QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE SULLIVAN
|DIRECTOR OF PUBLIC PROSECUTIONS||(FIRST DEFENDANT)|
|NORTH EAST PRESS LTD||(SECOND DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR A HUDSON (instructed by FARRER & CO) appeared on behalf of the DEFENDANT
Crown Copyright ©
"In considering an application by the press for an Order under section 49(4A) of the Children and Young Persons Act 1933 were we right to conclude that the reporting restrictions contained in section 49(1) no longer applied once a defendant had attained 18 years and was therefore neither a child nor a young person, as provided for, exclusively, within section 49(1)?"
"(1) The following prohibitions apply (subject to subsection (5) below) in relation to any proceedings to which this section applies, that is to say -
(a) no report shall be published which reveals the name, address or school of any child or young person concerned in the proceedings or includes any particulars likely to lead to the identification of any child or young person concerned in the proceedings; and -
(b) no picture shall be published or included in a programme service as being or including a picture of any child or young person concerned in the proceedings.
(2) The proceedings to which this section applies are -
(a) proceedings in a youth court;
(b) proceedings on appeal from a youth court...
(3) The reports to which this section applies are reports in a newspaper and reports included in a programme service; and similarly as respects pictures.
(4) For the purposes of this section a child or young person is "concerned" in any proceedings whether as being the person against or in respect of whom the proceedings are taken or as being a witness in the proceedings.
[(4A) 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 with the requirements of this section in relation to any proceedings before it to which this section applies by virtue of subsection (2)(a) or (b) above, being proceedings relating to -
(a) the prosecution or conviction of the offender for the offence...
(5) Subject to subsection (7) below, a court may, in relation to proceedings before it to which this section applies, by order dispense to any specified extent with the requirements of this section in relation to a child or young person who is concerned in the proceedings if it is satisfied -
(a) that it is appropriate to do so for the purpose of avoiding injustice to the child or young person; or
(b) that, as respects a child or young person to whom this paragraph applies who is unlawfully at large, it is necessary to dispense with those requirements for the purpose of apprehending him and bringing him before a court or returning him to the place in which he was in custody."
"If a report or picture is published or included in a programme service in contravention of subsection (1) above, the following persons, that is to say -
(a) in the case of publication of a written report or a picture as part of a newspaper, any proprietor, editor or publisher of the newspaper;
(b) in the case of the inclusion of a report or picture in a programme service, anybody corporate which provides the service and any person having functions in relation to the programme corresponding to those of an editor of a newspaper, shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale."
"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 the proceedings as aforesaid;
Except insofar (if at all) as may be permitted by the direction of court".
"(1) 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..."
"No matter relating to any child or young person concerned in proceedings to which this section applies 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 someone concerned in the proceedings."
"12. These provisions of domestic legislation are to be read against a background of international law and practice to which the European Court of Human Rights has recently drawn attention in judgments in T v United Kingdom and V v United Kingdom  30 E.H.R.R. 121. These judgments draw attention to the Beijing Rules adopted by the United Nations General Assembly on November 29th, 1985. They are not binding in international law and states are invited, not required, to observe the rules approved. The rules do, however, provide in Rule 8 for protection of privacy and provide:
'8.1 The juvenile's right to privacy shall be respected at all stages in order to avoid harm being caused to her or him by undue publicity or by the process of labelling.
8.2 In principle, no information that may lead to the identification of a juvenile offender shall be published.'
13. The European Court also drew attention to the United Nations Convention on the Rights of the Child 1989. This Convention was adopted by the General Assembly of the United Nations on November 20th, 1989 and the Articles do have binding force in international law, binding Member States of the Council of Europe, including the United Kingdom. Article 3.1 of this convention states:
'In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities, or legislative bodies, the best interests of the child shall be a primary consideration.'
14. Article 40 provides so far as relevant:
'1. States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.
2. To this end... the States Parties shall, in particular, ensure that...
(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees...
(vii) To have his or her privacy fully respected at all stages of the proceedings.'
15. Attention is also drawn to Recommendation No. R(87)20 of the Committee of Ministers of the Council of Europe, which was adopted on September 17th, 1987. That Recommendation included the following:
'Having regard to the United Nations Standard Minimum Rules for the Administration of Juvenile Justice ('the Beijing Rules'),
Recommends the governments of member states to review, if necessary, their legislation and practice with a view...
8. to reinforcing the legal position of minors throughout the proceedings... by recognising, interalia ... the right of juveniles to respect for their private lives...'
16. Attention may also be drawn to the European Convention on Human Rights which, in Article 8, provides:
'1. Everyone has the right to respect for his private and family life, his home and his correspondence...'
It goes on to provide in paragraph 2 so far as relevant:
'There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of... the prevention of disorder or crime... or for the protection of the rights and freedoms of others.'
Article 8 is of course balanced by Article 10 which so far as relevant provides:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of... the prevention of disorder or crime."
"It is in my judgment plain that there is in a situation such as the present some tension between competing principles. It is a hallowed principle that justice is administered in public, open to full and fair reporting of the proceedings in court, 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, that the privacy of a child or young person involved in legal proceedings must be 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, 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."
"... a child or young person who, under the respective legal systems, may be dealt with for an offence in a manner which is different from an adult."
A Detention and Training Order may not be made in respect of a defendant over the age of 18.
"These provisions may, incidentally, assist the due administration of justice by, for instance, making young witnesses more ready to give evidence. Their primary object is, however, plainly to protect the young, including defendants in criminal cases, from the adverse consequences of publicity in respect of court proceedings in which they are involved."