England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		26th October 2005

1. LORD JUSTICE MAURICE KAY: The applicant in this case was born on the 20th August 1987. He has therefore recently attained the age of 18. However, at the time of the events with which this case is concerned he was still 17. He was charged with a number of offences including driving whilst disqualified and without insurance on 22nd November 2004; the burglary of a kebab shop on the 7th January 2005 and dangerous driving and related offences on the 14th January 2005. It was the last of those matters which has led to the present controversy.
2. This is a dreadful case. The applicant had driven the wrong way and at high speed down a dual carriageway. This gave rise to pursuit by a police car. At one point the applicant swerved to avoid an oncoming car which then collided with the central barrier and collided with the pursuing police car. Two police officers suffered injuries, as did the driver of the third car. The passenger in that car was a 16 year-old girl who was seriously injured. She was six months pregnant at the time and the incident resulted in the loss of the child she was carrying.
3. That brief description demonstrates the seriousness of the offence with which the applicant was charged. The matter came before King's Lynn Youth Justices on the 8th March 2005. The media interests present applied for the lifting of anonymity requirements, which would otherwise apply to such Youth Court proceedings. The Court acceded to that application finding that it was in the public interest to allow the publication of the applicant's name, address and photograph. There has been no such publication thus far because the Youth Court also imposed a stay on the lifting of the right to anonymity pending any challenge in this court, which stay was continued when the single judge gave permission for this application for judicial review of the decision.
4. The court has before it a witness statement from one of the magistrates who made the decision to lift the anonymity requirements. She states that the reasons for granting the application were that the applicant is a persistent young offender; he had two minor motoring offences in his past which have now escalated to driving while disqualified and further escalated to the dangerous driving which is the subject of the present matter.
5. Although they were not sentencing the applicant following his plea of guilty on that occasion, they took into account that it was likely that he would be further disqualified from driving. The witness statement then says:

"That the public need to be protected [from the applicant] if he is tempted to get back behind the wheel before he is legally permitted or properly trained to drive and therefore be in possession of a dangerous weapon on the road. If named, then he can be reported if the public see him behind the wheel of a car. His age did not come into our deliberations."

6. On behalf of the applicant, Mr Gledhill makes a number of submissions. He directs our attention to the wording of section 44 of the Children and Young Persons Act 1933 which is in the following terms:

"(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 ..."

7. He submits that it is against that background that we ought to view section 49(2), which applies the prohibition on publicity to proceedings in a Youth Court. Section 49(4A) then states:

"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 whom 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."

8. Mr Gledhill also draws our attention to the authority of McKerry v Teesdale & Wear Valley Justices [2000] 164 JP 335 in which Lord Bingham of Cornhill CJ addressed the issues that arise in a case such as this. He did so against the background of the European Convention on Human Rights, although it was not yet then part of English law as applied in the courts, and other international provision which, whilst not binding on this court, is of persuasive authority. This included in particular the United Nations Convention on the Rights of the Child 1989.
9. Lord Bingham CJ went on to describe the tension between the competing principles of public justice and freedom of expression on the one hand and the welfare and privacy of the child or young person on the other hand. The relevant part of his judgment is at page 361D to E and is in these terms:

"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 publishment. It is also very difficult to see any place for 'naming and shaming'. The court must be satisfied that the statutory criterion that is in the public's 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."

10. All that leads Mr Gledhill, to submit that applying the intense scrutiny which is appropriate to a review of the decision made by the magistrates, this court ought to come to the conclusion that the decision to lift anonymity in this case was irrational and/or disproportionate when the court approaches it, as it must, in accordance with the Daly test which applies following the coming into force of the Human Rights Act.
11. He makes three main submissions: the first is that the decision of the magistrates was premature. At the time of the order the applicant had not yet been sentenced, he was remanded on bail pending sentence, and the magistrates did not have before them all the information which it would be desirable for them to have if they were to make a fully informed decision. That information, submits Mr Gledhill, would include the sentence because it would enable the court to know the period of time, if any, for which the applicant was going to be in custody.
12. In fact, the sentence eventually imposed on the 5th April 2005 was a sixteen-month detention and training order being twelve months for the dangerous driving, four months consecutive for driving while disqualified and concurrent sentences or no separate penalty for the other matters. Mr Gledhill does not limit his submission to the question of ignorance of sentence. He points to the fact that at the sentence hearing further information about the applicant was before the court and this was information which ought to have been weighed when making the decision whether or not to lift the right to anonymity. That information includes the fact that the applicant had a history of depression. He had suffered a brain aneurism in January 2004 and had undergone surgery.
13. Also, the serious offence with which the court was concerned had resulted in threats being made to him and to his family. In addition, Mr Gledhill points to other factors that were later to become manifest to the court in the pre-sentence report.
14. Secondly, Mr Gledhill submits that the weight given by the court to the extent to which the public might be facilitated in preventing further offences if they saw the applicant behind the wheel of a car was, to quote Mr Gledhill, "unrealistic to the point of unreasonableness". He suggests that that is simply unlikely to bear fruit, whilst on the other hand the consequence, albeit not the intended consequence, of the lifting of anonymity would be the naming and shaming which Lord Bingham CJ had so firmly counselled against.
15. Thirdly, Mr Gledhill submits that the Youth Court fell into error by not considering the possibility that the lifting of the restriction might have been more limited in accordance with section 44(4A), which refers to dispensing with the requirements, "to any specified extent." It is suggested that the court ought to have considered, for example, retaining the restriction in relation to the address of the applicant.
16. I have given these submissions the careful consideration which they undoubtedly deserve. It is plain from the case of McKerry that, not withstanding the force of the guidance set out in the judgment of the Lord Chief Justice, there are still cases in which the right to anonymity can properly be lifted pursuant to section 49(4A). They may be very rare but, on any view, the facts of the present case as put against the applicant were fortunately very rare.
17. It would no doubt have been open to the Youth Court to delay a decision until after sentence and to revisit the matter on the basis of all information then in its possession. However, it does not seem to me that it was in any sense mandatory for it to do so. In the event, a stay was imposed and the matter could have been revisited on further application at that stage, although it seems that it was not.
18. In my judgment, the court was entitled to take the view of the need for public protection that it did. I do not accept the submission that its means of giving effect to public protection are properly characterised as unrealistic to the point of unreasonableness. In my judgment, the reason given for that part of the process was an entirely permissible reason.
19. Moreover, I am entirely satisfied that the magistrates did not in any sense resort to the lifting of the right to anonymity in order further to punish the applicant or to name him and shame him in the sense in which Lord Bingham CJ was using those words. It may be that that is an unintended consequence. I have no doubt that the magistrates would be aware of that possibility. However, it seems to me that they approached the question of public protection on a rational basis and in a manner that was appropriate.
20. The point made about a more limited order, in my judgment, lacks force. If it was permissible to lift anonymity in the interests of public protection then the place of residence of the applicant would indeed be relevant and would properly be taken into account as it was.
21. As I said at an early stage, this was a very grievous case, coming at the end of a very serious recent history, on the part of a 17 year-old. In my judgment, it has not been demonstrated that the Youth Court erred in making the order that it did. It was an order made on notice enabling all proper submissions to be made by all interested parties. The magistrates received advice from their legal adviser as to the relevant law and it does not seem to me that they were unfaithful to that law, as expounded by Lord Bingham CJ in McKerry.
22. For these reasons, I conclude that the exercise which resulted in the lifting of the right to anonymity was not legally flawed. There are two footnotes which I should add: the first is that, as I indicated at the outset, the applicant is now 18 and an issue arises as to whether, now that he has reached that age, he has lost the right to anonymity in any event. I refer to T v Director of Public Prosecutions and North East Press Limited [2003] EWHC 2408 (Admin), particularly paragraph 40 of the judgment of Sullivan J with which Brooke LJ agreed, one interpretation of which would justify the proposition that the applicant has indeed lost his right.
23. Mr Gledhill points to the fact that T was concerned with a different situation where, although the applicant was being dealt with in the Youth Court, by the time the proceedings culminated he had already reached his 18th birthday. In the present case, all proceedings preceded the 18th birthday. We do not have the advantage of legal submissions on behalf of the defendant in this case, although we have had the benefit of an affidavit and brief submissions made by Mr Dodd on behalf of the Press Association. In my view, it would be inappropriate to say anymore about this issue in the absence of fuller submissions. It is not necessary for us to decide the point, having regard to what we have said about the main issue in the case.
24. The second footnote arises from an observation made by Mr Dodd, namely that if and when the provisions of the Youth Justice and Criminal Evidence Act are brought into effect, the right to anonymity will only be enjoyed whilst the person is under 18. In other words, following the introduction of that act, if that happens, the present applicant would simply have no argument. We do not find that helpful as an aid to the interpretation of the law as it exists today but we include the observation for the benefit of those who may have to consider similar cases in the future.
25. For my part I would refuse this application for judicial review.
26. MR JUSTICE PENRY-DAVEY: I agree.