under section 39, counsel for the child advanced a number of reasons why it would not be appropriate in the particular circumstances to permit the identity to be disclosed. He submitted that the incidents had all occurred in an extremely localised area, and that in those circumstances it was not necessary for the order to be published widely in order for it to be effective. He emphasised the extreme youth of the child concerned, 11 years of age at the time of the hearing, and the fact that naming and shaming him, as it was put, could have an extremely damaging effect on attempts which were being made to rehabilitate the child, and he noted that there had indeed been some progress at the time of the hearing before the Crown Court. It was also suggested that there may be an adverse effect on the child's older sister. The court rejected the application, and it summarised its decision as follows:

"In the ordinary course of events it seems to us that it would be unusual - perhaps very unusual - for the Court to lift such an order. In our judgment this is not a usual case. The reason it is not a usual case is partly because of the quality of the conduct which we have made it plain we are sure has been proved, which is extreme and over a period, and involving several people, and because of the nature of an anti-social behaviour order in the form which we have issued it. It is a protection - not just for those who have given evidence or given statements, but is general protection for others and, as it seems to us, it is impossible for others to know whether they have such protection if they do not know what order the Court has made, and should they come into contact with this young Appellant, and should he behave in any of the prohibited manners, those protected by the order will have no idea unless they know that such an order has been made."

30. Mr Charlton, for the child, submitted in this case that there were certain matters which appear not to have been taken into consideration by the court at all. He referred, in particular, to the age of the child; the fact that by the time of the hearing, which was some six months after the anti-social behaviour order had been imposed, there had apparently been no further complaints about the child concerned; that this was the child's first involvement with a process which if not criminal was closely akin to it; and that although the behaviour was quite unacceptable, the nature of the incidents was not so great as to justify the removal of anonymity. Classically, he submitted, that would be done in very serious offences and not for relatively minor incidents of this kind. Finally, he repeated the submission that he made to the Crown Court that the number of individuals who had been harassed or abused were relatively few and that they would know that the anti-social behaviour order had been made.
31. Some of these submissions, it seems to me, are properly directed as to the issue whether a section 39 direction should be made rather than whether, having been made, the court can interfere with the exercise of that discretion. It is, of course, trite law that it is not for this court to substitute its view for that of the court below.
32. Having regard to the way in which the Crown Court expressed its reasons, it does seem to me that it has not adequately taken into consideration the matters which are, potentially at least, in favour of the direction being made. I accept that it seems unlikely that it would not have had the age of the child under consideration, and indeed the reference in the decision to the fact that in a case of this kind it would be "perhaps very unusual" for the court not to impose an order or direction, or more accurately in this case to lift one already in force, indicates that they did have the matter in mind. Nonetheless, it would have been preferable if the extremely unusual nature of the decision for a child of this age had been expressly adverted to.
33. Perhaps more significantly, in my view, is the failure to comment on the apparent improvement of the child in the intervening period. There was some evidence about this, which is recounted in the decision of the court. The court heard some evidence from a Preventive Worker with the Young Citizens' Project. She gave evidence about how well the child had been doing since he had been under her guidance. The court pointed out that that was only since the decision was made to apply for an anti-social behaviour order. It is right to say that the court rejected the view of that particular worker, who was seeking to persuade the court that an acceptable behaviour contract would be appropriate rather than the imposition of an anti-social behaviour order, but they do not appear to have disputed the evidence that there had been a significant improvement in the child's behaviour. I was told by Mr Charlton that there was no evidence of any further incident between the application for the anti-social behaviour order before the magistrates and the hearing before the Crown Court. That was, I think, a period of some six months. It seems to me that that is a long time in the life of such a young child. It considerably weakens the force of an argument that publicity is necessary in order to make the order effective. Indeed, it suggests that the order itself and the fear of publicity in the event of breach may have achieved the objective without the need for the child's identity being revealed.
34. In my view it is also a relevant factor at least that this was the first occasion on which the child appears to have had any direct brush with the courts. I fully appreciate, of course, that that is hardly surprising given his young age. Nonetheless it does seem to me that that is a relevant factor to take into account when determining whether, in these circumstances, it was appropriate to refuse to issue a section 39 direction. Accordingly, I am not satisfied that in this case the court has adequately revealed the reasoning process so as to satisfy the court that there has been a careful and considered balancing of the factors both for and against the imposition of this order.
35. Mr Charlton submitted that if a section 39 direction is refused in the circumstances of this case, then it suggests that that is because the court must have taken the view that it considers that it should rarely, if ever, make such direction in circumstances where an anti-social behaviour order has been made. I cannot discount the possibility that that was the approach which the Crown Court adopted in this case.
36. Accordingly, I would quash the decision of the Crown Court. Having said that, it is not for me to determine whether or not it would be appropriate to make a section 39 direction. Plainly, matters are not all one way, even given the factors to which I have referred which may be in favour of imposing such a direction. It would therefore be wrong for me to do any more than simply quash the lifting of the order and continue an order under section 39 until the case has been reconsidered.

The Surrey case

37. I now turn to consider the Surrey case. In this case the anti-social behaviour order was made against twins. They were four months or so off their eighteenth birthday when the anti-social behaviour order was made. The behaviour which had been the subject of consideration by the court had occurred over a period of almost two years, although the court itself was focusing on incidents occurring only in the six months prior to the application for the order being made.
38. The two individuals had committed a whole series of acts and incidents, in many cases of several each month, over the lengthy period involved. They caused problems at a particular shopping centre, at the Camberley town centre, and they also made nuisances of themselves in various ways at a school called Collingwood College. There were acts of assault, nuisance, various acts of trespass, criminal damage, threatening behaviour and intimidation. It is a sad and sorry litany. I understand from counsel for the two boys that it was accepted that they had committed anti-social behaviour. The question in issue was whether it was sufficiently serious to justify an order being made. The court heard evidence from many people who had been adversely affected by the conduct of these two youths.
39. At the end of the case the District Judge acceded to a request for a section 39 direction to be made, or, more accurately, for it to be continued because it had been imposed at the start of proceedings. He has summarised the reasons why he took that step in the case which has been referred for consideration to this court. Having set out the arguments which had been advanced by counsel respectfully against and in favour of making the direction, he set out the factors which influenced his determination:

"i) Publicly naming those made the subject of Anti-social Behaviour Orders was generally right in that it helped the policing of them and that the public have a right to know;

ii) While it was necessary to make the Anti-social Behaviour Orders, I did detect the start of a change in attitude on the part of the respondents;

iii) Given that change in attitude the orders had a much improved chance of success if publicity was not permitted;

iv) I was entitled to take into account the possible effect of this on other members of the respondents' family, particularly their younger sister, in deciding whether to lift the section 39 order;

v) There was a balancing exercise to perform between the legitimate interests of the public and the welfare of the respondents;

vi) Those immediately effected by the behaviour of the respondents and who would directly benefit from the orders, would have the orders promulgated to them by police."

40. Mr Morley, who appears for the Chief Constable, has submitted that this approach by the District Judge reveals a number of errors of law. First, he says that the judge failed to have regard to certain matters which he should have taken into consideration. In particular, he said that the judge failed to have regard to the likelihood that the order would be made more effective if the identity of the boys was revealed. Second, he said that there is no indication that the judge in his decision had had regard to the potential deterrent effect which making the names public might achieve. This was a deterrent effect not only in the sense that it would be likely to ensure that the boys themselves obeyed the orders in future, but also it would be of wider impact in that it may dissuade others from going down a similar path.
41. Mr Morley also submitted that the judge took into account certain irrelevant factors. He said that there was virtually no evidence at all to justify the conclusion that there was "the start of a change in attitude on behalf of the two boys". He said that one of them was in prison and the other had, according to the police, threatened one of the witnesses even on the very day when that witness had given evidence in the proceedings before the judge. I am told by Mr Watson, who appeared for the boys, that although it was accepted that there had been an incident when words had been exchanged, the boy concerned considered that he was acting out of frustration rather than making a threat.
42. Then it is said that the judge was wrong to have regard to the impact upon the family, and in particular the effect on the younger sister.
43. Mr Watson, for the two boys, has emphasised that this was a careful considered decision by the District Judge. Initially, when making a direction pending the hearing itself, he had indicated apparently that it was likely that he would lift that direction if the anti-social behaviour order were to be imposed. In fact, he did not do that. Mr Watson says that this is a classic area where it is for the court to exercise its discretion; it is best placed to know what the appropriate decision should be. In this case, for example, he says that there was evidence before the judge which would have supported the view that there was the start of a change in attitude. In particular he submitted that one of the boys had made, to some extent at least, a favourable impression in the witness box, and there was evidence from an officer in the youth team who had generally given evidence which was positive about the possibility of the boys rehabilitating themselves. More specifically, he claimed that, in any event, it was appropriate for the court to have regard to the impact upon the respondents' family.
44. As to the question of deterrents, he suggested that the real deterrent in a case of this kind is the fact that a person in respect of whom an anti-social behaviour order has been made will fear the subsequent criminal prosecution if they act in breach of the order itself.
45. In my judgment, it would not be right to assume that the District Judge in this case had had no regard to the question of deterrents. That is plainly a matter which is likely to be in any judge's mind when determining whether or not to make a direction of this kind. Equally, there is an express reference to the fact that publicising the names would generally help in policing the order, and indeed to the view expressed by the District Judge that in general the public have a right to know when an anti-social behaviour order has been imposed. Accordingly, it cannot be said that the judge failed to have regard to that fact; at most, it can be said that he failed to give it sufficient weight.
46. The other factors, however, are more problematic. On the face of it, I confess, it does seem extremely surprising, in the light of the material that I have seen, to conclude that there was a start of a change in attitude on behalf of the respondents. The fact that one is in prison tends to suggest that that was difficult to discern since there would be little opportunity to act in breach of the order. The conduct of the other boy in approaching a witness in the way I have described, again, is difficult to equate with somebody who is perhaps beginning to change his attitude. I have to bear in mind, however, that the judge did hear evidence from the two boys specifically, and he, no doubt, would have had an opportunity to consider their evidence at closer quarters than is possible for a court carrying out a review. In principle, I would accept that the fact that rehabilitation is more likely to be achieved if the identity is concealed is plainly a relevant factor for a court to take into consideration.
47. The other matter, to which I have been referred, which the court took into consideration was the impact on matters of the respondents' family. I was referred to a number of decisions in which this issue has been considered by the courts. In each case it has been considered, I have to say, somewhat obliquely. In the case of ex parte S, to which I have already made reference, there is a brief reference in the decision of Watkins LJ at page 663 to "the difficulties which were likely to be experienced by the applicant's family and by those having care of the applicant if publication of his identity occurred". It seems to me that, reading that passage in context, the court appeared to have in mind not so much the difficulties experienced by the applicant's family directly, but rather the difficulties they would have in their relationship with the applicant himself. In other words, the judge there appears to be identifying the potential problems of rehabilitation which would stem from a deterioration in the relationship between the family and the applicant if his identity were published. I say that because the reference to the difficulties experienced by the applicant's family is in the same sentence as a reference to the difficulties which would be faced by those having care of the applicant, and it is clear from the decision that they were saying that it would be more difficult for them to assist the applicant, in their view, if his identity were publicly revealed.
48. In the case of Lee, again which I have already mentioned, there is a brief reference at page 194 of the decision to the fact that there was a letter from the manager of the secure unit where the applicant was then detained in which it had been said that further publicity "will add to the considerable pressure already on the applicant and his family". Lloyd LJ said in his judgment: "We take full account of that view." It is not altogether clear in that context whether the court was intending to refer to the relationship between the applicant and his family, but it seems likely that it was.
49. There is then a very brief report which I have been shown from The Times Law Reports in the case of R v Inner London Crown Court, ex parte Barnes, August 4th 1995, in which the Divisional Court was asked to review a decision not to continue an order made under section 39. The judgment of the court was given by Buxton J, and he is reported to have said this:

"His Lordship said that while it was agreed that the effect of publicity on the offender's family could not in itself be a factor taken into account under section 39, Mr Cooke urged on a related matter that the judge omitted to take account of the relevant matter that difficulties would be caused to the offender's family and would impede their playing a full part in his rehabilitation process which was a good reason to make an order."

50. In that case, therefore, there was a concession that the interests of the wider family were not relevant save to the extent that the effect on the family might impede the rehabilitation of the individual.
51. Finally, in another case to which I have already made mention, ex parte W, B and C, Rose LJ said this at paragraph 35 of the decision:

"So far as the possible impact on a defendant's family is concerned, Mr Browne accepted that there might be exceptional cases in which the impact on the family might affect the rehabilitation of a defendant, but that is not suggested in this case because, quite apart from anything else, the defendants are likely to spend a very substantial period in custody."

52. In my judgment, these cases suggest that it will be relevant to look at the effect on members of the family to the extent that they may exceptionally impact upon the rehabilitation of the defendant himself. It seems to me, however, that, in general, it will not be appropriate to have regard to such considerations. Sadly, in any case where someone is caught up in the criminal process, other members of the family who are wholly innocent of wrongdoing will be, as it were, innocent casualties in the drama. They may suffer in all sorts of ways from the publicity given to another family members. But I do not consider that in the normal case at least that is a relevant factor or a good reason for granting a direction under section 39 that would not otherwise be made. I would not say categorically that it could never be a factor; it may be that in a very exceptional case indeed it could be shown that there was some extremely damaging consequence to a member of the family, perhaps affecting their emotional or psychological well-being, beyond that which is the normal consequence of being connected with someone whose criminal activities are made public. I would be sorry to think that the court has to set its face against ever having regard to such consequences, but even if such a factor can in a appropriate case be taken into consideration, there would, in my judgment, have to be very clear evidence of that potential consequence, and even then it would only be one amongst a number of other considerations which the court would have to take into account. There was no such evidence in this case.
53. In my judgment, therefore, the District Judge was wrong to have regard to the impact on the other members of the respondents' family. It is difficult for me to know to what extent that ultimately weighed in the balance, but it did so to some extent and it is a factor that ought not to have been taken into account and which vitiates the decision that he did reach.
54. I have anxiously considered whether or not in these circumstances I should myself lift the direction under section 39. In all the circumstances and given, in particular, the past record of these boys, the fact that they have been involved in criminal activity before and have in fact appeared on other occasions before the criminal courts, and that the evidence demonstrating the start of a change in attitude appeared to be so slim, I wondered whether a decision to continue a direction in this case is one that could properly be reached by the District Judge. On reflection, it seems to me that it would not be right for me to exercise my discretion on the grounds that the only conceivable decision would be in favour of lifting the section 39 direction that was in place. As I have already said, the judge did hear the boys give evidence in this case and it may be that he was particularly struck in some way by the character and demeanour of at least one of them. He may then have felt in a dilemma that if the order were to be lifted in relation to one, it would plainly have to be lifted in relation to the other also.
55. Accordingly, again, I would quash this decision and send the matter back for reconsideration in the light of the factors I have outlined in this judgment.

MR WATSON: My Lord, is the interim order to remain in place until such consideration?

MR JUSTICE ELIAS: Yes, it will have to remain in place.

MR CHARLTON: Does that apply to both matters, my Lord?

MR JUSTICE ELIAS: Yes. There is still an interim order in place in your matter pending this appeal.

MR CHARLTON: I am grateful, my Lord, pending reconsideration by the lower court.

MR JUSTICE ELIAS: Yes.

MR CHARLTON: I am grateful, my Lord. The usual order in respect of legally aided applicants, which is I think that it would be --

MR JUSTICE ELIAS: As long as the relevant documents are filed, legal aid taxation.

MR CHARLTON: I am grateful, my Lord. I do not know if my friend makes a similar application.

MR WATSON: My Lord, I do, yes.

MR JUSTICE ELIAS: Yes. Thank you very much.